AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 257
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 257
File number(s): SYG 153 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 31 March 2023 Catchwords: MIGRATION – Costs principles – scale costs – whether Affidavit required to justify departure from scale – whether to apply scale at time of filing or time of judgment Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) Cases cited: AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 239
AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256
Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138
Pierson’s Pro-Health Pty Ltd v Silvex Nominees Pty Ltd (No 3) [2010] FMCA 250
Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 31 March 2023 Place: Sydney Solicitor for the Applicant: Varess Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 153 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHE18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
31 MARCH 2023
THE COURT ORDERS THAT:
1.The first respondent must pay the applicant’s costs and disbursements of, and incidental to the application, fixed in the amount of $8,371.30.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
This morning, the Court delivered reasons for judgment in AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 239 (primary judgment), in which the applicant was successful and constitutional writs have issued. The applicant was successful in establishing one of the two errors ultimately relied upon, one further ground having not been pressed at hearing.
Consequent upon the delivery of the primary judgment and pronouncement of orders, a solicitor for the applicant seeks an order that the first respondent pay the applicant’s costs fixed in the sum of $12,828.20. No Affidavit evidence was furnished in support, however I am told that it is consented to by the first respondent.
Immediately prior to delivering the primary judgment in these proceedings, the Court delivered reasons in AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256 (AYT22). The solicitors for the respective parties in this matter were in Court for the hearing of the costs application in AYT22 and my delivery of ex tempore reasons for judgment in relation to said application.
In AYT22 I observed that Schedule 2, Part 2, Division 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (Rules) provides a scale for migration proceedings which conclude on a final basis and not by discontinuance. The scale is intended to represent (to the extent that such a thing is possible) a standard unit equivalent migration proceeding which concludes at a final hearing in this Court. From an applicant’s perspective this includes:
(a)preparing the originating application and an Affidavit in support;
(b)sometimes, attendance at a first court date if the matter was initially filed in the Sydney registry (albeit that practice has now changed post-COVID-19);
(c)consideration of the Court Book prepared by the first respondent’s lawyers and the preparation of any amended application and additional evidence;
(d)preparation of an outline of submissions which, generally, occurs only once and is usually 10 pages in length; and
(e)consideration of the first respondent’s submissions and attendance at a hearing the duration of which is usually half a day (which, in Court terms, is somewhere between 2-2.5 hours).
In this matter, the applicant was represented from the outset of the proceedings. There was no first court date, because orders were made by consent by a Registrar in Chambers. There have been no callover events in this matter, and all other listing orders have been made in chambers. The applicant amended his application twice and filed some additional evidence, although, as I have just indicated, the matter ultimately proceeded on a reduced version of the further amended application. The Court Book is 346 pages long, which is an average length. Submissions were prepared by the applicant’s Counsel. They were 10 pages long. Submissions were prepared by the first respondent’s Counsel. They were 3.5 pages long reflecting (in part) the narrow compass of the issues which were before the Court. Equally brief was the hearing before me, which the transcript records as having started at 10.16am, and concluded at 10.55am.
Costs are at the discretion of the Court. In Pierson’s Pro-Health Pty Ltd v Silvex Nominees Pty Ltd (No 3) [2010] FMCA 250 at [43] per Lucev FM (as his Honour then was) said the following:
the primary source used for fixing costs in general federal law proceedings (other than, arguably, in bankruptcy) in this court is the event-based scale in Schedule 1 of the FMC Rules. Whilst there is discretion to depart from the event-based scale, that is the exception rather than the norm. The event-based scale under Sch 1 of the FMC Rules exists to provide simplicity and certainty in determining costs, such that a lawyer attending to take final judgment ought to have been able to calculate the exact costs, in the vast majority of cases.
While the aforementioned extract was not directing referable to a migration proceeding and Schedule 2 is relevantly immaterial. As such, where the Court has for its guidance an event-based scale which should be applied as the norm, in order to persuade the Court that within the exercise of its discretion the scale ought be departed from will usually, although not always, require evidence. An Affidavit which attests to the additional matters and work done which justifies a departure from the scale is prudent. It may be that in some cases, the additional events in a case will be patent to the Court, for example AYT22, such that it can be inferred that the scale might be exceeded. However the extent to which it was exceeded and quantification of same is likely to still require proof.
However, in cases such as the present where there are no patently additional steps or complicating factors, the Court will require a proper evidentiary basis and likely persuasive submissions to be moved to exercise the discretion to award costs (well) in excess of the scale.
Having regard to the limited issues and material in this matter, the brief duration of the hearing and the fact that there were no meaningful interlocutory events, I can discern no basis upon which the applicant’s costs could total more than $12,000 (on a party/party basis), even if allowance is made for the disbursement represented by Counsel’s fees. Although in that regard the Court also has nothing to demonstrate what proportion of the professional fees relate to Counsel.
In all the circumstances of this case, and in the exercise of my discretion, costs in this matter ought follow the event.
However, by reference to the matters set out above there is nothing before the Court to justify departing from the scale cost in this matter, notwithstanding the fact that the Minister has apparently agreed to such an amount. To the extent that, by meeting an adverse costs order, the Minister is charged with responsibility of expending public funds, some serious consideration ought to be given to why it was that a $12,000.00 costs order was consented to by reference to the objectively uncomplicated nature of this case. As was said recently in Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138 at [36], the Court will not simply just “rubber-stamp” orders just because the Minister has consented to them.
Accordingly, I am of the view that the appropriate costs order in this case is in accordance with the Court’s scale. There are differing judicial views as to which scale amount should apply, namely, whether it should be that which applied at the time the application was filed, or at the time of judgment (assuming the amounts are different). The former position is intended to place a cap on the costs exposure that an applicant might have, to that which they could be taken to be on notice of as at the time of filing. However, there is nothing in the Rules (or their antecedents) which would preclude the Court from applying the scale as at the date of judgment. To the extent that in a case which has been on foot in the Court for many years, there are likely to have been incremental increases to the scale costs, to reflect inflation. In my view, a successful party ought have the benefit of those (slight) increases with the effluxion of time, particularly as they will also reflect the need to adapt a case to raise grounds or make submissions which reflect changes in the law.
As a result, I am prepared to apply the scale amount as at today which is $8,371.30, but no more. I will so order.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 4 April 2023
6
4
0