MZWKS v Minister for Immigration
[2005] FMCA 1056
•19 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWKS v MINISTER FOR IMMIGRATION | [2005] FMCA 1056 |
| PRACTICE AND PROCEDURE – Migration – respondent’s costs – whether payable upon discontinuance – discretion similar to Federal Court – early discontinuance to be encouraged – costs reduced – whether admissions made by Respondent in response to Notice to Admit – response claiming notice of abuse of process cannot constitute admission for the purposes of Rule 15.31. |
| Federal Magistrates Court Rules 2001 Migration Act1958 Federal Court Rules, O.22 rule 3, O.62 rule 26 |
| NAOY v Minister for Immigration [2002] FMCA 275 Inground Constructions Pty Ltd v FCT (1994) 27 ATR 513 |
| Applicant: | MZWKS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 667 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 19 July 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 19 July 2005 |
REPRESENTATION
| Pro bono Counsel for the Applicant: | Mr. R.M. Antill |
| Counsel for the Respondent: | Ms K. Miller |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Applicant shall pay the Respondent's costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 667 of 2004
| MZWKS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application the applicant by notice of discontinuance filed 7 June 2005 seeks to discontinue an application which had sought review of a decision of the Refugee Review Tribunal (“the RRT”). The application had been filed on 2 June 2004 and had been subject to orders made by a Registrar and then subsequently by a Federal Magistrate of this Court. The matter had been fixed for final hearing before this Court on this day that is 19 July 2005. It is clear, therefore, that the notice of discontinuance has been filed approximately six weeks prior to the final hearing date.
The rules in relation to discontinuance in this Court provide that a party may discontinue a proceeding early, but in the circumstances, it is clear that in doing so the risk to an applicant discontinuing an application is that an application may be made for costs. Rules 13.01 and 13.02 of the Federal Magistrates Court Rules 2001 provide:
“13.01 Discontinuance
(1)A party may discontinue an application or response by filing a notice of discontinuance in accordance with the notice set out in Part 1 of Schedule 2.
(2) A notice of discontinuance may be filed:
(a)at least 14 days before the day fixed for the final hearing of the application; or
(b)with the leave of the Court or a Registrar, at a later time.
(3)However, a party may not file a notice of discontinuance without the leave of the Court or a Registrar if:
(a) in a proceeding under the Family Law Act:
(i) the proceeding relates to the property of a party; and
(ii) one of the parties dies before the proceeding is decided; or
(b) the proceeding is a creditor’s petition.
(4)A party filing a notice of discontinuance must, as soon as practicable, serve a copy of the notice on each other party in the proceeding.
13.02 Costs
(1)If a party discontinues an application, or part of an application, another party in the proceeding may apply for costs.
(2)Unless the Court or a Registrar directs otherwise, an application for costs must be made by a party within 28 days after service on the party of the notice of discontinuance.
(3)If an order for costs is made against a party and the party brings against the party to whom the costs are payable a further proceeding on the same or substantially the same manner, the Court may stay the further proceeding until the costs are paid.”
It is clear from those rules that there is a discretion given to this Court in relation to payment of costs by the party discontinuing to the party who had otherwise been named which in this case is the respondent.
The respondent seeks costs according to schedule 1 of the Rules. The amount set out in a schedule of the respondent's costs is $6,980.00, though the respondent has sought a sum of $6,500.00 and is asked the Court to fix that as the appropriate amount payable. During the course of submissions, I had indicated to counsel for both parties that schedule 1 of the Federal Magistrates Court Rules does not apply conveniently to applications of this kind. The costs schedule was introduced at a time prior to this Court being vested with jurisdiction in matters arising under the Migration Act1958. Hence a practice has developed where costs are generally fixed in this Court, usually in the region of $6,500.00 where the proceeding has progressed to the point of a final hearing. Hence, I indicated at the outset that in this instance, given the notice of discontinuance filed some six weeks prior to the scheduled hearing date, that a reduction should be made in the amount claimed by the respondent, and in my view, an appropriate figure might be something in the region fixed at $4,500.00 rather than $6,500.00.
By way of explanation, counsel for the applicant indicated in this case there had been a notice to admit facts served by the applicant upon the respondent which generated a response to a notice to admit facts pursuant to Rule 15.31 of the Rules which provides:
15.31 Notice to admit facts or documents
(1)A party to a proceeding (the first party) may, by notice in accordance with the form of notice set out in Part 1 of Schedule 2, ask another party to admit, for the proceeding, the facts or documents specified in the notice.
(2)If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document.
(3)The other party may, with the Court’s leave, withdraw an admission taken to have been made under subrule (2).
(4)Unless the Court otherwise orders, if the other party serves a notice disputing a fact or the authenticity of a document and the fact or the authenticity of the document is later proved in the proceeding, the party must pay the costs of the proof.
It was claimed that by inference there was certain admissions, more by virtue of the operation of Rule 15.31 - rather than by an interpretation of the contents of the response to notice to admit facts. My view is that on a proper reading of the response, it does not and cannot properly constitute an admission and should not be deemed to be an admission for the purpose of the rules as it clearly indicates a challenge being made to the notice to admit dated 25 January 2005 on the basis it is beyond power or that the alleged facts in the notice are irrelevant and/or the respondent reserve the right at trial to set aside the notice as an abuse of process. In those circumstances I do not take the notice to be one which could properly be interpreted as containing admissions.
It is claimed, however, that if there were admissions in that document, then that generated further steps, and it is clear that other work had been undertaken by both parties after the date of the notice to admit, which includes contentions of fact and law which were relied upon by both parties. In all the circumstances, I do not accept that that response to the notice to admit facts should be held against the respondent in the assessment of costs.
Of some interest in this case is the issue of whether or not upon discontinuance the discretion to be applied in this Court should be different to the discretion applied in the Federal Court of Australia. Counsel for the applicant has submitted that in this case, having regard to the chronology of events and the fact that the notice of discontinuance was filed some six weeks prior to the final hearing date and that there had been a significant issue raised as to whether or not the applicant had an opportunity to seek protection or asylum in Saipan when the applicant was in Saipan between 1998 and 2001, that as a first proposition there should be no order at all as to costs, alternatively that the costs should not be the amount as claimed by the respondent.
In support of the contention that there should be no order made as to costs, reference was made to the decision of the Federal Magistrates Court in the matter of NAOY v Minister for Immigration [2002] FMCA 275 and in particular paragraph 4, 5 and 6 in that decision as follows:
“4. In the case of NAGY v Minister for Immigration [2002] FMCA189 I dealt with the issue of costs in these circumstances. I noted that in the Federal Magistrates Court, in contrast to the position in the Federal Court of Australia, there is no general rule that an applicant who discontinues proceedings must pay the costs of the other party. The Federal Magistrates Court Rules 2001 (Cth) provide in rule 13.01 that a party may discontinue an application by filing a notice of discontinuance without leave up to 14 days before the date fixed for final hearing of an application. This matter would have required leave to be granted, given that the applicant did not discontinue more than 14 days before the date fixed for hearing.
5.Rule 13.02 provides that if a party discontinues then the other party may make an application for costs within 28 days after service on the party of the notice of discontinuance. Where leave is required for a party to discontinue, ordinarily some form of hearing would be required and the respondent would have notice and would have an opportunity to seek costs at that time if leave were to be granted.
6.In NAGY I expressed the view that, at least in New South Wales where the Minister's pilot advice scheme applies, ordinarily, a party who acts promptly upon receiving advice pursuant to that scheme should not have to pay the Minister's costs. I have not changed the opinion I expressed in that case.”
In the Federal Court Rules there is a provision for payment of costs set out in Order 22 Rule 3 as follows:
“Costs
(1)A party who discontinues pursuant to paragraph 2 (1)(a) or (b) shall be liable to pay the costs of the other party or parties occasioned by the whole or the relevant part of the proceeding.
(2)A party who discontinues under paragraph 2 (1)(c) is liable to pay the costs of the other party or parties occasioned by the whole or the relevant part of the proceeding, unless the terms of the consent provide otherwise.”
Rule 22.3 should also be read in the light of Order 62 Rule 26 which provides:
“Discontinuance
(1)Where pursuant to Order 22, rule 2 a party to any proceeding discontinues the proceeding without leave as to the whole or any part of the relief by him against any other party, the discontinuing party shall, unless the Court otherwise orders, pay the costs of the party against whom the discontinued claim is made occasioned by the discontinued claim and incurred before service of notice of the discontinuance.
(2)A party whose costs are payable under subrule (1) may tax the costs and if the taxed costs are not paid within 14 days after service of the certificate of taxation may enter an order for the payment of the taxed costs.”
It is clear to me that when considering the operation of Order 62 Rule 26 that there is indeed a discretion in the Federal Court as that rule clearly provides for circumstances where "unless the court otherwise orders".
I am further encouraged to adopt the view that indeed there is a similar process in the Federal Court and in this Court and I note the authority of Inground Constructions Pty Ltd v FCT (1994) 27 ATR 513 which provides authority for the proposition that when discontinuance is by leave of the Court, the costs are in the discretion of the Court. Where leave is not required, the relevant rule Order 62 Rule 26, I do not see any substantive difference between that rule and the procedure in the Federal Court and the application of Rule 13.01 of the Rules in this Court. Hence, it is my view, that there is a discretion in this Court similar to the discretion in the Federal Court, and to that extent I am unable to follow the reasoning of the decision of my learned colleague in the matter of NAOY v Minister for Immigration (2002) FMCA 275 in terms of the principles set out in that decision where the learned Federal Magistrate refers to a difference between the Courts. I do not discern a substantive difference at all.
The question of costs in these circumstances is a matter for the discretion of the Court. The exercise of that discretion should be undertaken judicially. In considering an application of this kind, I can see no reason why costs should not follow the event. However, when a party discontinues at an early stage, then filing the notice of discontinuance, as it has been in this case six weeks prior to the final hearing, is a matter which should be encouraged. That does not mean there should be no award as to costs but rather in exercising the discretion in terms of fixing the amount of costs, due consideration should be given to the principle that parties who wish to discontinue ought to be encouraged to discontinue a matter earlier rather than later. To that extent, I am satisfied that some credit should be given to the applicant who at least on this occasion, unlike many others, has elected to discontinue the matter more than a month prior to the final hearing. More often than not in matters of this kind an application to discontinue is dealt with on the day of the hearing when all the preparation has been undertaken and where costs and resources have been wasted by respondents brought before the Court preparing for a final hearing. That is not the cast in this instance. I have due regard to that as a relevant factor in the exercise of my discretion.
Doing the best I can on the material before me, I am satisfied that it is appropriate in those circumstances, having regard to that matter and in the exercise of my discretion generally, that I should fix the costs at a lower amount than the amount claimed by the respondent. The matter has not proceeded to final hearing, nor has there been preparation of a kind which would be required for final hearing, and to that extent it is my view that a proper amount for the costs in this instance should be $4,000.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 19 July 2005
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