ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 658
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 658
File number(s): SYG 3139 of 2017 Judgment of: JUDGE LAING Date of judgment: 28 July 2023 Catchwords: MIGRATION – costs – where the matter was conceded on the basis of a ground pleaded in a further amended application filed some years after the commencement of the proceedings and three weeks before hearing – where proceedings were nonetheless attended with a level of procedural, factual and legal complexity – fixed costs order made Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 473DC(1), 473DD
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190, 214(2), 214(3)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 22.02, 22.09, 29.13
Federal Court Rules 2011 (Cth) rr 4.18, 4.19
Cases cited: AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 257
CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467
EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 926
Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 563
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 19 July 2023 Place: Sydney Counsel for the Applicant: Mr B Mostafa Solicitor for the Applicant: Varess Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mr T Hillyard of Sparke Helmore ORDERS
SYG 3139 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ENY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
28 JULY 2023
THE COURT ORDERS THAT:
1.The proceedings be concluded on the basis that the first respondent pays the applicant’s costs fixed in the amount of $15,000.
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 LAING:
Before the Court is an application for costs following consent orders made on 25 May 2023. By those orders, writs of certiorari and mandamus were issued quashing a decision of the Immigration Assessment Authority (IAA) and requiring it to review a decision of a delegate (Delegate) of the first respondent (Minister) according to law.
The applicant seeks an order that the Minister pay his costs “as agreed between the parties, or taxed under Part 40 of the Federal Court Rules 2001 (Cth)”. He submitted by reference to an affidavit by Farid Varess dated 26 May 2023 (First Varess Affidavit), as corrected by an affidavit by Mr Varess dated 6 June 2023 (Second Varess Affidavit), that on taxation the applicant would expect to recover:
(a)a portion of the costs he incurred prior to being represented by Varess, the total amount of which was $8,280.00 including disbursements; plus
(b)on average, about 78% of the total costs he incurred: (A) since he has been represented by Varess until the drafting of the First Varess Affidavit (excluding barrister fees incurred after 16 May 2023), which equate to $29,841.03; and (B) following the drafting of the First Varess Affidavit (plus barrister fees incurred since 16 May 2023).
The applicant alternatively seeks an order that costs be fixed in an amount of at least $18,064.30. This is the scale amount plus the following disbursements:
(a)a $615.00 court filing fee (Annexure A to the First Varess Affidavit);
(b)a $735.00 court setting down fee (Annexure G to the First Varess Affidavit);
(c)$7,732.50 in barrister fees (Annexures D, E and I to the First Varess Affidavit); and
(d)a $610.50 Simply Legal transcription fee (Annexure F to the First Varess Affidavit).
The Minister submits that costs ought to be fixed in the scale amount, at $8,371.30. Alternatively, the Minister submits that a fixed costs order ought to be made in this case quantifying the applicant’s costs in a reasonable amount. The Minister did not specify what he considered an alternative reasonable amount to be. However, I infer from the Minister’s primary position and submissions that the Minister contemplates a reasonable amount to be either at or around $8,371.30.
BACKGROUND
Proceedings in this matter were commenced through an application filed on 10 October 2017. At the time, the applicant was represented by a lawyer (First Lawyer). He relied upon the following ground:
1.The Immigration Assessment Authority (IAA) erred in finding that Kabul was the applicant's home area without exercising, or considering exercising, the powers in:
a.s 473DC(3) of the Migration Act 1958 (Cth) (the Act);
b.s 473CC(2)(b) of the Act.
Particulars
a.The Delegate found that the applicant's home area was [a] district of Ghanzi province: Delegate's Decision p 3.
b.The IAA found that the applicant's home area was Kabul: IAA Decision [13].
c.The IAA did not put the applicant on notice that it might find that his home area was different to the home area found by the Delegate.
d.The IAA erred by not exercising, or considering exercising, the power in (see, eg, DZU16 v Minister for Immigration and Border Protection [2017] FCCA 851 at [121]; CRY16 v Minister for Immigration and Border Protection [2017] FCCA 1549 at [19][22]):
i.s 473DC(3) of the Act so as to invite the applicant to give new information relating to where was his home area;
ii.s 473CC(2)(b) to remit the matter back to the Delegate.
Usual procedural steps then followed, including the making of timetabling orders by the Court and the filing of a Response and Court Book by the Minister. Further orders were made by consent, allowing extensions to those orders which had (inter alia) provided the applicant with an opportunity to file and serve an amended application and further evidence. On 3 October 2018, the applicant filed an amended application relying upon two additional grounds:
(a)The first was that the IAA erred by misconstruing or misapplying the relevant law, or otherwise by failing to consider a claim or integer thereof, in finding that the applicant did not satisfy s 36(2)(a) or (aa) of the Migration Act 1958 (Cth). This was said to have occurred due to the IAA failing to consider three matters associated with the applicant’s previous occupation as a taxi driver.
(b)The second was that the IAA erred by misconstruing or misapplying ss 473DC(l) and/or s 473DD(a) of the Migration Act 1958 (Cth) by taking into account an irrelevant consideration, or by reasoning in an irrational or illogical manner, when refusing to consider a July 2017 report by the Edmund Rice Centre.
Both grounds were accompanied by extensive particulars.
On 26 March 2020, the applicant filed an affidavit annexing a transcript of his protection visa interview.
On 19 October 2021, the First Lawyer withdrew from these proceedings.
On 27 February 2023, the applicant’s current lawyer, Farid Varess, filed a Notice of Appointment. This followed from a pro bono referral issued by Judicial Registrar Carney on 2 February 2023.
A directions hearing was listed on 2 May 2023. At that listing, Mr Varess sought an order amending the pro bono referral certificate to state that he was permitted to charge for such assistance in accordance with rr 4.18 and 4.19 of the Federal Court Rules 2011 (Cth). I did not make an order to this effect. However, I did make orders permitting the applicant to file and serve a further amended application and evidence as well as providing timetabling regarding written submissions. Some extensions to these orders were subsequently made by consent after discussion at the hearing.
On 3 May 2023, the applicant filed a further amended application, submissions, a list of authorities and an affidavit. The further amended application:
(a)abandoned ground one of the earlier amended application;
(b)maintained the substance of grounds 2 and 3 of the earlier amended application; and
(c)raised two new grounds, as grounds 1 and 4.
The first new ground (Ground 1) contended that the IAA erred in failing to assess new evidence against s 473DD of the Migration Act 1958 (Cth), failing to consider important evidence and/or failing to consider a submission in relation to whether the applicant had a well-founded fear of harm from the Taliban. This was in circumstances where the IAA made no reference in its decision to a statement from the applicant’s then representative provided after the Delegate’s decision to the effect that the applicant’s brothers had changed their homes many times since an incident involving the applicant due to a fear of being identified and harmed by the Taliban.
The second new ground (Ground 4) contended that the IAA erred by failing to exercise, or failing to consider exercising, its power to get new information in the form of a Department of Foreign Affairs and Trade (DFAT) Country Information Report – Afghanistan and/or a DFAT Thematic Report - Hazaras in Afghanistan, both dated 18 September 2017 (New Reports).
The affidavit filed on 3 May 2023 annexed DFAT country information reports and a copy of Direction No. 56 – Consideration of Protection Visa applications. It also annexed correspondence with the Minister’s representatives seeking information regarding how and when the New Reports were made available to the IAA. A Notice to Produce was additionally filed, seeking documents towards that end.
On 11 May 2023, the applicant filed a further affidavit annexing correspondence from the Minister’s representatives providing information as to how and when the New Reports were made available to the IAA. This followed orders being made by consent on 8 May 2023 permitting the affidavit to be filed on the basis that the Notice to Produce was withdrawn.
On 17 May 2023, my Associate was notified that the Minister intended to concede the matter and that consent orders were being considered. On 24 May 2023, the day before the scheduled hearing, my Associate was notified that consent orders had been unable to be agreed due to a dispute as to costs. The proposed basis of the matter’s concession was articulated in a notation to the orders that were sought by agreement.
The parties disagreed regarding how the costs dispute should be resolved. The applicant sought to convert the listed hearing the following morning into a hearing on costs. The Minister objected to this. The Minister sought a subsequent listing date, in circumstances where the Minister sought an opportunity to provide written submissions and, potentially, evidence. On account of the late nature of this correspondence and the dispute between the parties as to whether the listing the next morning ought to be vacated, the listing was maintained.
At the listing, the applicant referred to an affidavit on the issue of costs that had been filed after 4pm the day before. The Minister sought an opportunity to respond through written submissions. Procedural orders were made in this regard. Additionally, orders were made issuing the writs sought by consent. The notation indicating the basis of those orders, which was amended slightly by consent after discussion at the hearing, was as follows:
The first respondent concedes that the decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error as the IAA failed to assess new information against s 473DD of the Migration Act 1958 (Cth) (Act).
The IAA failed to take into account new information advanced in the applicant’s submissions dated 1 March 2017, namely a claim by the applicant that his brothers had moved homes many times since the applicant’s incident in 2012 with the Taliban, on account of their fear of being identified and harmed by the Taliban (CB 231). The first respondent accepts that this claim amounted to ‘new information’, as defined in s 473DC(1) of the Act, such that the IAA was required to assess whether it satisfied s 473DD of the Act: Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 1783.
In making its findings, the IAA relied upon the fact that no enquiries had been made of the applicant’s siblings regarding the applicant either in the immediate aftermath or since his departure from Afghanistan (CB 522, [21]-[23]). However, no consideration was given to why no enquiries had been made of the applicant’s siblings. On that basis, the first respondent accepts that the IAA fell into error and that that error was material to its review.
As will be apparent from the above, the concession was based upon Ground 1 of the applicant’s further amended application filed on 3 May 2023.
RELEVANT PROVISIONS
Subsections 214(2) and (3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provide as follows:
(2)The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the 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.
(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.
Rule 22.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) provides:
22.02 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 Part 40 of the Federal Court Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
Rule 22.09 of the GFL Rules relevantly states:
22.09 Costs and disbursements
Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:
(a) costs in accordance with Schedule 2; and
(b) disbursements properly incurred…
Note 2: For costs in a migration proceeding, see rule 29.13 and Part 2 of Schedule 2 to these Rules.
Rule 29.13 of the GFL Rules relevantly states:
29.13 Costs
(1) The Court may, in relation to a proceeding that is concluded, order an unsuccessful party to the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 2 of Schedule 2…
(3) This rule does not limit a party's right to apply, under Part 22, for an order as to costs of the application.
Division 1 of Part 2 of Schedule 2 to the GFL Rules contains what is commonly referred to as the Court’s “scale” in relation to migration proceedings. It states the following in relation to such proceedings that have been determined other than by discontinuance:
Costs for migration proceedings that have concluded Item Description Amount (including GST) 1 A proceeding concluded at or before the first court date for the proceeding $1,675.75 2 A proceeding concluded:
(a) after the first court date for the proceeding; and
(b) at or before an interlocutory hearing
$4,189.38 3 A proceeding concluded at a final hearing $8,371.30
RELEVANT CASES
A number of recent cases have considered the discretion to award costs in migration matters.
One such case is the decision of Judge Lucev in Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 563 (Gehlert) at [27]-[51]. As in the present case, the costs dispute in Gehlert followed a matter being conceded by the Minister on an identified basis. In Gehlert, however, the consent orders regarding concession of the matter were proposed and made in advance of the listed hearing. The applicable scale amount of costs was therefore $3,930. The applicant, through his representatives, submitted that this amount was inadequate in the circumstances of the case and having regard to the cost of filing fees in that matter. An amount of $6,377 was sought by the applicant. After considering the provisions regarding costs and various cases on the issue, Judge Lucev considered at [24]-[26]:
24.The costs scales under the GFL Rules are event-based costs scales in respect of which a party receives a prescribed sum in respect of specified events: Pratt v Latta (No 2) [2002] FMCA 43 at [5] per Driver FM; Pierson’s Pro-Health (No 3) at [43] per Lucev FM. The prescribed sum may be varied, up or down, in the exercise of the Court's discretion: FCFCOA Act, s 214(3); Cugura v Frankston City Council (No 5) [2012] FMCA 1212 at [50] per O’Sullivan FM. The GFL Rules generally give the Court an unfettered discretion to award costs, provided the discretion is exercised judicially and within the context of the GFL Rules: Washington v Qantas Airways Ltd [2014] FCCA 1413; (2014) 107 IPR 144 (“Washington”) at [54] per Judge Nicholls. Departure from the event-based scale nevertheless remains the exception rather than the norm: Pierson’s Pro-Health Pty Ltd (No 3) at [43] per Lucev FM. As was said in Ladakh Pty Ltd v Jing Cao (No 2) [2010] FMCA 968 at [4] per Burchardt FM:
4.If you issue in this court, prima facie you will recover your costs on the Federal Magistrates Court scale.
25.Early costs cases in this Court refer to the parliamentary intention (as to which see [23(a)] above) that disputes in this Court be resolved “cheaply, quickly and simply”: see, for example, Meskenas v ACP Publishing Pty Ltd (No 2) [2006] FMCA 1461 (“Meskenas (No 2)”) at [5] per Raphael FM; Top Plus Pty Ltd v K Square Pty Ltd (No 4) [2010] FMCA 671 (“Top Plus (No 4)”) at [7] per Raphael FM. It has been said that the event-based scale under the GFL Rules exists to provide simplicity and certainty in determining costs: Hinchliffe [No 2] at [10] per Driver FM. It is “a simple arithmetical exercise”: Zhang v Kanellos (No 2) [2005] FMCA 418 at [4] per Driver FM, such that a lawyer attending to take final judgment ought to have been able to calculate the exact costs, according to the relevant costs scale, in the vast majority of cases: Pierson’s Pro-Health (No. 3) at [43] per Lucev FM.
26.In some cases a successful party in this Court will incur significantly more in costs than is recoverable pursuant to the relevant costs scale. It does not follow that that is an unjust result, where it occurs. It has been said that the Court’s costs scales are publicly available and parties to litigation should be aware that the relevant costs scale is likely to determine their maximum recoverable costs should they succeed, and that if parties wish to incur significantly more costs in litigation in this Court than they could ever recover, that is a matter for them: Hinchliffe [No 2] at [10] per Driver FM, and, it might be added, their lawyers.
His Honour further stated at [62]-[63]:
62.The just resolution of disputes does not necessarily require that a successful party recover all of the party’s costs and disbursements, or that a party be able to maximise the recovery thereof: awards of costs (even on an indemnity basis) do not always fully compensate a party: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; (1994) 68 ALJR 374; (1994) 120 ALR 385, CLR at 410-411 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [100] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Probiotec Limited v University of Melbourne [2008] FCAFC 5; (2008) 166 FCR 30; (2008) 244 ALR 96; (2008) 75 IPR 222 at [48] per Rares J (Finn and Besanko JJ agreeing at [1] and [82] respectively); Hinchliffe [No 2] at [10] per Driver FM.
63.As was observed in DZAAY there are also other public policy considerations which play into the amounts set under the Migration Costs Scale, including, in particular, consistency in costs awards as a factor leading to the expeditious resolution of costs disputes in an area of the law with a high number of applications. In that regard it is worth observing that in the year ended 30 June 2021 there were 5,236 migration law applications to the Court: 2020-2021 Federal Circuit Court Annual Report, pp 2, 10 and 21, which only has about 20 judges regularly hearing migration judicial review applications.
Another case of relevance is Judge Given’s judgment in AHE18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 257. In that case, her Honour stated at [4]:
4.In AYT22 I observed that Schedule 2, Part 2, Division 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (Rules) provides a scale for migration proceedings which conclude on a final basis and not by discontinuance. The scale is intended to represent (to the extent that such a thing is possible) a standard unit equivalent migration proceeding which concludes at a final hearing in this Court. From an applicant’s perspective this includes:
(a) preparing the originating application and an Affidavit in support;
(b) sometimes, attendance at a first court date if the matter was initially filed in the Sydney registry (albeit that practice has now changed post-COVID-19);
(c) consideration of the Court Book prepared by the first respondent’s lawyers and the preparation of any amended application and additional evidence;
(d) preparation of an outline of submissions which, generally, occurs only once and is usually 10 pages in length; and
(e) consideration of the first respondent’s submissions and attendance at a hearing the duration of which is usually half a day (which, in Court terms, is somewhere between 2-2.5 hours).
The applicant placed heavy reliance upon a decision by Judge Manousaridis in CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 (CIQ17). In that case, his Honour accepted at [27] that the scale amounts “represent an assessment by the Court of what can be considered to be reasonably and properly incurred in a proceeding under the Migration Act on a party and party basis”. However, his Honour considered that the type of proceeding the Court would have had in mind in setting the scale would have been a “typical proceeding” in which the applicant is not legally represented, does not understand the grounds on which the Court may set aside migration decisions and the successful party is the Minister (at [27]). His Honour doubted that the scale provisions would have been used to indicate the maximum costs a party may recover upon success, noting that the Court had a specific power to specify maximum costs in advance of a hearing (at [24]). His Honour also rejected that the discretion to set costs at the then applicable scale amount ought to be regarded as the “default rule”, in circumstances where it was “only one of a number of orders the Court can make in relation to the setting of costs” (at [24]).
In CIQ17, Judge Manousaridis considered that in assessing costs, “the principal question” a Judge should address is “whether he or she is in a position to assess for himself or herself the amount that would represent a fair indemnity for the costs the successful party has incurred”. His Honour considered that whilst he was not incapable of assessing this question, it was preferable in the circumstances of that case for the quantum to be determined through taxation being “the method by which the reasonableness of a party’s costs are usually assessed” (at [31]).
I was also taken to the decision of Kenny J in EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 926 at [17]:
17.It may be accepted that where a proceeding is of average complexity in the Federal Circuit Court, [scale] sums generally “represent an assessment by th[at] Court of what can be considered to be reasonably and properly incurred in a proceeding under the Migration Act on a party and party basis”. See, for example, CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 at [27], referring to SZUVZ v Minister for Immigration and Border Protection [2015] FCCA 2346 and SZRTP v Minister for Immigration and Citizenship (No 2) [2013] FCCA 711; 277 FLR 469. Nonetheless, the provisions mentioned above make it clear that the primary judge was not required to award costs in accordance with the sum set out in Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules. Rather, his Honour retained a discretion as to the award of costs: see Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; 148 ALD 507 at [100]- [101] (Griffiths J). Where, however, a judge of the Federal Circuit Court proposes to make an order for costs exceeding the sums for which provision has been made, the judge should ordinarily indicate the particular circumstances that made this course appropriate in the exercise of discretion: see, for example, Khan v Minister for Immigration and Border Protection [2017] FCCA 3158. The primary judge in this case did not, it seems, identify any particular circumstance that warranted an award of costs substantially higher than the sum of $7,467. The first respondent and the appellant accepted was that this was the applicable amount had his Honour acted under r 44.15 in conjunction with Pt 3, Div 1 of Schedule 1 of the Federal Circuit Court Rules.
Relying upon CIQ17, the applicant submitted that it was unnecessary to demonstrate sufficient reason for departure from the scale in circumstances where:
(a)there is nothing in the Court’s rules or governing legislation that says that the scale is to be applied in the absence of “good reason”;
(b)it is common that the applicant, as the moving party, will incur greater costs than the Minister;
(c)the Minister can access legal representation at below market rates. In this regard, the applicant contrasted the day rate contemplated under the Legal Services Directions 2017 (Cth) for junior counsel with the Federal Court of Australia's National Guide to Counsel Fees: [22]-[25] of the First Varess Affidavit.
I accept that there is support for the applicant’s position in CIQ17. However, I do not consider that decision to be authority for the proposition that the scale is confined to unrepresented litigants. Rather, what his Honour in CIQ17 appears to have been observing is the uncontroversial proposition that a substantial proportion of applicants in migration proceedings before this Court are unrepresented. That situation may be expected to have had some bearing upon the formulation of the scale, which will not necessarily provide a suitable quantum in all cases.
That does not mean that the scale was formulated exclusively for matters involving unrepresented litigants. Had this been so, it would have been a simple enough matter to have included provision for this in the GFL Rules. There are also good reasons for affording the scale in the GFL Rules due recognition and respect. Amongst those is the legislative intention that disputes in this Court be resolved “cheaply, quickly and simply”. That aim is not served by this Court’s regular engagement in protracted costs disputes in relatively routine matters, whether such disputes are conducted by Judge or by a Registrar.
Regardless, I do not consider that my judgment in this matter turns upon any point of difference between any of the cases to which I have referred above. Whilst I consider that due regard ought to be had to the guidance that is provided by the Court’s scale, I accept that I am not bound by it and that it ought not to be inflexibly applied in all cases. I also accept that the scale may not represent “a fair indemnity” for costs in all matters. On the particular facts of this case, the outcome on costs does not turn upon the precise role that the scale ought to play in proceedings generally, including in relation to disbursements.
The applicant has applied for a costs order in the particular form that he has sought. The Minister opposes this and does not consent to any order other than costs being fixed in the scale amount, inclusive of disbursements. As the latter is the amount that the applicant’s opponent submits is the amount that ought to be awarded, I need to consider whether that is the case and if not, what alternative order would be appropriate. This is so whether or not the scale is generally to be regarded as the “default position” (in respect of which I accept that CIQ17 at [24(c)] is to the contrary).
Where an applicant seeks an order for costs that is other than the scale amount to which the other party is willing to agree, then it is appropriate that I consider whether or not the order sought by the applicant on their contested application ought to be made and to provide reasons in this regard. My decision will turn upon the evidence regarding the applicant’s costs as well as the history and complexity of the matter.
Should the matter be referred to taxation?
I am not satisfied that I ought to refer the question of costs to taxation.
I accept that referral to taxation has been described in some cases as the “usual order as to costs”: see CIQ17 at [28] and [31]. However, this does not preclude the Court from fixing costs in an amount where this has been sought by a party and the Court considers that it is in a position to do so. Such orders are frequently made by this Court, both in migration and non-migration matters.
In the present case, as the Minister has pointed out, this matter has been allocated to me. It has been case managed. I am aware of how the matter has procedurally progressed and the respective arguments that have been advanced, at different stages, by the parties. I am aware of the basis of and circumstances leading to the substantive outcome in these proceedings. I have affidavit evidence and detailed submissions on the question of costs, in respect of which there has also been an oral hearing (at the applicant’s request). In these circumstances, I consider that making a costs order in fixed terms is consistent with the “overarching purpose” in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) towards the just resolution of disputes “as quickly, inexpensively and efficiently as possible”.
I also have some qualms about sending a matter to taxation where the applicant contends that his total costs in a proceeding of this nature had risen to $46,537.73 by the time of the First Varess Affidavit. The vast majority of the costs claimed were incurred some years after the commencement of the proceedings and subsequent to a pro bono referral. I am told that the applicant’s representatives expect an award of about 78% of those costs on taxation. I have some difficulty reconciling what is said to be the reasonableness of the resulting amount with my own understanding of what would be a reasonable and fair award of costs in this matter. For the reasons given below, I consider that a fair and reasonable award of costs in this matter is a lower amount.
What is a fair and reasonable award of costs in the circumstances of the present case?
The Varess Affidavits refer to various items of work that have been performed, by various people, over the course of this matter. There are some limitations and other issues with this evidence. For example:
(a)Some entries in the “Pre Billing Guide” at Annexure B to the First Varess Affidavit, associated with the applicant’s First Lawyer, appear to relate to matters other than these proceedings i.e. correspondence and other work regarding a “Bridging Visa Application”.
(b)A large number of time entries contain generic references to correspondence. Whilst not unusual, this does make it difficult to ascertain with precision the type and reasonableness of much of the work undertaken, and to what it related. For example, the time sheets at Annexure A to the Second Varess Affidavit indicate that a number of entries related to communications with the applicant’s First Lawyer. It is unclear to what extent those communications related to advancement of the substantive proceedings, or to some other matter (such as the costs dispute between the applicant and his First Lawyer that has otherwise been referenced in the Varess Affidavits).
(c)The reasonableness of other items is not readily apparent, such as the charge of $65 for entries such as “Activity report email from court”. There are a significant number of such individual entries, where the charge appears to be for sighting various emails, the length and contents of which are unknown. Again, it is neither unusual nor inappropriate for evidence of individual costs entries to be adduced in a relatively brief, summary manner on a costs application. An applicant would not ordinarily be expected to provide detailed evidence of such communications (whether for an application such as the present, or on taxation). Some practicality is, of course, required. However, the limited detail that often necessarily attends such evidence of costs underscores the relevance of understanding the procedural history of the matter and what it involved when considering the question of costs.
A further potential difficulty faced by the applicant in this costs application is the fact that the outcome in this matter turned upon a narrow ground, which I would not describe as complex from either a legal or evidentiary standpoint, and which was only raised in a second amended application that was filed some years into the proceedings. That ground contended that the IAA failed to assess new information regarding a claim that the applicant’s brothers had moved homes many times since an incident in 2012 to avoid the Taliban.
The bulk of the costs claimed relate to a period after the pro bono referral to Mr Varess. This followed a period of some years of delay in determination of the matter. Had the relatively simple and narrow ground upon which the Minister conceded the matter been identified in the originating application filed in 2017, in the amended application filed in 2018, or at any point prior to the applicant’s First Lawyer ceasing to act in late 2021, then the costs subsequently claimed by Mr Varess may have been avoided. The Minister agreed to concede the matter within 2 weeks of the further amended application being filed.
Whilst the applicant referred generally to changes in the case law, which have undoubtedly occurred, he did not draw attention to any case(s) that may have changed the status of the new information in this regard. Had I been deciding this matter in 2017, by reference to the legislation and cases available then, I consider that I still would have accepted that the information regarding the brothers’ movements to avoid the Taliban was “new information” for the purposes of s 473DD of the Migration Act 1958 (Cth). The IAA’s clear failure to grapple with it under that provision, or otherwise, was a basis upon which I was readily able to accept that jurisdictional error had been demonstrated. The evidence required in this regard concerned limited pages of the Court Book that had been filed by the Minister in 2017. Put simply, I accept the Minister’s submission that this is a ground that could reasonably have been identified earlier in these proceedings.
I emphasise that when I refer to the late identification of the ground, this is not to be taken as a criticism of any of the applicant’s representatives. There is nothing unusual about a ground occurring later in proceedings to a party or their representatives. However, the fact that the proceedings turned upon a ground raised so late in the proceedings, that reasonably ought to have been raised earlier, and which resulted in concession by the Minister of the matter not long after it was raised is, to my mind, relevant to the question of costs.
It is also of some significance that the costs for which the applicant says he is liable in relation to the First Lawyer, together with disbursements such as Court fees, transcription fees and Counsel fees over the years in which the First Lawyer acted for the applicant, total an amount that is less than the amount of $8,371.30 that the Minister says ought to represent a fair and reasonable award of costs in this matter. This is so even if the disbursement of setting down fees is included, which may have been avoided had the ground upon which the applicant succeeded been identified earlier.
I nonetheless accept that the proceedings have involved an inherent level of complexity that is over and above a usual case. In particular, another of the grounds raised in the further amended application (Ground 4) required a detailed, comparative consideration of various lengthy country information reports. The Court Book was over 500 pages, which is on the larger side. Moreover, it was a content heavy Court Book, in the sense that it contained documents such as extensive written submissions and country information that the applicant’s representatives would have needed to have considered quite carefully within the context of his grounds. This may be contrasted, for example, with Court Books that are substantially made up of documents such as lengthy passport photocopies, standard forms, multiple pages of photographs and/or other documents that may have required less attention within the context of the case advanced.
Ground 4 also required the solicitation of evidence regarding the availability of particular country information to the IAA. Whilst I have some qualms about the necessity of approaching this through the drafting of a Notice to Admit, Notice to Produce and correspondence with the Department, I accept that the resolution of this factual inquiry was not entirely straightforward. The advancement of this ground, even in its developmental stage, would have required a considerable amount of work. I accept that this was a ground that was attended by a particular level of legal, procedural and evidentiary complexity.
I also accept that there was nothing unreasonable about the applicant taking such actions as briefing Counsel, obtaining and considering a transcript, and taking other steps towards the identification and development of the grounds that the applicant sought to advance.
Ultimately, taking into account all of the circumstances of this matter, I consider that an award of costs fixed in the amount of $15,000 represents a fair and reasonable indemnity for the applicant’s costs in this matter. I consider that this amount is justified, having regard to the particular procedural, evidentiary and legal complexity of the matter. I am not persuaded that a higher amount is justified, having regard to the matters that I have discussed above.
I do not propose to make any further award or adjustment in relation to the costs application. Neither party had success in relation to their primary positions. I have found that the justice of the case falls somewhere between the secondary positions that were advanced by the parties.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 28 July 2023
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