Kheir v Secretary to the Department of Justice and Regulation

The case of Kheir v Secretary to the Department of Justice and Regulation involved a judicial review proceeding where the plaintiff sought a mandamus to compel the defendant to make a decision under section 58E of the Corrections Act 1986. The plaintiff argued that the defendant's inaction in making the required decision amounted to a failure to comply with a legal obligation. The defendant subsequently made the decision after the proceeding had commenced, but the plaintiff had already made a 'Hazeldene' offer, a formal offer to resolve the proceedings. The central legal issues were whether the plaintiff had an arguable claim for mandamus, who was the successful party, and whether the defendant's refusal to accept the 'Hazeldene' offer was unreasonable.

The Court was required to determine whether the plaintiff had an arguable claim for mandamus, which was resolved by the defendant's subsequent decision. The primary focus, therefore, shifted to determining the successful party and whether the defendant's refusal to accept the 'Hazeldene' offer was unreasonable. The Court examined the defendant's conduct in the context of the model litigant standard, finding that the refusal to accept the offer was unreasonable as it did not meet the standard expected of a model litigant. The Court held that the defendant's failure to accept the offer was unreasonable and ordered the defendant to pay indemnity costs from the date of the offer.

Ultimately, the Court found in favour of the plaintiff on the issue of the successful party and the unreasonableness of the defendant's conduct. The Court's reasoning highlighted the importance of considering the model litigant standard in the context of 'Hazeldene' offers. The Court emphasised that refusal to accept such offers without reasonable cause could lead to adverse cost consequences. The final orders of the Court included a declaration that the plaintiff was the successful party and an order for the defendant to pay the plaintiff's costs from the date of the 'Hazeldene' offer. This decision underscores the significance of adhering to the principles of procedural fairness and the model litigant standard in judicial review proceedings.