MZZKH v Minister for Immigration

[2013] FCCA 2287

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2287

Catchwords:
MIGRATION – Review of Refugee Review Tribunal – notice of discontinuance filed – applicant to pay costs.

Legislation:  
Federal Circuit Court Rules 2001, rr.1.03, 44.15(2)

Federal Court Rules 2011, rr.14, 17, 19, 32

Applicant: MZZKH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 600 of 2013

Judgment of: Judge Riethmuller

Hearing date: 6 December 2013

Date of Last Submission: 6 December 2013

Delivered at: Melbourne

Delivered on: 6 December 2013

REPRESENTATION

Counsel for the Applicant: No Appearance

Counsel for the First Respondent: Ms Briffa

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The Applicant have leave to file a Notice of Discontinuance and the matter be discontinued.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 600 of 2013

MZZKH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. This judgment arises out of an application for judicial review of a decision of the Refugee Review Tribunal. 

2. On 3 September 2013, many weeks before the date for hearing of the matter, the applicant filed a Notice of Discontinuance, discontinuing the whole of the Application. The Court Rules dealing with discontinuance are contained within r.13.01 of the Federal Circuit Court Rules 2001. The Rules provide that a party may discontinue an application by filing a notice in the approved format at least 14 days before the date fixed for final hearing, or alternatively with the leave of the Court: see r.13.01(2). Limited exceptions to the need to obtain leave of the Court relate to property proceedings under the Family Law Act1975, where one of the parties dies before the proceeding is decided, and proceedings in relation to a creditor’s petition: see r.13.01(3)).

3. The party filing a Notice of Discontinuance is also required to serve it on each other party as soon as practicable, in accordance with r.13.01(4). Obviously, the latter rule is designed to ensure that other parties do not continue to incur costs in relation to the matters (as they may be unaware that the proceedings have been discontinued).

4. Pursuant to r.13.02, where a party discontinues proceedings, the other party, or another party to the application may, within 28 days after service of the notice of discontinuance, bring an Application for costs. 

5. This is slightly different to the Rules of the Federal Court of Australia, where r.26.12(7) provides that a party who files a Notice of Discontinuance is liable to pay the costs of each other party to the proceedings in relation to the claim or part of the claim that is discontinued.  Whilst there is no specific explanation for the difference, between the Rules of the two Courts it seems apparent to me that the matters that are generally before the Federal Circuit Court of Australia admit of parties discontinuing applications, and the possibility of no other party seeking to pursue costs, more often than may be the case in the Federal Court of Australia, given that the litigation in the Federal Court of Australia is usually very complex and often of a commercial nature. 

6. I have turned my mind to whether or not the application for costs that may be contained within an existing response should be treated as an application for costs and made within 28 days, under the Federal Circuit Court Rules.  However, it seems to me that when one reads the rules as a whole, an underlying principle embodied in the rules is to provide an opportunity for a party to abandon a proceedings, and nothing more to occur, in order to provide a mechanism for smaller cases to easily come to an end, whilst leaving open the opportunity for a party to apply for costs if it is appropriate to do so.

7. However, the opportunity remains for a party, where a Notice of Discontinuance has been filed, to bring an application within 28 days for costs.  That application must be made after the Notice of Discontinuance has been filed, and will be a separate Application filed with the court.  It will not be open to the respondent to simply rely on the application for a costs order contained within its original response.

8. In these circumstances, I am inclined to the view that a separate application for costs would be required, if costs were not provided for automatically by the court rules.  I also note that whilst an applicant might discontinue, if there is a cross-claim or counter-claim then that proceeding would nonetheless remain on foot, as only the application, and not the cross-claim, would be discontinued.

9. With respect to migration matters specific rules apply, automatically imposing costs. Rule 44.15(2) says:

   44.15 Costs

   (2) 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 Division 2 of Part 3 of Schedule 1.

10. It appears to me that the effect of this Rule is that the party discontinuing is liable to pay costs in the terms set out in the rule.  The practical question that then arises is the method by which those costs may be recovered, given that at this point there is no court order quantifying the amount of costs, nor a formal court order for there to be a taxation of costs, in accordance with the Court Rules.

11. The Federal Circuit Court does not have rules dealing with the process of taxation of costs, nor the potential issue of a certificate of taxation, following the taxation of costs. Generally speaking, costs are assessed on the lump sum Schedule to the Rules by Federal Circuit Court Judges at the relevant time that matters are before them. This is not always the case. To the extent that taxation is needed, if the matter is not a family law matter, the taxation would proceed under the Federal Court Rules relating to taxation of costs, contained within Part 40 of the Federal Court Rules. Those rules apply where there is a hiatus in the Rules of the Federal Circuit Court.

12. Under Part 40, r.14 of the Federal Court Rules, a party who is entitled to costs under the court rules may have those costs taxed without an order of the court requiring taxation. A process is thereafter set out in Part 40, r.17 for the filing of a bill of costs. In a matter of this type, such a bill will be of very short breadth, given the scale that is provided for this type of matter in the Federal Circuit Court Rules.

13. Objections, if any, can be made in accordance with subsequent rules, and ultimately, after dealing with the matter in accordance with the rules, the Registrar may issue a certificate of taxation under r.32(1). Such a certificate has force and effect as a court order, pursuant to the provisions of r.32(2). Thus the Federal Court Rules provide an adequate process for pursuing the costs that automatically arise under the Federal Circuit Court Rules, without having to return to court on yet another day on a separate application for costs.

    RECORDED:  NOT TRANSCRIBED

14. The matter comes before me today because the Notice of Discontinuance was not served upon the Minister more than 14 days before the final hearing date, so the matter remained listed. Ordinarily the matter would not remain listed if a Notice of Discontinuance was filed more than 14 days before the hearing date, and so the option of having a court order rather than having to obtain a certificate of taxation from the Registrar of the Registrar of the Senate to Part 40, r.32(1) of the Federal Court Rules would not be the appropriate way to pursue costs if some formal order or certificate of an order is required.

15. The solicitors for the Minister seek that I make an order for the amount of costs as set out in the relevant rule, being $1,661 in this case, and tendered a letter (which they undertook to place on affidavit in due course) confirming that the applicant was on notice that they would be seeking orders for costs.  The letter made clear that arrangements were sought to be entered into to avoid the necessity of attendance at the hearing today.

16. No response was received to the letter, and the applicant did not appear today.  In the circumstances, where the applicant has had notice of the application and the Notice of Discontinuance was not filed at least 14 days before the hearing, it seems to me that I do have power to make an order fixing the costs in the sum set out in the rules, even though an alternative mechanism is available under the taxation rules and the Federal Court Rules which would apply in this court. I am satisfied that the sum sought is the scale fee and appropriate. Keeping with the overriding principles in r.1.03 of the Federal Circuit Court Rules 2001, I make an order for costs in the sum sought, rather than referring the matter to taxation.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller.

Associate: 

Date:  13 January 2014