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Re The Minister for Immigration and Ethnic Affairs

of the Commonwealth of Australia & Anor; Ex Parte Lai Qin

Practice and Procedure - Costs - Principles governing exercise of cost discretion - Prosecutor achieved success by extra-curial means - Whether respondents should pay applicant's costs of Court proceedings.

Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of A

Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia & Anor; Ex Parte Lai Qin [1997] HCA 6 (28 February 1997)







Summons dismissed with costs.

Date of Order : 28 February 1997

Oral Reasons for Judgment delivered: 28 February 1997

S 97/001

Solicitors for the Applicant: Kessels & Associates

Solicitor for the Respondents: Australian Government


Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.


Re The Minister for Immigration and Ethnic Affairs

of the Commonwealth of Australia & Anor; Ex Parte Lai Qin

Practice and Procedure - Costs - Principles governing exercise of cost discretion - Prosecutor achieved success by extra-curial means - Whether respondents should pay applicant's costs of Court proceedings.

High Court Rules - O 71 r 39.

McHUGH J. The applicant, Lai Qin, ("the prosecutrix") seeks an order that the first respondent, the Minister for Immigration and Ethnic Affairs, pay the costs of proceedings instituted by the prosecutrix before the Minister granted her a protection visa. The order is sought under O 71, r 39 of the Rules of Court, which provides:

"When for any reason the further prosecution of a proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, any party may apply to the Court or a Justice to determine that question, and thereupon the Court or Justice may make such order as is just."

The prosecutrix contends that it is just to make an order in these proceedings because the Minister should have informed her legal advisers prior to the commencement of the proceedings that he intended to review her application for a protection visa. To understand this submission, it is necessary to sketch the background of the proceedings.

The prosecutrix arrived in Australia on 22 November 1994 by boat. On arrival she was detained and taken to Port Hedland where she remained until about 24 January 1996. On 22 January 1996 the Minister exercised his discretion under s 417 of the Migration Act 1958 (Cth) ("the Act") and granted her a protection visa although he had refused an earlier application for a visa. That application was made on 24 January 1995 when the prosecutrix applied for a protection visa on the ground that she was a refugee within the meaning of Art 1 of the Convention Relating to the Status of Refugees that was done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. On 10 February 1995 the Minister refused the application. On 23 February 1995, the prosecutrix applied to the Refugee Review Tribunal to review the Minister's decision. The Tribunal did not give a decision until 6 October 1995 when it affirmed the decision of the Minister not to grant a visa to the prosecutrix.

On 15 January 1996, the prosecutrix commenced proceedings in this Court against the Minister and the Tribunal pursuant to s 75(v) of the Constitution. She sought an order nisi calling on the respondents to show cause why writs of prohibition, certiorari and mandamus should not be issued against them on the ground that the Tribunal had misconstrued or exceeded its jurisdiction. Various grounds were relied on. One of them was that the Tribunal had erred in its interpretation of Art 1E of the 1951 Convention. It is noteworthy that no proceedings were commenced in the Federal Court challenging the decision of the Tribunal under s 476 of the Act. In any event, by the time the proceedings were commenced in this Court, the prosecutrix was out of time to commence proceedings in the Federal Court.

On 22 January 1996, as I have said, the Minister exercised his discretion and granted a protection visa to the prosecutrix. She was then released from detention. The prosecutrix, having obtained the relief she sought, naturally has not proceeded with her action in this Court. It will be necessary to return in a little more detail to the facts of the case, but it is first necessary to state the principles which govern an application for costs when a party elects not to pursue an action because he or she has achieved the relief sought in the action either by settlement or by extra-curial means.

In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs[1]. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order[2]. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties[3]. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action[4]. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd[5], the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission[6] where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases[7].

The critical question in this case then is whether or not the prosecutrix acted reasonably in bringing these proceedings and whether the respondents acted so unreasonably in not informing the prosecutor that an application to review the decision to refuse a visa was being considered that it would be proper for the Minister to pay the whole or part of the cost of the proceedings. In determining whether or not the prosecutor acted reasonably, it is necessary to mention some further facts in the matter.

The critical question for the Tribunal was whether the prosecutrix was protected by the 1951 Convention. That turned on whether Art 1E of the Convention took her out of the protection of the Convention. Article 1E states that:

"This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country."

The Tribunal held that a person could come within Art 1E even though he or she had not become a citizen or been recognised as a refugee in the country where that person had taken residence. The Tribunal applied an impressive array of academic writings and the decision of Olney J in Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs[8] in holding that whether a person has been recognised by the competent authorities of the country depends on whether that person is recognised by those authorities as having de facto nationality in that country. Moreover, the Tribunal held that a person may be recognised as having the relevant rights and obligations even though the person does not necessarily have full political rights in a country.

The Tribunal found that in some respects Vietnamese of Chinese descent, as the prosecutrix is, who had fled to China from Vietnam, were treated better than Chinese Nationals, one example being an exemption from the one child policy. However, the Tribunal accepted that, if a person had not been granted household registration in China, it was unlikely that he or she would be fully recognised as having the rights and obligations which are attached to the position of nationality in China.

Accordingly, a vital question in the proceedings before the Tribunal was whether the prosecutrix had acquired such registration. This was a question of fact. Although there was evidence from the prosecutrix which strongly suggested that she did not have such registration, the Tribunal held as a fact that she had registration. Either expressly or by implication the Tribunal refused to accept the prosecutrix's evidence in a number of respects.

Having read the Tribunal's decision and the affidavit filed in support of the application for the grant of an order nisi, it seems to me that, although the prosecutrix had an arguable case, she did not have strong prospects of success. If I had to make a prediction about the outcome of her application, I would think that it would probably have failed. However, as I have said it is not the function of a court on a costs application - in most cases at all events - to make a prediction as to the outcome of a hypothetical case. It is enough that an applicant has acted reasonably. There is nothing to suggest that the prosecutrix acted unreasonably in bringing her application, particularly bearing in mind that she faced imminent deportation unless the decision of the Tribunal or the Minister was reversed. If the matter had proceeded further, it would also have been reasonable for the Minister to defend the decision of the Tribunal. If no more appeared in the case, I would think there were no grounds for making an order for costs in favour of the prosecutrix.

However, Mr McCarthy forcefully contends that this case is unique. He submits that, if his client had known that the Minister was reconsidering the matter, the proceedings would have been unnecessary and that as a result costs were unnecessarily incurred by the prosecutrix's legal advisers in preparing the High Court challenge.

I should mention at this stage that the Minister granted the visa because of the changed circumstances of the prosecutrix since her arrival in this country. She had married a Vietnamese person who had been given Australian nationality; she had given birth to a child; and she was eligible after leaving the country to apply for a migrant spouse visa. On humanitarian grounds the Minister granted her a protection visa without requiring her to leave the country.

It appears from the evidence before the Court that a recommendation was put before the Senior Adviser to the Minister on 11 January 1996. The recommendation did not expressly recommend the grant of a visa but under the heading, Recommendation, it stated:

"That you consider whether to refer the case to the Minister for him to consider whether to grant a Protection Visa using his power under subsection 417(1) of the Act, if he believes it is in the public interest to do so."

As I have said, the present proceedings were commenced on 15 January 1996 and the recommendation was put before the Minister, or the process of putting it before the Minister was started, on or about 11 January 1996. So, the vital question in the case seems to me to be whether or not the legal advisers to the Minister acted unreasonably between 11 January and 16 January 1996 in not informing the prosecutrix's solicitors that the application for a visa might be reconsidered by the Minister when they knew that the prosecutrix was contemplating legal proceedings to challenge the Tribunal's decision. If the legal advisers to the Minister did act unreasonably, it might provide a foundation for an order that the Minister should pay the costs of the prosecutrix incurred some time between 11 January and 16 January 1996.

On the material before the Court, it is difficult to determine whether much work was done by the prosecutrix's advisers during the period 11 January to 15 January 1996. Certainly, additional work was done, although the affidavit filed by Mr Kessels, her solicitor, sworn on 3 February 1996 indicates that by 8 January 1996 much of the work on the case had already been done and that the prosecutrix could have launched the present proceedings at any time after 8 January 1996 if her advisers had been given 72 hour's notice of an intention to deport the prosecutrix, as they had been promised they would be given.

So I turn then to the question of whether or not the failure to inform the solicitors for the prosecutrix in that four day period was unreasonable and, if so, whether it requires an order for costs. I would reject the application for costs on the simple ground that the failure to inform the solicitors of the reconsideration of the grant of a protection visa is not, in the circumstances of the case, relevant to the question of the costs in this action. If the action had gone on for hearing and the Minister had afterwards granted a visa, it is impossible to suggest that he should pay the costs of the proceedings merely because during the proceedings he was reconsidering his earlier decision. Similarly, the Minister's failure to inform the prosecutrix, before the commencement of proceedings, that he was reconsidering her status is irrelevant to the question whether he should pay costs which have become unnecessary. He was under no duty to inform the prosecutrix of his reconsideration although his advisers knew of a pending challenge to the Tribunal's decision; he had done nothing to lead to any further costs being incurred; and he had undertaken to give 72 hour's notice of any intention to deport the prosecutrix.

Moreover, even if the failure to inform is a legally relevant factor on the costs issue, the conduct of the Minister and his advisers seems to me to have been quite reasonable. There was no undue delay in considering the recommendation which was put before the Senior Adviser on 11 January 1996 and a decision was made by 22 January 1996. On 16 January 1996, after they became aware of the institution of the present proceedings, the solicitors for the Minister informed the solicitors for the prosecutrix that a recommendation concerning the grant of a visa was being considered. On 16 January 1996, the solicitors for the prosecutrix were also told not to take any further steps in the matter. It was hinted that the recommendation might be successful although, on the evidence, the solicitor for the Minister said that no promise was being made. I do not think that the failure to say anything in the four day period before 16 January 1996 could be regarded as unreasonable conduct on the part of the Minister or his advisers requiring him to pay the whole or part of the costs of the present proceedings, proceedings in which he would probably have been successful if they had been tried. In any event, most of the costs of preparation of the action were already incurred before 11 January 1996. On the evidence of Mr Kessels, there were some additional costs in that four day period. But having regard to all the circumstances, this is not a proper case for holding that the failure of the Minister's advisers to inform the prosecutrix within that four day period that he was considering a recommendation to grant a protection visa is sufficient ground for making an order for costs against him either wholly or partly.

Mr McCarthy contended that the fact that the prosecutrix was legally aided was a further ground for exercising a discretion to make an order for costs. He said that public moneys were being expended on her application. But this is a totally irrelevant factor in determining the issue. The fact that the prosecutrix was being legally aided does not put her in any better position for an order for costs than if she was paying her own costs. As I pointed out in argument, it would be a strange result if, in addition to the prosecutrix, there was another applicant in the proceedings who was paying her own legal fees and the court could make an order in favour of Mr McCarthy's client but not in favour of the privately funded applicant. In my view, the fact that the prosecutrix is legally aided does not bear on the issue. For those reasons the summons is dismissed.

Mr Williams has asked that the prosecutrix pay the costs of this summons. Mr McCarthy has pointed out that the construction of O 71, r 39 has not, so far as his research, and indeed my own research, been before the Court before. However, that seems no reason to depart from the general rule that a successful party is entitled to the costs of the summons. Accordingly the summons is dismissed with costs. I certify for the attendance of counsel.

[1] Latoudis v Casey (1990) 170 CLR 534.

[2] Latoudis (1990) 170 CLR 534 at 543, 566-568.

[3] Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201; 116 ALR 523 at 530.

[4] Australian Securities Commission (1993) 44 FCR 194 at 201; 116 ALR 523 at 530.

[5] [1971] QWN 13.

[6] Federal Court of Australia, 10 February 1989.

[7] See, for example, Australian Securities Commission (1993) 44 FCR 194; 116 ALR 523; Seventh Mingcourt Pty Ltd v The Honourable Carmen Lawrence unreported, Federal Court of Australia, 1 August 1996 per Branson J; Coleman v City of Melville unreported, Supreme Court of Western Australia, 22 September 1994 per Scott J; Compadres Australia Pty Ltd v Waterfront Place No 2 Pty Ltd unreported, Supreme Court of Queensland, 15 August 1995 per MacKenzie J; Inprint Ltd v K & D Media Pty Ltd (Administrator Appointed) unreported, Federal Court of Australia, 22 December 1995 per Einfeld J; Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772.

[8] (1992) 38 FCR 191.


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