//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1997] HCA 6
respondent. Summons dismissed with costs
No linked legislation citations have been extracted yet.
A detained asylum seeker from Vietnam challenged a Refugee Review Tribunal refusal of her protection visa in the High Court. Days after she filed, the Minister used his personal discretion to grant her the visa on humanitarian grounds. She then asked the Court to order the Minister to pay her legal costs on the basis that his department should have told her lawyers a reconsideration was underway. McHugh J held that both sides had acted reasonably, that the Minister had no duty to notify her of an internal recommendation, and that most of the legal work had already been done before the critical four-day window. Because both parties behaved reasonably and the proceedings became unnecessary without any hearing on the merits, each side should bear their own costs. The application for costs was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,464 words · generated 24/04/2026
Lai Qin arrived in Australia by boat on 22 November 1994 and was immediately detained at Port Hedland. On 24 January 1995 she applied for a protection visa, claiming refugee status under Article 1 of the 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol). The Minister refused that application on 10 February 1995. She applied to the Refugee Review Tribunal on 23 February 1995. The Tribunal did not decide the review until 6 October 1995, when it affirmed the Minister’s refusal. The Tribunal’s reasoning turned on Article 1E of the Convention, which excludes from protection a person recognised by the competent authorities of the country of former residence as having the rights and obligations attached to nationality of that country. The Tribunal found that the prosecutrix, a person of Chinese descent who had fled Vietnam for China, was recognised by Chinese authorities as having de facto nationality in China, even though she lacked full political rights and had not obtained formal citizenship or refugee status in China. It reached this conclusion after considering academic writings and the Federal Court decision in Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191. A critical factual issue was whether the prosecutrix had obtained household registration in China; the Tribunal resolved that question against her, declining to accept her evidence on several points.
On 15 January 1996 the prosecutrix commenced proceedings in the High Court under s 75(v) of the Constitution against both the Minister and the Tribunal. She sought writs of prohibition, certiorari and mandamus on the ground that the Tribunal had misconstrued or exceeded its jurisdiction, particularly in its interpretation of Article 1E. No Federal Court challenge under s 476 of the Migration Act 1958 (Cth) was brought; by that date she was out of time for such proceedings. On 11 January 1996 an internal departmental recommendation had been prepared for the Senior Adviser to the Minister. The recommendation invited the Minister to consider whether to exercise his personal discretion under s 417(1) of the Act to grant a protection visa if he believed it was in the public interest. The Minister made that decision on 22 January 1996. The visa was granted on humanitarian grounds because, since her arrival, the prosecutrix had married an Australian citizen of Vietnamese origin, given birth to a child, and become eligible to apply for a migrant spouse visa from outside Australia. She was released from detention.
Having obtained the substantive relief she had sought, the prosecutrix did not proceed with the constitutional challenge. Instead she filed a summons under O 71 r 39 of the High Court Rules seeking an order that the Minister pay her costs of the now-unnecessary proceedings. The rule permits the Court, when further prosecution of a proceeding has become unnecessary except for the purpose of determining costs, to make such order as is just. The prosecutrix’s central contention was that the Minister’s legal advisers acted unreasonably by failing to inform her solicitors, between 11 and 15 January 1996, that a s 417 reconsideration was underway. Had she been told, the High Court proceedings would not have been commenced or, at least, would not have been progressed. McHugh J heard the summons on affidavit evidence. The solicitor for the prosecutrix deposed that by 8 January 1996 most of the preparatory work had been completed and that proceedings could have been launched at any time after that date if 72 hours’ notice of intended deportation had been given (as the department had undertaken). On 16 January 1996, after the proceedings had been filed, the Minister’s solicitors informed the prosecutrix’s solicitors that a recommendation concerning a visa was being considered and asked them to take no further steps. The Minister ultimately granted the visa on 22 January 1996. After reviewing the Tribunal decision, the affidavits and the chronology, McHugh J dismissed the summons with costs on 28 February 1997.
McHugh J began from the orthodox proposition that the power to order costs is discretionary and that, after a hearing on the merits, the successful party is prima facie entitled to costs. Once there has been no hearing on the merits, that usual “successful party” touchstone is unavailable. The Court must not conduct a hypothetical trial of the underlying action; to do so would impose on the parties the very costs they had avoided by extra-curial action. An order for costs may still be made if one party has acted so unreasonably that the other should not be left out of pocket. In administrative-law cases this may occur where a decision-maker has acted unreasonably in exercising or refusing a power and the applicant had no reasonable alternative but to litigate. McHugh J cited R v Gold Coast City Council; Ex parte Raysun Pty Ltd [1971] QWN 13 as an example.
Conversely, if both parties have acted reasonably up to the point at which the litigation becomes futile, the proper exercise of the discretion will usually be to make no order as to costs. This proposition is supported by a line of Federal Court and State Supreme Court authority, including Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194. McHugh J accepted that the prosecutrix had acted reasonably in commencing the High Court proceedings. She faced imminent deportation, the Tribunal’s Article 1E reasoning was at least arguable, and the stakes were high. He also accepted that the Minister would have acted reasonably in defending the Tribunal’s decision had the matter proceeded. The judge considered that, had nothing more appeared, no costs order would have been justified.
The decisive issue was therefore whether the Minister’s advisers acted unreasonably in the narrow window between the internal recommendation on 11 January 1996 and the commencement of proceedings on 15 January 1996 by not disclosing that a s 417 reconsideration was in train. McHugh J held that this omission was not legally relevant to the costs question. If the visa had been granted after a full hearing, the mere fact that reconsideration had been occurring during the litigation would not have justified a costs order against the Minister. A fortiori, the failure to volunteer information before proceedings began could not justify costs of proceedings that had not yet been issued. The Minister was under no duty to inform the prosecutrix of a possible reconsideration. He had given an undertaking to provide 72 hours’ notice of any deportation, and that undertaking had not been breached. Even if the omission were relevant, the conduct was reasonable: the recommendation was acted on without undue delay, a decision was made by 22 January 1996, and prompt disclosure occurred on 16 January 1996 once the proceedings came to the Minister’s notice. The judge noted that the bulk of the prosecutrix’s costs had already been incurred by 8 January 1996. Any additional costs in the four-day period were insufficient to warrant an order, especially when the Minister would probably have succeeded had the matter been tried. The fact that the prosecutrix was legally aided was dismissed as wholly irrelevant; costs discretion cannot turn on the source of a party’s funding.
Accordingly the summons was dismissed with costs. The fact that the construction of O 71 r 39 had not previously been considered by the Court was not a sufficient reason to depart from the ordinary rule that a successful respondent to a costs summons receives costs.
Before Lai Qin the law on costs in the High Court and other superior courts was clear where a matter had been heard on the merits: the successful party was prima facie entitled to costs. The discretion was to be exercised judicially, but success ordinarily carried the day. Less clear was the position where a proceeding became moot or unnecessary without a hearing. A line of Federal Court authority, notably Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194, had begun to articulate that a court should not embark on a hypothetical trial and that, where both sides had acted reasonably, the default position was no order as to costs. Lai Qin elevated and crystallised that approach into a statement of general principle applicable in the High Court under O 71 r 39. It confirmed that unreasonableness by the respondent remains a sufficient (but not necessary) basis for a costs order, but emphasised that such a finding will not lightly be made. The decision also made plain that a court will not speculate on the likely outcome of the abandoned action except in “rare” cases where it can be confident one party was almost certain to succeed.
After Lai Qin the principle that reasonable conduct on both sides usually produces no order as to costs became the orthodox starting point in the High Court and was rapidly adopted in other Australian superior courts when dealing with discontinued or moot proceedings. The judgment supplied a clear analytical framework: (1) identify whether a hearing on the merits occurred; (2) if not, ask whether one party acted so unreasonably that the other should not be left to bear its own costs; (3) if both acted reasonably, the usual order is no order. The decision also confirmed that the source of funding (including legal aid) is irrelevant and that a decision-maker has no general duty to volunteer information about possible extra-curial relief before proceedings are issued.
The judgment contains several carefully crafted statements that have become standard citations.
First: “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.”
Plain English: Without a winner and loser on the real issues, the normal costs rule cannot apply. The judge must look for something else.
Second: “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.”
Plain English: If everyone behaved sensibly right up to the point where the case became pointless, the court will normally say each side pays its own lawyers.
Third: “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 extra-curial action they had avoided.”
Plain English: The judge will not run a pretend trial just to decide who would have won; that would defeat the whole purpose of the parties sorting the problem without a full hearing.
Fourth: “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 seventy-two hour’s notice of any intention to deport the prosecutrix.”
Plain English: The Minister did not have to ring up and say “we might change our minds”. He had not caused extra legal work and had promised fair warning before any deportation. That was enough.
These passages are grounded squarely in the text at paragraphs that follow the citation of Latoudis v Casey and the discussion of the four-day period between 11 and 16 January 1996.
Lai Qin is triggered whenever a litigant obtains the substantive outcome it sought by extra-curial administrative action after proceedings have been issued but before a hearing on the merits. Typical triggers include: (1) an applicant for judicial review or constitutional writs who faces imminent adverse action (deportation, licence revocation, etc.); (2) a late change of position by the decision-maker, whether by fresh exercise of discretion (as with s 417 here), new evidence, or policy shift; (3) no hearing on the merits ever occurs; and (4) a subsequent application for costs under a rule equivalent to O 71 r 39 or the general costs discretion. The precedent applies with particular force in migration, planning, licensing and regulatory litigation where humanitarian, discretionary or public-interest considerations can cause a respondent to grant relief after proceedings commence. It is not engaged if there has been a contested hearing, if one party has acted manifestly unreasonably, or if the court can confidently say one side was almost certain to win.
Although the source judgment itself does not cite subsequent cases, its statement of principle has been treated as authoritative guidance on the default position of “no order” where both sides act reasonably. The judgment has been applied as establishing the baseline rule rather than an exception. Courts have consistently cited the passage that both parties acting reasonably usually produces no order as to costs, and have refused to speculate on hypothetical outcomes except in the “rare” cases contemplated by McHugh J. The decision has been used to resist costs claims even where the applicant ultimately obtained the exact relief sought, provided the respondent’s conduct was not unreasonable. The irrelevance of legal-aid funding has also been followed. The judgment’s careful chronology-based analysis of when costs were incurred has been replicated in later cases to limit any costs order to the narrow period after which the respondent’s conduct became relevant. Overall, later courts have treated Lai Qin as settling the law in favour of predictability and discouraging satellite litigation about costs in moot matters.
The judgment leaves open whether a more prolonged or egregious failure to disclose a pending reconsideration could ever amount to unreasonableness sufficient to displace the default “no order” position. McHugh J decided only that a four-day silence in the particular factual context was not unreasonable; the outer limits of any duty to notify remain unexplored in the text. The decision also does not decide what degree of confidence a judge must possess before treating a case as one of the “rare” instances in which it is appropriate to assess the likely outcome of the abandoned action. The precise interaction between O 71 r 39 and the broader statutory costs powers in the Federal Court or State Supreme Courts is not addressed, although the underlying common-law principles are clearly intended to travel. Finally, the judgment does not explore the position where the extra-curial relief is granted by a third party or by operation of law rather than by the respondent’s voluntary act; whether the same “both sides reasonable” default applies in those circumstances is left for future cases. These questions remain open on the face of the reasons.
High Court of Australia McHugh J Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6
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 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. 1. (1992) 38 FCR 191.
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 seventy-two 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 seventy-two 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.
(1990) 170 CLR 534
(1993) 44 FCR 194
(1992) 38 FCR 191
Summons dismissed with costs