FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 514

COSTS - discontinuance of proceedings by leave – proceedings rendered futile by independent events – whether costs should be awarded to respondent upon discontinuance.

Migration Act 1958 (Cth)

Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700 cited

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 followed

FORTRESS AKPATA & PRECIOUS AKPATA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 433 OF 2003

MANSFIELD J

16 MAY 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         Leave is given to the applicants under O 22 r 2(1)(d) of the Federal Court Rules to discontinue the application.

2.         There be no costs payable by any party upon the discontinuance of the application pursuant to the leave granted to do so.

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

REASONS FOR DECISION

1                     This matter commenced by application on 17 April 2003.  The applicant, on behalf of herself and her child Precious Akpata, then sought to restrain the respondent from placing herself and her child Precious in immigration detention and removing them from Australia before the completion of a hearing before the Migration Review Tribunal (the Tribunal).  Apart from her child Precious, the applicant has another child Treasure, who is a citizen of New Zealand and has a right of residence in Australia.

2                     I am told, and it seems common ground, that her application before the Tribunal has been heard but not yet decided.  The respondent regards that application as almost certain to be unsuccessful, because one criterion to be satisfied before the visa sought can be granted is that the application for the visa be made whilst the applicant is outside Australia, and the application was in fact made whilst the applicant was in Australia.

3                     The applicant had attended the respondent's offices in Adelaide on 14 and 15 April 2003.  She then held a bridging visa class B.  It was to expire on 9 May 2003.  She sought a further bridging visa.  She was told that no further bridging visa could be, or would be, granted to her following the expiration of the bridging visa class B.  The consequence of the elapse of the bridging visa B on 9 May 2003 was that the respondent through his officers would be required by s 189 of the Migration Act 1958 (Cth) (the Act) to take the applicant and Precious into immigration detention, and under s 198 to arrange for their removal from Australia as soon as conveniently could be done.  It was in that context that the proceedings were commenced.

4                     Subsequently, on 7 May 2003, the applicant sought the exercise of the respondent’s discretion to grant her a further visa under s 417 of the Act.  Upon the making of that application, but not before, the possibility of her being eligible for a bridging visa class E arose, subject to her meeting the other criteria for eligibility for such a bridging visa.

5                     The applicant was, at about that time, provided with pro bono legal representation.  Her application was proposed to be amended.  She no longer proposed to challenge the power (or the obligation) of the respondent to place her into immigration detention once her bridging visa class B expired if she did not then hold a further visa.  By the proposed amendment, she sought final and interlocutory orders that the form of immigration detention to which she would be exposed would be a form which would not breach the respondent's duty of care to her or to Precious by separating them from her other child Treasure.

6                     At the first occasion of the interlocutory hearing, to the credit of both parties - but, I think, given the circumstances, particularly that of the respondent and his officers - the interlocutory hearing was adjourned whilst the applicant’s then proposed application for a bridging visa class E was considered.  That application was heard and determined on 12 May 2003.  It was successful.  A bridging visa class E was granted to her upon conditions to which I do not need to refer.  As a result, the pursuance of the present application as it was proposed to be amended has become futile.

7                     Mr Ower, counsel for the applicant appearing pro bono, now seeks leave to discontinue the proceedings under O 22 r 2.1(d) of the Federal Court Rules.  That leave is not opposed, but the parties are in disagreement as to whether the discontinuance of the proceedings with leave should expose the applicant to an order for costs of the proceedings.  The respondent seeks such an order.

8                     In Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700, the Full Court (Lee, Tamberlin and R D Nicholson JJ) indicated that the appropriate principles to be applied in determining such a question are those which were discussed by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624‑625.  His Honour said at 624:

‘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.  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.  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.  To do so would burden the parties with the costs of a litigated action which by settlement or extracurial 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.’

9                     In my judgment, those remarks apply equally whether the proposed discontinuance follows settlement of the issues in the proceedings or whether the pursuance of the proceedings becomes futile by reason of matters remote from the issues in the proceedings.  Such is the present case.  I think his Honour made that clear in his remarks at 625.

10                  Consequently, I am faced with a dispute as to costs where there has been no hearing on the merits but the applicant no longer wishes to proceed with the action.  For the reasons which McHugh J pointed out at 625, I should not determine or provisionally determine the action on a hypothetical basis.  It is also, as his Honour said, rare that a judge would feel so confident about the outcome of the proceedings that it is appropriate to order costs on the basis that the costs should follow the likely outcome of the proceedings.

11                  In this matter, although the respondent filed a notice of objection to competency in relation to the form of the proceedings as initially instituted, and intended to maintain that objection notwithstanding the proposed amendments to the application, I do not have a sufficient degree of confidence that the proceedings would have been unsuccessful to place the outcome or likely outcome if the claim had proceeded into the scales in the exercise of my discretion as to the appropriate order.  To use the words of McHugh at 625, I am not ‘almost certain’ that the claim would have failed.

12                  The nature of the interlocutory relief sought was to restrain the respondent from detaining the applicant in a form of immigration detention that would breach his duty of care to her and to Precious by separating either or both of them from Treasure.  Counsel for the respondent acknowledged that such a duty of care arguably existed.  Even though the interlocutory relief did not spell out in precise terms the form of order which the Court might have been disposed to make, I do not think it is clearly a hopeless proceeding.  I add that I have formed that view only on a superficial examination of the papers rather than in an endeavour to consider the merits of the application in any depth.

13                  I therefore turn to consider, as McHugh J indicated is appropriate, whether either party has acted so unreasonably that the other party should obtain the costs of the action.

14                  The circumstances in which the applicant found herself explain why she instituted the proceedings in the way she did.  She was then unrepresented.  Upon becoming represented, the nature of her legal claim was refined, clearly expressed and supported by affidavits which were to the point, and by an outline of argument which was succinct and to the point.  Her acquiescence in the adjournment of the proceedings was not unreasonable.  In my view she has not been shown to have acted so unreasonably in the proceedings that costs of the proceedings should be awarded against her.

15                  I also consider that the respondent through his officers has also acted entirely reasonably in the proceedings.  It is perhaps unnecessary to make such a finding, because there is no application for costs against him.  I accept that the respondent through his officers gave appropriate information to the applicant at the visits on 14 and 15 April 2003.  I accept the assurance of Mr Leerdam of counsel for the respondent that at that time there was no other bridging visa for which the applicant could be eligible when her existing bridging visa expired on 9 May 2003.  The potential eligibility for a bridging visa class E arose only on 7 May 2003.  In addition to those remarks, the respondent promptly considered the fresh bridging visa application and determined it.  He has not opposed the discontinuance of the proceedings.  The material which he filed in relation to the proceedings was informative and to the point.  His attitude throughout has not been other than reasonable and understandable.

16                  Applying the principles to which McHugh J referred in Lai Qin, I am unable to conclude that either of the parties, but in particular the applicant because the order for costs is sought against her, has acted so unreasonably that the costs of the action should be awarded against either of them.  To paraphrase what McHugh J said at 625 it appears to me that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the further prosecution of the proceedings became futile.

17                  In those circumstances, as his Honour indicated, the proper exercise of the costs discretion will usually mean that the Court will make no order as to the costs of the proceedings.  His Honour referred to a number of cases where that course of action had been taken:  at 625 fn (7).  In my view that is the appropriate course of action in this instance.

18                  I accordingly give leave pursuant to O 22 r 2.1(d) of the Federal Court Rules to the applicant to discontinue the proceedings.  I order that the discontinuance be on the basis that there be no costs payable by the applicant to the respondent or by the respondent to the applicant.

Associate:

Dated:              16 May 2003