Habiak, J. v Minister of State for Immigration, Local Government & Ethnic Affairs

[1990] FCA 809

- ,

JUDGMENT No. . ........ .. .......- 809190

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1	NO. WAG32 OF 1990
B E T W E E N :	JANINA HABIAK

First Applicant

and

KRYSTYNIA TARTAKOWSKI

Second Applicant

and

THE MINISTER OF STATE FOR
IMMIGRATION, LOCAL GOVERNMENT

AND ETHNIC AFFFAIRS

Respondent

CORAM: LEE J.

DATE : 23 NOVEMBER 1990

FX TEMPORE REASONS FOR JUDGMENT

By consent the application is to be dismissed. The applicant seeks an order for costs. It is a borderline situation. It could be said that with knowledge of the advanced state of amending regulations, the respondent's officers could have proffered advice as to the effect of the pending amendments which may have saved the commencement of

this application and the payment of the filing fee.

However, on the other hand, until the statutory period had elapsed in relation to the tabling of the regulations the regulations were not in force. The regulations did not come into force until after - and some time after as it turned out - the application had been commenced.

In the circumstnaces of this case the appropriate order in respect of costs may be either that there be no order as to costs or that an order be made for payment of part of the costs only.

If the amended regulations had been in force but not distributed, there may have been strong grounds for an order that some part of the costs be paid by the respondent but where the amended regulations were not in force and the application was the only way in which a review could be undertaken, I consider that the only proper result to be that there be no order as to costs. That is the order I will make.

The orders will be that the application be dismissed and that	there be no order as to costs.
Of course, there is nothing to stop the respondent from making an ex aratia payment reimbursing either the filing fee paid for the review process now commenced under reg.173 or the filing fee paid on this application having regard to the
fact that the applicant has been obliged to pay two filing fees to seek review of the respondent's decision. But I leave that to the respondent.

I certify that the preceding

three (3) pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice Lee.

Associate:	'J b-
Date:	23 *rodcwvlgU 19G0

Counsel for the First and Second Applicant: Mr B. Stokes

Solicitors for the First and Second Applicant: B.F. Stokes &

Associates

Counsel for the Respondent: MS J.A. Adamson
Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 23 November 1990 Date of Judgment: 23 November 1990