Roncevich v Repatriation Commission

[2003] FCA 1241

FEDERAL COURT OF AUSTRALIA

Roncevich v Repatriation Commission [2003] FCA 1241

JURE JACK RONCEVICH v REPATRIATION COMMISSION

D 12 OF 2002

MANSFIELD J
28 OCTOBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 12 OF 2002

BETWEEN:	JURE JACK RONCEVICH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	28 OCTOBER 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The applicant pay to the respondent costs of the application finalised by judgment given on 2 December 2002.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 12 OF 2002

BETWEEN:	JURE JACK RONCEVICH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	MANSFIELD J
DATE:	28 OCTOBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This application was heard on 21 October 2002.  Judgment was given on 2 December 2002.  At the time judgment was given there was no appearance by the respondent.  It now appears that the explanation for its non-appearance was that it had been notified that judgment was to be given at 10 am on 2 December 2002 when judgment was in fact given at 9 am on 2 December 2002.  That may have been the consequence of the Northern Territory not having daylight saving, and the notification having been given from Adelaide as to the proposed judgment time.  Whatever the explanation, it is plain that the respondent did not attend when judgment was delivered, in circumstances which are entirely understandable.

2. It is my practice, where possible, not to make an order for costs as part of a published judgment without giving the parties the opportunity to make submissions as to costs.  The respondent had foreshadowed an application for costs of the application, if it were to be dismissed (as it was) in its written submission of 17 October 2002.  Because the respondent did not attend when judgment was delivered, that application was not pursued.  No order for costs was made.  That was not the consequence of a judicial determination that there should be no order for costs but simply because, following my normal procedure, I intended to deal with costs when the judgment was delivered.  It now transpires, as counsel for the applicant has indicated, that there were matters which the applicant would have put on the issue of costs, had costs been debated when judgment was delivered.

3. In those circumstances I do not regard myself as having dealt with the issue of costs of the application in any formal sense and I feel free to entertain the present motion for an order that the applicant pay to the respondent the costs of the application following its having been dismissed.  Counsel for the applicant opposes the motion in effect for two reasons:  the first is that the Court, even if an application for costs had been made when judgment was delivered, or later in that day, would not have made the order for costs; the…