NAEB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 945

FEDERAL COURT OF AUSTRALIA

NAEB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 945 NAEB V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1198 of 2002 JACOBSON J 3 SEPTEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1198 of 2002

BETWEEN: NAEB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 3 SEPTEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The respondent pay Mr Brezniak's costs of today's application. 2. There be no order as to the costs of Ms Byers appearance at today's application. 1. Otherwise the applicant in the proceedings pay the respondent's costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1198 OF 2002

BETWEEN: NAEB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 3 SEPTEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 When I handed down judgment in this matter on 11 July 2003, I reserved the costs of the proceedings. I set out the reasons why I did so at paragraphs [102] to [109] of the judgment. The respondent, who I will refer to as the Minister, now seeks an order that Mr Brezniak pay part of the costs of the adjournment application of 28 March 2003 and the cost of the second day of the hearing of the proceedings. 2 Neither the power to award costs against a practitioner nor the principles governing it are in contest. The power is relevantly compensatory, but reserved, having regard to the duties and obligations of the practitioner, to cases of serious dereliction of responsibility; see White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 229-231; see also re Bendeich (1994) 53 FCR 422 at 426-427. In re Bendeich, Drummond J said at 426 to 427: As the Chief Justice observed in Bent v Gough at 207, the power to award costs against a solicitor personally involves special considerations. The cases show that this jurisdiction must be exercised with caution. There is good reason for caution. Too ready an exposure of the lawyer for a party to personal liability for costs of his client or of the other party is likely to inhibit the way the lawyer acts in conducting the litigation. It frequently happens that a lawyer will have to make judgments as to which of a number of courses is the optimum one to follow, bearing in mind his duty to advance his client's interests by all proper means and his duty to the Court to conduct the litigation in proper fashion. The introduction of a third consideration into everyday litigation that requires a solicitor to keep in mind the need to minimise the chances of a costs order being made against him personally, would raise a conflict between the lawyer's duties to his client and to the Court, on the one hand, and his own interests, on the other. As is understandable, such a conflict would likely be resolved by the solicitor concentrating on identifying and adopting the course most likely to minimise his own personal exposure at the expense of following courses best fitted to advantage his client and to bring the action to an expeditious end. Moreover, practitioners should be encouraged to see the threat to seek a costs order against their opposing solicitor as a tactic available to be employed in the course of litigation to put pressure on their opponent: cf the comments of the Master of the Rolls and of Dillon LJ in Orchard v South Eastern Electricity Board [1987] 1 QB 565 at 577 and 580. 3 Order 62 rule 9 does not apply to the present case because the most recent amendments to rule 9 did not commence until 4 August 2003. Order 62 rule 9 usefully illustrates the importance of the compensatory principle. The discretion to award costs against a practitioner in favour of an opposing party is not a jurisdiction which is punitive. Its exercise is only appropriate if relevant personal default has, in fact, occasioned or caused additional unnecessary expense.