SZIZE v Minister for Immigration

[2007] FMCA 132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIZE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 132

MIGRATION – Review of decision by Refugee Review Tribunal – practice and procedure – whether time for filing of application for costs by First Respondent be extended.

Federal Magistrates Court Rules 2001, r.13.02(2); sch.1 pt.2

Applicant: SZIZE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1811 of 2006

Judgment of: Emmett FM

Hearing date: 7 February 2007

Date of last submission: 7 February 2007

Delivered at: Sydney

Delivered on: 7 February 2007

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms Quinn, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1811 of 2006

SZIZE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Pursuant to an application filed in Court returnable instanter today, the first respondent seeks leave to extend the time for making an application for costs beyond the 28-day period specified in r.13.02(2) of the Federal Magistrates Court Rules 2001.

2. The first respondent reads in support of the application the following affidavits:

   i)The affidavit of Parish Honor Elsegood, affirmed 9 January 2007, annexing a copy of a letter sent to the applicant at her identified address for service and enclosing submissions in relation to costs on behalf of the first respondent;

   ii)The affidavit of Leonard Keith Leerdam, affirmed 9 January 2007, annexing a copy of a letter from the first respondent to my Chambers seeking a date for such application;

   iii)The affidavit of Therese Mary Quinn, affirmed 6 February 2007, annexing the Department’s records of the applicant’s movements in and out of Australia.  That annexure discloses that the applicant departed Australia on 28 December 2006. 

3. Whilst no application was filed by the first respondent prior to today’s date, in light of the notice given to the applicant of the first respondent’s intention to seek those orders, I am satisfied that it is appropriate that leave be given to the first respondent to file in Court an application returnable instanter seeking the following orders:

   “1. Leave is granted to the First Respondent to make an application for costs against the applicant pursuant to Rule 13.02(1) of the Federal Magistrates Court Rules 2001 on 7 February 2007, despite being outside the 28 day period specified in Rule 13.02(2).

   2. The applicant is to pay the First Respondent’s costs of the application filed on 27 June 2006 fixed in the sum of $3,000.”

4. Mr Leerdam stated in his affidavit that the reason for the application for costs being made outside the time required under the Rules is in the following terms:

   “My reasons for seeking such leave relate to the delay in obtaining instructions from the first respondent’s department over the Christmas period.  We sought those instructions on 21 December 2006.  However, instructions to pursue costs were not provided until 5 January 2007.”

5. The first question for the Court is whether or not an extension of time to bring the application ought to be granted to the first respondent. 

6. The applicant commenced this proceeding by way of application, filed on 27 June 2006, and filed an amended application on 28 September 2006.  On 30 November 2006, the applicant filed a notice of discontinuance.  The first respondent acknowledges that the notice of discontinuance was served upon the first respondent on that day. 

7. In those circumstances, in accordance with the Federal Magistrates Court Rules 2001, an application for costs ought to have been made by the first respondent by 28 December 2006.  The explanation by Mr Leerdam in his affidavit states that instructions were sought on

   
   

   21 December 2006, however instructions were not received until

   
   

   5 January 2007 because of the Christmas period.

8. The first respondent submits that, had the application been filed within time, it is highly likely that Order 2 sought in the application would have been made.  I accept that submission.  However, I do not ignore the fact that the first respondent is a model litigant and one would expect, in the ordinary course, that, without good reason, the Court’s Rules and directions would be complied with by any person or entity who appears before the Court in the role of a model litigant. 

9. It would appear that the first respondent’s delay in giving instructions was from 21 December until 5 January 2007.  I accept that the seeking of instructions was not received by the first respondent from his advisers until 21 December 2006, shortly before the period of Christmas holidays was to commence.  I note that the instructions were given during the week following the end of the Christmas break. 

10. Whilst it is plainly undesirable that there was a delay of three weeks before instructions were sought, had instructions been received in that time an application could have been filed in compliance with the Rules.  However, I accept the explanation that there was the intervening Christmas period and I note that, upon receiving instructions from the first respondent, a letter was sent two working days later to the applicant informing her of the orders that would be sought. 

11. I note that, whilst the first respondent’s written submissions make no mention of the failure of the first respondent to comply with any time frame and make no mention of an application for an extension of time for the filing of the first respondent’s motion, Mr Leerdam refers to such an application in his affidavit.  In the circumstances, and having regard to the fact that, had the application been made only a few days earlier, it is highly unlikely that this Court would have made Order 2of the first respondent’s motion.

12. There has been an explanation proffered by Mr Leerdam as to the reasons for the delay in notifying the applicant of the first respondent’s intention to seek those orders.  Accordingly, on balance, I am satisfied that it is appropriate that the time for filing of the motion be extended to today, on the basis that the applicant has been on notice, at least since 9 May 2006, of the first respondent’s intention to seek such Orders from the Court. 

13. Order 2 of the first respondent’s application otherwise seeks costs fixed in the amount of $3000.  I note that such sum is less than the amount fixed under schedule 1 part 2, r.2(d) (being the relevant rule relating to costs where an applicant has filed a notice of discontinuance less than 14 days before the final hearing).  Accordingly, I am satisfied that the amount sought is appropriate and I order that the applicant pay the first respondent’s costs fixed in an amount of $3000. 

14. Even though the evidence before the Court discloses that the applicant is no longer in Australia, I direct the first respondent to notify the applicant at the applicant’s last address for service of the orders made by the Court today, together with a copy of the application filed in Court today. 

15. I also order that the name of the first respondent be amended to Minister for Immigration & Citizenship.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date: 21 February 2007