Tjin v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1048

FEDERAL COURT OF AUSTRALIA

Tjin v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1048

PRACTICE AND PROCEDURE - Costs - Discontinuance - Where further prosecution of proceedings instrumental in settlement - Application allowed

Re Minister for Immigration and Ethnic Affairs and Another; Ex parte Lai Quin (1997) 186 CLR 622 discussed

Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 956 cited

BENDY TJIN AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1207 of 2004

TAMBERLIN J
SYDNEY
10 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1207 OF 2004

BETWEEN:	BENDY TJIN AND ORS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is allowed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1207 OF 2004

BETWEEN:	BENDY TJIN AND ORS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for costs in relation to an application made to the Court for an order of mandamus which has been discontinued as the result of the parties coming to an agreement as to the future conduct of the matter. 

2. My attention has been directed to the statement of principle by McHugh J in Re Minister for Immigration and Ethnic Affairs and Another; Ex parte Lai Quin (1997) 186 CLR 622 at 625, where his Honour indicated that if both parties have acted reasonably in commencing and defending the proceedings, and the conduct of the parties continued to be reasonable until the litigation was settled and its further prosecution became futile, then the proper exercise of the costs discretion will usually mean that the Court will make no order as to the costs of the proceedings. His Honour pointed out that this approach has been adopted in a large number of cases.

3. In the present case, a judgment was handed down by Branson J in the case of Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 956 and the application was based on her Honour's decision. The respondent took a little time, in the sense of a week or so, to consider this judgment and make a determination as to whether there would be an appeal in relation to the matter. In the meantime, as counsel for the applicants has pointed out, the position of the applicants was in substantial doubt. In my view, the applicants were entitled to take steps to have that doubt resolved.

4. Accordingly, I am not persuaded that the application was brought on in haste and I consider that the making of the application was instrumental in the settlement of the matter.  The reasonable course in the circumstances is that the costs should be awarded, in relation to this matter on the discontinuance and the reaching of the agreement, in favour of the applicants.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             13 August 2004

Counsel for the Applicant:	I Archibald
Solicitor for the Applicant:	Michaela Byers
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 August 2004
Date of Judgment:	10 August 2004