FEDERAL COURT OF AUSTRALIA

Loketi v Minister for Immigration & Multicultural &

Indigenous Affairs (No. 2) [2004] FCA 624

KATRINA IRENE LOKETI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 499 of 2004

LINDGREN J

13 MAY 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The application, in so far as it was not previously dismissed, be dismissed.

2.         The applicant pay the respondent’s costs.

REASONS FOR JUDGMENT (No 2)

1                     I dismissed the application and motion for interlocutory relief on 7 April 2004 (Loketi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 434).

2                     It is common ground that the applicant is no longer in Australia, and, as I understand it, has not been in Australia since the afternoon of 7 April 2004.  Nonetheless, when the proceeding was before the Court on the last occasion, Mr Girdler, who appeared for the applicant with leave, said that he understood that the applicant would wish to pursue the proceeding, albeit under an amended application seeking different relief.  Mr Markus, who appeared for the Minister, urged me to dismiss the application then and there.  As events have turned out, it would have saved some inconvenience and expense if I had done so.  In fact, however, I stood over the proceeding to today. 

3                     There has been subsequent correspondence which indicates that the applicant does not intend to pursue the proceeding.  Bearing in mind that she is out of Australia, it would certainly have been futile for her to have pursued an application for a bridging visa pending her departure from Australia.

4                     There has been some dispute about costs.  The email correspondence between the parties indicates an argument that there should be no order for costs because of the impecuniosity of the applicant.  This is not a reason why a costs order should not be made.  No doubt it is a practical consideration taken into account by a party in whose favour such an order is made, on the question whether it is worth while attempting to enforce the order, but that is a different matter.

5                     I should note that Mr P James, the solicitor on the record for the applicant, appears for the applicant today, although he does so as a courtesy to the Court and does not have instructions other than to put the impecuniosity argument just mentioned.

6                     In the circumstances, on the motion brought by the respondent by notice of motion filed on 14 April 2004 , the application is dismissed with costs.

Associate:

Dated:              18 May 2004