Heitz v Minister for Immigration

[2005] FMCA 1820

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEITZ & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 1820

MIGRATION – Review of decision of a delegate of the Minister.

COSTS – Minister not entitled to costs where applicants discontinue proceedings promptly after the proceedings rendered unnecessary by a favourable delegate’s decision.

Migration Act 1958 (Cth)

First Applicant:

Second Applicant:

Third Applicant:

DETLEV HEITZ

BIRGIT DREWKE

NORA SOPHIE DREWKE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG3800 of 2004

Judgment of: Driver FM

Hearing date: 8 December 2005

Date of Last Submission: 5 December 2005

Delivered at: Sydney

Delivered on: 12 December 2005

REPRESENTATION

Solicitors for the Applicant: Mr G Lewis
Lewis Law

Solicitors for the Respondent: Ms S Burnett
Clayton Utz

ORDERS

1. There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3800 of 2004

DETLEV HEITZ

First Applicant

BIRGIT DREWKE

Second Applicant

NORA SOPHIE DREWKE

Third Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. On 22 November 2005 the applicants in this matter filed a notice of discontinuance.  Pursuant to the then applicable rules of court no costs liability arose unless an application for costs was made and orders made.  On 23 November 2005 the solicitors for the Minister sought an order for costs fixed in the amount of $4,800.  The applicants oppose any costs order in favour of the Minister.  They seek an order that the Minister pay her own costs.  In the alternative, they seek an order that only nominal costs be awarded against them.

2. The solicitors for the Minister detail the work that was undertaken up to the filing of the notice of discontinuance and seek an order in chambers.  The parties were available for a telephone attendance if required but I considered that, in the light of submissions received, no such appearance was required.  In their submissions, the solicitors for the applicants detail the applicants’ personal circumstances and their grievance with the Minister’s Department.  I note that on 17 November 2005 a second visa application by the applicants was granted.  This was five days before the filing of the notice of discontinuance of the judicial review proceedings in respect of the earlier adverse decision.

Reasoning

1. The Court has a wide discretion in the making of costs orders but the discretion must be exercised judicially.  There is in this Court no general presumption that a party discontinuing a proceeding should bear the costs of an opposing party.  That position has changed as at 1 December 2005 in proceedings under the Migration Act 1958 (Cth) (“the Migration Act”). Rule 44.15(2) provides that, unless the Court otherwise orders, an applicant who files a notice of discontinuance of an application for an order to show cause is liable to pay a respondent’s costs in accordance with Item 2 of Part 2 of Schedule 1 to the Court rules. Those rules do not apply to this proceeding but it is worth noting that if those rules did apply, the Minister would only receive $1,250 in the circumstances of this case.

2. I accept that the applicants had a genuine grievance with the decision of the Minister’s delegate made on 6 December 2004.  I also accept that the applicants had no right of review before the Migration Review Tribunal and exercised the only avenue of appeal apparently open to them by seeking judicial review.  I also accept that the applicants acted promptly in discontinuing their judicial review application when the need for it was removed by the favourable decision made by the Minister’s delegate on 17 November 2005.  I further note that the discontinuance saved substantial legal costs in that the judicial review application was listed to be heard only on 5 September 2006. 

3. These circumstances lead me to the conclusion that the parties should each bear their own costs.  I will order that there be no order as to costs.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  12 December 2005