SZFKK v Minister for Immigration

[2006] FMCA 1108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFKK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1108

COSTS – Award of costs following discontinuance.

Applicant: SZFKK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG37 of 2005

Judgment of: Driver FM

Hearing date: Decided on written submissions

Date of Last Submission: 19 July 2006

Delivered at: Sydney

Delivered on: 7 August 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Johnson
Sparke Helmore

ORDERS

1. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG37 of 2005

SZFKK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter filed a notice of discontinuance on 9 June 2006.  In consequence, the Minister seeks an order for costs.  By letter to my associate dated 27 June 2006 the Minister’s solicitors assessed the Minister’s solicitor and own client costs in the amount of $4,783.40 and sought an order fixed on a party/party basis in the sum of $3,000.

2. Submissions were invited from the applicant.  By letter to my associate dated 19 July 2006 the applicant disputed that he was bound to pay any costs to the Minister’s solicitors because he was not previously aware of such a potential liability.  He refers to his circumstances as a disadvantaged “refugee” who is not working.  He states that he is living on charitable support.  He also invites the Court to take into account the discontinuance of his judicial review application.

3. The impecuniosity of the applicant is not a reason for the Court to refrain from making a costs order.  The discontinuance of the proceeding, especially if made in a timely manner, is relevant.  The judicial review application was filed on 6 January 2005 and the notice of discontinuance was filed on 9 June 2006.  The matter had been listed for a final hearing on 10 August 2006.  The applicant received advice from his panel advisor under the Minister’s panel advice scheme on 26 April 2005.  There appears to have been no connection between the provision of that advice and the discontinuance of the proceeding.  During the one and a half year period during which the proceeding was on foot, the Minister was represented at a directions hearing on 24 January 2005 and prepared a court book of 480 pages which was filed on 18 February 2005.  The Minister’s solicitors filed a notice of objection to the competency of the judicial review application on 27 January 2005. 

4. I find that the applicant did not act promptly to discontinue the proceeding.  The Minister has incurred significant legal costs in responding to the judicial review application.  The apparent ignorance of the applicant about his potential liability for legal costs is unfortunate but is not in itself a reason for the Court to refrain from making a costs order.  The amount sought by the Minister is a fair assessment costs on a party/party basis and I will order that the applicant pay that amount.

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

Associate: 

Date:  7 August 2006