SZMOM v Minister for Immigration

[2009] FMCA 182

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMOM v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 182

MIGRATION – COSTS – Application to review decision of Refugee Review Tribunal – discontinuance – orders made in chambers with consent of parties.

Migration Act 1958 (Cth)

Applicant: SZMOM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1964 of 2008

Judgment of: Barnes FM

Hearing date: 21 August 2008

Delivered at: Sydney

Delivered on: 6 March 2009

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Respondent: Clayton Utz

ORDERS (IN CHAMBERS)

1. That the applicant pay the costs of the first respondent fixed in the amount of $2,500 pursuant to Rule 13.02(1) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1964 of 2008

SZMOM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 17 September 2008 the applicant filed a notice of discontinuance of proceedings commenced on 30 July 2007 seeking a review of a decision of the Refugee Review Tribunal. On 15 January 2009 the solicitors for the first respondent sought that an order be made in chambers that the applicant pay the respondent’s costs in the sum of $3,500 pursuant to Rule 13.02(1) of the Federal Magistrates Court Rules (and see Rule 21.02(2)(a)).

2. The Court wrote to the applicant asking him whether he wished to make written submissions in relation to costs so that an order could be made in chambers or if he would prefer that costs be determined at a hearing.  He responded with written submissions, acknowledging that the first respondent may be entitled to seek costs but raising issues about his situation, financial difficulties and health issues affecting one of his children. 

3. In response to these submissions the solicitors for the first respondent advised the applicant and the Court that they “continue to seek costs in the amount of $2,500” (sic) and also advised him that in light of his financial difficulties it may be possible to organise repayment of the debt in small increments. 

4. Under Rule 44.15 of the Federal Magistrates Court Rules, unless the Court otherwise orders, an applicant who files a notice of discontinuance of an application is liable to pay a respondent’s costs in accordance with item 2 of Part 2 of Schedule 1. In this case the notice of discontinuance was filed on 17 September 2008 which was after the directions hearing and more than 14 days before the hearing which was listed for 18 February 2009. In such circumstances item 2 of Part 2 of Schedule 1 provides in paragraph (c) for costs in the sum of $2,500.

5. In light of this provision, the stage at which this matter was discontinued and the fact that in the letter of 20 February 2009 the solicitors for the first respondent indicated that they sought costs in the amount of $2,500 I consider that this is an appropriate amount, notwithstanding that the solicitors for the first respondent initially sought the sum of $3,500.  I note that while the letter from the first respondent’s solicitors of 15 January 2009 referred to “perusal and analysis of the applicant’s amended judicial review application” no such amended application was filed. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  6 March 2009