Mariano v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1386

FEDERAL COURT OF AUSTRALIA

Mariano v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1386

LEONARDO MARIANO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 130 OF 2004

DOWSETT J
11 OCTOBER 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 130 OF 2004

BETWEEN:	LEONARDO MARIANO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	11 OCTOBER 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application be adjourned to 28 October 2004.

2.The applicant pay the respondent’s costs thrown away by the adjournment.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 130 OF 2004

BETWEEN:	LEONARDO MARIANO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	11 OCTOBER 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant seeks to amend the application to raise grounds which, in my view, have not previously been raised.  The respondent is not in a position to respond to the amended application at this stage and seeks an adjournment, at least partly in order to obtain a copy of the transcript of proceedings before the Tribunal.

2. The applicant has been trying to obtain access to the tape-recording of proceedings for some time.  It is unfortunate that he has not been able to do so.  From the respondent’s point of view, the matter could have proceeded on the present state of the application without reference to the transcript.  That the matter is not proceeding today is solely attributable to the fact that the applicant has raised these grounds at a very late stage.  Until they were raised, it was not clear that access to the transcript was necessary or desirable. 

3. Although, in general, costs should follow the event, I recognise that the discretion to award costs is at large.  I do not start from the assumption that an order for costs must be made in favour of the respondent in these circumstances, but such an order is usually made where an adjournment has been provoked at a late stage by an amendment not previously notified.

4. I accept that to make an order for costs against the applicant has the potential to cause hardship, but I do not consider that to be a reason militating against the making of an order.  In my view, a proper order will usually reflect any fault occasioning the adjournment, whether that fault be attributable to the applicant personally, to his financial circumstances or to the conduct of the matter by his legal advisers.  Whether or not the Minister enforces such an order is a different matter, and not one with which I should concern myself.

5. I will adjourn the proceedings, but I will adjourn them on terms.  Those terms will be that the applicant pay the respondent’s costs thrown away by the adjournment.  I adjourn the application to 28 October 2004.  I order the applicant to pay the respondent’s costs thrown away by the adjournment.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            28 October 2004

Counsel for the Applicant:	Mr D O’Gorman
Solicitor for the Applicant:	Robert Lachowicz South Brisbane Immigration and Community Legal Service Inc
Counsel for the Respondent:	Mr S A McLeod
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 October 2004
Date of Judgment:	11 October 2004