Lu v Minister for Immigration
[2005] FMCA 115
•16 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LU v MINISTER FOR IMMIGRATION | [2005] FMCA 115 |
| MIGRATION – COSTS – Assessment of costs following discontinuance of proceedings. |
Federal Magistrates Court Rules 2001 (Cth)
| Applicant: | SHI JUN LU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG261 of 2004 |
| Delivered on: | 16 February 2005 |
| Delivered at: | Sydney |
| Decided on written submissions |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant made submissions on his own behalf
| Solicitors for the Respondent: | Ms J Pownall Australian Government Solicitor |
ORDERS
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG261 of 2004
| SHI JUN LU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
On 4 February 2004 Ms Lu filed in this Court an application for review of a decision of the Migration Review Tribunal (“the MRT”) and an affidavit in support. On 11 June 2004, at a directions hearing, the parties appeared before Registrar Hedge, who made orders for the further conduct of the proceedings. These included an order that the application be listed for further directions on 27 January 2005. Pursuant to orders made by Registrar Hedge, the Minister filed and served a bundle of relevant documents on 5 July 2004.
On 5 August 2004 Ms Lu filed a further affidavit. On 6 January 2005 the Minister’s solicitor provided legal advice to her Department. On 13 January 2005 the Minister’s solicitor wrote to Ms Lu regarding the directions hearing on 27 January 2005. On 18 January 2005, by leave of the Court, Ms Lu filed a notice of discontinuance. The Minister was notified by the Court that the notice had been filed.
The Minister now seeks costs of the application. Those costs have been quantified by her solicitor at $4,571 on a party/party basis.
The parties were invited to submit further material in writing in relation to the costs application. Ms Lu responded by way of letter dated 3 February 2005 opposing a costs order and objecting to the Minister’s solicitor’s estimate of costs. She submits that the amount claimed is “outrageous”. She submits that costs in excess of $500 have not been reasonably and properly incurred on behalf of the Minister.
Reasoning
In proceedings in this Court there is no presumption that a party discontinuing must pay the costs of the other party. It is, however, open for the other party to request a costs order within 28 days of being served with a notice of discontinuance. I accept that costs in excess of $4,000 have been incurred on behalf of the Minister in the proceedings to this point. Ms Lu has had ample opportunity to consider her position and terminate the proceedings. She waited until shortly before a directions hearing at which a final hearing date would have been allocated. The circumstances, in my view, warrant the making of a costs order.
Subject to any order of the Court, in migration proceedings the fixed event based costs scale in Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) applies. I will use that scale as a guide for the purposes of fixing an appropriate amount of costs. Only stage 1 of the proceedings was completed in this case. Under the costs scale, for stage 1 of the proceedings, a lump sum fee of $1,820 plus a daily hearing fee for a court attendance is prescribed. In this case, the prescribed court attendance fee is $190. Reasonable disbursements may be claimed in addition to the prescribed costs. The Minister’s solicitor claims disbursements of $887 but gives no particulars. I accept that disbursements of at least $500 would have been incurred in the proceedings to the point at which they were terminated.
I will award costs (including disbursements) in favour of the Minister in the sum of $2,500, fixed pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 February 2005
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