Vaitaiki v Minister for Immigration and Multicultural Affairs

[2001] FCA 1842

FEDERAL COURT OF AUSTRALIA

Vaitaiki v Minister for Immigration & Multicultural Affairs [2001] FCA 1842

TEVITA MUSIE VAITAIKI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1528 OF 2001

TEVITA MUSIE VAITAIKI v DEPUTY REGISTRAR MIGRATION REVIEW TRIBUNAL

N 1561 OF 2001

LINDGREN J
12 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N 1528 OF 2001
BETWEEN:	TEVITA MUSIE VAITAIKI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	12 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed as incompetent.

2.        The applicant pay one half of the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N 1561 OF 2001
BETWEEN:	TEVITA MUSIE VAITAIKI APPLICANT
AND:	DEPUTY REGISTRAR MIGRATION REVIEW TRIBUNAL RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	12 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed as incompetent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N 1528 OF 2001
BETWEEN:	TEVITA MUSIE VAITAIKI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N 1561 OF 2001
BETWEEN:	TEVITA MUSIE VAITAIKI APPLICANT
AND:	DEPUTY REGISTRAR MIGRATION REVIEW TRIBUNAL RESPONDENT
JUDGE:	LINDGREN J
DATE:	12 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Upon these two matters being called on for hearing this afternoon, Dr Griffiths SC appeared for Tevita Musie Vaitaiki (“the applicant”) and indicated that the applicant had accepted his advice, on the basis of which, both applications were by consent to be dismissed as incompetent. 

2. Dr Griffiths has made clear to the Court that it is the applicant’s intention to apply to the Migration Review Tribunal for review of a decision refusing his client’s application for a Medical Treatment (Temporary) Short Stay (Class UB) Subclass 675 visa.

3. Ms Watson, who appears for the Minister for Immigration and Multicultural Affairs (“the Minister”), who is the respondent in proceeding N 1528 of 2001, seeks orders for costs in both proceedings.  Dr Griffiths submits that there should be no order for costs because the applicant has lacked legal advice and has, in substance, chosen the wrong forum through ignorance of the law.  In addition, Dr Griffiths points out that, upon receiving advice as to the incompetence of both applications, his client has immediately agreed to the dismissal of them.

4. Dr Griffiths has appeared for the applicant on a pro bono basis pursuant to a reference under Order 80 of the Federal Court Rules.  The Court has been considerably assisted, as indeed the Minister has been, by the fact that the applicant has been advised by Dr Griffiths.  This has led to a saving of the Court’s time and to a saving of time on the part of the Minister’s legal representative.  In the ordinary course, the hearing this afternoon would have occupied quite some time while I listened to the applicant and explained matters to him.  The Minister’s legal representative would have been detained here throughout.  The Minister has been saved the associated cost. 

5. On the other hand, the public interest of encouraging the provision of services on a pro bono basis does not allow me to set aside all principles relating to the award of costs.  The discretion is usually exercised by an order that the unsuccessful party pay the costs of the successful one.

6. It is conceivable that if the Minister had understood exactly what has happened and what saving has accrued to him by virtue of Dr Griffiths’ having made his services available on short notice on a pro bono basis, the Minister would not have pressed for an order for costs against Dr Griffiths’ client at all.  I say this without any criticism of the Minister’s legal representative, since she probably did not know until coming to Court that the applicant would have legal advice and would act in accordance with it.

7. A taxation of costs would probably give the Minister costs as for a hearing occupying the whole afternoon.  I think a just result, rather than to stand the matter over to allow time for Ms Watson to obtain instructions and then return to Court, is for me to make an order that the applicant pay one half of the costs of the respondent Minister in proceeding N 1528 of 2001.  In the other proceeding, N 1561 of 2001, there will be no order as to costs because, in substance, the Minister incurred only one set of costs on the two proceedings (Ms Watson’s affidavits in the two proceedings are, in substance, identical).

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             19 December 2001

In proceedings N 1528 of 2001 and N 1561 of 2001:

Counsel for the Applicant:	Dr J E Griffiths SC
Solicitor for the Respondent:	Ms D J Watson of the Australian Government Solicitor
Date of Hearing:	12 December 2001
Date of Judgment:	12 December 2001