Ejueyitsi v Minister for Immigration - [2007] FMCA 625

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EJUEYITSI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 625

MIGRATION – Costs – dispute – appeal pending – preferable for lower Court to correct slip.

Ejueyitsi v Minister for Immigration & Anor [2004] FMCA 935

Applicant:

VINCENT BABATUNDE EJUEYITSI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 477 of 2006

Judgment of:

McInnis FM

Hearing date:

19 April 2007

Delivered at:

Melbourne

Delivered on:

19 April 2007

REPRESENTATION

Counsel for the Applicant:

Mr G Nwankwo

Solicitors for the Applicant:

Goz Chambers Lawyers

Counsel for the First Respondent:

Mr G Carroll

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

It follows for the reasons given that the orders of the court are:

The name of the First Respondent be changed by deleting "Multicultural Affairs" and inserting "Citizenship".
In relation to the proceedings which were the subject of the judgment delivered on 3 December 2004, the First Respondent pay the Applicant’s costs and disbursements fixed in the sum of $6,500.00.
In relation to the proceedings which were the subject of the orders made on 20 December 2006 the First Respondent pay the Applicant’s disbursements fixed in the sum of $400.00.
The First Respondent pay the Applicant’s costs of and incidental to this application fixed in the sum of $400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 477 OF 2006

VINCENT BABATUNDE EJUEYITSI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application the court made orders on 20 December 2006. On that day the Applicant appeared in person and the First Respondent was represented.
The orders made by the court included orders as follows:-
“1.A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second respondent dated 16 June 2004
2A writ of mandamus issued directed to the Second Respondent, requiring the Second Respondent to determine, according to law, the application for review.”
When those orders were announced, the transcript of the proceedings reveals the following:
“As the applicant appeared in person there is no requirement, as I see it, for any further order in relation to costs.”
Since that date, solicitors previously on record for the applicant have requested that the court now consider making orders in relation to costs. They have done so by application filed on 20 March 2007. Although I observe at the outset that the application itself does not clearly set out the orders sought or indeed the legal basis upon which the costs order is now sought.
However, the application does refer to an affidavit of the Applicant sworn 9 March 2007. In that application, the Applicant recites in brief terms the chronology of events and otherwise then seeks costs and disbursements which were incurred as a result of the earlier proceedings in his application and otherwise seeks further costs to be paid to him in relation to the proceedings which continued in circumstances where he was self‑represented.
The total claim for the earlier proceeding is $7,908.00 which includes $3894 for legal costs with the other items being disbursements for counsel and fees payable to the court upon filing of the application and a setting-down fee.
In this matter, the court delivered a decision on 3 December 2004 (Ejueyitsi v Minister for Immigration & Anor [2004] FMCA 935). On that occasion the court made orders as follows:
“1 The application be dismissed.
2 The applicant pay the respondents' costs fixed in the sum of $7,000.00.”
The decision in that matter was the subject of an appeal by the applicant to the Federal Court of Australia. The appeal was successful. Orders were made by Weinberg J of the Federal Court on 4 April 2006 as follows:
“1.The Migration Review Tribunal be joined as a respondent to this proceeding.
2.The appeal be allowed.
3.The decision of the Federal Magistrate dismissing the application for review, and his Honour’s order that the appellant pay the respondent’s costs, be set aside.
4.The matter be remitted to the Federal Magistrates Court to be determined according to law.
5.The costs of the previous proceeding before the Federal Magistrate, together with the future costs of that proceeding, be reserved.
6.The first respondent pay the appellant’s costs of this appeal.”
It is noted from the orders that His Honour appropriately made an order that the decision of this court dismissing the application for review be set aside but significantly also made an order that the orders of this court that the Appellant pay the Respondents' costs be set aside.
His Honour then again significantly reserved the question of the costs of the previous proceeding before this court, together with future costs. Those costs I take to be reserved to this court. When I made orders on 20 December 2006 and specifically when I indicated that there was no requirement, as I then saw it, for any further order in relation to costs. I was clearly in error.
I am satisfied the court has made a slip. It is appropriate applying the slip rule that this court should correct the error. It has been suggested, perhaps not unreasonably, by the First Respondent in the affidavit of Peter John Corbold sworn 18 April 2007 that given that my second decision is also the subject of an appeal and that that appeal is to be heard next month, that it might be more appropriate for this letter to be left for consideration by that court and/or indeed brought to the attention of that court by way of cross‑appeal by the Applicant.
In my view, although that may appear to be a superficially attractive, practical alternative, I do not accept that it is an appropriate option. The better option is for this court, having made a slip, to correct that slip and then to proceed to hear argument in relation to the costs, if any, which should be awarded in favour of the Applicant. It is the responsibility of this court, having made a slip, to determine as intended by the Federal Court in the orders of 4 April 2004 the costs of the previous proceeding which were reserved, together with costs of a proceeding which led to this court's order on 20 December 2006.
On the material before me it is clear that although solicitors for the applicant, namely, Goz Chambers Lawyers, did not appear until 13 September 2004, they have otherwise incurred significant and reasonable costs in the preparation of an amended application which I note was dated 23 September 2004, and also in the filing, service and preparation of applicant's contentions of fact and law which I note were filed on 16 November 2004.
I am otherwise satisfied that the solicitors then remained on record and arranged for representation of the Applicant in the proceedings which were heard by this court on 23 November 2004 and which resulted in a decision of this court of 3 December 2004 referred to earlier in this judgment.
It has been submitted for and on behalf of the Applicant that the applicant is entitled to costs in an amount not less than the amount of costs which the court had earlier ordered in the decision of 3 December 2004 in favour of the First Respondent; that is, the sum of $7,000.00.
The representative of the First Respondent has submitted that those costs would have included an allowance for the preparation of a court book which is ultimately the responsibility of the First Respondent and, it has been submitted, that a more appropriate amount to be fixed for costs and disbursements would be in the region of $5,000.00.
In my view it is not appropriate to embark upon a detailed analysis of the costs that may be awarded, but it is appropriate to make a general allowance of what I regard to be a fair and reasonable amount for costs and disbursements. I do not regard it as appropriate to reduce in any significant way the disbursements now claimed by the Applicant. I do, however, regard it as appropriate to make some reductions in the amount claimed of the costs so that they properly reflect a fixed amount of costs which is within the range of what I regard as reasonable costs to be fixed in matters of this kind.
It must be remembered that in 2004 the court scale which applied to these matters appeared in Schedule 1 of the Federal Magistrates Court Rules 2004. That schedule, however, was introduced at a time when this court did not have jurisdiction to consider migration proceedings. More recently the court has introduced an amendment to its rules so that the Rules now have a specific part dealing with migration proceedings, namely Part II. That part provides for costs of a hearing concluded at a final hearing of $5,000.00 which would appear to apply to both parties. Prior to that, however, the court was concerned not to simply apply the costs which appeared in Schedule 1 as those costs referred to preparation for final hearing in matters which clearly, unlike migration cases, involved considerably more preparation, including preparation of affidavits for witnesses and, indeed, attending a full day hearing. Hence the court adopted a practice of fixing costs. In this instance it had fixed, when it made its order on 3 December 2004, costs in the sum of $7,000.00 in favour of the First Respondent.
Having regard to the claim now made by the Applicant of $7,908.00 for costs and disbursements, and having regard to the fact that I do not believe it is appropriate to reduce the disbursements which form part of that claim, I do, however, take into account in the exercise of my discretion the fact that costs previously fixed in favour of the respondent included preparation of the Court Book. I make a deduction in the costs that I am prepared to award in favour of the applicant having regard to that factor, and in the general exercise of the discretion the court undoubtedly has to fix costs.
It is my view, in the exercise of my discretion, that a fair and reasonable amount of costs and disbursements to be ordered in favour of the Applicant, in relation to the proceedings which were the subject of the decision dated 3 December 2004, is $6500.
That leaves remaining the court to consider the costs of the proceedings which led to the judgment on 20 December 2006. Although a claim was made for what is referred to as consultation expenses of $1,100.00, I had indicated that I would not be prepared to allow those expenses, given the lack of detail as to how they were incurred and whether they were in fact charged by lawyers. The only material before the court indicates that there were consultations with an organisation apparently called “Vincentine and Santos Incorporation”.
In any event, the claim of $1,100.00 for consultation with that organisation is now not pursued. The remaining claim, therefore, is an amount of $400.00 being transportation expenses and photocopying expenses of the Applicant who was then self‑represented. In my view, they are disbursements properly incurred and it is appropriate for the court to make an order pursuant to Rule 21.10 of the Federal Magistrates Court Rules for that amount.
Upon announcing the orders a further application was made by the solicitor for the Applicant for the costs of and incidental to this application. As I indicated in my judgment, the application itself was less than clear as to the orders sought, and the affidavit material supporting the application likewise not perhaps as helpful as it might have been. Nevertheless, it is clear that the Applicant has successfully made application under the slip rule and obtained the benefit of an order in the Applicant's favour of a substantial amount for costs.
Notwithstanding opposition from the First Respondent and arguments that perhaps the matter might have been dealt with in the Federal Court, it is my view for reasons already stated that it is appropriate this court deals with the matter. Having dealt with it and having found that the Applicant is entitled to the orders under the slip rule, it is my view that the Applicant is likewise then entitled to an amount of some costs of and incidental to the application. Those costs, however, will be fixed in the sum of $400.00 which recognises, to some extent, the deficiencies that I have identified in the material and, in my view, is otherwise in the exercise of my discretion a fair and reasonable amount to be ordered.
It follows for the reasons given that the orders of the court are:
(1)The name of the First Respondent be changed by deleting “Multicultural Affairs” and inserting “Citizenship”.
(2)In relation to the proceedings which were the subject of the judgment delivered on 3 December 2004, the First Respondent pay the Applicant’s costs and disbursements fixed in the sum of $6,500.00.
(3)In relation to the proceedings which were the subject of the orders made on 20 December 2006 the First Respondent pay the Applicant’s disbursements fixed in the sum of $400.00.
(4)The First Respondent pay the Applicant’s costs of and incidental to this application fixed in the sum of $400.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 19 April 2007