SZAWK v Minister for Immigration

[2004] FMCA 389

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAWK & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 389

MIGRATION – Review of Refugee Review Tribunal decision – protection visa.

PRACTICE & PROCEDURE – Notice of discontinuance – costs – application for costs – circumstances justifying order.

Federal Magistrates Court Rules 2001, r.13.01, r.13.02

First Applicant: SZAWK

Second Applicant: SZAWL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1191 of 2003

Delivered on: 25 March 2004

Delivered at: Sydney

Hearing date: 25 March 2004

Judgment of: Scarlett FM

REPRESENTATION

Solicitors for the Applicant: No Appearance by or on behalf of the Applicants

Solicitors for the Respondent: Ms Leahy, Sparke Helmore

ORDERS

1. The Application is discontinued.

2. The Applicants are to pay the Respondent’s costs fixed in the sum of $3,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1191 of 2003

SZAWK

First Applicant

And

SZAWL

Second Applicant

And

MINISTER FOR IMMGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The application before the court, again is an application by the two applicants known as SZAWK and SZAWL pursuant to the provisions of section 90X of the Migration Act for a review of a decision of the Refugee Review Tribunal.  The applicants seek to discontinue these proceedings.  They filed a notice of discontinuance yesterday and I am informed that an unsealed copy was faxed to the respondent's solicitors yesterday.

2. There was some correspondence and some discussions between the parties yesterday and I am satisfied that the applicants were informed in writing that an order for costs would be sought today.  I am also satisfied the costs would be sought in the sum of $3750 and that was made known to the applicants.

3. Certainly, under rule 13.01, the applicants can apply, although I note that they have made an application to discontinue only some 24 hours prior to the hearing date.  The respondent's solicitors have already done the bulk of their preparation for this matter including two appearances at directions hearing, correspondence, general preparation.  They have informed the applicants of the hearing of this matter and informed them that they desire that the court should make an order for costs in the sum of $3750.

4. This is a case where again the respondent’s solicitors would have completed a vast bulk of their preparation work.  They could not have left the work until yesterday afternoon to do for a hearing today.  Indeed, a court book has been prepared and filed last August, submissions and a further affidavit were filed as recently as Monday, 22 February.  The matter appears to be ready to proceed from the respondent's point of view had the applicants turned up and sought to run their case.

5. Clearly, the notice given to the respondent's solicitors was very late and the applicant must be aware that such an application will indeed lead to a costs order being made.  I am satisfied that it is appropriate that the applicants should pay the respondent's costs of these proceedings. 

6. I make an order that the application is to be discontinued, that the applicants are to pay the respondent's costs fixed in the sum of $3750.

7. I require a transcript of my reasons for this decision.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  21 June 2004