Bir19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCCA 374

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 374

File number(s):

SYG 787 of 2019

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

25 February 2021

Catchwords:

PRACTICE AND PROCEDURE – costs – application pursuant to liberty to apply to vary order for costs previously made – application for variation of costs allowed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Sch 1, Pt 3

Freedom of Information Act1982 (Cth)

Number of paragraphs:

8

Date of hearing:

25 February 2021

Place:

Sydney

Counsel for the Applicant:

Mr R Chia (direct access), by telephone

Solicitor for the First Respondent:

Ms S Wright of Mills Oakley Lawyers, by telephone

ORDERS

SYG 787 of 2019

BETWEEN:

BIR19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	25 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Pursuant to the liberty to apply provided for by order 3 of the orders made on 10 December 2020, order 2 of those orders is vacated and in place of that order the Court orders that the applicant pay the first respondent’s cost set in the amount of $10,500.

REASONS FOR JUDGMENT
(Revised from Transcript)

1. On 10 December 2020, I made orders dismissing the application and, also, an order that the applicant pay the first respondent’s costs set in the amount of $7,467. That represents the amount provided for in Pt 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). That order was made subject to my granting the parties liberty to apply to vary or discharge the order for costs that I had made. I did that because I made the order without having heard submissions at the hearing as to what costs order I should make.

2. The first respondent, the Minister, exercised that liberty to apply by seeking to have the matter relisted. The Minister seeks an order that order 2, in effect, be amended or varied so that the amount for which his costs should be set should be $12,000.  That application is not supported by an affidavit, although Ms Wright, who appears for the Minister, said that the Minister’s actual costs are $22,000. 

3. The basis upon which the Minister submits that $12,000 is a fair amount and, indeed, a fairer indemnity than that provided for by the order I made is two-fold.  One is the submission that the case involved the issue of a notice to produce in circumstances, so it is said, where the documents ought to have and could have been provided through an application made under the Freedom of Information Act1982 (Cth); and, secondly, it is said that the application was amended on two occasions.

4. Mr Chia, who appears on behalf of the applicant, opposes the Minister’s application to vary the costs order.  Mr Chia relies on three things.  One is there is no affidavit setting out the actual costs of the Minister; therefore, there is no material before the Court by reference to which the Court can assess the reasonableness of the $12,000 the Minister says should be the amount for which his costs should be set.  The second and third matters on which Mr Chia relies can be stated more briefly; and that is that none of the matters on which the Minister relies takes this case out of the ordinary.

5. Now, in assessing costs, the overall purpose is for the Court to assess an amount which reflects a fair, not a complete, but a fair indemnity for the costs the succeeding party has incurred for having been forced into litigation in which he has proved successful.  

6. It is true there is no affidavit material before me, but the volume of migration matters that come before this Court and that have come before me put me in a position to have a fair idea of what work is involved and what work is associated with a usual type of migration matter.  In my view, the matters on which the Minister relies does allow me to conclude that additional work was undertaken in this proceeding than would normally be made.  It is not necessary for me to say anything about whether it was proper or reasonable for the notice of produce to have been issued.  The fact is, it had been issued, but the end result is that the applicant has lost the matter.  And assuming it is reasonable, then the costs the Minister has incurred in the notice to produce falls within the costs the Minister would be entitled to recover. 

7. Similarly with the amendments. The usual rule with amendments is that the amending party pay costs thrown away is the price at which the Court allows the amendment.  It is true, I think, that no such formal order was made.  But that by itself does not mean that that is not a principle that should be applied when it comes to assessing the costs.

8. There is no science in assessing costs, particularly in matters of this nature.  And if science were to be applied to assessing costs, that would, in itself, incur costs, which it is not reasonable in the circumstances for the parties to incur. In those circumstances, I am satisfied that the amount for which I fixed costs is not a fair indemnity. By the same token, I’m not satisfied that $12,000 would be a fair indemnity either.  Doing the best I can, having regard to the considerations I have just set out, in my view, an amount of $10,500 would be a fair indemnity.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       3 March 2021