Minister for Immigration and Citizenship v Sok (No 2) [2008] FCAFC 52

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Sok (No 2) [2008] FCAFC 52

MINISTER FOR IMMIGRATION AND CITIZENSHIP v SIE SOK AND MIGRATION REVIEW TRIBUNAL VID 888 OF 2007

FRENCH, LINDGREN & JACOBSON JJ

2 APRIL 2008

sydney (heard in MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID888 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

AND: SIE SOK

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGES: FRENCH, LINDGREN & JACOBSON JJ DATE OF ORDER: 2 APRIL 2008

WHERE MADE: sydney (heard in MELBOURNE)

THE COURT ORDERS THAT:

1. In lieu of the order made on 7 September 2007 in proceeding MLG 1603 of 2006 in the Federal Magistrates Court of Australia that the appellant pay the first respondent's costs of that proceeding, there be an order that the first respondent pay the appellant's costs of that proceeding in a sum of $5,000. 2. The first respondent have a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 in respect of the appeal stating that in the Court's opinion it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.

THE COURT NOTES THAT:

3. There is no order for payment for costs of the appeal to the intent that each party to the appeal will bear his or its own costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID888 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

AND: SIE SOK

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGES: FRENCH, LINDGREN & JACOBSON JJ

DATE: 2 april 2008

PLACE: sydney (heard in MELBOURNE)

REASONS FOR JUDGMENT (No 2)

The Court 1 We published Reasons for Judgment on 5 March 2008 (Minister for Immigration and Citizenship v Sok [2008] FCAFC 18). By order No 1 we allowed the appeal and by order No 2 we set aside the declaration and orders made in the Federal Magistrates Court and in lieu thereof ordered that the application to that Court be dismissed. By order No 3, we directed that the parties file and serve written submissions as to the orders to be made as to the costs of the appeal and of the proceeding in the Federal Magistrates Court. Those submissions have now been made. 2 The parties are agreed that there is to be no order as to the costs of the appeal. 3 The Federal Magistrates Court ordered the appellant, who was the first respondent in the proceeding in the Federal Magistrates Court, (the Minister), to pay the costs of the proceeding in that Court fixed in the sum of $5000. As noted above, we have already set aside that order. The Minister seeks an order that the first respondent, who was the applicant in the proceeding in the Federal Magistrates Court, (Mr Sok), pay the Minister's costs of the proceeding in that Court in the sum of $5,000. 4 According to our Reasons given on 5 March 2008, the Minister should have succeeded before the Federal Magistrates Court on the ground that we gave in those Reasons, but which was not ventilated in that Court. On the other hand, according to our Reasons, on the one ground on which Mr Sok succeeded in the Federal Magistrates Court he should have failed and the Minister should have succeeded. We agree with the Minister that there should be an order in the Minister's favour in respect of the costs before the Federal Magistrates Court in the sum of $5,000. (Mr Sok does not argue against the amount.) 5 Mr Sok seeks a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) (the Act). That subsection provides, relevantly, that where an appeal such as the present one succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. In general terms, such a certificate is to the effect that, in the court's opinion, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal (see s 6(3) of the Act). 6 In the Second Reading Speech on the Bill for the Act, the Hon R I Viner, then Minister for Employment and Youth Affairs, explained (at p 157) the purpose of the Bill as being: ... to provide, in respect of federal and certain territorial courts, reimbursement to litigants of a similar kind to that provided in the States under State suitors' fund legislation and similar laws. In each of the States there is now legislation providing for reimbursement to a litigant who, through no fault of his own, has to bear the costs of an appeal from a decision involving an error of law, or an incorrect assessment of the quantum of damages, or the cost of a new trial. [emphasis added] 7 We accept Mr Sok's submission that the case presents circumstances of a kind that the Act was intended to provide for. 8 It would have been unreasonable to expect Mr Sok to defend the Minister's appeal, involving as it did complex issues of law, as an unrepresented respondent. On the appeal, the Minister succeeded on a point raised by the Court. 9 In relation to discretion, we note that Mr Sok is an individual, not a large company or a government-related entity. His solicitor has informed the Court that he works casual hours on a farm and does not have the support of a family network or others to assist him with his costs. 10 The Court will grant Mr Sok a costs certificate under s 6(1) of the Act. 11 We are informed that Mr Sok's legal costs and counsel's fees on the appeal exceeded $11,000. Subsections 18(1) and (2) of the Act specify that there is a maximum amount that may be authorised for payment by a costs certificate. Regulation 4 of the Federal Proceedings (Costs) Regulations 1991 (Cth) specifies that, for the purposes of s 18(1) of the Act, the prescribed relevant maximum is $6,000. 12 Mr Sok asks that the Court refer to the amount of $6,000 in the costs certificate, but the Act does not permit this course. Subsection 16(2) of the Act makes it plain that the amount to be authorised to be paid is a matter for the Attorney-General, not this Court. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 2 April 2008 Solicitor for the appellant: Mr D Brown of the Australian Government Solicitor's office Solicitor for the first respondent: Ms J Knight of Erskine Rodan & Associates Date of hearing: 11 November 2007 Date of last submission received: 17 March 2008 Date of judgment: 2 April 2008