Gido-Christian v Minister for Immigration and Anor (No.2)

[2007] FMCA 847

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GIDO-CHRISTIAN v MINISTER FOR IMMIGRATION & ANOR (No.2) [2007] FMCA 847

MIGRATION – Migration Review Tribunal – spousal visa.

PRACTICE AND PROCEDURE – Costs.

Applicant: BERNANDITA GIDO-CHRISTIAN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 96 of 2006

Judgment of: McInnis FM

Hearing date: 31 May 2007

Delivered at: Melbourne (and by video link to Sydney)

Delivered on: 31 May 2007

REPRESENTATION

Solicitor for the Applicant: Ms E Ku

Solicitors for the Applicant: Lewis Law

Solicitor for the First 
Respondent: Ms J Pownall

Solicitors for the First
Respondent: Australian Government Solicitor

ORDERS

The Applicant shall pay the First Respondent's costs fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 96 of 2006

BERNANDITA GIDO-CHRISTIAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the Court has already announced that it proposes to make orders which include that

   (1) The name of the First Respondent be changed to "Minister for Immigration and Citizenship" and

   (2)    The application be dismissed. 

2. The only order outstanding is the form of order which should be made in relation to the question of costs.  There are competing submissions in relation to the question of costs.  It is usual for the Court to fix the amount of costs payable by the Applicant to the First Respondent upon dismissal of an application. 

3. In this instance the First Respondent's representative has indicated that as a result of the complexity of these proceedings the First Respondent has incurred costs in excess of $10,000.00 but in the circumstances would be prepared to accept a compromise for those costs in the sum of $7,000.00. 

4. It is noted that those costs do not appear to include the First Respondent's costs of and incidental to the hearing on 25 August 2006 where essentially a jurisdiction issue was raised by the First Respondent, though not ultimately pursued.  The Applicant's representative has argued that there should in fact be an order in favour of the Applicant for the costs of and incidental to those proceedings and the hearing that day. 

5. Rather than make two separate orders for costs, it is my concluded view that it is in the interests of justice to make one order for costs. Whilst I acknowledge and accept that the First Respondent has reduced significantly the amount of costs actually incurred and has not sought costs payable to the First Respondent arising from the hearing of

   
   

   25 August 2006, it seems to me that a further reduction in the costs should be made by way of an offset of those costs which otherwise may be the subject of an order in favour of the Applicant against the First Respondent in relation to the proceedings of 25 August 2006.

6. Doing the best I can on the limited material available to me, it is my concluded view that there should be a further reduction of the sum of $1,500.00 from the costs now sought to be fixed by the First Respondent, which I am satisfied makes due allowance for a costs order that may otherwise have been made in favour of the Applicant against the First Respondent arising out of the proceedings on

   
   

   25 August 2006.

7. It follows therefore that the appropriate order for costs should be that the Applicant pay the First Respondent's costs, which I fix in the sum of $5,500.00. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  31 May 2007