Akbar v Minister for Immigration and Multicultural Affairs

[2002] FCAFC 44

Akbar v Minister for Immigration & Multicultural Affairs [2002] FCAFC 44

Akbar v Minister for Immigration & Multicultural Affairs [2002] FCA 209

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002.  Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

• All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.
• All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. 
• All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Akbar v Minister for Immigration & Multicultural Affairs [2002] FCA 209

MUHAMMAD SHOUKAT AKBAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No. N 1199 of 2001

SPENDER, NICHOLSON, NORTH JJ
SYDNEY
5 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1199  OF 2001

BETWEEN:	MUHAMMAD SHOUKAT AKBAR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SPENDER, NICHOLSON, NORTH JJ
DATE OF ORDER:	5 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT DECLARES THAT:

1.No order is made as the notice of discontinuance filed by the appellant has the effect of abandoning the appeal.

2.The question of costs is dealt with by O 52 r 19(3) of the Federal Court Rules.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1199  OF 2001

BETWEEN:	MUHAMMAD SHOUKAT AKBAR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SPENDER, NICHOLSON, NORTH JJ
DATE:	5 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

SPENDER J:

1. This matter is before the Full Court in the following circumstances.  On 26 July 2001 a single judge of this court, Madgwick J,  dismissed an application for judicial review of a decision affirming the decision of a delegate of the respondent not to grant the applicant a protection visa.  In addition to dismissing that application, Madgwick J made an order that the applicant pay the respondent's costs.  A notice of appeal was filed on 15 August 2001 from that judgment. 

2. By letter of 21 February 2002, Mr Akbar wrote to the Registrar about his appeal in the following terms:

   “I refer to you about the hearing of my case, which is scheduled on 5 March 2002.  I tried to find a counsel who works for legal aid but I failed to find to some to act on behalf of me.   I also tried for a lawyer to act for me but there is also high cost involvement.  As such I am in a position to withdraw my matter from the Full Federal Court. 

   Therefore, I request you to consider the above circumstances and discontinue my case.  I will be most grateful if you exempt me from paying the respondent's legal cost for this matter. 

   Sincerely Yours.”

   And then the name Muhammad Shoukat Akbar is typed with Mr Akbar's signature above it.

3. Accompanying this letter is a notice of discontinuance, pursuant to O 22 r 2 of the Federal Court Rules, signed by Mr Akbar.  The position in respect of discontinuance of appeals is governed by O 52 r 19 of the Federal Court Rules.  Rule 19(1) of that order provides:

   “An appellant may file and serve a notice of discontinuance:

   (a) at any time before the hearing of the appeal, without the leave of the court.”

   Rule 19(1A) provides:

   “If a notice of discontinuance is filed and served under sub-rule (1), the appeal is abandoned.”

   Rule 19(3) provides:

   “A party filing a notice of discontinuance under sub-rule (1) shall be liable to pay the costs of the other party ... occasioned by the appeal.”

   Rule 19(4) provides:

   “A party whose costs are payable under sub-rule (3) may tax the costs and if the taxed costs are not paid within 14 days after service of a certificate of taxation may enter judgment for the taxed costs.”

4. The consequence of the rule is that, notwithstanding Mr Akbar's request that the Registrar exempt him from paying the respondent's legal costs, the rule itself creates the liability to pay costs.

5. I accept that Mr Akbar says that he has no money and that he is not able to pay any costs.  That matter may be of very great importance to any decision to recover costs by the respondent, but it does not have any effect in altering the operation of O 52 r 19(3).  The Court simply notes that, pursuant to 19(1A), the appeal has been abandoned and the consequence for costs is as provided for in rule 19(3).

   NICHOLSON J: 

6. I am of the same opinion.

   NORTH J:      

7. I also agree.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Nicholson, North.

Associate:

Dated:            8 March 2002

The Appellant appeared on his own behalf
Solicitor for the Respondent:	Ms B. Rayment
Date of Hearing:	5 March 2002
Date of Judgment:	5 March 2002