Vege v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2024] FedCFamC2G 1325

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Vege v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1325

File number:	MLG 1384 of 2019
Judgment of:	JUDGE CHAMPION
Date of judgment:	4 December 2024
Catchwords:	MIGRATION – Costs – Leave to file a Notice of Discontinuance – Costs consequent on filing of Notice of Discontinuance –  Order for costs in a fixed amount
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 13.01
Cases cited:	El-Debel v Secretary, Department of Immigration and Border Protection (2014) 141 ALD 611; [2014] FCA 474
Division:	Division 2 General Federal Law
Number of paragraphs:	10
Date of last submissions:	31 October 2024
Date of hearing:	On the papers
Place:	Melbourne
Solicitor for the Applicant:	Quantum Legal Advisory & Migration Consultants Pty Ltd
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

MLG 1384 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GOKUL VENKATA SAI VEGE

Applicant

AND:

MINISTER FOR IMMIGRATIONS, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	4 DECEMBER 2024

THE COURT ORDERS THAT:

1.The Applicant pay the First Respondent’s costs fixed in the amount of $5,859.80.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CHAMPION:

1. On 19 November 2024 the Applicant’s  judicial review application was listed for hearing. On trial morning, the Applicant filed a Notice of Discontinuance.  He did not seek leave.

2. Under r. 13.01(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth):

   (2) A notice of discontinuance may 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.

   [Emphasis added]

3. Rule 13.02(1) provides:

   If a party discontinues an application, or part of an application, another party to the proceeding may apply for costs.

4. Although the Applicant did not seek leave to file a Notice of Discontinuance, by correspondence dated 19 November 2024 the First Respondent wrote:

   I confirm the Minister’s consent to the applicant’s discontinuance in this matter.

   I am instructed to seek costs from the applicant in the sum of $6,600.00.

5. Leave to discontinue was granted and the hearing was duly vacated.  It remains to determine costs.

6. As Professor Dal Pont in the Law of Costs (5th ed, 2021) observes at [14.63]:

   Unless there are reasons in justice for another outcome, a defendant should not, it is reasoned, be out of pocket in defending a proceeding the plaintiff chooses not to proceed with…

7. In El-Debel v Secretary, Department of Immigration and Border Protection (2014) 141 ALD 611; [2014] FCA 474; Foster J explained at [17] that there is a:

   general policy of the law to the effect that a party should always be permitted to discontinue its proceedings but, in the modern setting, should usually have to pay the costs of the other parties occasioned by the bringing of the proceedings and their subsequent abandonment

   
   
   

8. The Applicant has made no explanation for the discontinuance of his proceeding on the morning of the trial. Further, once the First Respondent made the costs application, even though the court made orders permitting the Applicant to file and serve any submissions as to the First Respondent’s application for costs, the Applicant did not make any submissions.

9. In all the circumstances, in the exercise of my costs discretion, I order that the Applicant pay the First Respondent’s costs. 

10. As to the quantum of those costs, I will order that the Applicant pay the costs fixed in the amount of $5,859.80 being the applicable scale item for migration proceedings that have been discontinued (Sch. 2, Part 2, Division 2, Item 4).

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate:

Dated:       4 December 2024