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MIGRATION - Refugee Review Tribunal - refusal of protection visa.

PRACTICE AND PROCEDURE - Dismissal of application by consent - whether a costs order appropriate - model litigant principle - duty of respondent's legal advisers not to take advantage of a self-represented applicant.

COSTS - Consideration of circumstances in which no costs order should be made when an applicant agrees to discontinue an application.

NAOY v Minister for Immigration [2002] FMCA 275 (6 November 2002)

NAOY v Minister for Immigration [2002] FMCA 275 (6 November 2002)
Last Updated: 19 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOY v MINISTER FOR IMMIGRATION
[2002] FMCA 275



MIGRATION - Refugee Review Tribunal - refusal of protection visa.

PRACTICE AND PROCEDURE - Dismissal of application by consent - whether a costs order appropriate - model litigant principle - duty of respondent's legal advisers not to take advantage of a self-represented applicant.

COSTS - Consideration of circumstances in which no costs order should be made when an applicant agrees to discontinue an application.



NAGY v Minister for Immigration [2002] FMCA 189

Federal Magistrates Court Rules 2001 (Cth)

Applicant:
NAOY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ731 of 2002



Delivered on:


6 November 2002



Delivered at:


Sydney



Hearing Date:


6 November 2002



Judgment of:


Driver FM



REPRESENTATION

No appearance by the applicant






Solicitors for the Respondent:


Ms E Warner

Australian Government Solicitor


THE COURT ORDERS BY CONSENT

(1) That the application is dismissed.

THE COURT ORDERS

(2) That there is no order as to costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ731 of 2002

NAOY


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This matter came before me today in order to approve consent orders which had been agreed between the parties yesterday, 5 November 2002. The first consent order was that the application be dismissed. The second consent order was that the applicant pay the respondent's costs of the proceeding.

2. I required an appearance to be made before me today on the question of costs. Ms Warner appeared for the respondent Minister. The applicant could not be contacted and made no appearance. I am told by Ms Warner that she was contacted by the applicant on 4 November 2002 by telephone and that the applicant attended her office on the morning of 5 November 2002 and indicated his wish to discontinue. Ms Warner tells me that the applicant readily agreed to the proposed consent order that there be an order for costs in the respondent's favour.

3. The circumstances are that Mr Ben Zipser was engaged to provide advice to the applicant and it appears from the Court Legal Service Advice Scheme record that Mr Zipser posted advice to the applicant on 30 October 2002. It can be assumed that in the ordinary course of post the applicant would have received that advice on or about 4 November 2002. Ms Warner tells me that the applicant made no mention of the advice in discussion with her. It does not follow, however, that it was not the advice of Mr Zipser which caused the applicant to seek to discontinue these proceedings. We, of course, are not privy to what advice Mr Zipser gave to the applicant. However, the coincidence of circumstances would lead an ordinary observer to at least strongly suspect that the advice of Mr Zipser was a significant factor in causing the applicant to contact the solicitors for the respondent to discuss drawing the proceedings to a close.

4. In the case of NAGY v Minister for Immigration [2002] FMCA 189

I dealt with the issue of costs in these circumstances. I noted that in the Federal Magistrates Court, in contrast to the position in the Federal Court of Australia, there is no general rule that an applicant who discontinues proceedings must pay the costs of the other party. The Federal Magistrates Court Rules 2001 (Cth) provide in rule 13.01 that a party may discontinue an application by filing a notice of discontinuance without leave up to 14 days before the date fixed for final hearing of an application. This matter would have required leave to be granted, given that the applicant did not discontinue more than 14 days before the date fixed for hearing.

5. Rule 13.02 provides that if a party discontinues then the other party may make an application for costs within 28 days after service on the party of the notice of discontinuance. Where leave is required for a party to discontinue, ordinarily some form of hearing would be required and the respondent would have notice and would have an opportunity to seek costs at that time if leave were to be granted.

6. In NAGY I expressed the view that, at least in New South Wales where the Minister's pilot advice scheme applies, ordinarily, a party who acts promptly upon receiving advice pursuant to that scheme should not have to pay the Minister's costs. I have not changed the opinion I expressed in that case.

7. In these proceedings it seems that the applicant did act very promptly after receiving the advice of Mr Zipser. That advice was given to the applicant very late and the Minister would no doubt have been disadvantaged by the lateness of that advice. The Minister would no doubt have incurred significant legal expenses in preparation for the hearing of the matter. However, it is not the applicant's fault, as far as

I am aware, that the advice was provided to him late.

8. Bearing in mind the operation of this Court's rules and the views I have expressed in NAGY, in my view, the Minister's lawyers, pursuant to the model litigant principle, should not conceal from a self represented applicant the opportunity he or she may have to avoid a costs order by terminating proceedings promptly after advice is received. In this case Ms Warner was clearly unaware of the relevant rules of the Court and my decision in NAGY. There was no impropriety on her part in acting in the manner in which she did in securing the agreement of the applicant to a costs order. However, solicitors for the Minister need to be aware both of the rules of the relevant court and relevant jurisprudence on the subject of costs. Assuming they are aware, the proper course in my view, is either to invite an applicant to obtain independent advice on the question of costs or to draw the attention of the applicant to relevant court rules and relevant court decisions. In my view, the preferable approach is the latter.

9. In future the Court will need to give more close attention to consent orders being sought where costs are apparently agreed by both parties. The Court will need to check whether costs are properly awarded in the circumstances of each case in order to ensure that the Court Rules and the general approach of Federal Magistrates in migration proceedings are not inadvertently circumvented.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 November 2002
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