Yong v Minister for Immigration

[2006] FMCA 164

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YONG v MINISTER FOR IMMIGRATION [2006] FMCA 164

PRACTICE & PROCEDURE – Migration– costs – orders in chambers.

Federal Magistrates Court Rules, rr.4.02, 4.05, 13.01 13.02, Pt 44, sch 1 pt 2, 4415(2)

Applicant: YONG DARLIZA MD IDRUS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 592 of 2005

Judgment of: Riethmuller FM

Hearing Date: N/A

Last Submission: 16 November 2005

Delivered at: Melbourne

Delivered on: 13 April 2006

ORDERS

1. The court makes no order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 592 of 2005

YONG DARLIZA MD IDRUS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This matter came before me in chambers for a decision on the papers.  The applicant in this matter sought judicial review of the decision of the Migration Review Tribunal dated 16 May 2005.  On 17 October 2005 after directions made by Registrar Mussett on 22 June 2005 the applicant filed a Notice of Discontinuance. 

2. On 7 November 2005 the respondent solicitor filed an affidavit sworn on 4 November 2005 requesting an order for costs setting out that the minister’s solicitor and client cost would be approximately $4,170.00 and party costs were under $3,130.00. 

3. There were written submissions in respect of costs in the following terms:

   1.This is an application that the applicant pay the respondent’s costs fixed in the amount of $3,139.00.  The respondent relies on the affidavit filed in support of this application. 

   2.The respondent is seeking a reduced amount of $3,130.00 in full and final satisfaction of the respondent’s costs in this matter.  This includes disbursements incurred in the amount of $438.73; most of which are photocopying fees for preparation of the Court Book.  As at 27 October 2005, the respondent’s solicitor/client costs and disbursements total approximately $4,170.00 inclusive of GST.

   3.The professional fees include work undertaken on behalf of the respondent, including but not limited to: perusing application dated 20 May 2005 for review of the MRT decision dated 16 May 2005; obtaining instructions to act; drawing, engrossing, sealing and service of appearance; perusing DIMIA and MRT files; instruction solicitor’s attendance at the directions hearing before Registrar Mussett on 22 June 2005 wherein it was ordered that the substantive hearing be listed for final hearing on 24 January 2006; perusing sealed orders of Registrar Mussett dated 22 June 2005; perusing notice of listing from Court; preparing, filing and serving court book on 19 July 2005; preparation of detailed advise to client; preparation of brief to counsel; preparing, filing and serving notice of change of address for service; perusing all correspondence from Legal Aid and Court; perusing notice of discontinuance dated 17 October 2005; communications with client including seeking instructions and all other attendances in finalising this matter.

   4.In light of the above, it is respectfully submitted that an order should be made that the applicant pay the respondents costs fixed in the amount of $3,130.00.

4. There is nothing before me to indicated that the application in respect to costs was served on the applicant at the applicant’s last address for service or personally. 

5. I note that a Notice of Discontinuance is able to be filed under rule 13.01 without leave of the Court if it is filed at least 14 days before the day fixed for final hearing.  This Notice of Discontinuance was filed well before the time limit provided.  The effect is therefore that the matter has been discontinued on the filing of the Notice (see rule 13.01). 

6. The question of costs is dealt with under rule 13.02, which is in the following terms:

13.02 Costs

(1) If a party discontinues an application, or part of an application, another party in the proceedings may apply for costs.

(2) Unless the Court or a Registrar directs otherwise, an application for costs must be made by a party within 28 days after service on the party of the Notice of Discontinuance.

(3) If an order for costs is made against a party and the party brings against the party to whom the costs are payable a further proceeding on the same or substantially the same matter, the Court may stay the further proceeding until the costs are paid.

1. The rules therefore contemplate that application for costs may be brought.  Whilst the Federal Magistrates Court of Australia generally tends to operate with as little formality as possible (in accordance with the statutory mandate) rule 4.02 sets out what should be contained within an application and rule 4.05 sets out that an application must have an affidavit filed with it stating the facts relied upon. 

2. In the circumstances an affidavit on it’s own is not sufficient.  In any event the affidavit has not, at least from the evidence before the Court, been served upon the applicant to allow the applicant any opportunity to appear or oppose the particular orders sought.

3. The court would not usually make an order in chambers unless by consent, or at least on the basis that the parties consent to the determination of an issue without oral hearing.

4. In cases falling within the ambit of part 44 of the Federal Magistrates Court Rules the respondents are entitled to costs in accordance with part 2 of schedule 1 unless the Court otherwise orders (see rule 44.15(2)). These proceedings, however were discontinued before that rule was promulgated or commenced.

5. For these reasons I decline to make an order in chambers with respect to costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: 

Date: