SZDPM v Minister for Immigration

[2004] FMCA 820

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPM v MINISTER FOR IMMIGRATION [2004] FMCA 820

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the Applicant – Applicant a citizen of Bangladesh – where Applicant files a notice of discontinuance three days before the hearing.

Judiciary Act 1903 (Cth), s.39A
Migration Act 1958 (Cth), s.424 A
Federal Magistrates Court Rules 2001, Part 13

Applicant: SZDPM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1502 of 2004

Delivered on: 15 November 2004

Delivered at: Sydney

Hearing date: 15 November 2004

Judgment of: Scarlett FM

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondent: Mr Smith

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Applicant is granted to leave to discontinue the Application.

2. The Applicant is to pay the Respondent’s costs in the sum of $4,500.00.

3. The Application is discontinued.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1502 of 2004

SZDPM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 5^th October 2000. The Tribunal affirmed a decision of the delegate of the Minister not to grant a protection visa to the Applicant.

2. The Applicant filed his application on 20^th May 2004. He filed an amended application on 7^th October 2004. The Application was listed for final hearing today.

3. The Respondent has prepared the Court Book and has briefed counsel. The Respondent has filed an outline of submissions. It appears that the Respondent, at least, was ready to commence the hearing today.

4. The Applicant has now decided to discontinue his application. He filed a Notice of Discontinuance by forwarding it by facsimile on Saturday 13^th November. The Notice of Discontinuance only came to the attention of the Court and the Respondent’s solicitors yesterday.

5. Part 13 of the Federal Magistrates Court Rules allows a party to discontinue an application. Rule 13.01(2) allows the notice of discontinuance to be filed:

   a)at least 14 days before the day fixed for the final hearing of the application; or

   b)with the leave of the Court or a Registrar, at a later time.

6. The Applicant has filed his notice of discontinuance almost at the last minute. By faxing it on Saturday, he has given only one working day’s notice of his intention not to proceed with his Application. Clearly, it is too late to list another matter and the Respondent’s counsel would be unlikely to obtain another brief at such short notice. Obviously, costs have been thrown away.

7. Rule 13.02 allows the Respondent to apply for costs in such a case. In my view, this is an appropriate matter for a costs order. The Respondent’s solicitors seek the sum of $4,500.00, which is within the range that I would have ordered if the matter had gone to its anticipated half day hearing. Due to the lateness of the notice, there has been no time for the Respondent’s lawyers to do anything to mitigate their loss.

8. In the circumstances, I propose to order that the Applicant pay the Respondent’s costs fixed in the sum of $4,500.00.    

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  16 November 2004