Pope, Y. v Minister of State for Immigration, Local Government and Ethnic Affairs

[1990] FCA 821

JUDGMENT No. 7 ?&...

IN THE FEDERAL COURT	)	NOT FOR DISTRIBUTION
OF AUSTRALIA	)
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	i	NO. WAG34 OF 1990
B E T W E E N :	YUSTIS POPE and FRANCIS POPE

First Applicants

and

MURIEL SUSAN POPE, MARION CARVEY

and ELRICH POPE

Second Applicants

2 7 MAY 1991

FEDERAL COURT OF

AUSTRALIA	and
PRINCIPAL
REOISTRY	THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

CORAM: LEE J.

DATE : 21 SEPTEMBER 1990

EX TEMPORE REASONS FOR JUDGMENT

The applicants seek leave to discontinue their

application for an order of review under the Administrative

. .

Decisions ( J u d i c ~ l Re view) Act 1977 and seek an order that the respondent pay their costs. The Federal Court Rules do not provide automatic consequences as far as costs are concerned where a proceeding is discontinued by leave of the Court, (see F.C.R. 0.22 sub-r.2(l)(d), r.3; 0.62 r.26)

respondent in the event of other discontinuances without	leave. It appears to be considered by the Rules that the
question of costs is a matter for the Court to decide upon the grant of leave to discontinue a proceeding. In such a case, the ordinary approach to costs under sub-s.43(2) of the

unlike the provisions in those Rules for costs to be paid to a

a1 Court of Au- Act 1976 would apply, namely an

award made in the discretion of the Court.

Order 62 of the Federal Court Rules does not provide that costs are to follow the event, unless otherwise ordered, unlike some other rules of court. (See Rules of the SuDreme court of Western Australia 0.66 sub-rl(1); Rules of the Sunreme Court f U . K . L 0.62 sub-rr.2(4), 3(2)). Therefore, the matter of costs in this matter remains at large and is to be determined in the Court's discretion.

I will not repeat the matters put to counsel on either side in the course of submissions to the Court, but the matters then raised are those to which I am obliged to give consideration.

On the one hand it appears there may have been a

right in the applicants to initiate a departmental review

process without commencing this application - or at least a

right to make an application for another entry permit under the W t i o n Acf 1958 which may have led to the conduct of a review. That right was not utilized. However, no notice of that entitlement was given to the applicants.

On the other hand, after this application was commenced, regulations were promulgated under the authority of the respondent which gave the applicants an express right of review in the circumstances set forth in their application. That right of review changed the applicants' position and, indeed, made it difficult having regard to the provisions of

. .

s.10 of the u s t r a t i v e Decisions fJ udrclal Review) Act

1977 for this application to be continued without the

applicants being at risk of an order for costs thereafter or
the dismissal of the application.

I consider, having regard to all the circumstances, that an equitable result would be that there be contribution to the costs of the applicants, the applicants having already brought one application in which it paid its own costs and which was discontinued because the respondent vacated the decision under review with the intent that there be a fresh decision after consideration of the facts and a recommendation thereon by an an immigration review panel. That

decision was made contrary to the recommendation. This	recommendation was received but not adopted and another	further application is the result.
I think that in all the circumstances it is appropriate that there be some contribution to the applicants' costs by the respondent and I fix that contribution at 50 per cent of the costs of the applicants. There will be an order that the applicants have leave to discontinue and the respondent pay one half of the applicants' costs to be taxed.

I certify that the preceding

four (4) pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice Lee.

Associate: L% ,

Date: 21 S - 1990.

Counsel for the Applicants:  Mr B.F. Stokes

Solicitors for the Applicants: B.F. Stokes and Associates

Counsel for the Respondent: MS K. Levinge

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing:  21 September 1990

Date of Judgment: 21 September 1990