ROBERT JOHN WALSH v. SECRETARY FOR SECURITY AND ANOTHER

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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JUDGMENT

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1. On 24 July 1997, I handed down my judgment in this matter. I granted an order quashing the deportation an order made against the applicant. I also made an order nisi that the applicant be paid his costs.

2. The respondents are not happy with this order as to costs. On 5 August 1997, the respondents issued a summons. In that summons, the respondents ask that there be no order as to the costs of and incidental to the consent application dated 14 March 1997 and of the hearing of 14 March 1997, that costs incurred but thrown away by the vacation of the hearing on 7 April 1997 be to the respondents, that the costs of and occasioned by the notice dated 16 July 1997 be to the respondents, and that, otherwise, the costs of and incidental to the application for judicial review be to the applicant.

3. The consent application and hearing of 14 March 1997 related to the application by the applicant for a stay of the deportation order. On 17 January 1997, the applicant's solicitor asked if the respondents would agree to a stay and proposed that the applicant be released on recognisance pending the hearing of the substantive application. On 23 January 1997, the respondents agreed to a stay and the release of the applicant. The applicant having got what he wanted, there was no need for an application for a stay. The parties agreed to vacate the hearing on 14 March 1997 and that the costs be reserved.

4. On this matter, it seems to me that the applicant was seeking relief. The respondents conceded that he should have this relief. On this basis, there is no reason why the applicant should not have his costs of and incidental to seeking that relief, including the costs of vacating the hearing at which such relief would have been considered.

5. The vacation of the hearing on 7 April 1997 was caused by the fact that the applicant had sought legal aid. Mr Ho says that the applicant delayed making his application. Mr Finley says the application was made on 30 January 1997. Mr Ho says he was told by the Legal Aid Department that it was made only late in March 1997. I cannot decide this dispute on what I have before me, but it is for the respondents to show that that the costs should not follow the event. I do not think they have not done so. There seems to me to be no reason why here should be any variation in my order nisi in this area.

6. The notice of 16 July 1997 related to an application to amend the statement and to adduce further evidence from the applicant. Mr Ho says that the usual rule is that the party applying to amend should pay the costs. This is so, but Mr Finley says that the amendment and the additional evidence was caused by the need to respond to material served by the respondents that the applicant had not seen earlier. This seems to be so. I do not think there can be said to be any fault in the applicant failing to deal in his original papers with material that he did not know about. Here again I do not see any basis for changing my order nisi.

7. In the result, my order is to stand. The respondents are to pay the applicant's costs of the judicial review as taxed if not agreed.

8. The respondents having failed in this application, the respondents must pay the applicant's costs involved.