DXK16 v Minister for Immigration and Border Protection (No 2)

[2024] FedCFamC2G 1305

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DXK16 v Minister for Immigration and Border Protection (No 2) [2024] FedCFamC2G 1305  

File number(s):

MLG 2752 of 2016

Judgment of:

JUDGE EGAN

Date of judgment:

2 December 2024

Catchwords:

 MIGRATION – Costs – Whether the Court ought to exercise its discretion to proportionally reduce the costs payable to the successful first respondent by 50% – where the applicant owed a duty to particularise the bases for such a claim – where the usual order as to costs being ordered on a party/party basis ought to apply – orders accordingly.

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth), s. 214

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021, r. 22.02, r. 22.02(2)(c)

Cases cited:

Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (WUD 171 of 2023)

Oshlack v Richmond River Council (1998) 193 CLR 72

Division:

Division 2 General Federal Law

Number of paragraphs:

15

Date of last submission/s:

27 November 2024

Date of hearing:

4 March 2024

Place:

Brisbane

Solicitor for the Applicants:

Mr D. Taylor of Justice Law Practice

Solicitor for the First Respondent:

Mr D. Cacaj of Clayton Utz

The Second Respondent: 

Giving a submitting appearance, save as to costs

ORDERS

MLG 2752 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DXK16

First Applicant

DXL16
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	2 DECEMBER 2024

IT IS ORDERED THAT:

1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The name of the second respondent be changed to “Administrative Review Tribunal”.

3.The applicants pay the first respondent’s costs and outlays of and incidental to the proceeding on a party/party basis, such costs to be as agreed between the parties, or failing agreement, as taxed pursuant to the provisions of r. 22.02(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

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).

REASONS FOR JUDGMENT

JUDGE EGAN

INTRODUCTION

1. On 6 March 2024, the Court handed down judgment in this proceeding. The Second Further Amended Application for Review filed on behalf of the applicants on 4 March 2024 was dismissed.

2. By order of the Court made on 12 June 2024, the question of costs was deferred pending the handing down of judgment in the Federal Court in the matter of Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (WUD 171 of 2023).

3. Judgment in Gehlert was handed down on 4 October 2024.

4. The first respondent filed written submissions as to costs on 30 October 2024.

5. The applicant filed written submissions as to costs on 27 November 2024.

   The Submissions of the Parties

6. The Court notes that appearances have been made before the Court by lawyers for each of the parties on at least 3 occasions, involving both interlocutory and final hearings. Separately, there were 11 occasions on which the Court was involved in other administrative action involving the proceeding, such as granting leave to amend the application, the vacation of various interlocutory orders, and the giving of directions so as to progress the matter to a final hearing. In that context, the proceeding involved far greater Court time being devoted to a resolution of the proceeding than was normally the case involving grounds which were similar in type to those made in this proceeding.

7. On the question of the exercise by the Court of its discretion when ordering costs, the general rule is that a successful party in a proceeding will receive the benefit of a costs order in its/their favour so as to indemnify it/them for the costs incurred by it/them. As was held by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at [67]:

   67. “The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour.  The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant.  Costs are not awarded to punish an unsuccessful party.  The primary purpose of an award of costs is to indemnify the successful party.  If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did.  As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.”

8. In Gehlert at [71] – [78], the Full Court (Mortimer CJ, Colvin and Dowling JJ) set out the relevant principles regarding the exercise of discretion as to the awarding and quantum of costs by this Court pursuant to the provisions of s. 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”). That section must be read in conjunction with the provisions of r. 22.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021 (“the Rules”). The Court found as follows:

   The correct interpretation of Pt 2 of Sch 2 in light of its omission of any express reference to “disbursements”

   71.The appellant contended the Court should give weight to the text of r 22.09, and its separate references to “costs” and “disbursements”. The appellant employed this textual indication to submit that in Pt 2 of Sch 2 — dealing with migration proceedings — the singular scale figure should not be interpreted as including disbursements. We do not consider that is the correct approach.

   72.The singular scale figures in Pt 2 are plainly designed to be “all in” amounts of costs. That is, they potentially include disbursements as well as professional fees. There are many different expenses which fall under the description of “disbursements” — counsel fees, interpreter fees, expert witness fees and courier fees, to name a few. These kinds of disbursements may all be contemplated by the contractual arrangement between a solicitor and client. There are then different kinds of disbursements unconnected with the contractual relationship, such as those imposed by third parties: daily hearing fees, filing fees, transcript fees.

   73.The singular amounts in Pt 2 are intended to accommodate the characteristics of migration proceedings. Some of the processes are formulaic in most matters, in the sense of the procedural steps being very similar. The points at which expert legal skill are applied tend to be the same points in each proceeding. There are few active interlocutory disputes. Procedural orders are often standard form, proposed by parties and made by Registrars. The Minister bears, conventionally, some of the preparatory burdens such as preparing a court book. In many migration proceedings, the largest costs incurred by an applicant may well be counsel’s fees. That is a disbursement. Given the cause of action is judicial review, and the law is complex, counsel may do the majority of the work in a proceeding; a solicitor may do much less. The singular amount in Pt 2 is intended to include disbursements such as counsel’s fees. If that proposition is correct, it is difficult to see how it can, as a singular amount, be interpreted as excluding particular kinds of disbursements such as a filing fee. This is especially so when it is recalled that the filing fee may be reduced or waived entirely for a particular applicant.

   74.The preferred interpretation, and the one that best serves the purpose of the identification of scale costs as a singular amount by reference to the stage a proceeding has reached before it is concluded, is that it is up to the individual Judge in each costs application to consider the various components of the costs application made, and whether, in those individual circumstances, a single lump sum for all costs and disbursements that would apply if a Pt 2 Div 1 Costs Order was made would be a fair and just outcome. For example, a successful applicant:

   (a)          may have had the filing fee reduced to a minimum amount or waived entirely;

   (b)          may have not, in fact, paid a hearing fee;

   (c)          may have retained a solicitor for only a short period of time;

   (d)          may have paid counsel on a direct access basis a sum which is below the singular scale amount; and

   (e)          may not be able to identify any other costs.

   75.Without seeking to prescribe any particular outcome, but using these kinds of facts as an example, in such a case a Judge may well form a view that the fair and just exercise of the costs discretion is to fix the amount of costs by reference to the Pt 2 scale, with no additional sums fixed.

   76.In contrast, where, as here, a successful applicant paid the full filing fee of $3,330 and incurred a liability for professional costs of his solicitor (including any disbursements charged to him by his solicitor) which was claimed to be in the sum of $3,047, a Judge may form a different view. It is not the character of the filing fee as a disbursement which may — we say may — result in a decision by a Judge not to make a Pt 2 Div 1 Costs Order. Rather, it will be the assessment by a Judge of what is fair and just, given the actual costs incurred.

   77.As we explain below, and acting on the correct principles we have outlined above, no presumption should be erected about the appropriateness or otherwise of a Pt 2 Div 1 Costs Order and nor should any requirement to justify a reason to depart from the singular amount set out be imported as some kind of preliminary step. It is unlikely to be a reasonable exercise of the costs discretion to fix an amount of costs which would result in a successful applicant doing little more than recovering the filing fee they had to pay to commence the proceeding, and not requiring the unsuccessful party to compensate a successful applicant for a reasonable amount of the legal costs incurred in prosecuting the proceeding to its successful conclusion. Where the successful party had not engaged in any disentitling conduct, such an approach would be incompatible with the basic compensatory principle applied in an Australian costs jurisdiction and recognised in s 214(3) of the FCFCOA Act. Such a situation may also be incompatible with access to justice principles as filing fees are capable of affecting access to justice.

   78.To find as much is to do no more than find that in the exercise of the discretion conferred by s 214(3), read with r 22.02 of the GFL Rules, the fair and just costs order is one which sets the amount of costs on the appellant’s costs application in his judicial review proceeding not at the singular scale figure in Pt 2 (which would apply if a Pt 2 Div 1 Costs Order was made), but a larger amount. To make that finding recognises that the singular scale figure may well include disbursements in a particular case. However, in another case — such as the present — the amount may simply be insufficient and unjust, and the Court may rely on s 214(3), read with r 22.02, to fix a larger amount.

9. It was submitted on behalf of the first respondent that the following tasks were undertaken by the lawyers for the first respondent during the course of the proceeding: [1]

   [1]           See [13] of First Respondent’s written submissions filed on 30 October 2024.

   13.In this regard, the Minister submits that his professional fees were reasonably incurred by Clayton Utz in having to perform the following tasks throughout this proceeding:

   (a)preparation and filing of the Court Book on 5 July 2017 (approximately 490 pages in length);

   (b)preparation and filing of the Affidavit affirmed by Sinisha Belinic on 8 November 2021;

   (c)preparation and filing of five sets of written submissions filed on 2 November 2021, 11 October 2022, 24 February 2023, 25 July 2023, and 22 November 2023 respectively;

   (d)preparation and filing of a joint bundle of authorities filed on 27 February 2024;

   (e)perusal of the following material filed by Applicants:

   (i)three sets of written submissions filed on 11 April 2023, 6 July 2023, and 17 November 2023 respectively;

   (ii)six affidavits filed by the Applicants on 14 October 2022, 25 November 2022, 26 April 2023, 24 May 2023, 22 June 2023, and 6 July 2023 respectively; and

   (iii)three amended applications filed on 18 November 2022, 22 June 2023, and 4 March 2024 respectively;

   (f)preparation and attendance at three hearings listed before the Court on 4 October 2022, 1 November 2023, and 4 March 2023 respectively. Further, the preparation and attendance at an interlocutory hearing on 18 April 2023 regarding the application in a

   
   

   case filed on 25 November 2022;

   (g)preparation and attendance at two directions hearings listed on 28 October 2022 and 25 May 2023;

   (h)extensive correspondence between the Department of Home Affairs and the Minister's representatives (as outlined at paragraph 10(h) of the Kovacs Affidavit);

   (i)extensive and protracted correspondence between the Applicants' representatives and the Minister's representatives (as outlined at paragraph 10(i) of the Kovacs Affidavit); and

   (j)extensive correspondence between the Court and the Minister's representatives (as outlined at paragraph 10 (j) of the Kovacs Affidavit).

10. The first respondent submitted that there had been extensive correspondence between the lawyers in the matter. The work undertaken was summarised at [10] – [11] of the affidavit of Mr Kovacs filed on 20 March 2024.

11. The amounts claimed as being reasonable for the making of a costs order in favour of the first respondent far exceed what the scale amount was. It was submitted on behalf of the applicant that though the applicant accepted a liability for costs, costs should nevertheless be reduced by 50% due to what was asserted to be the first respondent’s failure to make a timely decision in what was submitted to be a related matter involving the applicant’s adult cousin. The decision was conveyed to the applicants on 26 May 2023. It was submitted on behalf of the applicants that costs incurred prior to then had been thrown away.

12. The Court is not persuaded that there should be any percentage reduction in the costs ordered to be paid by the applicants to the first respondent. The first respondent wholly succeeded in resisting the applicants’ claims. Further, the applicants have failed to particularise the bases upon which any such percentage reduction would be justified. A general claim that a reduction was warranted, without more particularity, was unpersuasive and unhelpful.

13. The Court was not an expert in the adjudication as to what costs ought reasonably to have been incurred in a defence of the applicants’ claims. Neither was the Court in a position to assess the reasonable quantum or extent of costs and outlays properly allowable. That is a matter for a taxing officer.

14. The Order of the Court is that the applicants shall pay the first respondent’s costs and outlays of and incidental to the proceeding on a party/party basis, such costs to be as agreed between the parties, or failing agreement, as taxed pursuant to the provisions of r. 22.02(2)(c) of the Rules.

15. And it is so ordered.  

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       2 December 2024