FEDERAL COURT OF AUSTRALIA

Chaldargushi v Minister for Immigration & Ethnic Affairs [1999] FCA 1048

CHALDARGUSHI -v- MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR.

VG 34 of 1994

RYAN J

3 AUGUST 1999

MELBOURNE

THE COURT ORDERS THAT:

1.         In consequence of the leave granted to the applicant on 1 October 1996 to discontinue the proceedings herein, there be no order as to the costs of any party.

Note:       Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT AS TO COSTS

1                     By his application filed on 14 February 1994, the applicant sought a review of a decision of the second respondent sitting as a member of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent (“the Minister”).  That decision was to the effect that the applicant was not a refugee and that his deemed application for a domestic protection (temporary) entry permit be refused.  Various interlocutory steps were taken in the proceedings in this Court and the application was set down for trial on 19 and 20 February 1996. 

2                     On 3 January 1996, the Department advised the applicant’s solicitors that the applicant’s wife had been accepted as the principal applicant for a Class 816 permit.  Accordingly, the trial of the present application fixed for 19 and 20 February 1996 was vacated and directions hearing herein was subsequently adjourned by consent on 4 March and 26 June 1996.  On about 16 August 1996 the applicant’s wife’s application for a Class 816 permit was granted as a result of which the applicant obtained a visa as a member of the family unit of a holder of a Class 816 visa.  The applicant thereupon sought, and was granted, leave to discontinue his application subject to the right of the Minister to seek an order for costs. 

3                     Ordinarily, a party who elects to discontinue a proceeding will be liable for costs of the other party up to the discontinuance unless that other party can be shown to have been in some way to blame for the institution and continuance of the proceedings.  There is some suggestion that the Minister pressed for the application in this Court to go through certain interlocutory stages notwithstanding the knowledge of relevant members of the Department that the applications by the applicant and his wife for Class 816 visas were being processed and that one or other of them had reasonable prospects of success.  However, that does not permit a finding that the Minister’s conduct had brought about the need to apply to this Court for a review of the refusal of the applicant’s application for refugee status, or had contributed to the continuation of those proceedings.

4                     The Court is unable to form even a tentative view on the merits of the application.  To attempt to do so would circumvent what may be taken to be the common concern of the parties to avoid the expenditure of time and costs which would have been incurred had the matter proceeded to trial.  I therefore consider that I should assess the application for costs on the assumption that the substantive application had arguable prospects of success in the sense of not being hopeless but that the applicant’s ultimate success was by no means assured.  On that basis, I have come to the conclusion that the appropriate order, on a very finally balanced exercise of discretion, is to make no award of costs.

5                     I have been influenced to reach that conclusion by the fact that the applicant sought his remedies in a “public law” area against the holder of a public office who has had available to him all the resources, including skilled legal advice, of the Commonwealth.  As well, to impose on the applicant in the circumstances of this case, a liability for the respondent’s costs, might be seen as discouraging applicants in similar cases from responsibly discontinuing their proceedings and thereby avoiding unnecessary diversion of the Court’s scarce resources.  Whilst I accept that the continuation of the present proceedings occasioned some costs to the Minister, I am not persuaded that those costs were unreasonably increased as a result of the conduct of the applicant or his advisers.  Accordingly, there will be no order as to the costs of any party.

Associate:

Dated:              3 August 1999