AYK15 v Minister for Immigration
[2016] FCCA 898
•27 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYK15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 898 |
| Catchwords: MIGRATION – Considerations regarding award of costs less than as set out in Schedule to Rules of Court – factors relevant to exercise of Court’s discretion including lack of submissions by the Minister in relation to costs. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.79(1) & (3) Migration Act 1958 (Cth), pt.8B |
| Cases cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Cachia v Hanes (1994) 179 CLR 403 Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 Eat Media Pty Ltd v Mulready Media Pty Ltd (No.2) (2010) 267 ALR 573 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 Ginos Engineering Pty Ltd v Autodesk Pty Ltd (2008) 249 ALR 371 Hughes v Western Australian Cricket Association (Inc.) (1986) ATPR ¶40-748 Latoudis v Casey (1990) 170 CLR 534 Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 Noble & Baldwin (No.2) [2011] FMCA 700 Oshlack v Richmond River Council (1998) 193 CLR 72 Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (No.2) [2010] FCA 455 SZRTP v Minister for Immigration & Border Protection (2013) 277 FLR 469 |
| Applicant: | AYK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 37 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 27 October 2015 |
| Date of Last Submission: | 27 October 2015 |
| Delivered at: | Canberra |
| Delivered on: | 27 October 2015 |
| Written reasons provided on: | 22 April 2016 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Self represented |
| Solicitor/advocate for the First Respondent: | Mrs A Ryan |
| Solicitors for the First Respondent: | Clayton Utz, Canberra |
ORDERS
The Application filed 9 June 2015 be dismissed.
The Applicant is to pay the Respondent’s costs in the amount of $2500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 37 of 2015
| AYK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 27th October 2015, the Court heard, and determined adversely to the Applicant (a student from the People’s Republic of China), an Application that sought (among other things) to quash a decision of the then Refugee Review Tribunal (“the Tribunal”), made on 14th May 2015.
In short compass, the Court accepted, and in large measure adopted as the Court’s reasons, the submissions provided by the First Respondent Minister (“the Minister”).
Upon delivering oral reasons in relation to the [substantive] Application to Review, the Court also made an Order for costs in favour of the Minister. The amount was fixed in the sum of $2500.00.
On 6th November 2015, the Court received a request for written reasons specifically and solely in relation to the Order regarding costs. As important as reasons for costs are, the oppressive demands on this Court and its very broad jurisdiction are such that this is the first opportunity that the reasons sought for the award of costs are able to be addressed. As indicated, these reasons are confined to the issue of the award of costs dated 27th October 2015.[1]
[1] These essential reasons will also apply, mutatis mutandis, to a similar request for reasons and an award for costs in the matter of BAQ15 v Minister for Immigration and Border Protection [2016] FCCA 899.
Principle & Comments
At the outset, it is as well to record that in the Response filed on behalf of the Minister on 14th July 2015, Order 2 as sought stated (emphasis added):
The Applicant pay the First Respondent’s costs in such amount as may be fixed by the Court.
In the Minister’s written submissions, filed 20th October 2015, par.38 states:
The First Respondent respectfully submits that the application should be dismissed, with costs fixed in the amount of $6,825.00.
There were no written submissions specifically or directly in support of the amount claimed.[2]
[2] In this regard and generally I note that the Commonwealth adheres to relevant principles and guidelines as a model litigant. See Legal Services Directions 2005 (Cth) Appendix B, including cl.2(f) “ not taking advantage of a claimant who lacks the resources to litigate a legitimate claim.” I do not suggest that the Minister in this matter was taking advantage of the self-represented Applicant.
In my view, either or both of (a) the Order sought by the Minister “for such amount as may be fixed by the Court”, and or (b) the submission for the nominated amount but without any supporting reason for seeking such an amount, would be a sufficient base, or bases, for the Court to make the discretionary costs Order it did.
The Order sought by the First Respondent with respect to costs was without limit or direction which (in my view) necessarily meant that costs were “at large”.
Likewise, the submission with respect to costs made by the Minister was also made without reference to any jurisprudence for the calculation or the making of such an award, which thereby also meant, in my view, that the amount sought was what was requested or sought but otherwise such a “request” was not binding on the Court. This was especially because of the lack of reference to either statutory provision or case law to support the submission. The submission was simply a claim to entitlement of a specified amount semble solely on the basis of the Application being dismissed.
Indeed, put another way, procedurally the Court (and the Applicant) must be relevantly provided with precisely what costs are sought, and the legal basis/bases upon which they are sought. In the Response, there was no reference in this matter, for example, to either Part 8B of the Migration Act 1958 (Cth), or to any relevant section of the Federal Circuit Court of Australia Act 1999 (Cth), or to this Court’s Rules.
At this juncture, it is as well to recall the comments of the High Court in relation to the use of and demands upon the public resources of Courts.
For example, in Armstrong at [51] and [52], by reference to AON, the High Court referred to the now well-recognised need to have regard to the problems of delay and cost in the litigation process, and that “speed and efficiency” were essential to the just resolution of proceedings. [3] Also in Armstrong the Court said, at [51]:
The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.
[3] AON Risk Services Ltd v Australian National University (2009) 239 CLR 175 (“AON”); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 (“Armstrong”).
While the comments of the High Court were directed to the detail and context of the matters before it, notably in commercial litigation, and in relation to case-management considerations (among other things), the Court was nonetheless conscious, as it said at [51] in Armstrong, of “the wider objects of the administration of justice.” In my view, matters of costs, and the burdens on the Court, are relevant considerations. For example, as noted later in these reasons, Courts have recorded that the exercise of discretion regarding an award of costs may be influenced by, for example, whether there is a self-represented litigant involved, and how much that person may understand of the risks (such as in relation to costs) of litigation.
In the current matter, there was a self-represented litigant. The grounds of review patently showed a significant lack of understanding both of the review process and relevant grounds of review. The Applicant here did not, in my view, set out to waste the Court’s time and resources, and plainly, it seemed to me, did not appreciate the financial risks of the litigation which he had initiated. But more on this later.
For the sake of completeness, notwithstanding the further drain on the limited resources of the Court and the impact on other matters, I note the following further matters.
This Court’s statutory jurisdiction to award costs is pursuant to s.79 of the Federal Circuit Court of Australia Act 1999 (Cth). Section 79(3) specifically states that, except as provided by the Rules of Court or any other Act, “the award of costs is in the discretion of the Federal Circuit Court or Judge.”
This general discretion is reflected further in Rule 21.02 the Federal Circuit Court Rules2001 (Cth). Rule 21.02(2) provides that, among other things, the Court may “set the amount of the costs”.
In relation to migration matters more specifically, r.44.15(1) of this Court’s Rules also provides, in terms, for the discretionary award of costs. This is to say that the discretion to award costs, and the amount of them, rests with the Court.
I note the following comments from case law regarding the award of costs, among other things precisely because no such matters were provided to the Court by the Minister, and a similar deficiency in relation to reference to relevant statutory provisions (as I have earlier noted).
First, the jurisprudential bases upon which an order for costs is made are set out, for example, in Latoudis v Casey.[4] I need not detail the well-known principles found in that decision. However, it is apposite to record the comment by Gaudron and Gummow JJ in Oshlack v Richmond River Council (accepting the specific terms and facts of the matter before the Court in that appeal), where their Honours said, at [43].[5]
Nor, before or since the introduction of the Judicature system, has there been any absolute proposition that the sole purpose of a costs order is to compensate one party at the expense of another.
[4] Latoudis v Casey (1990) 170 CLR 534.
[5] Oshlack v Richmond River Council (1998) 193 CLR 72.
Secondly, the exercise of the discretion to award costs must be exercised “judicially”, as explained by Toohey J in Hughes v Western Australian Cricket Association (Inc.).[6]
[6] Hughes v Western Australian Cricket Association (Inc.) (1986) ATPR ¶40-748. The same comments were explored in detail in the exhaustive discussion by McHugh J in his dissenting judgment in Oshlack beginning relevantly at [63] where his Honour considered “the source of the broad discretion as to costs.” See also Cachia v Hanes (1994) 179 CLR 403.
Thirdly, in Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories, Gummow J (as his Honour then was) said that “there were no special categories which control the general discretion.”[7]
[7] Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 415.
Fourthly, in Corcoran v Virgin Blue Airlines Pty Ltd, Bennett J outlined (at [6]) a range of considerations that may lead a court to fix (or to cap) an award of costs.[8] Likewise, in Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (No.2), Middleton J noted (at [3]) that the rules in relation to placing a limit or “cap” on costs are expressed in general terms and are not limited to complex or protracted cases.[9]
[8] Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864.
[9] Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (No.2) [2010] FCA 455. See also the discussion regarding the exercise of discretion to award and to limit costs by Finn J in Ginos Engineering Pty Ltd v Autodesk Pty Ltd (2008) 249 ALR 371, and by Flick J in Eat Media Pty Ltd v Mulready Media Pty Ltd (2010) 267 ALR 573.
Fifthly, in Noble & Baldwin, Judge Barnes (as her Honour now is) said, at [47] (emphasis added):[10]
A number of factors have been identified as relevant to the discretion to order costs, in particular in human rights matters, including the existence of a public interest element to the complaint, the parties’ representation or lack of representation and whether they are in a position to assess the risk of litigation, the need to prevent the successful party from losing the benefit of his or [sic] victory, as well as to discourage litigants from bringing unmeritorious claims. Conduct which unnecessarily prolongs or increases the costs of the litigation by reason of the need to determine issues on which the successful party has failed is also relevant.
[10] Noble & Baldwin [2011] FMCA 700.
And in SZRTP v Minister for Immigration (No.2), Judge Nicholls said, at [45] – [47] (emphasis added):[11]
[45] Putting to one side, the unsatisfactory explanation as to why regard should be had to the part of the schedule relevant to Migration proceedings (Pt.3 of Sch.1), in any event, I do not accept that the Schedule (regardless of which part of the Schedule) is to be rigidly applied. In particular, I do not, respectfully, comprehend the reference in DZAAY (at [28]) to “fixed scale costs” to require that the Court rigidly apply what is set out in the Rules of the Court (relevantly, Sch.1 to the Rules). Nor, as was accepted by both parties, does the existence of such scales mean that the Court does not retain a discretion.
[46] I take the view that the items set out in the relevant Schedule to the Rules are a guide to what may be generally considered to be reasonable in matters of this type. However, while the Schedule seeks to accommodate a number of scenarios (for example, a half day hearing or a full day hearing) it cannot be taken to cover the diversity and vagaries of each case in the relevant cohort of cases. The Court’s discretion should be exercised with reference to the actual circumstances presented in each case.
[47] In my view, the Schedule sets out a guide as to what may be reasonable for the Court to have regard to as a touchstone (a “reality check” if you like) to its consideration. However, the Court’s consideration cannot ignore the circumstances of each individual case.
[11] SZRTP v Minister for Immigration (No.2) (2013) 277 FLR 469.
Consideration & Disposition
Earlier in these reasons I noted that in the current matter, there was a self-represented Applicant. The grounds of review in the Application patently showed a significant lack of understanding both of the review process and relevant grounds of review in the light of the Tribunal’s decision. The Applicant here did not, in my view, set out to waste the Court’s time and resources (noting too that the matter was listed only for a half-day hearing and in fact concluded in a very short time, significantly less than half a day). It also seemed to me that the Applicant did not appreciate the financial risks of the litigation which he had initiated. I suggest that in Applications of this kind such a lack of appreciation is quite common.
Moreover, as with many such Applicants, an Application to this Court in matters of this kind is more a step of necessity (if not almost desperation), but which is often doomed to failure from the start or is at least a highly fraught and difficult exercise where the resources of the Commonwealth are arrayed against a self-represented litigant with little or no understanding of this country’s legal system, little or no relevant language skills, and where litigants of this kind perceive their situation as dire if not, literally, to be a matter of life and death. Such factors or considerations (and others like them) have been not infrequently recorded both in the High Court and in the Federal Court of Australia. There are many cases that make such comments; it is sufficient for current purposes simply to note generally those made by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs and in Applicant S v Minister for Immigration and Multicultural Affairs.[12]
[12] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387.
Given the paucity of evidence or other material available to the Court, the matter was dealt with as expeditiously as possible so that the “public resources” of the Court are not unduly taxed.
In addition to the matters set out in the preceding paragraph, in making the award for costs in the Minister’s favour in the specific sum of $2500.00, I also have had regard to (a) the breadth of the Court’s statutory discretion in relation to the award of costs (noted above), (b) relevant principles in the cases to which I have referred, (c) the indeterminate and generic Order for costs sought by the Minister, and (d) the lack of submissions (including lack of reference to relevant authority – statutory and/or case law) specifically in relation to costs by the Minister. Simply to refer either to (a) a general order (as sought) for costs and or (b) the Court’s scale in the Rules of Court, in my view, without more, is insufficient.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 22 April 2016