Malik v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MALIK v MINISTER FOR IMMIGRATION [2005] FMCA 1369

MIGRATION – Review of decision of the Migration Review Tribunal

PRACTICE & PROCEDURE – Discontinuance – costs – circumstances justifying costs order – where party follows legal advice that proceedings are unlikely to be successful – where applicant discontinues more than fourteen days prior to the date of final hearing – amount of costs sought reduced – party allowed time to pay

Federal Magistrates Court Rules 2001 r.13.01

Applicant: AKBAR HUSSAIN MALIK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 3735 of 2004

Delivered on: 8 September 2005

Delivered at: Sydney

Hearing date: 8 September 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Solicitor for the Respondent: Mr Kettle

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application is discontinued and is removed from the list of cases awaiting finalization.

2. I vacate the hearing date of 16 November 2005 at 10:15am.

3. The Applicant is to pay the Respondent’s costs fixed in the sum of $2,750.00.

4. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3735 of 2004

AKBAR HUSSAIN MALIK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application by the Respondent for an order for costs.  The substantive proceedings involve an application for review of a decision made by the Migration Review Tribunal on 6 March 2002.  That decision affirmed the decision of a delegate of the Respondent Minister which found that the Applicant was not entitled to a grant of a partner (Temporary) (Class UK) visa.

2. The application came before a Registrar of this Court on 13 January 2005.  The Registrar listed the application for final hearing at 10:15am on 16 November this year and made certain directions by consent in respect of the carriage of the matter.

3. The situation now before the Court is the Applicant has taken the decision to discontinue the proceedings. He explained to the Court today that it took a while for him to obtain a copy of the Court Book of relevant documents, colloquially known as the "Green Book", and in fact he had to make specific arrangements to see the Respondents lawyers, and in fact pay the sum of $48 to obtain a copy, arrangements had been made to post a copy to him but for reasons unexplained he had not received at the time. The Applicant had originally obtained legal advice about the advisability of commencing this proceeding.  Armed with the "Green Book" he sought other legal advice and the advice that he received was that his application was unlikely to be successful.  The Applicant said that he took the lawyer’s advice and made the decision to discontinue the proceedings. He filed a notice of discontinuance within a few days after having obtained that legal advice.

4. The Respondents lawyers now seek an order for costs in the sum of $4,000, pointing out that…