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MIGRATION - Costs - withdrawal of application - consideration of circumstances in which a costs order should be made.

PRACTICE AND PROCEDURE - Costs - whether costs payable upon filing a notice of discontinuance.

NAGY v Minister for Immigration [2002] FMCA 189 (20 August 2002)

NAGY v Minister for Immigration [2002] FMCA 189 (20 August 2002)
Last Updated: 4 September 2002


[2002] FMCA 189

MIGRATION - Costs - withdrawal of application - consideration of circumstances in which a costs order should be made.

PRACTICE AND PROCEDURE - Costs - whether costs payable upon filing a notice of discontinuance.

Migration Act 1958 (Cth)

Gibbs v Wanganeen [2001] FMCA 14

Low v Australian Taxation Office [2000] FMCA 6

NAAV v Minister for Immigration [2002] FCAFC 228




File No:

SZ316 of 2002

Delivered on:

20 August 2002

Delivered at:


Hearing Date:

20 August 2002

Judgment of:

Driver FM


The applicant was self represented

Solicitors for the Respondent:

Ms B Rayment

Sparke Helmore


(1) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $2,200.




SZ316 of 2002








1. These ex tempore reasons for judgment relate to an application for a costs order made by the respondent Minister, in circumstances where the applicant withdrew his application prior to the time fixed for the hearing of it.

2. The position in this Court is that an application may be withdrawn by filing a notice of discontinuance without leave at any time up to seven days before the date fixed for a final hearing of an application. In this matter a notice of discontinuance was filed on 22 July 2002, precisely seven days before the time fixed for hearing on 29 July 2002. Whether necessary or not, I granted leave for that notice of discontinuance to be filed seven days before the hearing.

3. The application had been filed on 26 April 2002 in the Federal Court of Australia and was transferred to this Court by order of his Honour Conti J on 10 May 2002. At that time directions were given for the matter to be prepared for hearing. In addition, a further directions hearing was conducted before me on 21 June 2002 in which, among other things, I changed the date for hearing. It is apparent, therefore, that the notice of discontinuance in this matter was filed at a late stage. In addition, the applicant was legally represented, at least in May 2002, and I am entitled to assume that the applicant received legal advice from his legal representatives at or around that time.

4. Prima facie, in the circumstances of this matter, it would be appropriate to make an order for costs in favour of the Minister. Nevertheless, the position taken in this Court on costs is somewhat more liberal than that taken in some other courts. In the first place, in this Court, in contrast to the position in the Federal Court, there is no presumption that where an application is discontinued in advance of a hearing that the discontinuing party must pay the costs of the other party.

5. Secondly, I have previously taken the view, in particular in human rights proceedings, that the Court should be slow to award costs at an early stage of proceedings, so that applicants have a reasonable opportunity to get their case in order, to take advice and to assess their position. In the matter of Low v Australian Taxation Office [2000] FMCA 6 I took that view. In addition, in the matter of Gibbs v Wanganeen [2001] FMCA 14, I said this:

"As to costs, although Mr Britton sought an order for costs and Mr Stanley indicated that he would not oppose an order, I do not consider that any order for costs should be made. As I noted in the matter of Low v Commonwealth [2000] FMCA 6, applicants under this [human rights] legislation should be given a reasonable opportunity at a preliminary stage in proceedings to determine whether they have a valid claim for relief. In my view, it would be contrary to the objects of the legislation if costs awards were commonly made at an early stage of proceedings before an applicant had had that opportunity. Therefore, the only order I make is that the application is dismissed."

Both of those cases have been referred to in the CCH Federal Magistrates Court Service.

6. It seems to me that in migration proceedings a similar situation applies. The jurisdiction is a new one under legislation enacted late in 2001. The jurisdiction exercised by this Court and the Federal Court is substantially different from the review jurisdiction formally exercised by the Federal Court. In particular, the enactment of the privative clause in the Migration Act 1958 (Cth) has fundamentally altered the nature of the review available in the courts. It was only last Thursday that the operation of the privative clause became clear following the judgment of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228. It seems to me that many, possibly most, applicants filing applications for review in this Court and the Federal Court have little understanding of the jurisdiction that they are getting involved in at the time they file their application.

7. Applicants are given minimal information about what they can expect. They have been through, by that stage, a merits review process in either the Migration Review Tribunal or the Refugee Review Tribunal ("the RRT") and they may well think that the application to the Court is an extension to that process. They may think that they will have a further opportunity to have the decision reviewed on its merits and that a different decision maker might be more sympathetic than the previous decision makers. That, of course, is not the case and review can only be obtained on restricted legal grounds in the light of the privative clause.

8. It is therefore, in my view, appropriate that applicants should be given an opportunity at an early stage of migration proceedings in this Court to take advice and to assess their position. Importantly, in New South Wales, the Minister has approved a legal advice scheme for parties appealing against decisions of the RRT. The provision of that advice gives applicants an opportunity to have, possibly for the first and only time, an objective assessment of the likely outcome of their application to this Court.

9. If, having got that advice or if having got advice from legal representatives in other circumstances, an applicant acts promptly to withdraw their application by filing a notice of discontinuance, in my view, the applicant should pay no costs penalty. I would be reluctant to make a costs order against an applicant in those circumstances. Where, however, an applicant significantly delays filing a notice of discontinuance and the Minister is put to significant expense in preparation for a hearing, then the Court should be more inclined to make a costs order.

10. This case falls into the latter category, noting that about three months elapsed between the filing of the application in April and the filing of the notice of discontinuance at the end of July. The applicant had an opportunity in May to obtain legal advice but waited approximately two months after that time before he filed a notice of discontinuance. During that time the Minister was put to significant expense. The Minister has been put to expense in preparing for a hearing. In particular, his lawyers have prepared the court book. The Minister has, however, been spared the cost of representation at a hearing and the cost of preparation of written submissions.

11. The Minister seeks costs in the sum of $2,200. No costs are sought for today's hearing or for the fee payable upon filing the costs application. In matters going to a hearing where the applicant was unsuccessful,

I would ordinarily make a costs order between $4,000 and $5,000.

I estimate that the Minister has been saved about $2,000 in the cost of representation at a hearing as well as the costs of preparation of written submissions in advance of a hearing.

12. The application for costs is, therefore, an application for an amount which is, in my view, a reasonable sum. I will, therefore, order that the applicant pay the respondent's costs of the proceedings, which I fix in the sum of $2,200. In making that order I note that the applicant has requested that he be given time to pay. I do not think that in the ordinary course it would be appropriate for the Court to augment a costs order to determine how the costs are to be paid. In my view, that is a matter for resolution between the parties or otherwise, in a court of competent jurisdiction should the Minister pursue the costs as a debt. In this instance I note that Ms Rayment, for the Minister, has informed the Court that the Minister generally takes a sympathetic view to requests for payment of costs by instalments and that that matter has been discussed between the parties. In those circumstances I will not make any further order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM


Date: 29 August 2002
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