Walton, Pamela Josephine v Minister for Immigration and Multicultural Affairs

[1997] FCA 1152

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 20 of 1997

BETWEEN:	PAMELA JOSEPHINE WALTON APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	31 OCTOBER 1997
PLACE:	ADELAIDE

REASONS FOR DECISION

The applicant applied on 6 March 1997 for review of a decision of the Immigration Review Tribunal made on 13 February 1997.  The matter came on for directions on 12 May 1997, but was adjourned to 27 June 1997 when detailed directions were given to have it prepared for hearing and a hearing date fixed for 22 August 1997.

By notice dated 19 August 1997 and filed on 21 August 1997 the applicant discontinued the application.  It bore an endorsement from the respondent’s solicitors dated 20 August 1997 consenting to that discontinuance.  It made no reference to the costs of the proceedings.

An issue as to the costs of the proceedings has arisen between the parties.  The respondent seeks costs; the applicant contends that the Court now cannot deal with the matter, and alternatively that there should be no order as to costs.

I am satisfied by virtue of O 62 r 3(1) of the Federal Court Rules (“the Rules”) that the Court in the circumstances has power to adjudicate upon the current issue:  Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; Fischer, Thomas v Commonwealth of Australia (Branson J, 25 September 1997, unreported).

The Notice of Discontinuance signed respectively by the applicant and the respondent on 19 and 20 August 1997 was by consent.  Consequently under O 22 r 2(1)(c) of the Rules, the costs to that date are not payable automatically in favour of the respondent by operation of O 22 r 3 of the rules.  It does not necessarily follow, as contended for on behalf of the applicant, that there should be no order for costs.  The material before me discloses that the consent was given expressly subject to the respondent reserving to itself a right to seek an order for costs against the applicant.  The applicant accepted that the respondent had reserved to itself that right.  It now seeks to exercise that right.

Order 62 rule 26 of the Rules provides, presumably as a complement to O 22 r 3, that upon discontinuance under O 22 r 2, the discontinuing party shall, unless the Court otherwise orders, pay the costs of the party against whom the discontinued claim is made occasioned by the discontinued claim.  In the normal course, the effect of a consent to discontinuance might provide reason for the Court not to order costs, but here the discontinuance was consented to upon the basis that the right to seek costs was to be preserved.  In the present matter, no submission has been put identifying any reason why the normal course contemplated by O 62 r 26 of the Rules should not apply.

In those circumstances, in my view, it is appropriate that the costs of the respondent to the time of the Notice of Discontinuance should be taxed pursuant to O 62 r 26(2) and paid by the applicant to the respondent.  I note that I was referred in submissions to Cameron v Goldtek Australia Pty Ltd (Moore J, 5 February 1997, unreported), which dealt with the question whether, in the circumstances of that case, there had been a discontinuance at all.  I do not think that decision is of assistance on the present issue, where it is common ground that there was a discontinuance.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:            

Counsel for the Applicant:	Ms G Gardner
Solicitor for the Applicant:	Legal Services Commission of South Australia
Counsel for the Respondent:	Mr R McClure
Solicitor for the Respondent:	Australian Government Solicitor
Date of Decision:	31 October 1997