De Silva, Liyanage Pilak Robert Leonard & Ors v Ruddock, Mr Philip (in his capacity as Minister for Immigration & Multicultural Affairs) & Anor [1998] FCA 311

De Silva, Liyanage Pilak Robert Leonard & Ors v Ruddock, Mr Philip (in his capacity as Minister for Immigration & Multicultural Affairs) & Anor [1998] FCA 311

No public interest or other special aspect justified making no order as to costs because the proceeding was brought for the individual benefit of the applicants, namely to enable them to remain in Australia, and not for the benefit of the public or to enforce a public duty. Clause 4004 Schedule 4 to the Migration Regulations, although capable of operating harshly, was not a factor connected with the litigation and was not relevant to the costs discretion. However, the proceeding had special features warranting a limited departure from the general rule: it began as a class action and was amended, largely fortuitously, to a proceeding by 164 applicants, and the unusually large number of...

Jurisdiction
Australia
Judgment Date
31 March 1998
Procedural Posture
Costs Application Following Dismissal of Challenge to Migration Regulations / After the Application Was Dismissed on 19 February 1998 and Liberty Was Reserved to Apply on Costs
Outcome
Applicants to pay the respondents' taxed costs of the proceeding, subject to an individual discharge mechanism for payment of a 1/164th share.
Legal Topics
['public Interest Litigation' 'costs Follow the Event' 'apportionment of Costs' 'migration Regulations' 'judicial Review of Executive Power']
['costs' 'migration Law' 'administrative Law'] ['public Interest Litigation' 'costs Follow the Event' 'apportionment of Costs' 'migration Regulations' 'judicial Review of Executive Power']

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Procedural Posture

Costs Application Following Dismissal of Challenge to Migration Regulations / After the Application Was Dismissed on 19 February 1998 and Liberty Was Reserved to Apply on Costs

Legal Issues

  1. 1 ['Whether no order as to costs should be made because the proceeding was said to involve the public interest.' 'Whether, if costs were ordered, liability should be apportioned equally among the 164 applicants.' 'Whether Clause 4004 Schedule 4 to the Migration Regulations was relevant to the exercise of the costs discretion.']

Ratio Decidendi

No public interest or other special aspect justified making no order as to costs because the proceeding was brought for the individual benefit of the applicants, namely to enable them to remain in Australia, and not for the benefit of the public or to enforce a public duty. Clause 4004 Schedule 4 to the Migration Regulations, although capable of operating harshly, was not a factor connected with the litigation and was not relevant to the costs discretion. However, the proceeding had special features warranting a limited departure from the general rule: it began as a class action and was amended, largely fortuitously, to a proceeding by 164 applicants, and the unusually large number of...

Court Disposition

Applicants to pay the respondents' taxed costs of the proceeding, subject to an individual discharge mechanism for payment of a 1/164th share.

Orders

  • ["The applicants pay the respondents' taxed costs of the proceeding." "If any applicant pays to the solicitor for the respondents a 1/164th share of the costs within six weeks of the costs being agreed between the solicitors for the parties or taxed, that payment shall be in full and final discharge of that...