Ruddock And Others v Vadarlis And Others

[2001] FCA 1865
(2001) 115 FCR 229
(2001) 188 ALR 143

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Ruddock And Others
v Vadarlis And Others

Court:

Judges: Black J
Beaumont J
French J

Subject References:
Practice and procedure
Costs
Principles governing award of costs
Matter of public interest and importance
Costs certificate

Legislative References:
Federal Court of Australia Act 1976 - s 43
Federal Proceedings (Costs) Act 1981 - s 6
Border Protection (Validation and Enforcement Powers) Act 2001 - The Act
Customs Act 1901 - The Act
Migration Act 1958 - The Act
Administrative Appeals Tribunal Act 1975 - s 44
Federal Proceedings (Costs) Act 1981 - The Act

Case References:
Latoudis v Casey - (1990) 170 CLR 534; 97 ALR 45
Oshlack v Richmond River Council - (1998) 193 CLR 72
Milne v Attorney-General (Tas) - (1956) 95 CLR 460
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd - (1998) 194 CLR 247; 155 ALR 684
Donald Campbell & Co Ltd v Pollak - [1927] AC 732
Cretazzo v Lombardi - (1975) 13 SASR 4
Scott v Secretary, Department of Social Security (No 2) - [2000] FCA 1450
Hughes v Western Australian Cricket Association (Inc) - (1986) 69 ALR 660
Queensland Wire Industries Pty Ltd v BHP Co Ltd - (1987) 17 FCR 211; 78 ALR 407
Cilli v Abbott - (1981) 53 FLR 108
Scott v Secretary, Department of Social Security (No 2) - [2000] FCA 1450
Hughes v Western Australian Cricket Association (Inc) - (1986) 69 ALR 660
Queensland Wire Industries Pty Ltd v BHP Co Ltd - (1987) 17 FCR 211; 78 ALR 407
Trade Practices Commission v Nicholas Enterprises Pty Ltd - (1979) 28 ALR 201
Inn Leisure Industries Pty Ltd v D F McCloy Pty Ltd (No 2) - (1991) 28 FCR 172
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd - (1993) 26 IPR 261
Cummings v Lewis - (1993) 113 ALR 285
Jamal v Department of Health - (1988) 14 NSWLR 252
Speight v Syme - (1894) 20 VLR 107
Liversidge v Anderson - [1942] AC 206
Perrett v Commissioner for Superannuation - (1991) 29 FCR 581; 23 ALD 257
Liversidge v Anderson - [1942] AC 206
Perrett v Commissioner for Superannuation - (1991) 29 FCR 581; 23 ALD 257
Oshlack v Richmond River Council - (1998) 193 CLR 72; 152 ALR 83
South Melbourne City Council v Hallam (No 2) - (1994) 83 LGERA 307
Re Sierra Club of Western Canada v British Columbia (Chief Forester) - (1995) 126 DLR (4th) 437
Hinchinbrook Society Inc v Minister for the Environment (No 5) - (1998) 84 FCR 186
South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) - (1998) 154 ALR 411
Hollier v Australian Maritime Safety Authority (No 2) - [1998] FCA 975
Edgley v Federal Capital Press of Australia Pty Ltd - (2001) 108 FCR 1
Norbis v Norbis - (1986) 161 CLR 513; 65 ALR 12
Milne v Attorney-General (Tas) - (1956) 95 CLR 460
Cabal v United States of Mexico (No 6) - (2000) 174 ALR 747
Cabal v Secretary, Department of Justice (Vic) - [2000] FCA 1227
Cox v Hakes - (1890) 15 AC 506
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd - (2000) 200 CLR 591; 169 ALR 616
Jones v Cunningham - 371 US 236
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs - (1992) 176 CLR 1; 110 ALR 97
Marbury v Madison - 5 US (1 Cranch) 137
Milne v Attorney-General (Tas) - (1956) 95 CLR 460
Ruddock v Vadarlis - (2001) 183 ALR 1
Oshlack v Richmond River Council - (1998) 193 CLR 72; 152 ALR 83
Booth v Bosworth - [2001] FCA 1718
Anstee v Jennings - [1935] VLR 144
Perrett v Commissioner for Superannuation - (1991) 29 FCR 581; 23 ALD 257
Cooper Brookes (Wollongong) Pty Ltd v FCT - (1981) 147 CLR 297
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd - (1998) 194 CLR 247
Donoghue v Stevenson - [1932] AC 562

Hearing date: 14 December 2001
Judgment date: 21 December 2001

Melbourne

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Order

Held, per Black CJ and French J (Beaumont J dissenting):

(i) Per Black CJ and French J: This was a most unusual case. It involved matters of high public importance and raised questions concerning the liberty of individuals who were unable to take action on their own behalf to determine their rights. There was substantial public and international controversy about the Commonwealth's actions. The proceedings provided a forum in which the legal authority of the Commonwealth to act as it did with respect to the rescued people was, and was seen to be, fully considered by the court and ultimately, albeit by majority, found to exist. The case was quite different in character from the predominantly environmental litigation in which many of the previous decisions concerning the impact of public interest considerations on costs awards have been made. Having regard to its character and circumstances the appropriate disposition was that there be no order as to the costs of the appeal or the application before the primary judge: at [29].

Latoudis v Casey (1990) 170 CLR 534 ; 97 ALR 45; Oshlack v Richmond River Council (1998) 193 CLR 72 ; 152 ALR 83, considered

Milne v Attorney-General (Tas) (1956) 95 CLR 460, distinguished

(ii) Per Beaumont J: Costs should follow the ultimate event in relation to the hearing before the primary judge and the appeal. However, both VCCL and Mr Vadarlis should be granted a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth): at [51], [52].

Costs

This decision involved a consideration by the Full Court of the Federal Court of the appropriate costs order in a matter.

188 ALR 143 at 144

D M J Bennett QC, S-G (Cth), R R S Tracey QC, D Star and G Hill instructed by Australian Government Solicitor for the appellants in matters V1007 of 2001 and V1008 of 2001.

G Griffith QC, H I Fajgenbaum QC, D S Mortimer and C Horan instructed by Riordan & Partners for the first respondent in matter V1007 of 2001.

J W K Burnside QC, C M Maxwell QC and J P Manetta instructed by Holding Redlich for the first respondent in matter V1008 of 2001.

K Eastman for the second respondent in matters V1007 of 2001 and V1008 of 2001.

B Zichy-Woinarski QC, G T Pagone QC and A D Lange instructed by Slater & Gordon for the third respondent in matters V1007 of 2001 and V1008 of 2001.

Black CJ and French J.