FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration & Multicultural Affairs [2000] FCA 1436

PRACTICE & PROCEDURE – discontinuance – with consent – whether unless Court otherwise orders respondent entitled to costs

Federal Court Rules O 22, rr 2 & 3; O 62 r 26

SAIFUDDIN AHMED v MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

N 785 OF 2000

EMMETT J

6 OCTOBER 2000

SYDNEY

THE COURT NOTES THAT:

1.         The proceedings have been discontinued with the consent of the respondent.

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

REASONS FOR JUDGMENT

1                     This matter came before me on 1 September 2000 for the first time.  On that day, I directed that the matter be listed for hearing at 10.15 am on 6 October 2000.  When the matter was called on today, there was no appearance for the applicant.  However, I was informed by the solicitor for the respondent that the applicant had requested the respondent to file a Notice of Discontinuance in the form which has now been filed. 

2                     The Notice of Discontinuance has been signed by the applicant and is expressed to be pursuant to Order 22, rule 2 of the Federal Court Rules.  Order 22, rule 2(1) provides as follows:

“(1) Subject to subrules 2 and 3 a party making a claim for relief may discontinue a proceeding so far as concerns the whole or any part of any claim for relief, by notice in accordance with Form 29:

(a)       at any time before the directions hearing appointed in the application – without the leave of the Court or the consent of any other party; 

(b)       where after the directions hearing the proceeding continues on pleadings but the pleadings are not closed – without the leave of the Court of the consent of any other party;

(c)        where judgment has not been entered – with the consent of all the parties;  and

(d)       at any time – with the leave of the Court.”

3                     The form of Notice of Discontinuance that has been filed is in accordance with Form 29.  It is clear that rules 2(1)(a) and (b) do not apply since there was a directions hearing appointed for 1 September 2000.  Further, no order has been made that the proceeding continue on pleadings nor does paragraph 2(1)(d) apply at this stage because no leave of the Court has been given and no leave has been sought.  However, the solicitor for the Minister has indicated that the Minister consents to the proceeding being discontinued as contemplated by rule 2(1)(c).  The question that now arises is the entitlement of the Minister to costs. 

4                     Order 22, rule 3 provides that:

“A party who discontinues pursuant to paragraph 2(1)(a) or (b) shall be liable to pay the costs of the other party or parties occasioned by the whole or the relevant part of the proceeding.”

As I have indicated, neither of those provisions applies.  However, Order 62, rule 26(1) provides as follows:

“(1) Where pursuant to Order 22, rule 2 a party to any proceeding discontinues the proceeding without leave as to the whole or any part of the relief claimed by him against any other party, the discontinuing party shall, unless the Court otherwise orders, pay the costs of the party against whom the discontinued claim is made occasioned by the discontinued claim and incurred before service of notice of the discontinuance.”

5                     I consider that Order 62, rule 26 applies in the present case.  It does not refer in terms to Order 22, rule 2(1)(c).  Nevertheless, having regard to the express reference to rules 2(1)(a) and (b) in Order 22, rule 3, it would be curious if Order 62, rule 26 were intended to refer only to those paragraphs.  Order 62, rule 26 appears to be a general rule which in its terms would apply to the circumstances referred to in Order 22, rules 2(1)(a) and (b).  However, in its terms it also applies to Order 22, rule 2(1)(c) because judgment has not been entered in this proceeding and consent has been given.

6                     The proceeding has been discontinued without leave, albeit with the consent of the respondent.  There is nothing in Order 62, rule 26(1) to indicate that that rule does not apply where discontinuance occurs with the consent of the respondent.  I consider therefore that Order 62, rule 26 applies to the present case and the Minister is entitled to costs in accordance with that rule.  No application has been made on behalf of the applicant for the Court to order otherwise. 

7                     I should add that, had I been asked for an order for costs, I would have made an order in favour of the Minister.  However, for the reasons that I have given, I do not consider that that is necessary.  Accordingly, I will make no order but note that the proceedings have been discontinued with the consent of the respondent.

Associate:

Dated:              12 October 2000