Gacias, J. v Hurford, C.J.

ADMINISTRATIVE LAM - Migration - Application for interlocutory

nr,der restrslning deportatlon - Wnether decislon to refuse

entry permit vas an inflexible application of policy - bhether

delq-ste failed to take into account relevant circumstances	-
Cnsks

M1qratinn Act 1458

s s . 6 ,

Admmistrative Pecislsns !Judicial Pevlev) Act 1977 S. S

Azemoudah v Minister for Immiaration and Ethnic

.Affairs (10

October 1985, unreported), Sinqh

v Minisk?r fgr Immicfratlon

and Ethnic Affairs	( 4 December 1485, unreported) referred to
MSW G.350 of 1985

JOSEPHINE GACIAS

Fi O M . v. C-EISTOWEP

JOHN HUEFORD & ORS.

Wilcox J.

Sydney

l9 December 1985

'. -

IIJ THE FEDERAL COURT OF AUSTRALIA

) )

IEId COUTH HALES DISTRICT REGISTRY

)	No. G. 350 of 1385

)

GENERAL

DI'JISIOPI

)

BETLEEN :

JOSEPHINE GACIAS

.= :	CHRISTOPHER JOHN EUZFORD :Ilnlster fsr Immcratlon

First Respondent

Department of Inmlgrst1on

and Etkqic Affairs

Second Respondent

RICLQD WILSON

an offlcer authorlsed

under the Kigratim Act

Thlrd Respondent

L .

CORAM :	WILCOX J.
n:	19 DECEMBER 1385
FLACE :	S YDNEY

flIlJUTE OF OREER5

THE COURT ORDERS WAT:

I .

The applicants pay the costs

of the Mlnlstsr

for

1mrr.lqratlm and Ethnls Affalrs ~ r ,	respect of thls
1nterlocutJry appllcation.

d .

The principal proceedmy stand over to the dlreztlons llst on Friday 7 February 1386 at 9 - 2 0 a.m.

The exhlSlts

be returned.

N O T E :

Settlement and entry of orders 1 s dealt wlth In

Order 36 of the Federal Court RGles.

(MITE:

Tliis iudcrmmt relates predominantl-; to Its o i ~ n

facts and

1s not o f sufficient qeneral interest

I H THE

FEDERAL

COURT OF AUSTRALIA

)

DIVISION

GENERAL

)

BETlJEEN :

OLIVER

SMITH 317 hls next

friend WLMA SMITH

Third Applicant

L E I L X J I

S M I T H

her rext

frlend. WILXA SMITH

,m :

CHRISTOFHER JOHN RURFORD

Mlnlscer for Immlqratlon

and Ethnis Affalrs

First Respcndent

CLqITNE GIBBONS

P.eqlonal D ~ ~ Z C L G ~

to the

Department of Immlgrstlon

and Ethnlc Affairs

Second RespGndent

RICKARD

NILSGN

an offlcer suthorlsed

unaer th? Mlaratlon .kt

Third Respondent

-l

CORAM :

WILCOX J.

D=:

19 DECEMEER

1385

SPZNEY

EXTEMFORE REASONS FOR J'JDGMEKT

This is an application f o r an mterlocutoc:;

in:unction to r?strain the deportation

f r m Austraila

c l ~h .z

first applicant, Josephine Gacias.

M153 Gacias %as born in

the Fhlllppines and she

1 s a Flllplno cltizen. She entered

Australia on l? October l983 pursuant to a temporar;r entry

permlt -+-alld

for fi;re months. On 22 March 1934 she was

?ranted a furthzr tntry permit valld until

17 JulI; 1384. Miss

G:ac~as made an application f o r a further extension of the

titmporar:~ entry pitrmlt but this application xas refused.

A s

she was entitled to do, she caused the refusal

to be referred

to the Immigratlon

Renew Fanel but the Fanel recommended

refusal and this recommendation

>as adopted on 7 November

1984. It is not clear from the departmental file which been tendered in 2vidence whether Yiss Gacias was

has

~mmediatel:~

informed of this declsion.

HhetFLer 3r not she

was Informed, the fact is that she

remamed in Australia. In March 1955 Mr kter Corcm

MF. the

local rnemljer cf the House of RepresentatLves. x 3 t e tc the

Minister requestinu reconsideration

of the refusal to qrant a

further entry permit. Following upon rhat letter Miss Gacias :as interviewed by? an offlcer of the Departaent of Immigration and Ethnic Affairs In SyGneyi her sister, Wilma Smlth, the

second applicant as also interviewed.

h s s Gaclas explaxed

at the intervlsw that she cashed to

s k y in Australla in order

to help her slster

with the care of her slstzr's children.

Mrs Smith had marrled in 1973 an Australlan national. She

came to Sydney in 1379. Subsequently two children were born

JF her nafrlaqe* namely Oils-er Smlth - - yho is jslned as the

third appll;mr: ~n these proceedlnus and

-Ao

was h r n on 1

July 1 ? 8 2 -- s n c Leilani S m t k --vko

is ;olned as the fourth

applicant in these proceedings and wno was born on 1 Xa:r 19E4,

that is after the arrival m Australla of Miss Gaclas.

appears that the marriaue of

Mrs Smlth m t h her husband had

been unnappy for some time and the couple

hac had counselling.

There had been a short separation in January

1934 and Mrs

%nth then returned to the matrimonlal

home; but In July 1384

she left the hsme followinu a further incldent

with her

husband when she

apparentllr was the vlcclm

of some -1ioler.ce at

hls hmds.

She has zmce remained separated from her husband

and has had the da:?

to day care

of the two chlldren.

It appears from the evldence

of Mrs Smlth that there

art proceedmu: pending In the Family Court.

I gather that

the current positlon about the custodLr

is that Mr and Mrz

Smith has-e Ioint iastsd:I of the two children and

In fact the

father does see Oliver from time to time but he has had much

less contact n t h Lellani. Mowever. the day to day situation

is that P4rs Smlth 1 s responslble for the care and welfare of

the two children. She also has to earr? her awn living. She

iz employed by the Department of Motor Transport as d computer

sperator. She said m evldence that the standard worklnq week

required by her employer is 35 hours.

She is aSle to fix her

hours In a flexible wag between

7.30 am and 5.00 pm on week

day7s.

If she works the standard week her take-home pay 1 s

:,S24 pc'r fortnirTht.

In fazt zhe has been xorkin,; 2

substantial amount

cf svertime, worklnq back tzo nlchts

a -,.-esk

and also often worlilnq on Saturday and sometlnes Sunday.

'&-en

:he works overtime her

take-home pay : S a figure lykg ketueen

$ 3 0 0 and $900 per fortnight.

Olis-er has. Since the separatlon bekdeen

Mr and Mrs

Smith and possibly even before that

dats, been attendlxg 2 da:r

care centre not

far distant from the home

Gf Mrs Smith.

.\pparently this is a centre run in th2 private home of a lady

xho cares for about a dozen chlldren. Cliver 1 s able to be

left at the

da~7

care centre between the

hours of 8.00 am and

5.00 pm on weekdays. This. of course. is Inadequate fcr hls

total care on thoze

days on which Mrs Smith starts work before

3.00 am or wGrks beyond 5.00 pm.

There is apparently no

grovlsion f o r day care at xeekends.

5 .

Since the separation between

Mr and Mrs Smith Miss

Gacias has assisted Krs Smith in looklnu after Ollver and

gather that she takes the primary

responsi3ilit:i for Oli-”-er

durlnu such time

as his mother is nat

t h e r e .

She also has

taken a major r o l e ir. lookinu after the ycunqer child.

Lellani.

Thers is some evldence that Ollver

has suffersd from

111 health.

Endence was put before the Court today. in the

forx of a medical certiflcate. b:?

a paediatciclan. Dr. Sarr:J

Pp7eth. in w h c h he set out the result of

an examination of

’211-zer on 3 Decenker 1985.

He found that Ollser had a prablem

sf recurrent respirator7 lnfections includlnq dccumented

lower-tract infectlons associated with coughing and wheezinu.

He referred to the 3resence

of moderately lnlarged and scarred

tonsils. but sald that

he could not detect svldence

sf actl-ze

Infection.

There were no other major abnormalities

on his

physlcal examination. and

a screenmu neurologlcal and

developmental assessment were wlth the normal ranqe.

D r Gcfeth

thouuht that the proqnosls for Oll-;er’s general

health 1 s

P-.

,~cellent. He thouaht chat fulltime care

1n the home rather

than In a day care centre would

be prefera5ls for Ollver‘s

present state of health. However.

he went on to say that he

saw th13 as no more than a short-term maasure and

that he

eventually will have to mix

wlth his peers in a klndergarten

Jr school settin?.

He concluded his report b:r sayin?:-

6 .

"In the short-term, it does offer distinct

advantages to assist Oliver's convalescence

and I would support the idea that he should Se

kept away from areas of potential Infection

for a period of 2-3 months.

The Appllcation for review xhlch lnitlated these proceedinus xas filsd on 23 November 1985. A s 50 often

occurs. the grounds

which wert speclfitd took in -v-lrtually

--L . s L ~ ~ c h the

all of the available uromds of revieij under 5 . 5 of the any particularizatlan GC the matters in r$sFecE of

alleuzd invalldities arose.

However. In the course sjf the

araument today, It appeared that, in substacee. the

applicants rely upon two matters.

Firstly, the applicants say that this was a case In zhlch the declsion-maker applied

a policy rule wlthout

reuard to the clrcumstances of the particular case

- -

see

s.5(2)i(f) of the Act.

This submission 1 s fomdsd upon the

fact that, ln the statement af flndlnae on rraterial

questions of fact. the delegate of the Mlnlster referred to

the policy of the Department as set oclt in the handbooks

known as the Grant of Resldent Status Handbook

and. the

Miqrant Entr:j Handbaok.

I do not think that.

on a fair

readlnq of the ceasons cf the delsqate, it can 3e sald that there was an applicatlon of pollcy wlthout refermce to the fact5 of the case. The deleuate xtfe1:T said that he had. had

reqard t o Departmental policy and

he then went on to

consider the merits of the matter. and	I shall return to
that questlon in a moment.

The second, and major uround arqued

is zlleued

fulure b:r the delegate to have reqard to relevant

consi3erations.

In this respect, It 1 s necessary to refer

to some further fsctual

matters.

After th2 lntefvisws

xith Miss Gaclas and M r s S n t 5

in April 1985, a handwrltten inemcrandim cjas prega:"eci b:r

Departmental officer shmrnarleing the case.

Ir. thls

memorandum, the officer referred in jome detail to the

positlon of Mrs Smlth and to the claim

by Mlss Gaclas for a

temporary entry permlc

so as to allow her to remaln to

assist Mrs Smith.

Reference was made to the deslre of

E1iss

C a c ~ a s to uive support

and care to the children. ta the fact

that Mrs Smith "as opposed to the

us? of chlld care centre

for her dauqhter and that she prefers her dauuhter to be

cared for by Miss Gacias. Reference

was also ma&

to the

zubmlssion put by Miss

Gaclas and Mrs Smith

at their

interviews to the desirabilitp cf Mrs Smlth beinu able

continue xorklnu so that the famllI; would

have sufflclent

sugporr: and there

:could be ncr necessity to rely

on soclal

security benefits.

Havinu read the record

of the interviews, it seems

to me that the

handm-ltten memorandum fairly and

in a

comprehensive manner sets out the substance

of the cas? that

xas ssuaht ts be made at the intemiews.

The author of the

memorandum commented upon that case by saying that

' I . ..

the

choices taksn by

MRS SMITH are purely elacti-;S".

This statement is crlticized as representing an

inadequate understanding of the diff1cult:I with which Mrs

Smith -,.as confronted 5 s a result of t k

break-up of her

n-rrlage. However.

I thlnl.; It is c lzar that the author of

the memorandum vas nst treating t5e	break-up of the marriage
as being an elective matter because	he goes on to explain
xhat he means bg sayinq:

"MRS SMITH choses :sic) not to send her

children to day care for the reasons sutlinsd

above.

Additionally she has taken no steps to force

her estrsnued husband to shoulder

hls

responsibllities. The cou2le have a joint

savinus account m t h approx.

$ 1 2 0 0 0

(F65) but the husband

has the pass book and

;he has not taken steps to secure her portlon

as she does not want to cause unpleasantness.

lIor has she sought mamtence ( 5 1 ~ ) from h m " .

I think that. in this context, it iz quit? clsar

that the author

of the memorandum was merely Fointlnfr

GC?

that the preference

of Mrs Smlth to ha-Je her children careG

for at home b17 Mlss Gaclas 1s Indeed her cholce. rather

than somethmg forced upon her by clrcumatances.

3 .

In relatlon to the reference

to the husband, it is

suggested that this is

an irrelevant matter. but

I do not

agree with that submission. I think that the plcture 1s

fairly clsar.

It Yould be posslble for Mrs

Smith, if she so

chose. to send the chlldren to day care

during normal

zorklnu hours.

It appears that she could continue In her

!ob working a standard 35-hour week. She has chosen not to

d i ~

that. no doubt because she desires

to maxlmize the Income

that she can earn from her job. This crsates a problen m relatlor. to dl:; care if sh? does nct hay? the ze<-u-l:ez sf

Miss Gaclas to look after +-he chllzren ; k e n the 333- c a r e

servlce i s unavallable. but I thlnk that the pomt of the

reference to the $13.000, and ts failure to take any steps

to obtain malntenance. 1 s that any financlal pressure which

exlsts for M K S Smith to work more than the standard

workmu

xeek is a result of the fact thar: she has not taken =hat

Zould appear to

be reasonable steps to have her

fmances

auqmented by maklng clalms against her husband.

it 1s. in truth, an slectim by M K ~

Smlth -- vhich.

of course, she is full:r

entltlzd to make

-- to work long

hours to obtain a higher income rather than to pursue her husband for all OK part of the proceeds of the loint savlngs

account or for malntenance..

I see no basls for a

jublnlssion that the handwritten memorandum reflects any

failure to tzke into account any matter	pdt before the
Department. or any leTal error.

10.

The handwritten memorandum concluded

with a

recommendation that the application be rejected as "she" - - that is, Miss Gaclas -- "does Rot fulfil the compasslsnatz urounds under s.GA(l)(e), nor any other section of s.6A(1!" of the Micrratlon Act 1958, and that Mlss Gaclas 3e dlrected to depart Australia. That recommendation was made on 33

April 1985.

It vas considersd by more senior offlcers and

final117 adopted by the delegate

to the Minister on 15 May

1335. The declslon was notlfi?d to Miss Gaclas. a2parenti:r

on 4 Jul:J

1385.

Subsequentlp the Appllcatlon vas f 1 l e d in

thls Court and reason* under	5.13. of the Acc iiere furnlshed
early In December.

The delqate of the Mlnister set out fixdinus on

material questions af fact and no attack has been mad? GK

those flndinus. He referred to the evldence sr other

material on which his flndlnqs. were based and there llsted a

number of documents.

As I have already said.

he noted that

he had had reuard to the documents contalnlng Departmental

policy.

In section 3. of the document. he set out rea5or.s

for the decision. He noted m para 13 that the applicant.

Miss Gacias. is a prohlb~ted

non-citlzen by vlrtue

3 . 7 ( 3 )

of the Act. that she

had commltttd an offence under the Act

by becommg a prohikited non-citlzen and

that she hail

breached the undertakings gicen

b:r

her as a v l s l t o r . p r lo r

11.

to entering Australia. that she would depart

at the end of

her authorised stay.	No complaint 1 s made of any of those
statements.

In para.14, the delegate made the comment hat the appllcant -does not fulfil

snp of the cmdltlons of

s.6A(1) of the Act for the grant of

a permanent ??try

permlt.

It is conceded that this statement is true:

however of course It is not the end

sf the matter because.

~f J. temporar;. entry permit yere grant?d. It xoul2 be ape;:

to the Minister to proceed to

qr3r.t a permanent entr:; Ferxit

pursuant to s.GA(l)(e) of the Act if

he were zatlzflsd that

strong humanltarian or compassionace grounds had been

established.

The delegate appreciated this: and Indeed

zald a s much in para.15 of the reasons.

In para.16 he then dealt zith the case that

gas put

to him on behalf of the applicanr-

In this ;?ay:

"Mrs Smith

has stated that she prefers t3 have

the chlldren minded by th? sppllcant. However

other forns of child care such

as day centres,

zhich are the normal and sometunes onlp ,course

apen to other Australlan

residents. are

available. In addition, Mrs Smith has not sought any asslstance (either practical or financial) from her hushand for the care of

her children. I concllided that in yiew of che

other optlons avallaljle to Mrs Smlth for the

care of her childrer. the

fact that the

appllcant currently provldes child care fcr

her slster did not amount to strona

compassionate or humanltarian qrsunds far the

urant 05 a permanenr: entry permlt to her."

12.

The deleqate then concluded

in para.17 bp saying that

accordingly he decided not to qrant permanent resldent

status to the appllcant.

The test whlch must bs applled in cmsldering

xhether there 1 s any Las~s

f o r the grant of an lnterl3cktory

injunctlon is whether there is

a serious questlon to be

tried.

This phrase muzt of course

be understood in the

light of the circumstances. As I polnted out In Azemoudeh

1. Minister f o r ismlmation snd Ethnic Affalrs. (13 OEtobsr

1985, unreported), the agplication of the phrase will depend

upcn the circumjtances before the Court.In

that declslon. I

%pressed the

n e w that there map be cases

In which the

facts are so comprehensively before the Court that it would

be rfascnable to deny the sxistence

of a serlous questlon

unless the sltuatlon was

such tkat the Court could say

thac.

unless there were

new facts. the appllcant

xas likely to

succeed. I went on to polnt out extreme there may be cases in which the appllcant

that at the opposite

h s had

llttle opporcunlty to ascertain the facts 2nd to adduce

evidence but there 1 s evidence to suqTest chat

he cr she ma:r

he entltled to rellef: evidence whlch may turn out

readi1:r

to be refuted or explained upon further investlTation but Yhich, in the meantime and in the clrcumstances, just~fies

the lntsrvention of the Court.

In the present case. I have

hac the beneflt of ?erusing the xhhole hof

the DeFartmental

fl l?. . ar.d It is difflcult t3 cor,cei-bre that the

situation at

trial would be any stronuer from the applicant's polnt of

viet; than it is at the present tune. Sectlon 1:

redsons

have been supplied and the whole

f the material whch

;las

taken Into account is before

the Court.

In rslatlan to the submlssisn

that there has been a

failure to talc;. Into acc0ur.t relsvant sonslderatlons. tyo

particular matters ars relied upon.

Firztly, It 1 s said

that the dsclslon-maker falled

adequatelrr to take m c o

account tte problem

In relation tc the

avallablllzy sf d=--

- 2

care.

It cannot hc sald tkat the del;.u-ats fzi:l=? tz ta-r?

thls matter into account

at -11 because ~ h s

mattsr

1 s , l e d t

with in para.16 of the reasons for decislon

as I havs

already indicated. What

1 s sald 1s that the details of how

day cars Zould be arranue? were not taken Into accsunt

the decision-maker and, in particular. that he dld nct appreclate the clifflculty that ;loula arise lf Mrs Cmlth contmued to work overtime and if she could not arranae for

somebody else to care

f o r the children.

It is true that the deleuate did not deal wlth this

matter lr. m y detail. He may or may not have appreciated

that M r s Smlth was in the habit of xorklnu overtme. but the

deleuate is entltled ln relatlon to a matter entlrely m t h n

the knowledue 3f the appllcant to confine himself	t o the
materlal xyiich was put before hm.

14.

No information as to a d1fficult:J in arranqinq

child care was spelt out to the declsion-maker before the

decision was made.

I do not think that he was sub!ect

to a

duty to Instigam an

investigation as to who -,.GUM care for

the chlldren after normal

da-g care hours if Mrs Smith chose

to continue to Gjork Gvertme:

or Indzed. to enqulre xhether

she would

do so in future.

In Sinqh -:

TI-e Mlnlster f o r Immlcrration and Ethnlc

Affairs, ( 4 December 1185. Unreported), I r?.i?rr=d co the

extent of the djuty of the decision-maker t2 cntertzke

enqulrles in relatlon to matters within the knoxlsdqs

of at:

affected person.

I there indicated that I was not aware of

any authorlty which supported the proposltion

that. ;n

relation to such matters.

3 decision-maker 1 s bound CO

embark upon an indspendent Inquiry as to the facizs.

interpolate that no such declslon

has beer, drawn to m:?

attention durinq the present hearlng. In Sincrh I went on to

sxpress an opinion that, as a natter of principle, such a

proposltion cannot be sustained because the foundatim of

the rules In relation to conslderation

of relevant matters

and the iqnorlnq

of irrelevant matters is the

aut17 to

exercise a statutory discrztlon falrlp. I sald that. in the

situation postulated. fairness requlres no more than the

decision-maker fully consider the material actually

constructively before hlm

or her at the time of

rnaklnq the

declslor..

I see no reason to depart from that view.

15.

In the present cas? the fact that the deleq2te. according to his reasons for decislon. took intc account

;;hat

was put before h i m In respect of the child care

problem.

I do not think that he was under any duty to do

more.

Eyen lgckinq at the evldence whlch is

now kefore the

Court and which

was not before the deleqate.

I do not thmk

that there is any more to the natter than that

Mrs Smlth

xculd be faced

n t h a cholce If she last the servls?s

of her

slstsr, Miss C-aclss.

She would elther hav? to reduce

hsr

xor!cinq hours - - possibly taklng action affalnzt her hlLsband in order ta relieve herself fron the financial cons?quences of that declsion -- ar, alternatlvelp, she would. have to

find somebody else

to mind the childrer. whilst she

was

xorlclnu ours~de

normal day care hours. It

1 s not shorn that

this latter course is impractical.

I rote that. in th?

short-term, she has the a-w?allabilitp of another slster

xho

is here on a vislt.	Of course. that is not a Icnu-term
solution.

The other matter ln respect sf

zhich complalnt 1s

made 1s the fallure to

have reuard to the state

of the

health of Oliver. This matter 1s not referred ts 3t all In the delegate’s reasons for dec1slon. If there xas nat5rial

to l?ad one to conclude that thls

was a matter of any

sluxflcancf. ~t could, I think. Se sald there was an

argxble case that the failure

to advert to that macter.

' V .

, .

' . L '

16.

vitiated the decision. However. the only material that

was

before the decision-maker

In reuard to Ollver's state of

health was a statement made in

a letter dated 14 December

1984 that Oliver suffered from bronchltis: which statement

was supported by a medlcal certiflcate qiven by

Dr E

Kristinan. In which he stated xlthout elsboration

that Oli-;er

;as iufferlng from "acute bronchitls" and a statement made

at the inteririew on 19 AFril that Oliver had bronchitis.

There was nothlnu put before the dslegsts

which mlght

re?asmabl:J cause h:m

to beliws that the? kronihitis creatsz

any p'rmanent

prcljlem in regard ta the cafe af Olicer;

ana

indeed. the evidence of

Dr Wyeth, to xhich I have refsrred

suggezts that the lllnesz, alchouqh

no doubt distressing for

Frs Cmlth, is not

a major or a lonq-term problem. I dc r.ot

thmk chat it can be said that Oliver's state

of health

sonstltutes such a matter that the failure of the delegace

to ad-zert to It in his reasons lndlcates a failure EO take

into account

a matter materla1 to his declrlon.

In the clrcumstances

I do not think thjt it

has

been demonstrated that there 1s an arouable case: that

12,

a case which suuuests that.

at the end of the day. the Court

may find that there

has been a leual Invalidlt7 ~n relation

to the decision to refue the applicztlon f o r an entry

permit.

I note that. at the present tme, no deportatlsn

ordc has been made undzr 5-19 af the k t . The matter has,

hocjever. been ar7ued on the basis that it

s 1ikel-J that the

17.

Minister will proceed to make

such an order unless

Mzss

Gacias voluntarily leaves Australia	or the Court should
intervene.

A s I do not think that there

is any substance in

the attack upon the declslon xhlch

has been oade to refuze

the entry permit. I thlnk that the appropriate

orckr for me

to make is to refuse the appllcation

f a r

mterlocutory

relief.

I think that the applicants jhould ay che costs c5

th? Minister. In respect of the lnterlocutory appl1cZtlsn.

(Counsel addressed on costs)

Mr Stevens has drawn my attmtlon to the fact that

I :as

I n error In sayin?, as I dld. that the delegate

dici

not advert to the health sf Ollirer in k s 5-13 staxement of

reasons.

I overlooked the f x t that. at para.8 of the

statement. l n sjhlch the deleuate set out hls findings of fact he Included this statement: " m addltion her tkiree :rear 016 son suffers from bronchltls and needs the care

someone vho can provlde

a constant and stable

hiah level of

commitment". Althouuh thls 1 s put In the context of xhzt

as said to the Department

by Xrs Smith. I think that It

da?s indlcate an acceptance of the fact that there xas.

that time. a health problem.

m e reference does not. I

thlnk. change the substance of the view	:;hi3 I havs
prevlsusly expressed.

13.

In relation to the matter of costs

Mr Neill has

arqued that there should not be an ordsr f o r costs aaalnst hi; client in respect of the interlocutory appllcatlon. He points out. col-rsctlr, that at the t m e the proceedings hzd

been commsnced no 5.13 statemenr; has her. supplled.

There

ieems tc be some

cor.fuslon as ti: vhen the appllcatlsn for

5-13 statement rtached the Depxtment.

Xccordlnq ts 'he

appllcsnt a rezuest ;:as

mace in Cctcker. kut ther? is TJ

rsferenie t o such L rezgest In th; flle. Thsr? zaz,

2loi:ever. a suppl:? g5 Lnformatlon undlr the Fcsedsn:

Infsrmatlon Act 1982.

The s.13 reasons =ere suFpli?d fairly

promptly aft?r the filing of the Application	ar,d first
mention of the matter 111 Court.

If I had taken the

view that there was some

unreasonable dslap In supplying 5.13 reasons after a request

xas received I sjould have considered vhether or Est this

should reflect Itself in respect of costs. However. I do

not thmk that that can be said

In thls case and that the

order should be

2 3 I have mdlcated. t h t the applicznts

the costs of th? aFplication for interlocutory relief.

I certlfy that this and the seventeen	( 1 7 1
DreCeding pages are a true copy of

the Reasons for Judqxent hereln	of
his Honcur Mr. Justice bIIl1cox.

Datt :

21 January 1986

19.

[1985] FCA 666

19 Dec 1985