Lek, K.S. v Minister for Immigration, Local Government and Ethnic Affairs

[1993] FCA 779

7 7 9      93

JUDGMENT No. ..,.,.,,,,,,,,.,,.I ,,.,,

IN THE FEDERAL COURT OF AUSTRALIA ) No. NG 926 of 1992

GENERAL DIVISION 1

BETWEEN:	KIM SROUN LEK Applicant
AND:	M I N I S T E R -- - -~ ~ - - F O R
IMMIGRATION, LOCAL
GOVERNMENT AND ETRNIC
AFFAIRS Respondent

C O W :	WILCOX J
PLACE :	SYDNEY
DATE :	28 OCTOBER 1993

EX!!2EMPORE REASONS FOR JUDGMENT

WILCOX J: The matter before the court today is a notice of motion filed on behalf of the applicant in the principal proceeding seeking an order that I vacate order 3 made on 8 October. By that order I ordered that the applicant, Lek Kim Sroun pay the respondent two-thirds of his costs of the proceeding. Mr Catterns on behalf of the applicant has put a number of reasons why I should reconsider this order and	I	, .
I
,.
vacate it. He referred to aspects of the conduct of the case,
including various acts and omissions of the Minister during
the course of the case and the expense and inconvenience which
this caused to the applicant and his solicitors from time to	!
P
time.	,

So far as those matters are concerned, I took them into account in forming the view that an order for two-thirds

of the costs was appropriate. I think it will be apparent that, if I had apportioned the costs simply by counting heads, the proportion would have been much higher than two thirds. But I was conscious of many of the matters that M r Catterns has referred to today in deciding that, overall, an assessment of two-thirds would be a fair thing.

Mr Catterns has emphasised that the claim had an element of being a test case. That does not mean that Dr Lek had no personal interest in the matter; quite the contrary. But he argued matters of general importance that involved many other people besides himself; indeed, people extending beyond the group members whom he was formally representing. I appreciate that fact. I also appreciate the fact that he and his advisers chose to use the representative procedure available under Part 4A of the Federal Court of Australia Act

1976. I think that was a sensible choice in the interests of efficiently running the litigation. However, having said all that, there is no general rule that, simply because an action is a test case, there ought to be no order for costs against

an unsuccessful applicant. It is sufficient to refer to what

was said by Burchett J in Australian Conservation Foundation v Forestrv Commission (1988) 81 ALR 166 at 170-171. This was re£ erred to by Gummow J in Botanv Municipal Council v Secretarv, Department of the Arts, Sports . Environment. Tourism and Territories (1992) 34 FCR 412 at 416-

417. I do not mean to suggest that the fact that a person brings an action to test a general ruling in the public interest is irrelevant. Indeed, I think that it ought to be taken into account. But it should not necessarily lead to the situation that a successful respondent is left to bear the whole of his or her costs.

Similarly, in regard to the fact that the proceeding was a representative proceeding, it is true that this is a procedure which Parliament was keen to encourage. But it did not take the course of rendering representative parties immune from liability for costs in a case where the action failed. This was a deliberate choice by the Parliament, departing from recommendations put to it by the Law Reform Commission. I think that I have to be guided by the fact that this was the policy adopted by the Parliament.

The reality of the situation is that, but for one factor, there would be no basis for reconsidering the order

that I made. The single factor is that, since my judgment was

delivered, the Minister has announced to affected persons a	-
proposal to amend Migration Regulations so as to create a
special category of visa. This type of visa will be available

only to people who arrived in Australia unauthorised, by boat, between 28 November 1989 and 26 April 1991, have been in immigration detention for the greater part of their stay in Australia and have subsequently returned to Cambodia; or, alternatively, to people having a near relative in Australia who is an Australian citizen or an Australian permanent resident.

4.   !

i .
i

It seems likely that all of the people on whose behalf this action was brought, including Dr Lek himself,	I.
i
would fall within the first, but not the second, of those	!
F
alternatives. The problem arises because the Minister	P
proposes that the regulation will pick up the general	!
i .,
provisions of the regulations making it an impediment to the	I :
f-
grant of a visa that the visa applicant owes a debt to the	t .
Commonwealth. Counsel's concern is that, if the order is	I
maintained in force against Dr Lek, he will be disqualified
from taking advantage of this new visa; alone amongst all the	I
I
people on whose behalf the action was brought.	To describe

this result as anomalous would be an understatement. In my . ,

opinion; it would be grossly unfair. It would penalise the	b
person in the group who had enough leadership and initiative
m ,
to take action on behalf of all of them in a manner encouraged	I
I

by the legislature.	However, having said that, I do not	i
I -

think this is a matter for the Court to resolve.	!
i i
I
I inquired from counsel what was the position about the debt which had accrued to the Commonwealth from the
detention of these people. I have not worked out the exact

sum but at $200 a day - which I am told is the amount that it costs the Commonwealth to keep a person in detention in Australia - the detention of one person for three and a half years costs about $255,000. These people have now been in detention for more than three and a half years. There are 48 of them. It follows that, if the Minister's scheme is to have any possibility of acceptance, the Commonwealth will have to be prepared to write off some $12 million. It would seem absurd if, having swallowed that camel, the Commonwealth now strains at the gnat of a few tens of thousands of dollars of legal costs; and in doing so penalises the type of person likely to make the most contribution, as a migrant, to Australia.

This is not a one-off question peculiar to this case. There are, to my knowledge, a number of similar actions pending in the Court. I am not sure how many of them are representative actions and how many are not; but they are all brought to challenge decisions denying claims to refugee status. If the people involved in those actions are minded to take up the Minister's offer, they will presumably abandon their pending cases. For them to take any other course would be disadvantageous to the Commonwealth. It would be ridiculous for resources to be spent in determining the validity of refusals of refugee applications if the people concerned had already taken up the Minister's offer and gone back to Cambodia for the requisite one year before applying

to come back to Australia. Yet, unless some accommodation is

for a visa that was likely to be granted and would enable them

made, the same problem will arise when judges are asked to
dismiss those actions by consent.

It seems to me that this is a question of policy which has to be determined, probably at the highest level, by

Government. Unless the Government is prepared to come to an

arrangement that ensures that particular applicants will not	i I
be penalised because of a costs burden, it puts in jeopardy	I .

I

the whole scheme embodied in the Minister's offer to the ! !

Cambodian refugee applicants.	It is, of course, a matter for	I !
!

them; but they may take the view that they are not prepared to	I ;
accept the offer unless the Commonwealth is prepared to ensure that it applies to all of their number, including those who had the initiative to lead their legal fight.
It is not my function to tell the Government what course should be adopted. It is a problem that cries out for attention, but it is the Government's problem and not that of the Court. I am not prepared to depart from the order appropriate in relation to the litigation simply to overcome a political or bureaucratic difficulty.
I decline to accede to the notice of motion, but I express the hope that commonsense will prevail.
I certify that this and the preceding five (5) pages

are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate:

Dated:  28 October 1993

APPEAFtANCES

Counsel for the Applicant:	D K Catterns
Solicitors for the Applicant:	Blake Dawson Waldron
Counsel for the Respondent:	A Cavanough
Solicitors for the Respondent:	Australian Government Solicitor
Date of hearing:	28 October 1993