A226 of 2003 v Minister for Immigration
[2004] FMCA 772
•12 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A226 of 2003 & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 772 |
| MIGRATION – COSTS – Application for costs following discontinuance – factors relevant to a consideration of whether to make a costs order – whether the respondent has any intention or desire to seek to recover costs a relevant factor – model litigant principle – whether costs should be sought if there is no intention to seek to recover them. |
Federal Magistrates Court Rules 2001 (Cth)
Financial Management and Accountability Act 1997 (Cth)
Judiciary Act 1903 (Cth), s.55ZF
| First Applicant: Second Applicant: | APPLICANT A226/2003 SZDFR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1021 of 2004 |
| Delivered on: | 12 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | Decided on written submissions |
| Judgment of: | Driver FM |
REPRESENTATION
The applicants relied on their own written submissions
| Solicitors for the Respondent: | Mr A Crockett Australian Government Solicitor |
FEDERAL MAGISTRATES |
SYG1021 of 2004
| APPLICANT A226 of 2003, SZDFR, SZDFS, SZDFT |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This judgment concerns an application for costs made by the Minister in these proceedings. The four applicants had sought judicial review of a decision of the Refugee Review Tribunal (“the RRT”) by application made on 7 April 2004. On 11 May 2004 the Minister filed a notice of objection to the competency of the application. On 22 June 2004 the Minister applied for the summary dismissal of the application. Directions were given by Registrar Tesoriero on 22 June 2004 for the preparation and hearing of the Minister’s application for summary dismissal. That was listed for hearing at 12.15pm on 13 September 2004.
On 2 July 2004 an affidavit in support of the Minister’s application for summary dismissal was filed. On 6 September 2004 the applicants filed a notice of discontinuance which was faxed to the Minister the same day.
On 21 June 2004 the first applicant had sought assistance under the Minister’s panel advice scheme. However, it appears that the proceedings were discontinued before arrangements were made for any advice to be provided. There were earlier legal proceedings in respect of the same RRT decision and therefore the applicants may not have been entitled to participate in the pilot advice scheme. In the circumstances, I do not regard the non provision of advice as a relevant factor in relation to costs.
In submissions filed in my chambers on 27 September 2004 in support of the Minister’s costs application, the Minister’s solicitors state that as at 6 September 2004 the respondent had incurred total costs (including disbursements of $720.09) in the amount of $3,939.85.
I invited a response in writing from the applicants to the Minister’s costs application. The first applicant responded by letter received on 25 October 2004. The first applicant asks that the Court take into account that he is unemployed and has two children with serious health conditions. He states that he has had to bear expensive medical costs for his children over the last five years. He is dependent on community support and charity. I note that a Dr J Fairchild wrote to the Minister on 20 August 2004 stating that the two children, who were applicants in these proceedings, are under the doctor’s medical care at the Women’s and Children’s Hospital in Adelaide and that they have a complex and potentially life threatening inherited medical condition called Congenital Adrenal Hyperplasia. The doctor relevantly states as follows:
Both children have a complex inherited medical condition called Congenital Adrenal Hyperplasia. This condition requires lifesaving and lifelong medical therapy and close medical supervision for optimal health outcomes. If properly treated, this condition is compatible with normal life expectancy and health and the therapy involved is relatively inexpensive. Individuals with Congenital Adrenal Hyperplasia are at risk of life-threatening adrenal crises if their therapy is discontinued or at times of illness or injury and require urgent medical attention in these circumstances.
By letter dated 4 November 2004 the solicitor for the Minister presses the application for costs, notwithstanding the impecuniosity of the first applicant and the serious and potentially life threatening medical condition of the two child applicants. The solicitor correctly points out that impecuniosity is not a reason for not awarding costs although it may be a matter taken into account by the Minister in determining whether and how to seek to recover those costs. Prima facie, the Minister should receive an order for costs in respect of the stage of the proceedings that had been completed prior to the discontinuance.
When I was a legal practitioner I took the view that costs should not be sought unless there was an intention on the part of the client to seek to recover those costs. It is apparent from the solicitor’s letter dated 4 November 2004 that no decision has been taken to waive or write off as irrecoverable any costs that might be awarded. Neither has there been any decision not to. The tragic circumstances of the two child applicants would ordinarily be circumstances that could properly be taken into consideration in a decision whether or not to waive costs. There is no question of any costs order against the child applicants. Beyond that, however, it would be cruel to subject the parents to a costs order if the Minister does not intend to enforce it. The Minister is subject to the Attorney-General’s direction issued with effect from 1 September 1999 under s.55ZF of the Judiciary Act 1903 (Cth) which requires the Commonwealth to act as a model litigant. The notes to the directions make clear that the model litigant obligations upon the Commonwealth do not prevent the Commonwealth from seeking and enforcing a costs order. In my view, the Commonwealth, as a model litigant, should not seek a costs order if there is no intention to seek to enforce it. Generally, an intention to enforce a costs order can be assumed if one is sought. That is because the normal Commonwealth practice is to enforce costs orders in its favour, consistently with the Commonwealth’s obligations under the Financial Management and Accountability Act 1997 (Cth) and consistently with the Commonwealth’s obligation to conduct litigation in accordance with legal principle and practice[1].
[1] “The Commonwealth as a Model Litigant, An Insider’s View” by Ian Govey and Maia Ablett, Canberra Bulletin of Public Administration, No 92, June 1999, p24 at p28.
It is not clear from the letter dated 4 November 2004 from the solicitor for the Minister whether he was holding open the possibility of non recovery, or simply making the obvious point that the circumstances of the applicants would be relevant to a decision on write off or waiver. I am not prepared to make the assumption that recovery of costs in this matter would necessarily follow from the order. I do not know if the Minister has any intention to seek to enforce a costs order that might be obtained against the first and second applicants. I would like to know before I proceed to make one. The doctor’s letter to the Minister would, I think, have given the Minister cause for reflection.
I am unwilling, in the circumstances of this matter, to determine the issue of costs until I can be satisfied that the issue has been properly considered by or on behalf of the respondent at an appropriately senior level. It would be appalling if the making of a costs order interfered with the treatment of the child applicants, thereby placing their lives in jeopardy. I have therefore decided to adjourn the consideration of the costs application to give the Minister the opportunity to consider the issue further. If I receive confirmation that the Minister presses the costs application with the intention of seeking to enforce it, notwithstanding the circumstances of the applicants, I will make an order against the first and second applicants on the basis that only stage 1 of the proceedings was completed for the purposes of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 November 2004
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