Bunnag v Minister for Immigration & Anor (No.2)
[2008] FMCA 430
•16 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BUNNAG v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2008] FMCA 430 |
| MIGRATION – Costs. COSTS – Unusually high costs for migration matter – whether discretion to increase quantum of costs above usual maximum amount – factors and matters to be considered. |
| Federal Magistrates Court Act 1999 (Cth), s.79(2) Federal Magistrates Court Rules 2001 (Cth), rr.21.02, 21.10, 44.15 Migration Act 1958 (Cth), ss.359(1)&(2), 359A, 363(1) |
| Bunnag v Minister for Immigration & Citizenship & Anor (2007) FMCA 1843 SZHXB v Minister for Immigration & Anor (No.2) [2006] FMCA 1379 SZIPW & Ors v Minister for Immigration & Anor [2006] FMCA 1364 |
| Applicant: | NAVAPHAN BUNNAG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 102 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 12 November 2007 |
| Date of Last Submission: | 19 November 2007 |
| Delivered at: | Perth |
| Delivered on: | 16 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.J. Lawson |
| Solicitors for the Applicant: | Mark Andrews Legal |
| Counsel for the Respondent: | Mr P. Corbould |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Applicant pay the First Respondent’s costs fixed in the sum of $10,000.00, with six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 102 of 2006
| NAVAPHAN BUNNAG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Court made orders and published its Reasons for Judgment in this matter on 12 November 2007.
The Court ordered that submissions concerning the quantum of costs (with the Applicant to pay the First Respondent costs) be filed within seven days.
Application
By this application the First Respondent seeks costs in the sum of $10,000.00 to be awarded to it instead of the usual order in migration matters that costs be in the sum of $5,000.00.
Issue
The issue in this matter is whether the quantum of costs ought to be increased above the usual maximum amount of $5,000.00 in migration matters. That will require an examination of:
a)the relevant legislation:
b)the relevant case law; and
c)the particular arguments in this matter.
Legislation
Section 79(2) of the Federal Magistrates Act 1999 (Cth) provides as follows:
“The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.”
Rules 21.02 and 21.10 of the Federal Magistrates Court Rules 2001 (Cth)[1] provides as follows:
[1] “FMC Rules”.
Rule 21.02 Order for costs
(1)“An application for an order for costs may be made:
(a)at any stage in a proceeding; or
(b)within 28 days after a final decree or order is made; or
(c)within any further time allowed by the Court.
(2)In making an order for costs in a proceeding, the Court may:
(a)set the amount of the costs; or
(b)set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules;
(d)set a time for payment of the costs, which may be before the proceeding is concluded.
Rule 21.10 Costs and disbursements
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Part 1 Schedule 1; and
(b) disbursements properly accrued.”
Rule 44.15 of the FMC Rules provides as follows:
“(1) The Court may, in relation to a proceeding that is concluded, order that an unsuccessful party in the proceeding must pay the costs of a successful party in accordance with item 1 of Part 2 of Schedule 1.”
Schedule 1 part 2 of the FMC Rules provides that the costs for a migration proceeding which has concluded at a final hearing are $5,000.00.
Case law
The Court has determined on a number of occasions it has a discretion in migration matters to award an amount higher than the maximum of $5,000.00.
In SZHXB v Minister for Immigration & Anor (No.2)[2], the Court ordered the payment of $7,000.00 in costs where:
a)the Court Book was extensive (532 pages) and applicant’s written outline of submissions were also lengthy, but not inordinately so;[3]
b)the respondent was required to check the transcript of the hearing before the Refugee Review Tribunal and put on an affidavit annexing an amended version of the transcript;[4]
c)there was a Notice to Produce which was not held to have put the respondent to extraordinary expense, and compliance with which did not have appear to have significantly troubled the respondent in terms of additional work or compliance;[5]
d)there was an “unusual issue” which arose concerning the constitution of the Tribunal which it was open for the applicant to press;[6]
e)a hearing listed for two hours which lasted for three hours was not shown to have incurred additional costs;[7]
f)there was an amended application removing two of the three grounds in the originating application to the Court, and providing two sufficiently particularised grounds to enable a proper response, but all within the timetable set by the Court at the first court date,[8]
the Court held that “some of the features”, which it did not identify, supported an argument for an additional award of costs.[9] Consequently, the Court awarded a sum of $7,000.00.
[2] [2006] FMCA 1379 (“SZHXB”).
[3] SZHXB at para.11 per Nicholls FM.
[4] SZHXB at para. 11 per Nicholls FM.
[5] SZHXB at para. 13 per Nicholls FM.
[6] SZHXB at para. 14 per Nicholls FM.
[7] SZHXB at para. 15 per Nicholls FM.
[8] SZHXB at para. 15 per Nicholls FM.
[9] SZHXB at para. 16 per Nicholls FM.
More recently in SZAQH v Minister for Immigration & Anor (No.2)[10] costs in the sum of $15,000.00 were awarded. That sum was said to include legal fees and disbursements, the disbursements being said to include photocopying and barristers fees. Under Schedule 1 of the FMC Rules barristers fees are not disbursements.[11] In awarding costs the Court noted that:
a)it was an unusual case;
b)it involved consideration of a considerably greater amount of work and documentation than an average migration matter;
c)was a case where it was appropriate to brief counsel, and counsel of seniority;
d)the amended application was ‘quite substantial’ and contained twenty nine grounds of review; and
e)the decision was reserved over a significant period of time in order that the applicant’s case could be considered.[12]
[10] [2008] FMCA 347 (“SZAQH”).
[11] Counsel’s fees are dealt with by r.21.16 of the FMC Rules, and are therefore not claimable as disbursements: Colan Products Pty Ltd v Luxton Pty Ltd & Anor (No.2) [2002] FMCA 90 at para. 13 per Raphael FM; Rentoul & Poynton [2008] FMCAfam 295 at para. 36 per Lucev FM (“Rentoul”).
[12] SZAQH at para. 2 per Scarlett FM.
In SZIPW & Ors v Minister for Immigration & Anor[13] an application was made for costs in the sum of $6,000.00. The Court said that costs “at this stage [following a show cause hearing and final hearing] of a migration proceeding would ordinarily be $5,000.00”,[14] but that where costs exceed $5,000.00 a party was entitled to request an order that costs be fixed in a higher amount under r.21.02(2)(a) of the FMC Rules.[15]
[13] [2006] FMCA 1364 (“SZIPW”).
[14] SZIPW at para. 14 per Driver FM.
[15] SZIPW at para. 15 per Driver FM.
In SZIPW the Court ordered payment of the $6,000.00 costs because it accepted that “it was appropriate for the Minister to be represented by counsel both at the interlocutory hearing and at the final hearing”, because the “amended application was detailed” and “the Minister was required to show cause on one issue, and potentially required to show cause on a second issue, which resulted in the Minister incurring additional expense.”[16]
[16] SZIPW at para. 16 per Driver FM.
The judgment and orders in SZIPW were appealed. The appeal was dismissed, and did not deal with the issue of additional costs.[17]
[17] SZIPW v Minister for Immigration and Citizenship [2007] FCA 198.
In M174 of 2003 v Minister for Immigration & Anor[18] the Court, in relation to an application for costs preceding the amendment to include Part 2 of Schedule 1 of the FMC Rules providing for costs of $5,000.00 in a migration matter, allowed costs and disbursements of $12,360.90. The Court observed that whilst the process of fixing costs undertaken by the Court in that case was somewhat unusual, it was to be hoped that with the introduction of Part 2 to Schedule 1 of the FMC Rules that the process would not be required in future applications.[19] That statement was however qualified as follows:
“On those occasions, however, when additional costs have been incurred, parties are still able to invite the court to exercise the power it undoubtedly has, pursuant to Division 21.02 of the Rules, to set the amount of the costs and disbursements. It is noted that the court otherwise has a residual power, pursuant to Rule 1.06, to dispense with compliance or full compliance with any of the Rules at any time in the interests of justice. For my part, however, I regard the exercise of a power dispensing with Rules in the interest of justice in relation to costs matters as being a power, along with the power to fix costs in migration matters, which would only be exercised in what I would describe as exceptional circumstances.[20]
[18] [2007] FMCA 45 (“M174”).
[19] M174 at para. 41 per McInnis FM.
[20] M174 at para. 42 per McInnis FM.
In SZLCW v Minister for Immigration & Anor[21] the Court observed that where proceedings were an abuse of process, and that as a result additional costs had been incurred beyond those provided by the scale (in this case Part 2 of Schedule 1 to the FMC Rules), it was appropriate that costs awarded “properly represent such expenses”.[22]
[21] [2007] FMCA 1663 (“SZLCW”).
[22] SZLCW at para. 11 per Cameron FM.
In SZHXB the Court observed that the FMC Rules provide for an amount of $5,000.00 for a concluded final hearing of a migration matter, [23] but went on to observe that r.44.15 “provides that an order for costs in the amounts set out at Schedule 1 is discretionary”, and that “although the amount of $5,000.00 may be used as a guide, ultimately the amount to be ordered is what is reasonable having regard to the circumstances.”[24]
[23] SZHXB at para. 9 per Nicholls FM.
[24] SZHXB at para. 10 per Nicholls FM.
On the basis of the prior decisions of this Court with respect to costs in migration matters, and in particular whether the quantum of costs can be increased above the usual maximum amount, it appears to the Court that:
a)$5,000.00 is the usual amount of costs awarded in migration matters against a party has been unsuccessful at the conclusion of a final hearing, as provided for by Part 2 of Schedule 1 and r.44.15 of the FMC Rules;
b)however, where circumstances make it justifiable or reasonable for costs to be awarded in excess of that usual amount of $5,000.000, the Court may do so under r.21.02 of the FMC Rules. The circumstances need not be exceptional, but rather such as to justifiably or reasonably warrant the setting of costs in an increased amount.
The above conclusion effectively deals with one submission made by the Applicant and that is that the amount of costs should not exceed $5,000.00, and that the Court should not order more than $5,000.00 other than for additional proven disbursements (of which there are none claimed in this case). That part of the Applicant’s argument which suggests that the Court cannot order costs in migration matters in a sum exceeding $5,000.00 must fail.
The arguments in this case
First Respondent’s argument
The First Respondent argues that costs were unusually high (although not particularised or the subject of evidence, it says that they exceeded $25,000.00 in this case) for a migration matter by reason of the following matters:
“ 5.1 Preparation of Court Book
Although the Court Book was not unduly lengthy, it required consideration of and obtaining instructions in relation to the inclusion of documents not released to the applicant under the Freedom of Information Act 1982 or the subject of a certificate under s.375A of the Migration Act.
5.2 Applicant’s request for discovery
The first respondent was required to consider and respond to the applicant’s request for informal discovery of the Department’s Investigations file ICF 2004/149, a tape or transcript of the hearing before the second respondent Tribunal on 9 November 2005 and a letter dated 5 December 2005 inviting information pursuant to s 359(2) of the Migration Act which was missing from the Tribunal file.
5.3 Applicant’s documents
The applicant filed the initial application on 24 April 2006, an amended application on 20 October 2007[25] and a further amended application on 7 December 2006. Affidavits of the applicant sworn on 29 September and 23 October 2006, Trevor Mark Andrews filed on 24 April 2006, the applicant’s wife Leisha Buckley sworn on 29 September 2006 and Chu Yong Onn sworn on 29 September 2006 were filed on behalf of the applicant and also required consideration.
5.4 Parties’ submissions
Eleven grounds of review were raised in the applicant’s application and fairly extensive submissions, including supplementary submissions, were filed on behalf of the parties. The application raised some novel issues in relation to the applicant’s authorised recipient for the Tribunal proceeding, who was not a registered migration agent.
[25] The reference to 2007 should be to 2006.
5.5 Hearings
The application was heard over two half days on 16 November 2006 and 6 February 2007. The first hearing on 16 November 2006 was adjourned because counsel for the applicant sought to raise a new ground not previously disclosed in the applicant’s application or submissions.
Earlier hearing dates (on 20 September, 3 and 4 August, 27 September and 17 October 2006) were either relisted by the Court or adjourned by consent at the request of the applicant.”
The First Respondent submits that it is reasonable in these circumstances that an award of costs in the sum of $10,000.00 be made.
Applicant’s submissions
The Applicant argues as follows:
“1.5 The Respondent relied, inter alia, upon the adjournment that occurred on 16 November 2006 as the basis for departing from the usual order for costs required by these provisions. This adjournment must be seen in context. The proceeding commenced on 24 April 2006 and affidavits filed on 29 September 2006 with an amended application on 20 October 2006. The adjournment on 16 November 2006 was caused by the discovery and receipt by the Applicant of new material as is set out in the affidavit of the Applicant sworn 23 October 2006 and filed 25 October 2006. Earlier hearing dates of 4 August 2006 and 17 October 2006 had been vacated to allow the Applicant to obtain this material. The Applicant acted reasonably and expeditiously. The information was relevant and came from third parties. The Applicant only became aware of some [sic] after initial information was received (such as the interview of 9 September 2004; see para. 12 to 14) and some third parties appeared obstructive (see the difficulty in obtaining coherent medical reports set out in para. 15 and 16).
1.6 The Applicant has acted reasonably and as diligently as he has been able to.
1.7 The Applicant should not be penalised for the conduct of others.
1.8 The provisions in the rules established a clear and strong prima facie position that costs should not exceed the amount specified. The Court should make the usual order for costs.
1.9 The Applicant is unaware how the sum of $10,000.00 that the Respondent seeks has been calculated.
1.10 Alternatively the court should order no more than additional proved disbursements above the usual costs of $5,000.”
Litigation history of the matter
The litigation history of the matter is adverted to in the submissions of the parties. It is necessary to consider the litigation history of the matter in some detail.
The litigation history of the matter must be considered against the usual course in this Court for such matters, especially in the Perth Registry. It is usual on the first court date for orders to be made for the:
a)filing of a Court Book by the First Respondent (usually the Minister);
b)filing of any amended or better particularised application and any affidavits in support thereof;
c)filing of submissions; and
d)allocation of a hearing date.[26]
[26] “Perth Migration Order”.
On the hearing date it is usual for the matter to be disposed of in under two hours (or, say, half a day).
It is unusual for an amended application to be filed, but it does happen. It is also unusual for additional affidavits to be filed, but again it does happen (often the affidavits are irrelevant and seek to deal with matters outside the remit of the matter before the relevant tribunal).
In this matter there was an application filed on 24 April 2006. That application sought orders in the nature of certiorari and mandamus, and costs. There was one ground on which the application was made, totalling five lines, and alleging that the Migration Review Tribunal decision involved jurisdictional error in concluding that the Applicant was not the spouse of the review Applicant at the time of the decision.
On 18 May 2006 the usual Perth Migration Order was made by consent without the necessity for appearance by the parties. The matter was listed for hearing on 20 September 2006.
Because of the unavailability of the Applicant’s counsel, the matter was re-listed for an earlier date for hearing on 3 August 2006. By an order dated 27 July 2006 the 3 August 2006 hearing was vacated and the matter was re-listed for a date after 15 September 2006, which date was ultimately allocated as 27 September 2006. That date was also vacated. Two further affidavits were filed by the Applicant on 4 October 2006, and the hearing was re-listed for 17 October 2006. By order dated 16 October 2006 the 17 October 2006 hearing was vacated, and additional time given for the Applicant to file and serve an amended application, and the matter was re-listed for hearing on 16 November 2006.
An amended application was filed on 23 October 2006.[27]
[27] “First Amended Application”.
The First Amended Application contained seven grounds for the application covering almost two pages. Thus, the original ground for the application was supplemented by six additional grounds including:
a)error of law by reason of an inability on the part of the Applicant to respond to a notice under s.359(2) of the Migration Act¸1958 (Cth);[28]
b)denial of a fair hearing in breach of the requirement of natural justice;
c)failure to take into account a relevant matter (being the mental health of the sponsor) or alternatively that the decision was unreasonable;
d)denial of a hearing that in all the circumstances conformed to the requirements of natural justice;
e)that procedures provided by law to be observed in connection with the making of the decision were not observed; and
f)alternatively, that the Tribunal failed to take into account a relevant matter.
[28] “Migration Act”.
The First Amended Application was supported by a further affidavit of the Applicant attaching a number of documents including a 38 page record of interview between the Applicant and members of the Department on 9 September 2004.
On 9 November 2006 the First Respondent filed its submissions which ran to some eight pages.
On 14 November 2006 the Applicant filed its submissions, late, and only two days before the hearing. The submissions, entitled “Contentions of Fact and Law of the Applicant” covered some 14 pages.
At the hearing of 16 November 2006 the First Respondent initially took objection to affidavits filed on behalf of the Applicant on 4 and 25 October 2006 as relying on material not before the Tribunal. At page 23 of the transcript, and approximately one hour into the hearing, the Applicant raised a new ground, effectively without notice. The transcript records the Applicant’s Counsel saying as follows:
“Now, Your Honour, there is a second submission that I want to make in relation to s.359A. I begin it by saying it is new, Your Honour hasn’t heard it, my friend only heard it this morning and it may have to be the subject of written submissions”.[29]
[29] Transcript at 23.
The Applicant sought leave to amend to raise the additional ground of review.[30] The First Respondent argued that there was in fact no ground in relation to other matters argued at that hearing by the Applicant relating to s.359 of the Migration Act and the Tribunal having obtained information and having failed to have regard to that information.[31] The First Respondent also pointed out that “no notice at all” had been given of any proposed amended grounds for the application.[32]
[30] Transcript at 24.
[31] Transcript at 25.
[32] Transcript at 26.
The Court observed that “it is a situation where…if you look microscopically at the [First Amended Application], you might be able to discern [s.] 359A in it. If you look at the contentions that have been filed, you can perhaps see it but not quite in the way that it has been put today.”[33]
[33] Transcript at 27-28.
In argument, there appeared to be a consensus between Counsel and the Court that some of the issues raised were “new and novel”.
The consequence was that the Court made orders for a further amended application to be filed,[34] and for further outlines of submissions to be filed, with the hearing adjourned to 6 February 2006.
[34] “Second Amended Application”.
The hearing on 16 November 2006 lasted for two hours and 13 minutes.[35]
[35] Transcript at 1 and 35.
The Second Amended Application was filed on 8 December 2006. It contained an additional four grounds for the application, making a total of eleven grounds in all. The additional grounds alleged error of law by the Tribunal on various grounds associated with ss.359(1), 359A and 363(1) of the Migration Act, including the “novel” issues relating to the Applicant’s authorised recipient who was not a registered migration agent.
On 15 December 2006 the Applicant filed further submissions running to some six pages. On 5 January 2007 the First Respondent filed supplementary submissions running to a further five pages.
The hearing on 6 February 2007 lasted one hour and 56 minutes.[36]
[36] Transcript at 1 and 29.
On 12 November 2007 this Court dismissed the application.[37] An appeal against this Court’s orders was dismissed by the Federal Court on 18 March 2008.[38]
[37] Bunnag v Minister for Immigration & Citizenship & Anor (2007) FMCA 1843.
[38] Bunnag v Minister for Immigration & Citizenship [2008] FCA 357 (“Bunnag Appeal”).
The costs application presently under consideration was made by the First Respondent at the time the Reasons for Judgment were handed down on 12 November 2007. Written submissions on costs were filed by both parties.
Consideration
Accepting at face value the Applicant’s submission it is immediately apparent that by the time the Applicant’s affidavits were sworn on 23 October 2006 the Applicant, on its own case, was aware of the new material which it says caused it to raise the new grounds in support of the application at the hearing on 16 November 2006. That was more than three weeks prior to the hearing on 16 November 2006.
The adjournment on 16 November 2006 was not the consequence of late discovery of material by the Applicant. It was the consequence of the delay in, and failure to give notice of (or it would seem even foreshadow the giving of notice and general nature of the issues), at any time during that three weeks prior to the hearing.
Viewed that way it can hardly be said that the Applicant “acted reasonably and as diligently as he has been able to”.
The Applicant says that it ought not be penalised for the conduct of others. For reasons set out above it is its own conduct which is in issue, not that of others. In any event, costs are neither a bonus to a successful party nor a penalty to an unsuccessful party, rather, they are compensation to the successful party for the liability for professional costs incurred in conducting proceedings.[39] Thus costs cannot be awarded nor denied on a penalty basis.
[39] Knight v Sullivan (No. 2) [2008] FMCAfam 55 at para. 38 per Lucev FM; Rentoul at para. 27 per Lucev FM; Gundry v Sainsbury [1910] 1 KB 645; Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ; 563 per Toohey J; and 567 per McHugh J.
In this matter:
a)there were two hearings of about the usual longest length for a migration hearing in the Perth Registry;
b)the second hearing was entirely caused by the new issues raised, without notice (or at the very least with practically no notice) by the Applicant at the first hearing on 16 November 2006;
c)the second hearing was argued on the basis of the Second Amended Application which added four further grounds for the application making eleven grounds in total; and
d)the second hearing required the filing of further submissions on the new grounds of application, which submissions were reasonably substantial in themselves.
Looked at in a practical sense there was effectively in this matter:
a)a hearing on the First Amended Application on 16 November 2006, which, some considerable way into the hearing, developed into an application to file a further amended application and to adjourn that hearing, which hearing was of about the usual longest length for a migration hearing in the Perth Registry; and
b)a further hearing on 6 February 2007 of about the usual longest length for a migration hearing in the Perth Registry in relation to the Second Amended Application.
Looked at in this practical way it might be said that there were two hearings for which the First Respondent might be awarded costs on the normal scale of $5,000.00 for each hearing, or a total of $10,000.00.
Additionally, in this matter it should be noted that:
a)the matter was one of some complexity – and certainly a little more than the usual complexity – with eleven grounds of review;
b)the Court Book was quite long, but not overly so, at 387 pages;
c)the First Respondent had to deal with a Freedom of Information request resulting in the production of further emails and material to which this Court did not have regard, and likewise affidavits filed by the Applicant to which this Court did not have regard, but which the First Respondent had to consider;[40] and
d)counsel of some seniority were involved: Mr Hurley for the Applicant being a well known and long-standing junior Counsel with particular experience in migration matters, and Mr Allanson for the First Respondent who later in 2007 was appointed Senior Counsel.
[40] BunnagAppeal at para. 75 per McKerracher J.
An analysis which says that there were two hearings and therefore $10,000.00 is the appropriate award of costs is too simplistic. However, having regard to the nature of these hearings – that is, two discrete hearings arising from what can almost be characterised as two discrete applications – and to the additional matters referred to above, including the number of grounds of the application, the relative complexity of the matter, the length of the Court Book and the requirement for the Court, and the First Respondent, to deal with material which the Court did not ultimately have to have regard to, the Court considers that it is appropriate to award an amount of $10,000.00 in costs to the First Respondent.
Order
There will therefore be an order that the Applicant pay the First Respondent’s costs in the sum of $10,000.00. There will be six months to pay.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: S. Gough
Date: 16 April 2008
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