SZQGA v Minister For Immigration & Citizenship (No 2) [2012] FCA 971

SZQGA v Minister For Immigration & Citizenship (No 2) [2012] FCA 971

Although the appellant was unsuccessful on jurisdictional and constitutional issues, those were not so lacking in merit nor wasteful as to warrant an order for costs against him; thus, the proper exercise of the Court's discretion in the circumstances was to set aside the costs order below, award the appellant costs on the successful part, and make no order as to costs on issues lost.

Parties
Appellant: SZQGA; First Respondent: Minister for Immigration and Citizenship; Second Respondent: Gina Towney
Jurisdiction
Australia
Judgment Date
05 September 2012
Procedural Posture
Appeal / Costs Determination After Appeal on Judicial Review
Outcome
Costs determined; apportionment with no order against appellant for unsuccessful issues.
Legal Topics
Costs, Judicial Review, Jurisdiction, Migration
Administrative Law Immigration Law Civil Procedure Costs Judicial Review Jurisdiction Migration

Case Brief

Summary, issues, holding and outcome

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Parties

SZQGA

Appellant

Minister for Immigration and Citizenship

First Respondent

Gina Towney

Second Respondent

Procedural Posture

Appeal / Costs Determination After Appeal on Judicial Review

Legal Issues

  1. 1 Whether costs should be apportioned when the appellant was successful on some issues but not on others
  2. 2 Whether special circumstances existed to depart from the usual rule that costs follow the event
  3. 3 Whether the appellant should pay the first respondent's costs on jurisdictional and constitutional issues lost

Ratio Decidendi

Although the appellant was unsuccessful on jurisdictional and constitutional issues, those were not so lacking in merit nor wasteful as to warrant an order for costs against him; thus, the proper exercise of the Court's discretion in the circumstances was to set aside the costs order below, award the appellant costs on the successful part, and make no order as to costs on issues lost.

Court Disposition

Costs determined; apportionment with no order against appellant for unsuccessful issues.

Orders

  • The order made for costs by Raphael FM on 30 August 2011 be set aside and, in lieu thereof, the respondent pay the applicant's costs fixed in the sum of $6,240.
  • There be no order as to costs in relation to the appellant's application for an extension of time to file a notice of appeal from the judgment of Raphael FM.