SZHOV v Minister for Immigration

[2006] FMCA 1156

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHOV v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1156

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of Refugee Review Tribunal decision affirming delegate’s decision not to grant a protection visa – where applicant did not attend Court – where applicant discontinued proceedings prior to hearing date.

PRACTICE & PROCEDURE – COSTS – costs on discontinuance.

Federal Magistrates Court Rules 2001 r.13.02

Applicant: SZHOV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3313 of 2005

Judgment of: Scarlett FM

Hearing date: 7 August 2006

Date of last submission: 7 August 2006

Delivered at: Sydney

Delivered on: 7 August 2006

REPRESENTATION

Applicant: No Appearance

Solicitor for the Respondent: Mr Bird

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Applicant is to pay the First Respondent's costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3313 OF 2005

SZHOV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an order that the Applicant pay the First Respondent's costs. The Respondent is seeking the amount of $2,500.00.

2. The application was listed for Final Hearing on 11:30am on the 17^th of this month, but on 22^nd June 2006 the Applicant filed a Notice of Discontinuance.  The proceedings, having been discontinued more than 14 days prior to the hearing date, did not require leave and accordingly were discontinued.

3. The First Respondent now seeks an order for costs and indeed it is appropriate that the Court should consider a Costs Application. The Federal Magistrates Court Rules provide in r 13.02 that:

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

4. This is just such a situation and I note from the affidavit of Parish Honor Elsegood, a paralegal employed by the Minister's solicitors that amended submissions in relation to costs were forwarded to the Applicant by Express Post on the 2^nd of this month.

5. The Applicant has not attended today. 

6. I am of the view that it is an appropriate matter for a costs order. 

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

Associate:  Virginia Lee

Date:  11 August 2006