Immigration and Ethnic Affairs and Ors Ex parte Lai Qin

[1997] HCATrans 63

HIGH COURT OF AUSTRALIA

McHUGH J

No S6 of 1996

Re:  THE MINISTER FOR IMMIGRATION AND ETHNIC
AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

and OTHERS.

Ex parte:   LAI QIN

SYDNEY
9.33 AM, FRIDAY, 28 FEBRUARY 1997

imqin 28.2.97  Pg1
@Auscript 1997

MR J.A. McCARTHY QC:   May it please your Honour, I appear with my learned friend, MR WILSON, for the prosecutor in this matter.

HIS HONOUR:      Yes, thank you, Mr McCarthy.

MR N.J. WILLIAMS:   May it please the court, I appear for the first respondent, your Honour.  The second respondent although perhaps inappropriately described given that there is no such body corporate, would submit to the order of the court except as to costs.

HIS HONOUR:      Yes, well I have a certificate from the Deputy Registrar stating that the second respondent does not wish to be represented at the hearing of an application for costs and will submit to any order of the court save as to costs.  Yes, Mr McCarthy.

MR McCARTHY:   Your Honour, this is a summons under order 52 rule

6(1).  It seeks an order in these proceedings pursuant to High Court Rules order 71 rule 39.  That rule is the basis of a jurisdictional empowerment of the court to make such order as is just in circumstances where the further prosecution of proceedings filed in this court becomes unnecessary except for the purposes of determining an order for costs.

The context in which this application is brought forward, your Honour, is explained in the affidavit of Ronald Anthony Kessells sworn in these proceedings and the annexures thereto and I would propose to rely on that affidavit and - - -

HIS HONOUR:      What affidavit is that, Mr McCarthy?

MR McCARTHY:   This is the affidavit of 3 February 1996 and, your

Honour, I would propose to have this affidavit read if that is convenient to your Honour.

HIS HONOUR:      Yes.

MR McCARTHY:   Thank you, your Honour.  I will ask my  junior,

Mr Wilson, to read the affidavit.

HIS HONOUR:      Well, I have read it and if there are various individual

matters that you want to refer to in the affidavit then you can.

MR McCARTHY:   Well, the first thing I would like to refer - - -

HIS HONOUR:      Firstly, sorry, is this part of your address or is it just

something you want to highlight at the moment?

MR McCARTHY:   There was a number of typographic mistakes in the

affidavit, one of which creates - your Honour, for instance in paragraph 3, the second page of the affidavit, there is just in on the first line the words "there was is further need".  It was to be read "there is no further need".  I do not think my friend would object to that and probably your Honour read it in that sense.  That is just what I wanted to draw your attention to at the top of that page.

Now, your Honour, outside of that as I understand it, though I have Mr Kessells in court, Mr Williams has indicated to me that there are no paragraphs or sections of that affidavit that are in challenge and nor is the annexure to that affidavit.  So I would rely on that affidavit, your Honour, firstly in support of the summons.  Your Honour, I would also, only if it became relevant in argument, but I would also put in evidence in this application the affidavit in support of the orders nisi in the matter filed by Ronald Anthony Kessells.

HIS HONOUR:      This is the affidavit of 15 January is it?

MR McCARTHY:   That is right.

HIS HONOUR:      Yes, well I have read that as well so that can be taken as

read.

MR McCARTHY:   Thank you, your Honour.  Your Honour, I have as well

prepared written submissions in this matter and a chronology.

HIS HONOUR:      Before you deal with that I will see if - - -

MR McCARTHY:   But I was about to say that my learned friend has served on me, or has served on my attorney, various affidavits which I think he wishes to rely on, so that completes the evidence in our case.

HIS HONOUR:      Thank you.  Yes, Mr Williams?

MR WILLIAMS:     Your Honour, I move on the affidavit of Stephanie Mansell affirmed 27 February 1997.

HIS HONOUR:      I have read that as well.
MR WILLIAMS:     That is the evidence for the first respondent.

HIS HONOUR:      That being the evidence, Mr McCarthy.

MR McCARTHY:   Your Honour, may I have leave to hand to you a set of

submissions that have been prepared and a chronology in relation to this matter?

HIS HONOUR:      Give me a moment to read these.  Yes?

MR McCARTHY:   Your Honour, I would not at this stage wish to add

anything to what is there. The submissions set the frame work and put our central submission which is simply this. If the first respondent, their officers and the AGS had informed the prosecutors legal advisers that this matter of section 417 discretion by the Minister was being considered the alternative way in which this matter would be reviews, that is, in the proceedings in this court would not have been filed in a context where obviously they would have given - - -

HIS HONOUR:      When on the evidence do you say that the department began to consider the matter?

MR McCARTHY:   Of the 417?

HIS HONOUR:      Yes.

MR McCARTHY:  On the evidence it is some time prior to 11 January,

between 5 January and 11 January.

HIS HONOUR:      Yes.

MR McCARTHY:  But that is unbeknown to the prosecutors legal advisers - - -

HIS HONOUR:      Well, I appreciate that but it is difficult to think that you would have stopped works merely because an application was on, your client was likely to be deported at any time.

MR McCARTHY:   It certainly would not and that is why I said your Honour that if it had been indicated - can I take it in reverse. If what was said on the 16th your Honour had been said earlier the same process and steps would have been taken.  On the 16th Mr Kessells receives a phone call from the AGS saying it in the hands of the Minister do not take any further steps in these proceedings whatsoever.

HIS HONOUR:      From their point of view.

MR McCARTHY:  I beg your pardon your Honour.  Do not take any further steps in these proceedings, and a similar message, that message was given to him in those terms.

HIS HONOUR:      Yes, but the point is that has got nothing to do with this

case.  Supposing the matter had gone on for hearing and you had failed but then afterwards a decision has been made to grant refugee status, how could you have complained about that?

MR McCARTHY:   I could not have complained about that at all, your Honour.

HIS HONOUR:      Your complaint seems to be because something was being done extra curially which had nothing to do with the litigation that the defendant or respondent should pay the costs of the matter.

I mean, you may want to put some submissions, and I am prepared to hold that it was reasonable for you to commence these proceedings, but having read the material I have very grave doubts as to whether you have much prospects of succeeding in the action, your client was about to be deported and it was obviously arguable I suppose that the view that the tribunal had taken about article 1(e) was not the correct view, apart from that it was all a question of fact which did not go to jurisdiction, 75(5) jurisdiction.   But assuming that it was reasonable for you to institute these proceedings, and it was certainly reasonable for the Minister to defend them.

MR McCARTHY:  The Minister never defended these proceedings, your

Honour.

HIS HONOUR:      Well, he may not have defended them because he had no opportunity to do, but the Minister was going to defend them.

MR McCARTHY:  But the Minister said he would take no steps in relation to any of this, this is what distinguishes this case from all the other matters that may be referred to.  There was no step ever taken in these proceedings by the Minister except to let us know do not take any further steps over this matter whatsoever.

Now the Minister has never, except for the appearance here, the Minister has never taken anything in this matter at all because the Minister had already reversed the decision very quickly that had been made by the review tribunal. This was not a matter, this was a matter where we came into this court because we thought that this was the only way in which there would be a review obtained and it was not long after that that the Minister indicated to us that he had reversed his decision and prior to that we were told not to take any steps about his matter at all.

HIS HONOUR:      Just let us get the chronology correct.   You were given on 5 January a warning that you would be given 72 hours notice of deportation.

MR McCARTHY:  Yes, your Honour.

HIS HONOUR:      On 11 January there was a departmental minute, in your chronology you say recommending exercise of administerial discretion, I am not sure that that is correct, is it?  I thought from recollection it was no more than was put to the Minister that he could exercise, was there a recommendation?

MR McCARTHY:  I had read:

That you consider whether to refer the case to the Minister ...(reads)... to do so.

I had read that in a context of the rest of the material that was put before him your Honour as amounting to recommendation that the ministerial discretion be exercised in that way.   I certainly was not proposing or supposing to be putting to you your Honour that we are in effect gilding the lily over that, in honesty I read the documents as being favourable to an exercise of a discretion.

HIS HONOUR:   The recommendation was that you consider whether,if you believed in the public interest to do so, and that was put forward on the 11th, you commenced proceedings on the 15th and you were told about the matter on the 16th.

MR McCARTHY:   And we are told in ...(indistinct)... your Honour, that is where I think I draw what I am saying from is that at that date the matter had not been considered by the Minister but we were told to take no steps at that stage while there were no promises there had been a submission made to the Minister.

HIS HONOUR:   But it seems to me to come back to this that I find it a strange proposition, Mr McCarthy, that you are entitled to your costs because the Minister exercised a discretion on other grounds to grant you a visa yet arguably if the matter had gone on for hearing, you would have failed in your application and you would not have been entitled to costs.

MR McCARTHY:   Well, your Honour, the principles in relation to matters that have not been determined, any final determined, are not quite as stark as that.  The way in which other approaches have been made to that, and I was going to refer your Honour to a Federal Court decision that I referred to in our submissions, if I might just take your Honour to that.  Your Honour, there is no - at least none that either party in this matter could find, there is no authority in the High Court records in relation to order 71 rule 79 as to the application of that particular - - -

HIS HONOUR:   I appreciate that.

MR McCARTHY:   Your Honour, could I take you to ASC v Australian Home Investments Limited.  This is in 44 FCR which seems to be a relevant discussion of the matter by Hill J in the Federal Court.  The relevant part of the judgment begins at page - if I can put it that way, relevant in the sense of parts that I would wish to put to your Honour.  Might I just assume for the moment that your Honour could note the head note and I take you to page 199.

HIS HONOUR:   I have got the ALR report, but you tell me the passage.  I have read all these cases, I have read 15 or so of these cases in the last 4 hours so I think I am familiar with them.

MR McCARTHY:   Well, your Honour, the relevant passage that I wish to draw your Honour's attention to was at page 201 where there is the reference to the English case of Strathfield but at point 6 of the paragraph there is this:

These cases seem to me to support the following propositions being ...(reads)... statute under consideration.

Your Honour, I would submit that Hill J has in that summation collected a number of the relevant principles that would bear on the exercise of a power under order 71 rule 39 but in relation to that I would submit that there would not be a necessary part of the determination of this application for the court to finally determine the issue of whether the applicant or the prosecutor would have finally succeeded in terms of prerogative relief that the relevant issue was whether it was reasonable to bring the proceedings.

HIS HONOUR:   That is one side of it.  Assuming it was reasonable for you to bring the proceedings, that does not entitle you to an order in this particular situation.  Another difficulty I have with your submissions is that your evidence really does not provide any ground upon which a court could exercise a discretion.  It seems to me a hopeless proposition that you can ask for any costs incurred before 11 January and that leaves a period between the 11th and the 15th.

Your affidavit evidence would seem to suggest that by 8 January you were in a position to file material although in one paragraph of your affidavit your solicitor says some additional work was done, whether it was done or how much it was done is not stated so, at best, it would seem to me you could only have been entitled to an order for the period between 11th and 15th.  I do not see any ground upon which you could get costs for anything done before the recommendation was put forward on 11 January.

MR McCARTHY:   Your Honour, we would see it in wider terms than those.  The applicant obviously if told earlier that - the applicant is faced with a situation where there are two ways in which the decision of the Review Tribunal as at the end of December could have been reviewed.  One was in this court and the other was by the Ministerial approach.  The only judicial determination that could be obtained was in this court.

The commencement of these proceedings, the foreshadowing of these proceedings and the preparation of these proceedings in our respectful submission precipitated the first respondent taking a decision which made these proceedings unnecessary because he set aside the decision of the Tribunal.

HIS HONOUR:   That was the ultimate result.  From your point of view it was the desired result.  You may have succeeded in this court but without reading the transcript of evidence, it is impossible, of course, to form any view and I would not attempt to but nothing in the judgment or in the affidavit filed in support of the order nisi persuades me that you had more than arguable grounds of success, I do not think it could be described as strong grounds, Mr McCarthy.  You may well have been right, but on its face, the Tribunal's analysis of article 1(e) seems to me to be reasonable and, certainly, in line with an impressive array of academic authority together with Oldham J in his judgment and after that it was really a question of fact as to whether she had household registration available to her.

The Tribunal seemed to be rather sceptical of some of your client's evidence and it was just a question of fact.  You also have the difficulty of Craig's case about error on the record.  So, you had some problems but you have put the matter and I think I understand.

MR McCARTHY:   Your Honour, there is also the other context about it which is there but I do state it.  A source of very limited public funds was the basis on which this application would fall.

HIS HONOUR:   Well, yes, I know, but - - -

MR McCARTHY:   It was proper to use those monies and I do not hear your Honour saying in any circumstances that it was not but the fact of the matter is that this State has very scarce legal resources in terms of legal aid, that money could have been expended on other matters.  It was proper to bring these proceedings.  it was also proper, in our respectful submission, because the fact, the basic fact situation had not changed.  If that  Ministerial discretion could have been exercised well before December in relation to the applicant and would have precluded any necessity for these proceedings coming about at all.

HIS HONOUR:   The Minister did not look at it until somewhere around the 25th, was it - 22nd when he gave his approval.  I rather think that the question that you were legally funded tends to be against you rather than in favour.  If one is looking at the public interest, one might also look at the question as to whether it is in the public interest that the Minister should be made to order costs because he does exercise a discretion in your favour.  It is the sort of thing that might make ministers do nothing until the litigation has been completed which is hardly in the public interest and, certainly, not in the interest of people in the position of the applicant in this particular case.

MR McCARTHY:   Your Honour, there may be circumstances when that is so.  This is a matter in which there are a number of unique features where there was a considerable amount of work and preparation that was done to bring this matter before this court in a context where if it was appropriate to consider the exercise of that discretion, it was appropriate to consider the exercise of that discretion any time after 6 October.

HIS HONOUR:   Yes, but these things have got nothing to do with the litigation.  The basic principle is that in some circumstances you can take into account the conduct of people but it has got to be conduct that is concerned with the litigation and this has got nothing to do with the litigation.

MR McCARTHY:   Well, your Honour, if the Tribunal's decision had been set aside by the Minister which was well within the Minister's discretion to do so and indeed he did so.  Your Honour, that is a matter concerned with this litigation.  There would have been no litigation whatsoever, that is how close it is to it.  There would be no litigation just as there are no further proceedings in this court in relation to this matter because the first respondent took a certain course of action.  That was available to him from October onwards, it was not done, it did not happen.

It happened as a result of the foreshadowing of proceedings in this court and the actual bringing of the proceedings in this court.  It was reasonable for the applicant to do that.  There were public monies that were involved in bringing that and indeed bringing about, in our submission, the result that has been achieved.  It is not extraneous to the litigation that the decision and the activities that have gone on, were taken by the first respondent and the whole context of that has got to be seen.

Your Honour, those make this as having characteristics of their own in relation to the bringing of the proceedings in this court.  That would keep in our submission, back to being - these are not costs that should have been incurred in this matter.  If they had moved earlier in relation to this, it would not have happened at all.

HIS HONOUR:   Yes.

MR McCARTHY:   If they had told us at an earlier time - if in December, it had been indicated that this matter is under consideration, there would have been no steps taken in relation to that.  That and the context of the public moneys, your Honour, in our submission, tipped the matter back, particularly in a context where there was also the possibility that there may have been in the context of the order nisi, interim orders that would be necessary, your Honour.

HIS HONOUR:   I must say, I cannot see any reason at all why the fact that the person is legally aided puts them in a better position to obtain costs than if they were paying out of their own pocket.  What difference can it make. Your submission seems to come to this, that if your client had been paying for her own application she would have a smaller chance of getting a costs order than because she is legally aided.

MR McCARTHY:   Your Honour, that is not stated in our submission and it is certainly not put that way.

HIS HONOUR:   But that is what it must come to.  It just seems to me to be an irrelevancy.

MR McCARTHY:   Your Honour, it is not irrelevant in circumstances where the basis on which the application is brought forward, the matters that the work is done is in the exercise of the public duty by the legal aid commission to assist people who are entitled to assistance.

HIS HONOUR:   Consider this situation, supposing there had been two applicants here.  Your client and another applicant, a sister, let us assume, who was paying for her own legal representation.  Do you seriously contend that it would be open to award costs to you and not to the sister.

MR McCARTHY:   No.

HIS HONOUR:   If you answer that, no, then the concession means that the question of legal aid is irrelevant.

MR McCARTHY:   Your Honour, it is not irrelevant in the circumstances where one has a duty to put before the court, what are all the facts in relation to how this case proceeded and one of the facts about this is that the Legal Aid Commission was involved and also that if there is any order for costs that the party that would benefit by that, the body that would benefit by that is the Legal Aid Commission.  It may not improve the basis on which the costs are actually awarded but it would seem to be appropriate to at least advise the court that that was the course that this matter was followed and that that was the arrangement.

HIS HONOUR:   I do not see why it would not be any more appropriate to advise the legal representative of a person who are being paid by the person themselves.  The points are that it is good or bad, the question of legal aid seems to me to be totally irrelevant, Mr McCarthy.  Are there any other submissions to make?

MR McCARTHY:   No, your Honour, they are our submissions.

HIS HONOUR:   Thank you, Mr McCarthy.  I do not want to hear you, Mr Williams.

MR WILLIAMS:     Thank you, your Honour.

HIS HONOUR:   The applicant, Lai Qin, ("the prosecutrix") seeks an order that the first respondent, the Minister for Immigration and Ethnic Affairs, pay the costs of proceedings instituted by the prosecutrix before the Minister granted her a protection visa.  The order is sought under Order 71 Rule 39 of the Rules of Court, which provides:

"When for any reason the further prosecution of a proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, any party may apply to the Court or a Justice to determine that question, and thereupon the Court or Justice may make such order as is just."

The prosecutrix contends that it is just to make an order in these proceedings because the Minister should have informed her legal advisers prior to the commencement of the proceedings that he intended to review her application for a protection visa.  To understand this submission, it is necessary to sketch the background of the proceedings.

The prosecutrix arrived in Australia on 22 November 1994 by boat. On arrival she was detained and taken to Port Hedland where she remained until about 24 January 1996. On 22 January 1996 the Minister exercised his discretion under section 417 of the Migration Act 1958 and granted her a protection visa although he had refused an earlier application for a visa. That application was made on 24 January 1995 when the prosecutrix applied for a protection visa on the ground that she was a refugee within the meaning of Article 1 of the Convention Relating to the Status of Refugees that was done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. On 10 February 1995 the Minister refused the application. On 23 February 1995, the prosecutrix applied to the Refugee Review Tribunal to review the Minister's decision. The Tribunal did not give a decision until 6 October 1995 when it affirmed the decision of the Minister not to grant a visa to the prosecutrix.

On 15 January 1996, the prosecutrix commenced proceedings in this Court against the Minister and the Tribunal pursuant to section 75(v) of the Constitution. She sought an order nisi calling on the respondents to show cause why writs of prohibition, certiorari and mandamus should not be issued against them on the ground that the Tribunal had misconstrued or exceeded its jurisdiction. Various grounds were relied on. One of them was that the Tribunal had erred in its interpretation of Article 1E of the 1951 Convention. It is noteworthy that no proceedings were commenced in the Federal Court challenging the decision of the Tribunal under section 476 of the Migration Act 1958. In any event, by the time the proceedings were commenced in this Court, the prosecutrix was out of time to commence proceedings in the Federal Court.

On 22 January 1996, as I have said, the Minister exercised his discretion and granted a protection visa to the prosecutrix.  She was then released from detention.   The prosecutrix, having obtained the relief she sought, naturally has not proceeded with her action in this Court.  It will be necessary to return in a little more detail to the facts of the case, but it is first necessary to state the principles which govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means.

In most jurisdictions today, the power to order costs is a discretionary power.  Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs:  see Latoudis v Casey (1990) 170 CLR 534. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order: see Latoudis v Casey at 543 and 566-568. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action.  The court cannot try a hypothetical action between the parties:  see Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201; 116 ALR 523 at 530. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action: see Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201; 116 ALR 523 at 530. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd [1971] QWN 13, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried.  This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission delivered in Brisbane on 10 February 1989 where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation.  But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.  This approach has been adopted in a large number of cases.  See, for example, Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; 116 ALR 523; Seventh Mingcourt Pty Ltd v The Honourable Carmen Lawrence, an unreported decision of Branson J in the Federal Court on 1 August 1996; Coleman v City of Melville, an unreported decision of Scott J in the Supreme Court of Western Australia on 22 September 1994; Compadres Australia Pty Ltd v Waterfront Place No 2 Pty Ltd, an unreported decision of MacKenzie J in the Supreme Court of Queensland on 15 August 1995; Inprint Ltd v K & D Media Pty Ltd (Administrator Appointed), an unreported decision of Einfeld J in the Federal Court on 22 December 1995; Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772.

The critical question in this case then is whether or not the prosecutrix acted reasonably in bringing these proceedings and whether the respondents acted so unreasonably in not informing the prosecutor that an application to review the decision to refuse a visa was being considered that it would be proper for the Minister to pay the whole or part of the cost of the proceedings.  In determining whether or not the prosecutor acted reasonably, it is necessary to mention some further facts in the matter.

The critical question for the Tribunal was whether the prosecutrix was protected by the 1951 Convention.  That turned on whether Article 1E of the Convention took her out of the protection of the Convention.  Article 1E states that:

"This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country."

The Tribunal held that a person could come within Article 1E even though he or she had not become a citizen or been recognised as a refugee in the country where that person had taken residence.  The Tribunal applied an impressive array of academic writings and the decision of Olney J in Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 in holding that whether a person has been recognised by the competent authorities of the country depends on whether that person is recognised by those authorities as having de facto nationality in that country. Moreover, the Tribunal held that a person may be recognised as having the relevant rights and obligations even though the person does not necessarily have full political rights in a country.

The Tribunal found that in some respects Vietnamese of Chinese descent, as the prosecutrix is, who had fled to China from Vietnam were treated better than Chinese Nationals, one example being an exemption from the one child policy.  However, the Tribunal accepted that, if a person had not been granted household registration in China, it was unlikely that he or she would be fully recognised as having the rights and obligations which are attached to the position of nationality in China.

Accordingly, a vital question in the proceedings before the Tribunal was whether the prosecutrix  had acquired such registration.  This was a question of fact.  Although there was evidence from the prosecutrix which strongly suggested that she did not have such registration, the Tribunal held as a fact that she had registration.  Either expressly or by implication the Tribunal refused to accept the prosecutrix's evidence in a number of respects.

Having read the Tribunal's decision and the affidavit filed in support of the application for the grant of an order nisi, it seems to me that, although the prosecutrix had an arguable case, she did not have strong prospects of success.  If I had to make a prediction about the outcome of her application, I would think that it would probably have failed.  However, as I have said it is not the function of a court on a costs application - in most cases at all events - to make a prediction as to the outcome of a hypothetical case.  It is enough that an applicant has acted reasonably.  There is nothing to suggest that the prosecutrix acted unreasonably in bringing her application, particularly bearing in mind that she faced imminent deportation unless the decision of the Tribunal or the Minister was reversed.  If the matter had proceeded further, it would also have been reasonable for the Minister to defend the decision of the Tribunal.  If no more appeared in the case, I would think there were no grounds for making an order for costs in favour of the prosecutrix.

However, Mr McCarthy forcefully contends that this case is unique.  He submits that, if his client had known that the Minister was reconsidering the matter, the proceedings would have been unnecessary and that as a result costs were unnecessarily incurred by the prosecutrix's legal advisers in preparing the High Court challenge.

I should mention at this stage that the Minister granted the visa because of the changed circumstances of the prosecutrix since her arrival in this country.  She had married a Vietnamese person who had been given Australian nationality; she had given birth to a child; and she was eligible after leaving the country to apply for a migrant spouse visa.  On humanitarian grounds the Minister granted her a protection visa without requiring her to leave the country.

It appears from the evidence before the Court that a recommendation was put before the Senior Adviser to the Minister on 11 January 1996.  The recommendation did not expressly recommend the grant of a visa but under the heading, Recommendation, it stated:

"That you consider whether to refer the case to the Minister for him to consider whether to grant a Protection Visa using his power under subsection 417(1) of the Act, if he believes it is in the public interest to do so."

As I have said, the present proceedings were commenced on 15 January 1996 and the recommendation was put before the Minister, or the process of putting it before the Minister was started, on or about 11 January 1996.  So, the vital question in the case seems to me to be whether or not the legal advisers to the Minister acted unreasonably between 11 January and 16 January 1996 in not informing the prosecutrix's solicitors that the application for a visa might be reconsidered by the Minister when they knew that the prosecutrix was contemplating legal proceedings to challenge the Tribunal's decision.  If the legal advisers to the Minister did act unreasonably, it might provide a foundation for an order that the Minister should pay the costs of the prosecutrix incurred some time between 11 January and 16 January 1996.

On the material before the Court, it is difficult to determine whether much work was done by the prosecutrix's advisers during the period 11 January to 15 January 1996.  Certainly, additional work was done, although the affidavit filed by Mr Kessels, her solicitor, sworn on 3 February 1996 indicates that by 8 January 1996 much of the work on the case had already been done and that the prosecutrix could have launched the present proceedings at any time after 8 January 1996 if her advisers had been given 72 hour's notice of an intention to deport the prosecutrix, as they had been promised they would be given.

So I turn then to the question of whether or not the failure to inform the solicitors for the prosecutrix in that four day period was unreasonable and, if so, whether it requires an order for costs.  I would reject the application for costs on the simple ground that the failure to inform the solicitors of the reconsideration of the grant of a protection visa is not, in the circumstances of the case, relevant to the question of the costs in this action.  If the action had gone on for hearing and the Minister had afterwards granted a visa, it is impossible to suggest that he should pay the costs of the proceedings merely because during the proceedings he was reconsidering his earlier decision.  Similarly, the Minister's failure to inform the prosecutrix, before the commencement of proceedings, that he was reconsidering her status is irrelevant to the question whether he should pay costs which have become unnecessary.  He was under no duty to inform the prosecutrix of his reconsideration although his advisers knew of a pending challenge to the Tribunal's decision; he had done nothing to lead to any further costs being incurred; and he had undertaken to give 72 hour's notice of any intention to deport the prosecutrix.

Moreover, even if the failure to inform is a legally relevant factor on the costs issue, the conduct of the Minister and his advisers seems to me to have been quite reasonable.  There was no undue delay in considering the recommendation which was put before the Senior Adviser on 11 January 1996 and a decision was made by 22 January 1996.  On 16 January 1996, after they became aware of the institution of the present proceedings, the solicitors for the Minister informed the solicitors for the prosecutrix that a recommendation concerning the grant of a visa was being considered.  On 16 January 1996, the solicitors for the prosecutrix were also told not to take any further steps in the matter.  It was hinted that the recommendation might be successful although, on the evidence, the solicitor for the Minister said that no promise was being made.  I do not think that the failure to say anything in the four day period before 16 January 1996 could be regarded as unreasonable conduct on the part of the Minister or his advisers requiring him to pay the whole or part of the costs of the present proceedings, proceedings in which he would probably have been successful if it had been tried.  In any event, most of the costs of preparation of the action were already incurred before 11 January 1996.  On the evidence of Mr Kessels, there were some additional costs in that four day period.  But having regard to all the circumstances, this is not a proper case for holding that the failure of the Minister's advisers to inform the prosecutrix within that four day period that he was considering a recommendation to grant a protection visa is sufficient ground for making an order for costs against him either wholly or partly.

Mr McCarthy contended that the fact that the prosecutrix was legally aided was a further ground for exercising a discretion to make an order for costs.  He said that public moneys were being expended on her application.  But this is a totally irrelevant factor in determining the issue.  The fact that the prosecutrix was being legally aided does not put her in any better position for an order for costs than if she was paying her own costs.  As I pointed out in argument, it would be a strange result if, in addition to the prosecutrix, there was another applicant in the proceedings who was paying her own legal fees and the court could make an order in favour of Mr McCarthy's client but not in favour of the privately funded applicant.  In my view, the fact that the prosecutrix is legally aided does not bear on the issue.  For those reasons the summons is dismissed.

MR WILLIAMS:     I seek costs of the summons and certification of counsel, your Honour.

HIS HONOUR:   Yes, what do you say about that, Mr McCarthy?

MR McCARTHY:   Your Honour, only that in relation to what principles would be applicable under order 71 rule 39 there is no direct authority in relation to this court.  It has not been specifically applied anywhere before. There were elements there that made it proper to ask for costs and to come before the court and present an argument as to why that seemed to be a relevant principle in this particular case.  As the matter would be one in generality where each party bear their own costs, they perhaps provide some circumstances, or a number of factors, that would make it appropriate for that to be the order in relation to this application.

HIS HONOUR:   Mr Williams has asked that the prosecutrix pay the costs of this summons.  Mr McCarthy has pointed out that the construction of Order 71, Rule 39 has not, so far as his research, and indeed my own research, been before the Court before.  However, that seems no reason to depart from the general rule that a successful party is entitled to the costs of the summons.  Accordingly the summons is dismissed with costs.  I certify for the attendance of counsel.

AT 10.41 AM THE MATTER WAS ADJOURNED
INDEFINITELY