AAI20 v Minister for Immigration, Citizenship & Multicultural Affairs (No 2)

[2023] FedCFamC2G 1240

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AAI20 v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2023] FedCFamC2G 1240

File number(s):	PEG 24 of 2023
Judgment of:	JUDGE VASTA
Date of judgment:	23 November 2023
Catchwords:	MIGRATION – costs application – where applicant wholly unsuccessful – costs incurred by respondent larger than standard costs –costs granted
Legislation:	Migration Act 1958 (Cth)
Cases cited:	AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256
Division:	Division 2 General Federal Law
Number of paragraphs:	14
Date of last submission/s:	23 November 2023
Date of hearing:	23 November 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Taylor, Solicitor
Solicitor for the Applicant:	Sydney West Legal and Migration
Counsel for the Respondents:	Ms Scott, Solicitor
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

PEG 24 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AAI20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	23 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The application filed on 23 February 2023 as amended on 12 June 2023, 11 August 2023 and 29 October 2023 be dismissed.

2.The objection to the subpoena filed on 17 August 2023 is upheld.

THE COURT FURTHER ORDERS THAT:

3.The Applicant pay the First Respondent’s cost of and incidental to the Application

fixed in the sum of $17,000.

IT IS NOTED THAT

A.The Court will not provide a written version of the reasons for judgment delivered today for the cost application, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. I have just given judgment in the matter of AAI20.  The usual order would be for the Court to order costs to the Minister in the scale amount.  Ms Scott, who appears for the Minister, has submitted that costs greater than the scale amount ought to be considered by the Court. 

2. It is trite to say that the scale amount is simply a figure that is arrived at by some form of methodology that gives a “one size fits all” regime for the calculation of costs.  It does not in any way, shape or form look at what the actual costs between solicitor and client or party-party costs actually are.

3. This case was a difficult matter, and it involved quite a deal of complexity; the fact that I had it reserved for 10 days is testament to that.  It was a matter where the Court Book was some 1500 pages.  The actual hearing took five hours from 11 o'clock Brisbane time until 4 o'clock Brisbane time without any breaks. 

4. From the time in which the matter came before the Court, there had been three amendments of the grounds.  Those amendments occurring on 12 June 2023, 11 August 2023 and 29 October 2023.  Those amendments were the subject of submissions which the Minister answered in submissions.  Once answered, the irrefutable logic of those answers ultimately led to the applicant abandoning those grounds.  The applicant then amended his grounds again and the cycle repeated itself.

5. The grounds upon which the application was conducted, really, were quite different from the grounds that were contemplated when the application was first filed.  It does seem to me, in all of those circumstances, that the sorts of special considerations that would militate towards the Court disregarding the scale amount and looking at a cost figure have been met.

6. It is a matter now for the discretion of the Court to look at what are the appropriate costs that should be awarded. 

7. Ms Scott, in her affidavit, has said that the costs so far have been $17,332.19.  There is still another amount of just under $3,000 to be invoiced by Counsel who appeared in the matter.

8. There has not been a calculation of any costs which would include the drafting and filing of today’s affidavit of Ms Scott.  For this reason, Ms Scott has said, in her affidavit, that she estimates that the Minister's costs incurred in the matter at this stage would amount to approximately just over $20,000 with some other costs to come. 

9. What Ms Scott has done is divided the matters of disbursements and separated them from the professional costs she has calculated, so she has imposed a 25 per cent discount in relation to the professional costs, but has not done so for the disbursements, because those were disbursements that were properly made in the course of the answering of this application.

10. Ms Scott relies, for some guidance, on a matter of AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256 and a judgment given by my sister judge, Judge Given, in which the form of calculation that I have summarised as being Ms Scott’s form of calculation was endorsed by Her Honour.

11. It seems to me, then, that the Minister should have his costs. Given what I have seen in the affidavit of Ms Scott, it seems to me that a total of $17,000 for costs and disbursement would not be unreasonable.

12. Mr Taylor has conceded that, on principle, the Minister is entitled to an amount of costs and that such amount needs to be greater than the scale amount; however, he disputes that the sum needs to be as high as $17,000 and submits that, in the course of migration matters, there are often matters that occur which do go outside the normal bounds. He submits that those matters would militate towards a sum being awarded which is greater than the scale amount, but not as much as the Minister has asked.

13. Whilst I understand the force of those submissions, it seems to me, given the way in which this matter was run and the extra effort that the Minister has had to undertake in relation to this matter, that the sum sought by the Minister is justified and, in many ways, is still leaving the Minister or will leave the Minister out of pocket in all of the circumstances.

14. I will exercise my discretion to order that the applicants pay the costs of the Minister fixed in the sum of $17,000.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta.

Associate:

Dated:       23 November 2023