Takli v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is the second set of reasons for judgment which I am delivering in this proceeding. This set of reasons should be read together with my first set of reasons: see Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186 (23 August 2000, unreported). 2 The present proceeding was begun by Mr Takli on 3 July 2000. It sought review of three decisions, one by the Refugee Review Tribunal, one by the Migration Review Tribunal and one by the Minister. 3 On 17 July 2000, the proceeding came before me for directions in the usual way, at which time I made various directions, including directions that the proceeding be heard on 22 August 2000 and that the Minister file and serve a written outline of his submissions at least two working days before 22 August 2000. 4 The Minister complied with my direction regarding a written outline of submissions. Put briefly, in that written outline, the Minister objected to the competency of Mr Takli's application, in so far as it sought review of the decisions by the Refugee Review Tribunal and the Minister, but consented to the setting aside of the decision by the Migration Review Tribunal and the referring to that Tribunal for further consideration of the matter to which its decision related. No submissions were made in that written outline regarding the costs of the proceeding. 5 The matter came on for hearing, as scheduled, on 22 August 2000, at which hearing the Minister was legally represented. The Minister's legal representative made no oral submission during that hearing to the effect that, in so far as the Minister's objection to the competency of Mr Takli's application succeeded, Mr Takli should be ordered to pay the costs of the proceeding. 6 On the following day, 23 August 2000, I delivered judgment in the proceeding, at which hearing the Minister was again legally represented. As is customary, I read aloud my orders, which were as follows: "1. The Migration Review Tribunal's decision of 7 June 2000 be set aside and the matter to which that decision related be referred to it for further consideration. 2. The application be otherwise dismissed as incompetent." 7 Once I had read those orders aloud, it was apparent to all present at the hearing on 23 August 2000, including the Minister's legal representative, that I had made no order as to the costs of the proceeding. Nevertheless, the Minister's legal representative, having heard me read aloud those orders, did not then make (or even seek to make) any submission regarding the costs of the proceeding. 8 Then, on 29 August 2000, the Minister's legal representative, as she informed me, rang my associate and told her that the Minister wished now to seek an order that, in so far as his objection to the competency of Mr Takli's application had succeeded, Mr Takli should pay the costs of the proceeding. On being so informed by my associate, I asked her to advise the Minister's legal representative that the Minister should, in the first instance at least, file and serve written submissions as to why he should now be heard on the question of costs, in the light of the history of the proceeding. 9 On 14 September 2000, those written submissions arrived. 10 I have now read those submissions. I am not persuaded by them that the Minister should now be heard, as he seeks. In particular, I reject the submission that "there was no opportunity for the Respondent's representative to become aware of" my "proposed course with respect to costs before the Court adjourned immediately after the handing down of judgment". As I have already said, the Minister's legal representative heard me read aloud my orders on 23 August 2000 and could then easily have done what is commonly done on behalf of a party who wishes to seek costs when the orders pronounced do not include an order for costs, namely, rise to his feet and seek those costs. Furthermore, the Minister had, in my view, ample opportunity to make an application for an order for costs of the sort he now wishes to make, not only on 23 August 2000, when I delivered judgment, but also on two earlier occasions, namely, in his written outline, filed on 18 August 2000, and in his oral submissions, made on 22 August 2000. He neither made such application, nor sought that the question of costs should be postponed to some later occasion. In those circumstances, I decline to permit the Minister now to make such application. 11 I add that I have not found it necessary in the circumstances to call on Mr Takli to respond to the Minister's submissions on the present question. (Indeed, I am unaware whether Mr Takli is even in Australia any longer.) I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.