MZNAX v MIMIA

[2006] HCATrans 458

[2006] HCATrans 458

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M165 of 2004

B e t w e e n -

MZNAX

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 12.40 PM

Copyright in the High Court of Australia

MR D.K.K. CHEUNG:   If the Court pleases, I appear for the applicant.  (instructed by the applicant)

MR C.J. HORAN:   Your Honour, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Do I understand that all that is at odds between you is a question of costs?

MR CHEUNG:   Yes, your Honour.

HIS HONOUR:   Yes.  Yes, Mr Horan.

MR HORAN:   Your Honour might recall that this matter was listed for hearing of a special leave application on 9 September 2005 and was adjourned on that date.  The application seeks special leave to appeal from a decision of the Federal Court of Justice Ryan who upheld the decision dismissing an application for review of a decision of the Refugee Review Tribunal.  The question in the Tribunal was whether or not the application to the Tribunal had been made within the prescribed time and effectively decided that it had not and there was no power to extend time so that the application was beyond jurisdiction.

Since this matter was adjourned on 9 September 2005 the respondent has renotified the applicant of the delegate’s decision and as a consequence the applicant has been able to make a valid application to the Refugee Review Tribunal for review of the delegate’s decision.  Now, in those circumstances, the issues sought to be raised in this special leave application have effectively been overtaken by the subsequent developments and are now moot.

HIS HONOUR:   What do you say should happen with costs?

MR HORAN:   The respondent does not seek an order for costs.  The special leave application clearly should be dismissed and I do not believe there is any dispute about that.

HIS HONOUR:   No.

MR HORAN:   Given that the application was never dealt with on the merits, the ordinary position is that each party should bear its own costs and, in those circumstances, the respondent submits that no order should be made for costs.

HIS HONOUR:   Yes.

MR HORAN:   I should mention that the respondent did seek to have consent orders signed in those terms and the applicant initially signed such consent orders but since has written to the Court and to my instructors seeking to raise the issue of costs.

HIS HONOUR:   Yes.  Now, Mr Cheung, what do you say I should do about costs?

MR CHEUNG:   Yes, your Honour.  I think it is on the grounds of…..principles that my client seek costs, your Honour.  There were two matters that proceeded all the way through the lower courts, your Honour, that is…..  The other case,….., was remitted back down to the RRT for rehearing despite various appeals to the respondents, your Honours.  This matter had to proceed to the High Court on a special leave appeal, your Honour.

HIS HONOUR:   Correct me if I am wrong – my half memory of this – and they are very dangerous things, Mr Cheung, half memories – my half memory was that this was a point that emerged from the Court rather than counsel or am I ‑ ‑ ‑

MR CHEUNG:   Yes, your Honour, that is exactly what happened, is the unique outcome which was never expected at all and that threw every party concerned involved in this matter, your Honour.

HIS HONOUR:   Given that it came from the Court, not counsel, would it not be better if both parties slunk away simply disposing of it with nobody getting their costs either way?

MR CHEUNG:   That would sound reasonable, however, my client had to bear the costs of all the other ‑ ‑ ‑

HIS HONOUR:   I should not be flippant about it.  There is real money at stake and these things do matter.

MR CHEUNG:   No, that was not flippant.  I understand that, your Honour.

HIS HONOUR:   But behind the apparent flippancy, this is a very odd set of circumstances.

MR CHEUNG:   It is, your Honour.

HIS HONOUR:   Why do you cut the knot by saying one pays the other rather than cut the knot by saying, “Well, we got to this circumstance, each bears its own and goes back”?  That is the nub of what you need to address.

MR CHEUNG:   Yes, your Honour.  The basis that we are seeking costs is this.  Firstly, based, as I pointed out in my first point just now, is that the…..matter was remitted back down to the RRT.  I think that was pursuant to a decision that was made in Sydney so as to get the matter to be remitted down and we are most surprised that this matter which was totally related to that matter involving the same migration agent that could not file those documents to the RRT in time and because of that we were forced to proceed all the way up here to the High Court, your Honour.

On the day we would have, had the matter proceeded, it would have been remitted back down to the RRT for rehearing, I guess, but, however, that was somehow blocked by the fact that I think the Court was sympathetic on the day and gave direction to the respondent’s counsel to seek instructions from his client to see whether the Minister would agree to allow the matter to be either remitted back down to the RRT or reissued some kind of decision so that my client could proceed back to the RRT.  That was exactly what the Minister did, based on direct instructions from the Bench, your Honour.  Now, what we are arguing, respectfully, your Honour, is that that is exactly the result ‑ ‑ ‑

HIS HONOUR:   I thought we were a little more subtle than direct instructions, Mr Cheung – not greatly but a little.

MR CHEUNG:   That is not my directing attention, your Honour.  Well, back to the point, your Honour.

HIS HONOUR:   Yes.

MR CHEUNG:   We are saying that basically the outcome of what happened then was exactly what we were seeking, your Honour, and because of that I guess, you know, my client has spent a lot of money trying to get here and he got what he wanted.  Basically, that is exactly the position for costs, your Honour, because all the way through down at the Magistrates Court level, the Federal Court level,…..on appeal we have been granted costs and my client has to bear those costs and if the outcome is successful up here at the High Court then we should at least be granted some kind of costs so at least that would outweigh the costs that he has to pay further down the track – I mean, below, down at the lower court level, your Honour.

HIS HONOUR:   Yes.

MR CHEUNG:   So basically…..that we argue that at least we got what we wanted from the High Court, albeit not by way of hearing of a special leave that we should be entitled to some kind of costs, especially on the day being 9 September 2005 costs was reserved, your Honour.  We are summonsed back today by the Court to complete this matter and we seek, therefore, costs on that assumption, your Honour.  Thank you very much, your Honour.

HIS HONOUR:   Yes, thank you, Mr Cheung.

This application for special leave to appeal to the Court was adjourned by a Full Court on 9 September 2005 with an order that the costs be reserved.  Subsequently, the Minister has sought an order that the application for special leave to appeal be dismissed and there is no opposition by the applicant to that.

The application for special leave to appeal to this Court was overtaken by certain administrative steps taken by the Minister to facilitate the applicant having an opportunity for review by the Refugee Review Tribunal of a refusal to grant a visa that the Tribunal had held it did not have jurisdiction to review, the application having been made out of time.

The applicant for special leave points to the fact that at one practical level the applicant obtained what was sought to be achieved by the application for special leave.  The Minister, not unfairly, replies by pointing to the fact that the application for special leave to appeal would stand dismissed.  The applicant says that that side should have the costs of the application for special leave, given the large measure of practical success achieved by the institution of the proceeding.  The Minister is content that no order be made as to the costs. 

The application for special leave being dismissed, costs would ordinarily follow that event and the Minister would have her costs rather than the applicant being entitled to any order for costs.  In the unusual and particular circumstances of this case though, the Minister not seeking costs, I think the proper order is that the application for special leave should stand dismissed.  I will make no order as to costs.

AT 12.51 PM THE MATTER WAS CONCLUDED