AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 256
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 256
File number(s): SYG 365 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 31 March 2023 Catchwords: MIGRATION – Costs principles – scale costs –Affidavit to justify departure from scale – calculation of party/party costs 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 (No 2) [2023] FedCFamC2G 257 AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 242
DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FedCFamC2G 905
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: 19 Date of hearing: 31 March 2023 Place: Sydney The Applicant: In person, via Microsoft Teams Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 365 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AYT22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
31 MARCH 2023
THE COURT ORDERS THAT:
1.The applicant pay the first respondent’s costs and disbursements of, and incidental to the application, fixed in the amount of $12,900.
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 has delivered reasons for judgment in AYT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 242 (primary judgment), in which the applicant has been unsuccessful, and I have dismissed the application. Consequent upon the dismissal, the Minister seeks an order that the applicant pay his costs.
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 in Pierson’s Pro Health, the Court was not specifically referring to the scale costs for a migration proceeding, the principle is relevantly applicable. Accepting therefore that where the Court has for its guidance an event-based scale this, should be applied as the norm, then in order to persuade the Court to exercise its discretion to depart from an event-based scale will ordinarily require evidence.
In support of the Minister’s costs application was filed the Affidavit of Flynn Stephen Rush, affirmed 30 March 2023 (Rush Affidavit). By reference to the Rush Affidavit, the Minister’s costs are said to exceed $12,000 on a party/party basis. I will return to that calculation momentarily.
When asked, in relation to the costs application, whether or not costs should follow the event and, if so, in what amount, the applicant, initially indicated that he would like time to consult his lawyer. Albeit, for the reasons which are set out in the primary judgment, there is no solicitor on the record. The applicant then said that whatever the Court decided, he would adhere to.
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 costs in Migration proceedings which conclude other than by reason of discontinuance. Scale costs are intended in Migration proceedings in this Court, to represent (to the extent that such a thing is possible) a standard unit equivalent judicial review application in the Federal Circuit and Family Court of Australia (Division 2): see DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FedCFamC2G 905 (DZW17 (No 2)).
While processes have varied somewhat over the years and, occasionally, between different registries, it can be accepted that a standard migration proceeding ordinarily involves a number of usual steps (DZW17 (No 2)). For the Minister, those steps will usually include:
(a)the originating application and Affidavit in support;
(b)preparing a Response and Submitting Appearance;
(c)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);
(d)preparation of the Court Book;
(e)a grant of leave to the applicant to amend and consequential requirement for the first respondent to consider same;
(f)consideration of the applicant’s submissions;
(g)preparation of an outline of submissions which, generally, occurs only once and is usually 10 pages in length; and
(h)attendance at a hearing the duration of which is usually half a day (which, in Court terms, is somewhere around two hours or two and a half hours).
For the steps ordinarily taken by an applicant in proceedings see AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 257.
As already detailed in the primary judgment at [74], this matter deviated from the aforementioned steps in a number of ways, including:
(a) been granted an adjournment of the first hearing,
(b) been given the benefit of eight weeks between the first and second hearing in which to prepare his case;
(c) been provided with two hard copies and an electronic copy of the Court Book;
(d) the benefit of a mid-hearing adjournment in the second hearing in which to consider the Court Book again and make additional submissions;
(e) been thrice granted an opportunity to file an amended application and Affidavit evidence; and
(f) the opportunity to again file a written submission after the second hearing, which he took up (albeit late and in a manner which gave rise to additional confusion).
At the conclusion of the first hearing in this matter, the Court acceded to the applicant’s first adjournment request. This was done on the basis that the applicant agreed to pay the Minister’s costs thrown away occasioned by that adjournment.
The Rush Affidavit was made to provide for both potential outcomes today. Namely, if the Minister had been unsuccessful overall, the Affidavit still quantified the basis upon which the Minister would seek costs thrown away occasioned by the adjournment.
The Minister, having been ultimately successful overall now seeks both the amount of the costs thrown away, together with an additional sum in relation to the balance of the costs of the proceedings. Those amounts are as follows:
(a)in relation to the costs thrown away, the sum of $2,458.14 comprised of:
(i)$1,163.64 for Counsel’s fees; and
(ii)$1,178.14 for professional fees on a solicitor/client basis.
(b)in relation to the balance of the costs of the proceedings, the sum of $13,597.61 comprised of:
(i)$2,763.64 for Counsel’s fees; and
(ii)$10,833.97 for professional fees on a solicitor/client basis.
Based on the above figures, the Minister says that costs on a solicitor/client basis, will exceed $16,055. Based on a 25 per cent reduction this is said to result in party/party costs of $12,000.00, which was the amount sought by the Affidavit.
The difficulty with the above is that it is miscalculated.
Counsel’s fees are a disbursement and ought to be excluded from the calculation of party/party costs. The proper calculation for each of the aforesaid amounts requires that the 25 per cent reduction be first applied to the solicitor’s professional fees, and that the Counsel’s fees be applied afterwards to that figure.
By reference to that formulation, the following amounts resulted as being the costs thrown away and the balance of fees:
(a)Counsel’s fees in the sum of $3,927;
(b)professional fees (at a 75 per cent rate) in the sum of $9,009
totalling a party-party cost amount of $12,936.
When asked if the application was still $12,000, Mr Rush revised the Minister’s application, to seek the amount of $12,900.00.
In my view, there is no reason why costs ought not follow the events in this matter, having regard to the many ways in which this case has departed from the life cycle of what can be considered a standard migration proceeding in this Court, and which the scale is intended to reflect.
I am satisfied on the material before me by reference to the Court file, the matters recorded in the primary judgment and the evidence in the Rush Affidavit, that the procedural history of this matter is one in which the standard steps were well exceeded. Accordingly, an application for costs in excess of the scale is appropriate.
In terms of the amount sought and having regard to the number of hearing events, their duration and the applicant’s late provision of two sets of competing written submissions, each of which was required to be considered by the Minister’s representatives until such time as the applicant clarified upon which version he intended to seek, I consider that the amount sought, namely, $12,900 is reasonable, and I will make an order in that sum.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 4 April 2023
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