CPJ15 v Minister for Immigration and Anor (No.2)
[2018] FCCA 847
•11 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPJ15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 847 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – costs – unusual number of court events, which resulted from the applicant raising a claim at the first scheduled final hearing that he later abandoned. |
| Legislation: Federal Circuit Court of Australia Act 1999, s.79 Federal Circuit Court Rules 2001, rr.21.02(2), 21.10, Part 1 of Schedule 1 and Division 1, Part 3 of Schedule 1 |
| Cases cited: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No.2) [2008] FCAFC 107 Noble v Baldwin (No.2) [2011] FMCA 700 Oshlack v Richmond River Council (1998) 193 CLR 72; (1998) 96 LGERA 173; (1998) 152 ALR 83; (1998) 72 ALJR 578; [1998] 4 Leg Rep 18; [1998] HCA 11 SZRTP v Minister for Immigration and Citizenship (No.2) (2013) 277 FLR 469; [2013] FCCA 711 |
| Applicant: | CPJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2678 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | Decided on the papers |
| Date of last submission: | 23 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 11 April 2018 |
REPRESENTATION
| Advocate for the applicant: | Harwood Andrews (pro bono) |
| Solicitors for the applicant: | Harwood Andrews (pro bono) |
| Advocate for the first respondent: | Ashlee Briffa |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Advocate for the second respondent: | No submission |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $16,669.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2678 of 2015
| CPJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for costs by the first respondent, the Minister for Immigration and Border Protection (“the Minister”), against the applicant.
Judgment in the principal proceeding was delivered on 29 January 2018 in the matter of CPJ15 v Minister for Immigration and Border Protection & Anor [2018] FCCA 176. Orders were made in the principal proceeding dismissing the applicant’s application filed on 3 December 2015 and amended on 23 May 2017.
When judgment was delivered in the principal proceeding, the applicant’s and the Minister’s legal representatives agreed that written submissions on costs should be filed and that the issue of costs should be decided on the papers.
The history of the proceedings
The history of the proceedings is set out in paragraphs 7 to 14 of the judgment in the principal proceeding, which are as follows:
7.The proceedings in this court have been rather tortuous. The matter first came on for final hearing on 9 August 2016. At that stage, the applicant was not legally represented. He told the court that his lawyer from the Refugee & Immigration Legal Centre (“RILC”) had advised him not to disclose in his claim that he had transported weapons for the LTTE.
8.I thought that this may have meant that:
a)there had been a fraud on the Tribunal, in that the Tribunal had been disabled from determining the application on the basis of the true facts;
b)the applicant might be barred from a successful protection visa application on the basis that he had assisted a terrorist organisation; and
c)there may be an issue relating to self-incrimination because of what the applicant had told the court.
9.The hearing was adjourned to enable the Minister to file submissions on those issues. When the matter returned to court, on 6 September 2016, it was noted that the lawyer from RILC would be put on notice, and orders were made for the applicant to have pro bono assistance. A barrister accepted the appointment but he later withdrew for ethical reasons.
10.On 15 November 2016, the matter returned to court. The applicant was again not legally represented. The RILC lawyer was represented by counsel, as was the Minister. The applicant gave evidence in chief on affirmation. The matter was again adjourned, to permit the RILC lawyer to prepare for cross-examination.
11.The matter returned to court on 22 December 2016. The applicant was cross-examined. Orders were made joining the RILC lawyer as an intervenor and again referring the matter for pro bono assistance for the applicant. The matter was otherwise adjourned.
12.Counsel and solicitors accepted the second pro bono referral. Orders were later made by consent providing for an amended application to be filed and for the RILC lawyer to be removed as a party to the proceedings.
13.The amended application did not raise any issue about the advice given by the RILC lawyer, and did not raise any issue about the applicant having transported weapons for the LTTE.
14.When the matter returned to court for a final hearing on 13 November 2017, the parties made it clear that none of them wished to pursue any issue relating to be applicant’s claim that he had transported weapons for the LTTE.
When the RILC lawyer was removed as a party to the proceedings on 2 June 2017, there was an order in chambers with the consent of all parties, including the Minister, that there be no order as to the costs of the application to intervene and no order as to the costs of the intervention.
It is a little unclear exactly what was meant by the costs of the intervention. However, it was not suggested that the order that there be no order as to the costs of the intervention had any bearing on the current costs dispute between the applicant and the Minister.
The Minister’s submissions
The Minister filed written submissions on costs on 12 February 2018. The Minister sought that the applicant pay his costs of the proceeding fixed in the sum of $18,318. The standard costs for a migration proceeding that concludes at a final hearing is $7,328, as set out in Item 3 of Division 1 of Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 (“the rules”).
However, the Minister submitted that, in addition to the standard $7,328, the applicant should be ordered to pay costs for each of the additional hearings that took place in this matter. That additional amount totals $10,990.
The breakdown of the costs that the Minister sought is as follows:
Description
Provision in Schedule 1 of the rules
Amount
A migration proceeding concluded at the final hearing
Part 3, Division 1, Item 3
$7,328
Instructing Solicitor:
Daily hearing fee for half day hearings on: 6 September 2016; 15 November 2016; 22 December 2016; and 13 November 2017
$1,099 x 4
Part 1, Item 13(b)
$4,396
Counsel:
Daily hearing fee for half day hearings on: 6 September 2016; 15 November 2016; 22 December 2016; and 13 November 2017
$1,099 x 4
Part 1, Item 13(b)
$4,396
Plus the advocacy loading for half day hearings on: 6 September 2016; 15 November 2016; 22 December 2016; and 13 November 2017
50% of the daily hearing fee mentioned in item 13 that applies to the hearing
$1,099 ÷ 2 x 4
Part 1, Item 12
$2,198
Total:
$18,318
The Minister submitted:
7. Section 79(3) of the FCC Act provides:
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 of Australia or a Judge.
8. Costs should ordinarily follow the event, particularly when the successful party has succeeded on all grounds: see Ruddock v Vardarlis (No 2) (2001) 115 FCR 229 at [11].
9. Further, it is well−established that the discretion to award costs conferred by s 79 of the FCC Act is unfettered, provided that it is exercised judicially and in the context of the relevant Court rules: see Oshlack v Richmond River Council (1998) 193 CLR 72 at [65]; Noble v Baldwin (No.2) [2011] FMCA 700 at [9]; and SZRTP v Minister for Immigration (No 2) [2013] FCCA 711 at [12] (SZRTP).
…
11. Rule 44.15 of the FCC Rules relates to costs in migration proceedings. It relevantly provides that:
(1) The Court may, in relation to a proceeding that is concluded, order an unsuccessful party in the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 3 of Schedule 1.
…
(3) This rule does not limit a party's right to apply, under Part 21, for an order as to costs of the application.
The Minister relied on SZRTP v Minister for Immigration and Citizenship (No.2) (2013) 277 FLR 469; [2013] FCCA 711, where Judge Nicholls said:
45.… 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.
The Minister submitted, and I accept, that Judge Nicholls’ comments in SZRTP, set out above, apply to matters such as the present. The Minister submitted that the costs awarded in this matter should reflect the fact that there were five half day hearings in this matter, rather than the usual one half day hearing.
The applicant’s submissions
The applicant’s solicitors filed written submissions in reply on 23 February 2018. The applicant accepted that costs may be awarded against him but said that costs should not necessarily be awarded against him. Indeed, the applicant said that the Minister should have submitted that there should be no order as to costs because the Minister had benefitted from the many hours of pro bono legal representation given to the applicant. The applicant further submitted that, if the court were to make an order for costs, the total should be no more than the standard amount in a migration proceeding, being $7,328.
More particularly, the applicant argued that the Minister’s claim for costs for the hearing on 13 November 2017 involved double counting, because that was the final hearing and should be regarded as having been included in the standard costs of $7,328 for a migration proceeding.
The applicant also submitted that, through no fault of his own, he was not legally represented for most of the proceedings. He submitted that, once he secured pro bono representation, the matter proceeded in the normal way. The applicant noted that, once pro bono representation was secured, the issue in relation to the solicitor from RILC resolved, she was removed as a party, and the matter proceeded to final hearing on 13 November 2017. The applicant submitted that he should, at most, only be responsible for the costs referrable to the period when he was represented.
The applicant submitted that, in any judicial exercise of the discretion as to costs, the guiding principles should be fairness and reasonableness. The applicant relied on Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No.2) [2008] FCAFC 107 where Finkelstein and Gordon JJ said:
3.We think there is force in the argument that the appellant should not benefit from the usual rule that costs follow the event. For many years the traditional rule has been that the winner (once the winner is properly identified) is entitled to recover his costs of the trial. It sometimes happens that there is a departure from the traditional rule and the costs order takes account of the success of the parties on particular issues. But to date the award of costs on an issue by issue basis has only been accepted in limited cases and then only when the circumstances are exceptional.
4.This approach is, if we may be permitted to say so, quite unfair. Its effect is that a winner is entitled to all of his costs even if he raises a plethora of issues on which he is unsuccessful. The unfairness of the traditional rule has been recognised in England where, following Lord Woolf’s interim report, Access to Justice (June, 1995) [at para 25.22], the Civil Procedure Rules were modified to require the judge to have regard to the circumstance (if it occurs) that the unsuccessful party has succeeded on some issues: see r 44.3(4)(b). In Western Australia, the Supreme Court Rules provide that costs should follow the event of each pleaded cause of action: see r 66(2)(a). This is narrower than the English approach but certainly more reasonable than adherence to the traditional rule.
5.We do not believe there is any need to wait for a change in the FederalCourt Rules to adopt an issue by issue approach here. Costs are in the court’s discretion. Fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied. It is not suggested that such an approach requires a precise arithmetical apportionment of the costs as between the winner and loser of discrete issues. No doubt the assessment will often be rough and ready. But it will have the virtues of both fairness and reasonableness, which are often lacking in the application of the traditional rule.
The applicant sought to extrapolate from Bowen Investments to say that a fair approach in this case would involve a hearing day by hearing day approach, rather than an issue by issue approach.
Conclusion
The applicant’s point about double counting would be correct, except that the Minister has not separately claimed for the costs of the half day hearing on 9 August 2016. That was when the matter first came on for final hearing. Obviously, the Minister has included the attendance on 9 August 2016 in the standard costs of $7,328. Therefore, it is not double counting to claim additional costs for the half day hearing on 13 November 2017.
I do not accept the applicant’s submission that he should be not liable for any costs prior to him securing pro bono legal representation. It is true that the matter was simplified when the applicant obtained pro bono legal representation, and from that point on, the applicant’s claims that his legal advisers from RILC had told him not to mention that he had transported guns for the LTTE were not pursued.
However, the applicant raised those claims, and, in doing so, made a serious attack on the integrity of his legal advisers from RILC. People routinely appear in this court without the benefit of legal representation. Being unrepresented does not generally relieve a person of the costs consequences of their actions. I do not consider that the justice of the present case supports the applicant being relieved of the costs consequences of his actions in relation to him raising the claim that his legal advisers from RILC had told him not to mention that he had transported guns for the LTTE.
I accept the applicant’s submission that it is appropriate to deal with this matter on a hearing day by hearing day approach. I consider that, at a minimum, the applicant should be required to pay the standard costs referable to a migration proceeding concluded at the final hearing, which is $7,328. Conceptually, it is probably better to regard that sum as including the actual final hearing on 13 November 2017, rather than what was expected to be the final hearing on 9 August 2016, but arithmetically, it makes no difference.
I consider that, in addition, the applicant should pay the Minister’s costs of 9 August 2016. The applicant caused an adjournment on that day by raising a claim that he later abandoned.
I also consider that the applicant should pay the Minister’s costs of 6 September 2016. That hearing was necessitated by the applicant’s claim that he later abandoned.
I consider that the applicant should pay the Minister’s costs of 15 November 2016. That hearing was necessitated by the applicant’s claim that he later abandoned. Also, on that day, the applicant gave evidence in chief orally in the witness box. The procedure of this court is that, generally, evidence in chief is given by affidavit, partly to reduce hearing times, but also to ensure that parties are not taken by surprise. As the applicant was unrepresented, he was unable to provide a useful affidavit. However, as mentioned above, it is not appropriate in the circumstances of this case to relieve the applicant of the costs consequences of his actions.
I also consider that the applicant should pay the Minister’s costs of 22 December 2016. That hearing was necessitated by the applicant’s claim that he later abandoned. It was also necessitated by the fact that the applicant gave his evidence in chief orally, and, as a result, the solicitor from RILC needed time to prepare for cross examination.
Having said that, the hearings on 9 August 2016, 6 September 2016 and 15 November 2016 were significantly shorter than the usual hearings for which a half day allowance is made in the scale. That makes no difference to counsel fees, as counsel charge by the day or half day, regardless of whether the hearing finishes early. However, unusually short hearings do have an impact on the amount properly chargeable by a solicitor.
I consider that it is appropriate in all the circumstances of this case to reduce by half the costs payable in respect of the solicitor’s attendance at court on 9 August 2016, 6 September 2016 and 15 November 2016. $1,099 x 3 ÷ 2 = $1,648.50. Consequently, the total costs order against the applicant is calculated as follows: $18,318 - $1,648.50 = $16,669.50. There will be an order to that effect.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 11 April 2018
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