FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2022] FedCFamC2G 1007

Federal Circuit and Family Court of Australia

(DIVISION 2)

FJS18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FedCFamC2G 1007

File number(s):

SYG 2890 of 2018

Judgment of:

JUDGE EGAN

Date of judgment:

1 December 2022

Catchwords:

MIGRATION– COSTS – Whether clear and succinct reasons or evidence given by applicant so as to warrant the Court’s exercise of discretion to make a costs order other than that costs be paid in accordance with the scale of costs set out in Division 1 of Part 2 of Schedule 2 to the Rules – where no clear and succinct reasons or evidence provided – order that costs be paid in accordance with the scale of costs as set out in the Schedule.

Legislation:

 Federal Court Rules 2001 (Cth) Part 40

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 22.02(2)(b) and (c), Division 1 of Part 2 of Schedule 2

Division:

Division 2 General Federal Law

Number of paragraphs:

15

Date of last submission/s:

29 November 2022

Date of hearing:

28 November 2022

Place:

Brisbane

Solicitor for the Applicant:

Mr Varess of Varess

Solicitor for the First Respondent:

Ms Laizans of MinterEllison

The Second Respondent:

No appearance, save as to costs.

ORDERS

SYG 2890 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FJS18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE EGAN
DATE OF ORDER:	1 December 2022

THE COURT ORDERS THAT:

1.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review fixed in the amount of $7,853.00.

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 28 November 2022, the Court handed down judgment on the substantive application filed in this matter, granting the relief sought by the applicant.

2. It was submitted on behalf of the applicant that the appropriate costs order consequent upon the handing down of judgment in the applicant’s favour ought to be that costs be “as agreed between the parties, or taxed under Part 40 of the Federal Court Rules 2001 (Cth).” It was submitted that the Court had power to make such an order pursuant to the provisions of r. 22.02(2)(b) and (c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules).

3. It was submitted on behalf of the first respondent that the appropriate costs order ought to be that the quantum of costs payable to the applicant be in the scale amount of $7,853.00, as provided for in Division 1 of Part 2 of Schedule 2 to the Rules.

4. In an affidavit affirmed by one Farid Varess and filed on 28 November 2022, it was estimated by him that the applicant’s costs, if taxed under Part 40 of the Federal Court Rules 2001, would equate to approximately $25,700.00 – that being about 78% of the total solicitor/client costs incurred in the matter, which costs were claimed to be in the amount of $32,949.94.

5. The Court noted that an Originating Application was filed on 9 October 2018 whilst the applicant was represented by Mr Varess who was then in the firm Fragomen. The Court further noted that a Notice of Appointment of Lawyer was filed on 6 December 2018, and that a Notice of Change of Lawyer was filed on 13 December 2018. Mr Varess was recorded as being the applicant’s new lawyer, and he continued to appear on file as the applicant’s lawyer until judgment.

6. An Amended Application for Review was filed on 24 November 2021, more than three years after the filing of the Originating Application for Review. That Amended Application included the ground of review which was upheld by the Court. The Court infers, therefore, that for more than a three year period, the attention of the lawyers representing the applicant was directed toward obtaining relief which was ultimately abandoned in favour of the relief sought in the Amended Application for Review.

7. By [5] of the affidavit of Mr Varess, it was represented that Annexure A to his affidavit was an itemised record of the solicitor/client costs incurred by the applicant whilst he was represented by Fragomen Lawyers, but such affidavit as filed did not contain any such annexure. In such circumstances, the Court was unable to assess the claim that the solicitor/client costs of Fragomen Lawyers was in fact in the amount of $4,038.98 as claimed or not.

8. As a consequence, and though by [6] of the affidavit of Mr Varess it was represented that Annexure D to his affidavit constituted an itemised record of the solicitor-client costs incurred by the applicant since he had been represented by Mr Varess, it is unclear to the Court as to whether such costs included costs incurred from the time of commencement of legal representation of the applicant by the firm Fragomen, prior to the filing of the Notice of Change of Lawyer, or whether the itemised costs annexed to the affidavit only commenced after such change of representation. In that regard, the first date itemised as representing a charge in Annexure D to the affidavit was 14 December 2018. Subsequent items appearing as fees claimed to be payable seem to have been included up until 20 July 2021, but there is then a date gap until the next entry of 7 June 2022.

9. The Annexure D costs as itemised in the affidavit total the sum of $7,897.00. Even if claimed outlays are added to such sum, the total of such solicitor/client costs is far less than the $32,949.94 as claimed.

10. Nowhere in the affidavit of Mr Varess was it affirmed that the charge out rate for any listed cost item in Annexure D was reasonable having regard to the nature of the work said to have been performed. For example, the Court was not informed as to why it was reasonable for the sum of $65.00 to be charged for “Activity report email from Court” on 30 January 2019, whatever that meant. Neither was the Court informed as to why it was reasonable for there to be a charge of $65.00 for the review of emails from and to Mr Mostafa of Counsel and Ms Costello of Queens Counsel on 7 October 2022. Neither was any attempt made to annex a costs assessment from a costs assessor, being a person skilled in the assessment of Court legal costs, either on a party/party basis or on a solicitor/client basis.

11. In an application for costs such as the present, it is essential that the Court be presented with clear and succinct evidence as to why it ought to exercise its discretion on the question of costs in favour of one of the parties to the proceeding. The applicant has not presented such evidence to the Court.

12. It is trite that the awarding of costs is in the discretion of the Court. Scale costs are a good reflexion of what quantum of costs ought properly to be ordered consequent upon the handing down of judgment in a proceeding. What one Judge might have found warranted the handing down of a particular costs order in a particular matter, and the reasons for their having done so, is irrelevant to this Court’s consideration of what is a fair and just costs order in this matter.

13. There was only one occasion on which the matter was heard as a final hearing. The Grounds of Review ultimately considered by the Court in the Amended Application were neither novel nor exceptional. The matter was not factually complicated.

14. The Court finds that there is no good reason for costs to be assessed as submitted on behalf of the applicant.

15. It is ordered that the first respondent pay the applicant’s costs of and incidental to the Application for Review fixed in the amount of $7,853.00.

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

Associate:

Dated:       1 December 2022