SZAAU v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAU v MINISTER FOR IMMIGRATION [2003] FMCA 86

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – discontinuance of proceedings.

PRACTICE AND PROCEDURE – Costs – whether costs payable when an applicant in migration proceedings discontinues prior to trial.

Federal Magistrates Court Rules 2001 (Cth)

NAGY v Minister for Immigration [2002] FMCA 189

Applicant: SZAAU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ972 of 2002

Delivered on: 13 March 2003

Delivered at: Sydney

Hearing date: 13 March 2003

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr Z Chami
Clayton Utz

ORDERS

1. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ972 of 2002

SZAAU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter came before me today on a procedural application made on behalf of the respondent Minister seeking a costs order.  The circumstances are that the applicant who had applied for review of a decision of the Refugee Review Tribunal (“the RRT”) in October 2002 discontinued his application by filing a Notice of Discontinuance on 7 January 2003. 

2. Under the Federal Magistrates Court Rules 2001 (Cth) there is no presumption that a discontinuing party is liable to pay the other party's costs. Accordingly, it was necessary for the Minister, if he seeks an order for costs, to apply for such an order. That is what the Minister has now done. The costs application is opposed by the applicant. Mr Chami submits, on behalf of the Minister, that I should make an order for costs because significant costs have been incurred on behalf of the Minister in responding to the principal application up to the date of discontinuance.

3. Mr Chami told me, from the bar table, that solicitor and client costs and disbursements incurred up to that point were approximately $2,500.  The greater part of those costs relate to the preparation of a substantial court book.  Some costs also relate to appearance at a directions hearing on 23 October 2002.  That directions hearing was conducted before a Registrar.  It is appropriate to note that in accordance with usual practice, the Registrar informed the applicant at that time of his potential costs liability should he be ultimately unsuccessful in the proceedings.

4. The applicant was referred for advice under the pilot legal advice scheme instituted by the Minister in New South Wales.  He did not receive advice pursuant to that scheme because of illness.  The applicant told me from the bar table that his decision to discontinue the proceedings was his own and was not related to any legal advice that he may have received.  He asked me to take into account a letter which he wrote to my associate on 17 February 2003, in which he explained the discontinuance. I…