Vo v Minister for Immigration & Multicultural Affairs

[1999] FCA 1877

FEDERAL COURT OF AUSTRALIA

Vo v Minister for Immigration & Multicultural Affairs [1999] FCA 1877

COSTS – normal rule that costs should be in the cause – whether successful party had acted unreasonably so as to warrant departure from the normal rule

Re The Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 applied

KIET TUAN VO v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 800 of 1999

TAMBERLIN J
SYDNEY
24 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 800 OF 1999

BETWEEN:	KIET TUAN VO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	24 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter I have just delivered my reasons for judgment dismissing the application for review with costs.  Mr Poynder has now made submissions in relation to the question of costs.  His position in respect of this is that costs should be allowed up to a certain time, when the details of the negotiations and the stage which they had reached between the Australian and the Vietnamese Governments was clarified, and thereafter costs should follow the normal event. 

2. In this case I think the general rule is applicable.  The Minister has been successful on the application.  I do not think it can be said that the Minister has acted unreasonably in exercising or refusing to exercise his discretion in this matter, and I do not think there's been any unreasonableness in the conduct of the litigation such as to warrant a departure from the normal rule.  In any event, the position is clear that the circumstances of the negotiations were made clear before the hearing, and the applicant elected to proceed with the hearing notwithstanding the details which were then made known, although by that time, of course, he had been committed to the proceedings and the consequences thereof.

3. Nevertheless, I think it is reasonable to assume that the parties were proceeding on the basis that the Government was taking the necessary action and carrying out the appropriate negotiations to ensure that suitable arrangements were made between the two countries for the acceptance by the Vietnamese Government of Mr Vo.   In light of the evidence, this was clearly, I think, what had occurred, and there was no doubt that the intention of the Minister was that Mr Vo should be returned.

4. In those circumstances, it seems to me that none of the parties were acting on a false basis, and it helps to confirm my view that the respondent in this matter acted on a reasonable basis.  Accordingly, having taken into account the submissions made by Mr Poynder on behalf of the applicant, I think that the order for costs should stand.  I have considered the decision in Re The Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622, and applying the principle that is there set out at pages 624-625 in the judgment of McHugh J, I consider that this case fits within those principles in the way in which I have just indicated.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            31 January 2000

Counsel for the Applicant:	N Poynder
Solicitor for the Applicant:	Christopher Levingston & Assocaites
Counsel for the Respondent:	P Roberts SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 December 1999
Date of Judgment:	24 December 1999