Northern Territory v Sangare

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Gageler,Keane,Nettle JJ.
• Judgment Date: 14 August 2019
• Neutral Citation: [2019] HCA 25
• Court: High Court
• Docket Number: D11/2018
• Date: 14 August 2019

[2019] HCA 25

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ

D11/2018

Northern Territory of Australia

Appellant

and

Souleymane Sangare

Respondent

Representation

S L Brownhill SC, Solicitor-General for the Northern Territory, with L S Peattie for the appellant (instructed by Solicitor for the Northern Territory)

Submitting appearance for the respondent

M A Crawley SC with M J M Littlejohn appearing as amicus curiae (instructed by Miles Crawley, SC)

Northern Territory Supreme Court Act 1961 (Cth), s 18.

Supreme Court Act 1979 (NT), ss 14(1), 55(1), 71.

Supreme Court Rules 1987 (NT), r 63.03.

Practice and procedure — Costs — Where respondent commenced defamation proceedings against appellant — Where appellant wholly successful on appeal and at first instance — Where appellant sought order that respondent pay its costs — Where Court of Appeal made no order as to costs because respondent's impecuniosity would likely render order futile — Whether appellant entitled to order for costs — Whether impecuniosity of unsuccessful party can alone justify decision to deny successful party its costs.

Words and phrases — “award”, “costs”, “discretion as to costs”, “futility”, “impecuniosity”, “indemnity”, “litigant-in-person”, “litigation”, “matters relating to costs”, “successful party”, “unmeritorious litigation”, “unsuccessful party”.

ORDER

• 1. Appeal allowed.

• 2. The respondent pay the appellant's costs of and incidental to the proceedings in the Supreme Court of the Northern Territory and the Court of Appeal of the Northern Territory.

• 3. The respondent pay the appellant's costs of the appeal to this Court.

1 Kiefel CJ, Bell, Gageler, Keane and Nettle JJ. At issue in this appeal is whether, in the exercise of the judicial discretion as to costs at the conclusion of litigation, the impecuniosity of the unsuccessful party is a consideration that, without more, may justify a decision to deny the successful party its costs. The Court of Appeal of the Supreme Court of the Northern Territory resolved this issue in the affirmative, in favour of the respondent.

2 The appellant submitted that the Court of Appeal erred in principle in treating the respondent's impecuniosity, without more, as sufficient reason to deny the appellant an order for its costs of the litigation, in which it had been wholly successful, so that the Court of Appeal's exercise of the discretion as to costs miscarried 1. The appellant also submitted that it was not open to the Court of Appeal to refuse to award the appellant its costs on the ground that such an order would be futile.

3 The appellant's submissions should be accepted. Accordingly, the appeal to this Court must be allowed.

Background

4 The respondent is a citizen of Guinea who arrived in Australia in May 2011 under a Belgian passport belonging to his brother. He applied for a protection (Class XA) visa under the Migration Act 1958 (Cth) in June 2011. His application was refused by a delegate of the Minister for Immigration and Citizenship, and that decision was affirmed by the Refugee Review Tribunal on 22 October 2012 2.

5 Between 20 June and 28 August 2014, the respondent was employed on a temporary basis as a civil engineer with the Northern Territory Department of Infrastructure (“the Department”). On 28 August 2014, the Department offered the respondent a permanent position on the footing that it would sponsor him under a skilled migration scheme run by the Commonwealth Government. As part of that scheme the respondent was required to apply for and obtain the appropriate visa 3.

6 In November 2014, the respondent was advised by the Commonwealth Government that his application for a temporary work visa was invalid because he had previously been refused a protection visa. The respondent sought expressions of support for his visa application from the Minister of the Department. The Minister, in turn, requested that officers of the Department brief him in relation to the respondent's request 4.

7 The Chief Executive of the Department provided the Minister with a briefing note. The respondent alleged that the briefing note contained material defamatory of him, and instituted proceedings against the appellant for damages. In particular, the respondent complained that the briefing note contained material fabricated by the Department to make it appear that the respondent had provided false and misleading information in relation to his immigration status, and to make it appear that the respondent was a dishonest person and of bad character 5.

The proceedings

8 The respondent commenced proceedings in the Local Court of the Northern Territory against the appellant. He sought damages in the sum of $5 million. Because of the amount of damages claimed by the respondent, the proceeding was transferred to the Supreme Court of the Northern Territory 6.

9 On 6 February 2018, the trial judge, Grant CJ, dismissed the respondent's action 7. His Honour found that the publication attracted protection from liability under s 27 of the Defamation Act 2006 (NT) and the general law defence of qualified privilege 8. His Honour indicated that he would hear the parties as to costs 9, but the respondent filed a notice of appeal before that could occur. As a result, no order as to the costs of the trial was made by the trial judge.

10 The respondent's appeal to the Court of Appeal (Southwood, Kelly and Blokland JJ) was unsuccessful 10. On that basis, the appellant sought an order that the respondent pay its costs. That order was refused for reasons that will be discussed in due course.

11 The respondent did not contest the appellant's application for special leave to appeal to this Court, and did not participate in the appeal beyond filing a submitting appearance. In consequence, an amicus curiae was appointed to assist this Court (“the amicus”). At the hearing in this Court, Mr Crawley SC appeared with Mr Littlejohn of counsel as amicus to make submissions in support of the order made by the Court of Appeal.

The power to award costs

12 The power of the Court of Appeal to award costs is a creature of statute 11. The Solicitor-General for the Northern Territory, in response to a suggestion by the amicus that a statutory power to award costs was lacking, helpfully explained the statutory basis of the power of the Court of Appeal in relation to costs. The Supreme Court of the Northern Territory was established by s 10 of the Supreme Court Act 1979 (NT). It replaced the Supreme Court of the Northern Territory previously established by the Northern Territory Supreme Court Act 1961 (Cth) (“the Commonwealth Act”). The Supreme Court, by virtue of s 51(2) of the Supreme Court Act, is known as the Court of Appeal of the Northern Territory of Australia when exercising appellate jurisdiction. By virtue of s 55(1) of the Supreme Court Act, the Court of Appeal may exercise every “power, jurisdiction and authority” of the Supreme Court under any law in force in the Northern Territory.

13 Section 14(1)(c) of the Supreme Court Act confers on the Supreme Court “such jurisdiction … as was, immediately before the commencement of this Act,

vested in or conferred on the former Supreme Court”. As to the “former Supreme Court” 12, s 18(1) of the Commonwealth Act provided relevantly that “[t]he Supreme Court or a Judge has jurisdiction to award costs in all matters brought before the Court”. Section 18(2) provided relevantly that “[s]ubject to Rules of Court … the costs of and incidental to all proceedings in the Supreme Court … are in the discretion of the Court or Judge”

14 In addition, it may be noted that the Supreme Court Rules 1987 (NT) are made under s 71 of the Supreme Court Act, which provides that “[e]xcept as provided by this Act or by any other law in force in the Territory, the practice and procedure of the Court shall be as provided by the Rules”. “Practice and procedure” is defined in s 9(1) of that Act to include “matters relating to costs”.

15 Finally, r 63.03 of the Supreme Court Rules relevantly provides:

“(1) Subject to these Rules and any other law in force in the Territory, the costs of a proceeding are in the discretion of the Court.”

The reasons of the Court of Appeal

16 The Court of Appeal accepted that the appellant in this Court (the respondent in the Court of Appeal) had been “wholly successful” on appeal and at trial, and that the appeal was “without merit” and “doomed to fail” 13. Their Honours acknowledged that 14:

“Customarily, in circumstances such as this the Court will make an order for costs on the basis that costs should follow the event. However, the legislative intention is plainly to confer on courts and judges an unfettered discretion as to costs and a construction of a rule of court which practically negates the statutory provision is not lightly to be adopted. Nonetheless, the discretion must be exercised judicially.”

17 Having acknowledged the manner in which the discretion is “customarily” exercised, their Honours went on to say 15:

“In this case the relevant factors are as follows:

• (a) The respondent has been wholly successful and has been brought to court not once but twice.

• (b) The purpose of an award of costs is not to punish the unsuccessful party but to compensate the successful party.

• (c) The appellant is most unlikely to be able to pay any costs that are awarded against him.”

18 Their Honours held 16:

“The respondent is most unlikely to be compensated even if an award of costs was made in its favour. In the circumstances, it seems to us that the Court should not make a futile order or orders as to costs.”

19 The Court of Appeal then concluded 17:

“Both as to the costs below and the costs of the appeal the Court makes no order as to costs.”

20 It is apparent from the reasons of the...