Gomez v Minister for Immigration and Multicultural Affairs

[2002] FCA 749

FEDERAL COURT OF AUSTRALIA

Gomez v Minister for Immigration & Multicultural Affairs [2002] FCA 749

ADRIAN GOMEZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
V 782 of 2000

ALLSOP J
12 JUNE 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V782 of 2002

BETWEEN:	ADRIAN GOMEZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	12 JUNE 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.the respondent, on or before midday 13 June 2002, file the Proposed Minutes of Consent Orders dated 27 May 2002;

2.the order of the Court dated 17 July 2001 be vacated; and

3.the applicant pay the respondent’s costs and disbursements of and incidental to this proceeding, fixed in the amount of $9,000.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V782 of 2002

BETWEEN:	ADRIAN GOMEZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	12 JUNE 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this matter I am asked to make two orders, by consent, in accordance with proposed minutes of consent orders. These consent orders are to vacate an order I made on 17 July 2001, which was shortly thereafter entered, to the effect that Mr Gomez, the applicant, pay the respondent's costs as agreed or taxed in default of agreement. I had earlier, on 13 July 2001, dismissed Mr Gomez's application for review under Part 8 of the Migration Act 1958 (Cth). Mr Gomez appealed against the orders I made. His appeal was dismissed by the Full Court with a similar order as to costs. He has now sought to vary the orders I have made by vacating the costs order I made and, in substitution for it, making an order that the applicant pay the respondent's costs and disbursements of and incidental to this proceeding, fixed in the amount of $9000.

2. I listed the matter today because I doubted the existence of power to make these orders under the identified Order 35 rule 10 of the Federal Court Rules because of the fact of the entry of the orders at first instance and the dismissal of the appeal, and the entry of those orders on appeal.  Mr Knowles, who appeared for the respondent, helpfully also referred me to Order 35 rule 7 of the Federal Court Rules, in particular subrule (2) and subrule (4) which, on either basis, and certainly on a combined basis, does and do empower me to make the orders sought by consent.  I should add that I do not think that the orders are, strictly speaking, necessary because the consent order fixing the amount at $9000 is clear evidence of an agreement as to the amount of costs, which agreement was encompassed within the order. 

3. However, since Mr Gomez is likely to be leaving the country pursuant to the failure of his appeal, it is appropriate, and in his interests, to have a clear identification of the orders of the Court for payment of costs in the correct amount.  This is so because, if he ever wishes in the future to return to the country, he will need, as I understand it, to satisfy this debt to the Commonwealth, and the amended order will enable ready identification of this debt.  For this reason, notwithstanding my doubts about the necessity of it, although having been satisfied of my power, I am prepared to make the orders put forward as consent orders. 

4. I will make orders in accordance with proposed short minutes of consent orders dated 27 May 2002 and signed by the applicant and by the solicitors for the respondent. 

5. The respondent has not as yet filed the proposed minute of order.  A facsimile copy has been sent to my chambers.  I order that the respondent on or before midday on Thursday, 13 June 2002 file the signed consent orders.  That order is to encompass a document in original form signed by the solicitors for the respondent bearing a facsimile signature of Mr Gomez.  The respondent does not have in its possession the original signature of Mr Gomez upon a piece of paper, since he faxed his consent to the respondent's solicitors.  I accept Mr Knowles' assurance that the respondent's solicitors and the respondent are satisfied from the course of events that the document came from Mr Gomez. 

6. I add that the confidence of the respondent that the signature of Mr Gomez is genuinely that of the applicant is reasonably buttressed by the fact that the facsimile from which the document was sent to the respondent's solicitors bears a telephone number identical to the telephone number on the application filed by Mr Gomez, that telephone number apparently doubling as a telephone line and a facsimile line.  For those reasons I am prepared to make the orders which I make.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop

Associate:

Dated:            19 June 2002

No appearance by the Applicant
Solicitor for the Respondent:	Mr R Knowles, Clayton Utz
Date of Hearing:	12 June 2002
Date of Judgment:	12 June 2002