SZBTL v Minister for Immigration

[2004] FMCA 744

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBTL v MINISTER FOR IMMIGRATION [2004] FMCA 744

MIGRATION – Visa – Protection visa – Refugee Review Tribunal – application for protection visa – application for review of decision of Refugee Review Tribunal.

COSTS – Assessment – Federal Magistrates Court.

PRACTICE & PROCEDURE – Discontinuance – where Respondent seeks an order for costs when the Applicant seeks to discontinue prior to hearing.

Federal Magistrates Court Rules2001, Rr.13.01, 13.02, Sch.1

Applicant: SZBTL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 2286 of 2003

Delivered on: 22 September 2004

Delivered at: Parramatta

Hearing date: 22 September 2004

Judgment of: Scarlett FM

REPRESENTATION

There was no appearance by or on behalf of the Applicant

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application is discontinued.

2. The Applicant is to pay the Respondent’s costs in the sum of $4090.00 within 28 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

SZ 2286 of 2003

SZBTL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is the matter of SZBTL and the Minister for Immigration & Multicultural & Indigenous Affairs. The application before the Court is an application for a review of a decision by the Refugee Review Tribunal. The Applicant is referred to by the letters SZBTL because s 90X of the Migration Act prohibits the publication of the name of any Applicant for a protection visa. This particular Applicant has now decided to discontinue the application.

   
   

   A notice of discontinuance was filed on 16 June 2004. The substantive application was scheduled to be heard before me in Sydney on

   
   

   27 September 2004. In my view the Applicant has lodged his notice of discontinuance in time and I propose to allow him to discontinue the proceedings.

2. The solicitors for the Respondent have written to the Court advising that they were served with a notice of discontinuance on 24 June. Whilst they do not oppose the matter being discontinued they seek an order for costs pursuant to rule 13.02 of the Federal Magistrates Court Rules. They indicate that they would appreciate it if the order could be made in Chambers and if necessary by telephone.

3. In my view the application is appropriate. Rule 13.01 permits a party to discontinue an application by filing a notice of discontinuance. Sub-rule 2 provides that a notice of discontinuance may be filed at least 14 days before the date fixed for the final hearing of the application. The Applicant has done this. Rule 13.02 in sub-rule 1 says:

   If a party discontinues an application or part of an application another party in the proceedings may apply for costs.

4. In my view, this is an appropriate matter for an order for costs. I note that the proceedings were commenced by way of an application which was filed on 28 October 2003. The matter came before Registrar Hedge on 10 March 2004 and was listed for hearing before me at 2:15pm on Monday, 27 September. The Respondents indicate that they have gone to a considerable amount of trouble to prepare the matter for hearing, including the preparation of the green book. The work that they indicate that they have done is as follows:

   1.Perusal and analysis of judicial review application.

   2.Filing and serving notice of appearance.

   3.Perusal and analysis of departmental and Tribunal files.

   4.Attendance at directions hearing.

   5.Advising on prospects of success to the Department of Immigration.

   6. Preparation of the bundle of relevant documents.

   7.Preparation of brief to counsel.

   8.Various telephone conferences with officers of the Department of Immigration.

5. They indicate that the solicitor/client costs are approximately $4700. In my view, costs should be ordered in the circumstances and the costs should be assessed at the scale provided in schedule 1 of the Federal Magistrates Court Rules. The appropriate lump sum costs are set out in stage 5, preparation for final hearing for a one day matter. The schedule provides for costs in the sum of $4090. In my view that is an appropriate amount.

6. I make the following orders as at the commencement of this judgment.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  29 October 2004