NABC v Minister for Immigration & Multicultural Affairs [2003] FCA 72

FEDERAL COURT OF AUSTRALIA

NABC v Minister for Immigration & Multicultural Affairs [2003] FCA 72 NABC v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1494 of 2001 BRANSON J 6 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1494 of 2001

BETWEEN: NABC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 6 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT there be no order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1494 of 2001

BETWEEN: NABC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 6 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 This case has had a complicated and, to some extent, regrettable history. The applicants' counsel, Mr M Leeming, gave advice to the applicants initially under the Pilot Refugee Legal Advice Scheme and has continued to represent the applicants without the benefit of the support of solicitors. The early conduct of the matter was complicated by the existence of a number of conflicting decisions of judges of this Court with respect to s 474 of the Migration Act 1958 (Cth) ('the Act'). There was some uncertainty on behalf of the respondent as to the appropriate way for the respondent to challenge the application which, on the view then taken by the respondent, ought not to have been allowed to proceed to a hearing. Ultimately the respondent filed a notice of objection to competency. 2 The application and the notice were listed for hearing on 20 May 2002. On that day I entertained an application made on behalf of the applicants to adjourn the hearing to await the decision of the five member court which was ultimately published as NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 ('NAAV v MIMIA'). The application for an adjournment was unsuccessfully opposed by the respondent. 3 A subsequent difficulty arose in the proceeding because a notice to admit that was served on the respondent was not answered within the prescribed time and it was necessary for a notice of motion to be filed for the deemed admissions to be withdrawn. 4 The respondent concedes that the costs of the notice of motion should be the applicants' costs. The notice of motion was listed for hearing on 25 November 2002 together with the application. Approximately half of hearing time on that day was taken up with the resolution of issues that arose from, or related to, the respondent's untimely response to the notice to admit. 5 This is a case in which no party is entitled to an unconditional costs order in his favour. Weighing up all of the relevant factors, including the histories of the proceeding and the applicable legislation, and the difficulties and additional costs that would arise if I were to make an order that entitled the parties respectively to the costs of different aspects of the matter, I conclude that the appropriate order is that there be no order as to costs. I so order. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.