FEDERAL COURT OF AUSTRALIA Bains v Minister for Immigration and Citizenship (No 2) [2012] FCA 814 Citation: Bains v Minister for Immigration and Citizenship (No 2) [2012] FCA 814 Appeal from: Bains v Minister for Immigration and Citizenship [2011] FMCA 452 Parties: HARINDER SINGH BAINS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: VID 753 of 2011 Judge: BROMBERG J Date of judgment: 2 August 2012 Catchwords: COSTS – Section 43 of the Federal Court of Australia Act – whether a departure from usual costs order warranted –successful party failed on an issue that occupied much of the hearing – successful party first raised late in the hearing the issue upon which it succeeded – order made that each party bear its own costs Legislation: Federal Court of Australia Act 1976 (Cth) s 43 Migration Regulations 1994 (Cth) Schedule 2 cl 572.314 Cases cited: Bains v Minister for Immigration and Citizenship [2012] FCA 649 Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 Date of hearing: Heard on the papers Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Counsel for the Appellant: Mr A Naidu Solicitor for the Appellant: Jade Lawyers Counsel for the First Respondent: Ms C Symons Solicitor for the First Respondent: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 753 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: HARINDER SINGH BAINS Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 2 August 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Each party bear its own costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 753 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: HARINDER SINGH BAINS Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE: 2 August 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 By orders made on 21 June 2012, I dismissed the appellant's ("Bains") appeal. My reasons for judgment are published as Bains v Minister for Immigration and Citizenship [2012] FCA 649 ("the primary judgment"). 2 In the primary judgment I indicated that I would determine the question of costs after considering short submissions from the parties. These reasons deal with that question and explain why I have determined not to disturb the costs order made by the court below and why I will order that each party bear their own costs of the appeal. 3 Bains contended that there are special circumstances which justified a departure from the general principle that costs should follow the event. The special circumstances relied on were that Bains had been successful in part and that the failure of the Federal Magistrate to have identified appealable error had led to the appeal. That contention included an allegation that, in maintaining his characterisation of cl 572.314 of Schedule 2 of the Migration Regulations 1994 (Cth), the first respondent ("the Minister") had acted unreasonably. Bains sought that the cost order made by the Federal Magistrate against him be set aside and that the Minister be ordered to pay his costs of the appeal and those incurred in the Federal Magistrates Court. In the alternative, Bains sought an order that each party bear its own costs of the appeal. 4 By its submission, the Minister contended that there were no exceptional, special or unusual circumstances that would warrant a departure from the usual order as to costs. Given that the outcome of the appeal had the effect of upholding the judgment below, albeit for different reasons, the Minister submitted that the costs order of the Federal Magistrate should not be disturbed and that Bains should be ordered to pay the costs of the appeal. 5 Section 43 of the Federal Court of Australia Act 1976 (Cth) confers a wide and unfettered discretion upon the Court to award costs. That discretion is to be exercised judicially and not against a successful party, except for some reason in connection with the case: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [9] (Black CJ and French J). The discretion enables the Court to respond to a wide range of circumstances: Ruddock at [16]. 6 In the primary judgment, I found that the Federal Magistrate who dealt with the application for judicial review erred by failing to identify, as a jurisdictional error, the fact that the second respondent ("the Tribunal") had asked itself the wrong question as a result of the Tribunal having misconstrued cl 572.314. However, I declined to grant to Bains the relief which he sought because I was not satisfied that the error made could have had a bearing on the decision made by the Tribunal. 7 In the proceeding before the Federal Magistrate, the Minister did not contend that even if the Tribunal did misconstrue cl 572.314 Bains ought not be granted relief because any such error could have had no bearing on the decision made by the Tribunal. However, if the point had been raised and if the Federal Magistrate had dealt with the proceeding in the manner I have determined was appropriate, the appellant would have lost and an adverse cost order would have been made against him. There is therefore no basis for the Court to interfere with the costs order made by the Federal Magistrate. 8 As I indicated at [33] of my primary judgment, during the hearing of the appeal, the Minister first raised the argument that a basis for upholding the Federal Magistrate's decision existed which was independent of the cl 572.314 construction issue. 9 The existence of an independent basis upon which the Tribunal's decision could be sustained was the foundation upon which I found that despite error, relief ought not be granted to Bains because the error of the Tribunal could have had no bearing on the decision made. 10 The Minister's submission sought to defend the lateness of the raising of that point on the basis that it was raised in response to the late raising of a new ground of appeal by Bains. I do not accept that contention. The denial of relief, should a finding of error in relation to the construction of cl 572.314 have been made, was a point open to be taken by the Minister from the outset. By the Minister not taking the point at the outset, there was at least a potential for prejudice because if Bains had known that the Minister was taking the point, Bains may have determined not to proceed with the appeal. 11 The bulk of the submissions presented on the appeal and the bulk of the time taken to hear the appeal was devoted to the issue of the proper construction of cl 572.314. That construction issue, was an issue which the Minister lost. Taking into account that matter, together with the late raising by the Minister of the point which ultimately led to the Minister's success on the appeal, I consider the most appropriate order in relation to the costs of the appeal is that each party bear its own costs of the appeal. I will make an order to that effect. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 2 August 2012