SZAWM v Minister for Immigration

[2004] FMCA 390

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAWM v MINISTER FOR IMMIGRATION [2004] FMCA 390

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

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

Federal Magistrates Court Rules 2001, r 13.02

Applicant: SZAWM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1190 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 1190 of 2003

SZAWM

First Applicant

And

MINISTER FOR IMMGRATION & MUTLICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In this matter which came on for hearing this afternoon, the applicant has filed a notice of discontinuance.  Despite the time limits set out in rule 13.01 subrule 2, I note that the notice of discontinuance was not filed until yesterday.  On that day the respondent's solicitors received a faxed copy of the unsealed document.  It appears clear that, notwithstanding the late notice, I should allow the applicant to discontinue.  At the same time however, under rule 13.02, the respondent seeks costs and certainly subrule (1) of that rule makes it quite clear that if a party discontinues an application or part of an application, another party in the proceedings may apply for costs.

2. The application for costs is made in plenty of time and to my mind it seems appropriate, given the late notice of the applicant's intention to discontinue, that there should be an order for costs.  Quite clearly, the respondent's solicitors have necessarily involved themselves in work not only attending directions hearings but actually preparing this case for hearing.  They were informed yesterday but by yesterday I would imagine that the vast bulk of the preparation work would already have been completed.  The respondent's solicitors would have been most unwise to have left it until yesterday afternoon before they started preparing the case for hearing today.

3. This seems to be a matter where it is appropriate for me to make an order for costs.  The applicants were advised in writing yesterday that a sum of $3750 would be sought.  I have heard from Ms Leahy, solicitor for the respondent, an outline of how the costs are made up.  I am satisfied that the costs sought by the respondent are appropriate and reflect the work which I am informed has been done to get this matter ready for hearing.

4. I propose therefore to mark the application as discontinued and remove it from the list.  I order that the applicant is to pay the respondent's costs fixed in the sum of $3750.  I require a transcript of my reasons.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  21 June 2004