AXV16 v Minister for Immigration

[2019] FCCA 2707

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXV16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2707

Catchwords:
MIGRATION – Administrative Appeals Tribunal – first respondent sought costs above scale – held reasonable in circumstances – costs awarded above scale.

Cases cited:

AMT15 v Minister for Immigration and Border Protection [2018] FCA 366

Applicant: AXV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 808 of 2016

Judgment of: Judge Mercuri

Hearing date: 20 March 2018

Date of Last Submission: 27 July 2018

Delivered at: Melbourne

Delivered on: 17 September 2019

REPRESENTATION

Advocate for the applicant: Ms Geale

Solicitors for the applicant: Lander and Rogers

Advocate for the respondents: Mr Brown

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The applicant pay the first respondent’s costs fixed in the sum of $9,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 808 of 2016

AXV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for costs following orders made by me on 20 July 2018 that the applicant pay the first respondent’s costs in a sum to be fixed. 

First respondent’s position

1. The first respondent sought costs of $9,500, which is above the scale amount of $7,328.  The basis upon which the first respondent seeks costs above scale was twofold:

   a)Firstly, that the Minister put before the court a full transcript of the tribunal hearing which ran for over 145 minutes, in circumstances where the applicant had filed a transcript of some 11 minutes of that hearing.  It was submitted by the Minister that the full transcript was necessary to provide context, given the claims made by the applicant. 

   b)Secondly, the parties were granted leave to file additional submissions in relation to the decision of AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 (“AMT15”), which had been handed down on the morning of the hearing and was suggested by the applicant to have some relevance to the proceedings. 

2. The applicant sought time to file written submissions in relation to the costs issue and leave was granted.  The Minister was also granted leave to file any submissions in reply but chose not to do so. 

3. The applicant filed written submissions in which it opposed an order for costs above the scale amount for the following reasons:

   a)the Minister had filed no evidence in support of the application, including evidence of the costs of the transcript or any evidence as to the costs of preparing the additional submissions; and

   b)moreover, in any event costs are to be awarded for work that is properly and reasonably done in responding to the applicant’s case, and that in the circumstances, the costs which were being sought were not properly or reasonably incurred. 

4. The order I made was for the applicant to pay the first respondent’s costs in a sum to be fixed.  In those circumstances, it is not uncommon for the successful party to make submissions as to the costs they seek without filing affidavit material about those costs incurred. 

5. The applicant argued that in this case, the additional costs claimed of $2,172 was not for work properly and reasonably done. 

Transcript

1. In relation to the transcript, it was argued by the applicant that it was not reasonably undertaken in circumstances where the applicant had, in correspondence with the Minister’s representative, suggested an alternative to obtaining a full transcript with a view to minimising the costs involved.  In addition, it is further submitted that the Minister failed to meaningfully engage with the suggestions made by the applicant’s solicitor to avoid the need for a full transcript to be obtained. 

2. The applicant relied upon the affidavit of Adele Clare Moloney[1] filed in these proceedings.  That affidavit annexed correspondence between the applicant’s representatives and the first respondent’s representatives. 

   [1] Affirmed and filed 27 July 2018.

3. Having considered the correspondence between the parties in relation to the transcript issue, I am satisfied that there is no proper basis on which the applicant’s submission can be accepted. 

4. In the face of a partial transcript filed by the applicant, the Minister invited the applicant to file a complete copy of the transcript.  In circumstances where the applicant’s case was that the tribunal failed to do certain things, this was an entirely appropriate suggestion. 

5. In the face of this suggestion, the applicant suggested that an alternative was for the audio to be played before the court and part of the transcript to be relied upon.

6. The hearing before the tribunal is said to have lasted some 147 minutes.  That is over two hours.  In those circumstances and given the need to present evidence in an efficient manner in what is a busy list, it was entirely reasonable for the party seeking to rely upon the transcript to put the entire transcript before the court.  When it became clear that the applicant did not intend to do so, it was reasonable and proper for the first respondent to do so.  There is no proper basis upon which the first respondent’s claim for the costs of the transcript should be rejected. 

7. For completeness, I note that the applicant also argued that if the court were inclined to adopt the view that obtaining the transcript was a reasonably incurred expense, the court ought to exercise its discretion to refuse to make the order sought.  This submission is based on the suggestion that the first respondent failed to engage meaningfully with the applicant in breach of its obligations as a model litigant to minimise costs. 

8. Having considered the correspondence between the parties annexed to Ms Moloney’s affidavit, I do not accept this submission.  As stated, the first respondent’s representative explained the reason for the need for a full transcript, gave the applicant an opportunity to file such a full transcript, and then attended to this itself when it became apparent that the applicant was not willing to do so.

Costs not reasonably incurred

1. In relation to the costs incurred for further submissions filed after the hearing, it was submitted by the applicant that no costs ought to be awarded to the first respondent on the basis that: 

   a)the decision of AMT15, in respect of which leave was granted, was a brief decision of some 17 pages;

   b)the Minister’s submission ran to five pages, most of which simply restated the submissions which had been made in oral submissions; and

   c)therefore, the written submissions were unnecessarily and excessively long, and consequently the work undertaken in preparing them was not properly and reasonably done. 

2. Moreover, in restating submissions already made, it was said for the applicant that there was no further work that would be expected in a hearing of that kind.  As noted earlier, just prior to the end of the hearing in the substantive application, the applicant raised the decision of AMT15 and indicated that it might be of relevance to the proceedings before this court. 

3. Leave was granted to the parties to file submissions in relation to that decision.  The Minister filed submissions within the time prescribed; the applicant did not.  I have dealt with this issue at paragraph 60 to 68 of my reasons for judgment in the substantive proceedings which address the submissions filed in relation to AMT15, and I do not restate those matters here. 

4. Having raised the possible relevance of AMT15, there is no proper basis on which the applicant can object to the Minister filing written submissions.  I note that those submissions set out the decision in AMT15 at paragraphs 2 to 10, and then went on to consider the relevance of that decision to the present case at paragraphs 11 and 12.

5. The first respondent’s written submissions were not excessively or unnecessarily long.  It was entirely appropriate for the first respondent to address the findings in AMT15 and its possible relevance to this case. 

6. The fact that the applicant may have concluded, after considering AMT15, that it did not assist, does not make it unreasonable for the first respondent to have filed submissions. The applicant had indicated that it might have some relevance and leave was granted to the parties to make submissions for that purpose. 

7. For these reasons and in all of the circumstances, I am therefore satisfied that it is appropriate to make an order for costs sought by the first respondent in the sum of $9,500.  I am satisfied that the additional costs were reasonably and properly incurred by the Minister in filing a complete transcript of the tribunal hearing and preparing submissions in relation to AMT15.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:       17 September 2019