Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 563
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gehlert v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 563
File number(s): PEG 120 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 29 June 2023 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – costs – whether scale costs ought to be departed from
COSTS – Application for costs above the scale – where judicial review application discontinued by consent order – writs issued – no hearing held – scale costs – where costs scale sum slightly exceeds filing fee – whether scale costs ought to be departed from
Legislation: Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth)
Federal Circuit Court Rules 2011 (Cth)
Federal Court and Federal Circuit Court Regulations 2021 (Cth)
Federal Magistrates (Consequential Amendments) Bill 1999 (Cth)
Federal Magistrates Bill 1999 (Cth)
Federal Magistrates Court Act 1999 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)
Cases cited: AAS17 v Minister for Immigration and Border Protection [2018] FCCA 3119; (2018) 341 FLR 264
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Atkins v Police [2021] SASC 19
AXV16 v Minister for Immigration and Border Protection [2019] FCCA 2707
AZZ17 & Ors v Minister for Immigration and Border Protection [2019] FCCA 889
BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1375
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Bunnag v Minister for Immigration & Anor (No 2) [2008] FMCA 430
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403; (1994) 68 ALJR 374; (1994) 120 ALR 385
Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 781
Cugura v Frankston City Council (No 5) [2012] FMCA 1212
CZB16 v Minister for Immigration and Border Protection [2017] FCCA 2382
DZAAYv Minister for Immigration & Citizenship [2012] FMCA 744
Hinchliffe v University of Sydney [No 2] [2004] FMCA 640
Ko v Minister for Immigration and Border and Protection [2019] FCCA 2176
Konieczka v Police [2006] SADC 288
Ladakh Pty Ltd v Jing Cao (No 2) [2010] FMCA 968
Lamichhane v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1172
M174 of 2003 v Minister for Immigration and Multicultural Affairs [2007] FMCA 45
Meskenas v ACP Publishing Pty Ltd (No 2) [2006] FMCA 1461
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181
Noble v Baldwin (No 2) [2011] FMCA 700
Pierson’s Pro-Health Pty Ltd v Silvex Nominees Pty Ltd (No 3) [2010] FMCA 250
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs & Citizenship [2013] HCA 53; (2013) 251 CLR 322; (2013) 88 ALJR 324; (2013) 304 ALR 135; (2013) 136 ALD 457
Pratt v Latta (No 2) [2002] FMCA 43
Probiotec Limited v University of Melbourne [2008] FCAFC 5; (2008) 166 FCR 30; (2008) 244 ALR 96; (2008) 75 IPR 222
Ryan v Sunshine Coast Hospital and Health Service (No 2) [2021] FCCA 1979
See v Granich & Associates [2008] FMCA 27
Swa v Minister for Immigration and Border Protection [2016] FCCA 437
SZAQH v Minister for Immigration and Citizenship (No2) [2008] FMCA 347
SZHXB v Minister for Immigration and Multicultural Affairs (No 2) [2006] FMCA 1379
SZIPW v Minister for Immigration and Citizenship [2007] FCA 198
SZIPW v Minister for Immigration and Multicultural Affairs [2006] FMCA 1364
SZIRS v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 214
SZLCW v Minister for Immigration [2007] FMCA 1663
SZQOG v Minister for Immigration and Citizenship (No 2) [2013] FCCA 689
SZRTP v Minister for Immigration and Citizenship (No 2) [2013] FCCA 711; (2013) 277 FLR 469
SZSNU v Minister for Immigration, Multicultural Affairs and Citizenship (No 2) [2013] FCCA 1603
SZTWE v Minister for Immigration and Border Protection [2014] FCCA 955
Top Plus Pty Ltd v K Square Pty Ltd (No 4) [2010] FMCA 671
Washington v Qantas Airways Ltd [2014] FCCA 1413; (2014) 107 IPR 144
Zhang v Kanellos & Anor (No. 2) [2005] FMCA 418
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 21 April 2022 Date of hearing: Determined on the papers Place: Perth Solicitor for the Applicant: Estrin Saul Lawyers and Migration Specialists Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 120 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TOOMAS GEHLERT
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
29 jUNE 2023
THE COURT ORDERS THAT:
1.The name of the Minister be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The first respondent pay the applicant’s costs in the sum of $3,930.
3.The parties are to each bear their own costs of and incidental to the costs dispute.
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 LUCEV
INTRODUCTION
This is an application in respect of costs arising from consent orders made by the Court on 8 March 2022 (“Consent Orders”) that writs of certiorari and mandamus issue directed to the Administrative Appeals Tribunal (“Tribunal”) quashing a decision of the Tribunal (“Tribunal Decision”) dated 5 May 2021 to affirm a 16 October 2019 decision by a delegate of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), refusing the grant of a Visitor (Class FA) visa to the applicant, Mr Toomas Gehlert (“Mr Gehlert”), and requiring the Tribunal to rehear the matter. The parties agreed that the issue of costs could be determined on the basis of written submissions filed by the parties.
The originating application was one made under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking judicial review (“Judicial Review Application”) of the Tribunal Decision.
In these Reasons for Judgment the Court will generally refer to the “Court”, including within that term the Court’s previous statutory manifestations as the Federal Magistrates Court and the Federal Circuit Court.
THE COURSE OF THE JUDICIAL REVIEW APPLICATION
The course of the Judicial Review Application was as follows:
(a)it was filed on 9 June 2021;
(b)also filed on 9 June 2021 was an affidavit from a solicitor on behalf of Mr Gehlert, which did no more than annexe the Tribunal Decision;
(c)the Minister filed a response on 14 June 2021 asserting that the Judicial Review Application did not establish jurisdictional error in the Tribunal Decision, and seeking orders that the Judicial Review Application be dismissed, with Mr Gehlert to pay the Minister’s costs;
(d)on 15 July 2021 a Registrar of the Court made standard programming orders (“Registrar’s Orders”), including an order that the first respondent shall file and serve a Court Book, and otherwise including the following orders:
…
3. By 4:00pm on 9 September 2021, the applicant shall file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.
4.By 4:00pm on 9 September 2021, the applicant shall file and serve any affidavit containing any additional evidence upon which the applicant proposes to rely relevant only to the grounds of review.
5.By 4:00pm on 7 October 2021, the first respondent shall file and serve any affidavit upon which it proposes to rely.
6.By 4:00pm 28 days prior to the hearing, the applicant shall file and serve written submissions in support of the application for review.
7.By 4:00pm 14 days prior to the hearing, the first respondent shall file and serve written submissions in respect of the first respondent’s response to the application for review.
8.The application be listed for final hearing before a judge on 22 February 2022 at 10:00am in the Federal Circuit Court of Australia.
(e)the Registrar’s Orders were made without the necessity for appearances by the parties;
(f)on 2 August 2021 the Minister filed a Court Book;
(g)no affidavits were filed by either party;
(h)on 12 October 2021 the parties were advised by the Court that the hearing listed for 22 February 2022 had been relisted to 21 June 2022;
(i)on 4 March 2022 the Minister advised the Court by email that the Minister was “conceding” the matter, and annexed to the email a copy of proposed consent orders;
(j)the Consent Orders were made on 8 March 2022 and were as follows:
The Court orders, by consent, that:
1.A writ of certiorari issue directed to the Administrative Appeals Tribunal quashing the decision of the Administrative Appeals Tribunal dated 5 May 2021.
2.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 16 October 2019 according to law.
3. The first respondent pay the applicant’s costs as assessed by the Court.
And the Court notes that:
A.The first respondent accepts that the second respondent misapprehended the evidence before it in that it read the applicant’s movement records as indicating he held a Bridging (General) (Class WE) visa (Bridging Visa E). The “E” on those records stood for “In Effect”, not Bridging Visa E (at [45]). The applicant in fact held a Bridging (Class WA) visa (Bridging Visa A). This error was material as the second respondent relied on this misapprehension to find that the applicant could apply for a further Bridging Visa E to postpone his departure from Australia, whereas the applicant would be prevented from applying for a Bridging Visa E until his Bridging Visa A ceased to be in effect and he became an unlawful non-citizen.
(k)by email on 17 March 2022:
(i)the Minister advised the Court that the parties proposed that the issue of costs be dealt with by way of written submissions proposed to be filed by Mr Gehlert on 7 April 2022 and by the Minister on 21 April 2022; and
(ii)the Court advised the parties that it was content with their proposal; and
(l)written submissions on costs were filed by Mr Gehlert on 7 April 2022 and by the Minister on 21 April 2022.
The costs orders now sought by the parties are as follows:
(a)by Mr Gehlert: that the Minister pay Mr Gehlert’s costs in the sum of $6,377; and
(b)by the Minister: that the Minister pay Mr Gehlert’s costs in the sum of $3,930, and that the parties each bear their own costs of and incidental to the costs dispute.
SUBMISSIONS
It is unnecessary to set out in detail the parties’ submissions. It suffices to observe that:
(a)Mr Gehlert submits that the scale costs of $3,737 prescribed by Div 1 of Pt 2 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules 2021”) at the time the Consent Orders were made is inadequate in the circumstances of this case, and in particular when regard is had to the filing fee of $3,302 payable under the Federal Court and Federal Circuit Court Regulations 2021 (Cth) (“FCFCC Regulations 2021”) at the time the Judicial Review Application was filed; and
(b)the Minister submits that the scale costs prescribed by Div 1 of Pt 2 of Sch 2 to the GFL Rules 2021 apply to this matter, are inclusive of filing fees, and are adequate in the circumstances of this case.
COSTS IN THIS COURT
Legislative provisions, scale costs and filing fees
Section 214(2) and (3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides 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.
Section 214(2) and (3) of the FCFCOA Act is in the same terms as the former s 79(2) and(3) of both the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Magistrates Court Act 1999 (Cth) (“FMC Act”).
Rule 22.02 of the GFL Rules provides as follows:
(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 22.02 of the GFL Rules is in the same terms as the former r 21.02 of both the Federal Circuit Court Rules 2011 (Cth) (“FCC Rules”) and the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”).
Rule 22.09 of the GFL Rules is in the same terms as the former r 21.10 of both the FCC Rules and the FMC Rules, and is as follows
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 provides as follows:
(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.
Rule 29.13 of the GFL Rules is in Pt 29 of the GFL Rules, which is entitled “Proceedings under the Migration Act 1958”, and is in the same terms as the former r 45.13 of both the FCC Rules and the FMC Rules.
Div 1 of Pt 2 of Sch 2 to the GFL Rules 2021 provides for costs in migration proceedings in this Court that have been concluded, and as at the time of the filing of submissions was in the following terms:
Part 2 – Migration Proceedings
Division 1 -- Migration Proceedings that have concluded
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 $1,572 2 A proceeding concluded:
(a) after the first court date for the proceeding; and
(b) at or before an interlocutory hearing$3,930 3 A proceeding concluded at a final hearing $7,853
Div 1 of Pt 2 of Sch 2 to the GFL Rules 2021 is in the same terms as Div 1 of Pt 3 of Sch 1 to both the FCC Rules and the FMC Rules, save as to quantum of costs which have varied over time. The Court will generally refer to this schedule of costs as the “Migration Costs Scale”.
At the time Mr Gehlert lodged the Judicial Review Application, scale costs for migration proceedings were set out in Div 1 of Pt 3 of Sch 1 to the FCC Rules. The costs for a proceeding concluding after the first court date and before any final or interlocutory hearing were set at $3,737. That rate had been set on, and had not changed since, 13 August 2018. That rate subsequently increased to $3,930 under the GFL Rules with effect from 1 September 2021.
Filing fees
On 1 July 2015 the fee for filing a proceeding (including a migration proceeding) in the then Federal Circuit Court of Australia was set at $600: Federal Court and Federal Circuit Court Regulation 2012 (Cth) (“FCFCC Regulations”), Sch 1 Pt 2 Item 201. This amount was set to increase every year on 1 July according to a formula set out in reg 2.20 of the FCFCC Regulations. As a result of this formula, as at 31 December 2020, the fee for filing a migration proceeding stood at $665.
On 1 January 2021, the fee for filing a migration proceeding under the Migration Act increased to $3,330. This was the filing fee at the time that Mr Gehlert lodged the Judicial Review Application.
The increase in the filing fee effective from 1 January 2021 was the subject of an unsuccessful disallowance motion (“Disallowance Motion”) in the Senate on 23 February 2021: Hansard, 23 February 2021, p 1289.
Making Court rules about costs
At the time the GFL Rules as to costs were made the Parliament had chosen to give the power to make Court rules about costs to the Chief Judge alone: Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) ss 217(1) and 223(b), and before the rule-making power was exercised, the Chief Judge was required to “be satisfied that there has been appropriate consultation with other Judges”: FCFCOA Act, s 218(1). With effect from 18 February 2022 s 218 of the FCFCOA Act was repealed, and s 217(1) of the FCFCOA Act was amended (to provide for the rule making power to be exercised by a majority of Judges of the Court) by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth).
The GFL Rules at issue in this case were made after the increase in the filing fee that forms the basis of Mr Gehlert’s application for costs above the Migration Costs Scale.
General rule
The general rule in this Court, as in most other courts, is that costs follow the event: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs & Citizenship [2013] HCA 53; (2013) 251 CLR 322; (2013) 88 ALJR 324; (2013) 304 ALR 135; (2013) 136 ALD 457 at [241] per Kiefel and Keane JJ, and that unless the Court otherwise orders, a party is entitled to costs in a proceeding in accordance with the relevant schedule of the GFL Rules 2021: Hinchliffe v University of Sydney [No 2] [2004] FMCA 640 (“Hinchliffe [No 2]”) at [10] per Driver FM; Pierson’s Pro-Health Pty Ltd v Silvex Nominees Pty Ltd (No 3) [2010] FMCA 250 (“Pierson’s Pro-Health (No 3)”) at [43] per Lucev FM; Ryan v Sunshine Coast Hospital and Health Service (No 2) [2021] FCCA 1979 at [14] per Judge Jarrett.
Parliamentary intention
In Second Reading Speeches on the:
(a)Federal Magistrates Bill 1999 (Cth) (“FM Bill”) the then Attorney-General referred to the intention that this Court deal with matters as “cheaply as possible”: Hansard, 24 June 2999, p 7367; and
(b)FM Bill and Federal Magistrates (Consequential Amendments) Bill 1999 (Cth) the then Attorney-General referred to the Court providing a “cheaper, simpler” means of dispute resolution: Hansard, 19 October 1999, p 11867.
Costs scales generally
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.
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.
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.
Costs - migration
Generally
Costs in migration proceedings are prescribed by the Migration Costs Scale, but costs may be awarded in an amount greater or lesser than the prescribed amount in the exercise of the Court's discretion under s 214(2) and(3) of the FCFCOA Act and r 22.02 of the GFL Rules. The circumstances need not be exceptional, but rather such as justifiably or reasonably warrant the setting of costs in an increased or decreased amount: Bunnag v Minister for Immigration (No 2) [2008] FMCA 430 at [18] per Lucev FM (“Bunnag (No 2)”); Swa v Minister for Immigration and Border Protection [2016] FCCA 437 at [23] per Judge Lucev. In Noble v Baldwin (No 2) [2011] FMCA 700 at [9] Barnes FM noted that provisions such as r 29.13(3) of the GFL Rules give the Court an “unfettered” discretion to award costs, “provided such discretion is exercised judicially and in the context of the relevant court rules”: see also Washington at [54] per Judge Nicholls.
In DZAAYv Minister for Immigration [2012] FMCA 744 (“DZAAY”) at [36]-[41] per Brown FM the Court said:
36.Accordingly, it is frequently the case in matters involving judicial review of decisions arising under the Migration Act that either directly or indirectly both parties are funded by the public purse.
37.In addition, it is a frequent occurrence that the applicants for refugee status are being held in refugee detention. In these circumstances, it behoves everyone concerned with such matters to act expeditiously. In this regard, as a model litigant, officers of the Commonwealth are both required and encouraged to concede promptly in cases where error is acknowledged to have arisen.
38.In exercising its jurisdiction in these types of matter, the court has adopted a practice of awarding fixed event costs to the Minister, in cases where the Minister is successful in resisting the claim of jurisdictional error. The success of the Minister in these cases cannot be regarded as an isolated or extraordinary occurrence.
39.The reality of these cases is that the Minister is unlikely to ever recoup these costs, given the indigent circumstances of the applicants concerned. The award has potentially only administrative significance in the event of any future application under the applicable legislation by the person concerned.
40.In a jurisdiction characterised by a high volume of matters, where the majority of the parties concerned are publicly funded in some form or other, it is likely to be helpful to the parties concerned that there is a consistency in the amounts of costs awarded, regardless of which party is ultimately successful. Such an approach is also likely to be supportive of an expeditious resolution of matters, which is also in the public interest.
41.In all the circumstances of these cases, it seems to me to be a proper exercise of my discretion to award costs that I adopt a practice which is consistent with what occurs when the Minister is successful on judicial review. That is costs are awarded in accordance with the fixed event scale arising under the Federal Magistrates Court Rules.
In SZRTP v Minister for Immigration and Citizenship (No 2) [2013] FCCA 711; (2013) 277 FLR 469 (“SZRTP (No 2)”) at [45] per Judge Nicholls the Court did not accept that the Migration Costs Scale is “to be rigidly applied”.
In AAS17 v Minister for Immigration and Border Protection [2018] FCCA 3119; (2018) 341 FLR 264 (“AAS17”) at [46]-[47] per Judge Riethmuller the Court said (emphasis added):
46.In this matter, the applicant has been successful. I am persuaded that the applicant's costs should be met by the first respondent. The scale fee is $7,467.00. Having regard to the Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt.3, Div.1 of the court scales, there is no provision in migration matters for disbursements to be separately assessed in the way that occurs with respect to Pt.1 of the scale that applies to costs generally, or Pt.2 for child support proceedings.
47.In these circumstances, I am persuaded that $7,467.00 (which is Item 3) is inclusive of filing fees. It may be that if a person has been exempted from a filing fee, that figure ought to be reduced by the amount of the filing fee ordinarily paid. That is not the situation here, so I therefore order costs in the sum of $7,467.00.
When considering the Migration Costs Scale (as set out at [14] above) the Federal Court said in BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1375 (“BEG17 (No 2)”) at [8] per Perry J that:
8.In those circumstances, I agree with the Minister's alternative submission that the appropriate order is that the first respondent pay the appellants' costs in the Federal Circuit Court fixed in the sum of $7,467.00. As the Minister submitted, this is the amount allowable under r 44.15(1) and Sched 1 Part 3 Div 1 of the Federal Circuit Court Rules 2001 (FCC Rules) for migration proceedings that were concluded at a final hearing and is the amount ordered in favour of the first respondent below. Assessing the appellants' costs in the Federal Circuit Court in this way is, in my view, fair, efficient and cost effective in all of the circumstances. While in the notice of appeal, the appellants sought costs in the Federal Circuit Court "fixed in the sum of $8,877.00 (consisting of the filing fee of $615, setting down for hearing fee of $795 and professional costs of $7,467 for the hearing", no evidence was led in support of the proposition that an order for costs in excess of the amount allowable under the FCC Rules was warranted.
BEG17 (No 2) is of limited assistance in this case as it was decided on the basis of a lack of evidence: at [8] per Perry J (“no evidence was led”) without the necessity to address a critical issue in these proceedings (and one addressed in AAS17), namely, whether the costs in the Migration Costs Scale are inclusive of filing fees.
Costs above scale
This Court has, on occasion, exercised the discretion in migration matters to award an amount higher than the prescribed amount in the Migration Costs Scale. The occasions are rare, and some examples are set out hereunder. The examples do not purport to be a complete list, but given the tens of thousands of migration judicial review proceedings determined by this Court over more than two decades, the limited number of such cases highlights the fact that costs above scale are the exception not the norm in this Court: Pierson’s Pro-Health Pty Ltd (No 3) at [43] per Lucev FM.
In SZIPW v Minister for Immigration and Multicultural Affairs [2006] FMCA 1364 (“SZIPW-FMC”) an application was made for costs in the sum of $6,000.00. The Federal Magistrates Court said that costs “at this stage [following a show cause hearing and final hearing] of a migration proceeding would ordinarily be $5,000.00”: at [14] per Driver FM, but that where costs exceeded $5,000.00 a party was entitled to request an order that costs be fixed in a higher amount under r 21.02(2)(a) of the FMC Rules: at [15] per Driver FM. The Court ordered payment of the $6,000.00 costs because it accepted that “it was appropriate for the Minister to be represented by counsel both at the interlocutory hearing and at the final hearing”, because the “amended application was detailed” and “the Minister was required to show cause on one issue, and potentially required to show cause on a second issue, which resulted in the Minister incurring additional expense.”: at [16] per Driver FM. There was an unsuccessful appeal by the applicant in SZIPW-FMC, but it did not deal with the issue of costs: SZIPW v Minister for Immigration and Citizenship [2007] FCA 198.
In SZHXB v Minister for Immigration and Multicultural Affairs (No 2) [2006] FMCA 1379 at [11]-[16] per Judge Nicholls the Court ordered the payment of $7,000.00 in costs where:
(a)the Court Book was extensive (532 pages) and the applicant’s written outline of submissions were also lengthy, but not inordinately so;
(b)the Minister was required to check the transcript of the hearing before the Refugee Review Tribunal and put on an affidavit annexing an amended version of the transcript;
(c)there was a Notice to Produce directed to the Minister, which was not held to have put the Minister to extraordinary expense, and compliance with which did not have appear to have significantly troubled the Minister in terms of additional work or compliance;
(d)there was an “unusual issue” which arose concerning the constitution of the Tribunal which it was open for the applicant to press;
(e)a hearing listed for two hours, but which lasted for three hours, was not shown to have incurred additional costs; and
(f)there was an amended application removing two of the three grounds in the originating application to the Court, and providing two sufficiently particularised grounds to enable a proper response, but all within the timetable set by the Court at the first court date,
and the Court held that “some of the[se] features”, which it did not specifically identify, supported an argument for an additional award of costs.
In M174 of 2003 v Minister for Immigration & Anor [2007] FMCA 45 the Court allowed costs and disbursements of $12,360.90, and said at [42] per McInnis FM:
42. On those occasions, however, when additional costs have been incurred, parties are still able to invite the court to exercise the power it undoubtedly has, pursuant to Division 21.02 of the Rules, to set the amount of the costs and disbursements. It is noted that the court otherwise has a residual power, pursuant to Rule 1.06, to dispense with compliance or full compliance with any of the Rules at any time in the interests of justice. For my part, however, I regard the exercise of a power dispensing with Rules in the interest of justice in relation to costs matters as being a power, along with the power to fix costs in migration matters, which would only be exercised in what I would describe as exceptional circumstances.
In SZLCW v Minister for Immigration [2007] FMCA 1663 the Court observed that where proceedings were an abuse of process, and that as a result additional costs had been incurred beyond those provided by the Migration Costs Scale, it was appropriate that costs awarded properly represent such expenses: at [11]-[12] per Cameron FM.
In SZAQH v Minister for Immigration and Citizenship (No2) [2008] FMCA 347 costs in the sum of $15,000.00 were awarded. In awarding costs the Federal Magistrates Court noted that:
(a)it was an unusual case;
(b)it involved consideration of a considerably greater amount of work and documentation than an average migration matter;
(c)was a case where it was appropriate to brief counsel, and counsel of seniority;
(d)the amended application was “quite substantial” and contained twenty nine grounds of review; and
(e)the decision was reserved over a significant period of time in order that the applicant's case could be considered: at [2] per Scarlett FM.
In Bunnag (No. 2):
(a)there were two hearings of about the usual longest length for a migration hearing;
(b)the second hearing was entirely caused by the new issues raised, without notice (or at the very least with practically no notice) by the applicant at the first hearing;
(c)the second hearing was argued on the basis of a second amended application which added four further grounds to the application making eleven grounds in total;
(d)the second hearing required the filing of further submissions on the new grounds of application, which submissions were reasonably substantial in themselves;
(e)the matter was one of more than the usual complexity - with eleven grounds of review;
(f)the Court Book was quite long, but not overly so, at 387 pages;
(g)the Minister had to deal with a freedom of information request resulting in the production of further emails and material to which the Court did not have regard, and likewise affidavits filed by the applicant to which the Court did not have regard, but which the Minister had to consider; and
(h)counsel of some seniority were involved: at [50] and [53] per Lucev FM.
In concluding in Bunnag (No 2) that it was appropriate to award an amount of $10,000 (that is double the then prescribed amount for migration proceedings) the Court at [54] per Lucev FM observed that:
54.An analysis which says that there were two hearings and therefore $10,000.00 is the appropriate award of costs is too simplistic. However, having regard to the nature of these hearings - that is, two discrete hearings arising from what can almost be characterised as two discrete applications - and to the additional matters referred to above, including the number of grounds of the application, the relative complexity of the matter, the length of the Court Book and the requirement for the Court, and the First Respondent, to deal with material which the Court did not ultimately have to have regard to, the Court considers that it is appropriate to award an amount of $10,000.00 in costs to the First Respondent.
In SZQOG v Minister for Immigration and Citizenship (No 2) [2013] FCCA 689 the Court again doubled the prescribed amount set for migration proceedings, awarding a sum of $13,292: at [5]-[7] and [9] per Judge Lucev, in circumstances where:
(a)the applicant’s submissions were very lengthy for a migration judicial review application running to 62 pages, and the submissions in respect of the first ground of review, at 26 pages, were as long as the decision the subject of the judicial review application;
(b)as a consequence of the length and detail of the submissions the hearing was at least twice as long as a usual migration judicial review hearing, with the Court noting that the applicant disregarded the often invoked principle that the reasons of an administrative decision-maker are meant to inform and not to be scrutinized in an over-zealous fashion, but that in this case minute examination and re-examination by the applicant essentially amounted to a case where the facts were sought to be impermissibly reviewed as merits review rather than judicial review; and
(c)significant additional evidence was tendered in the proceedings, not all of it related to the decision under review, and objections to the additional evidence were, by and large, upheld by the Court, but even if not upheld because of their length would have resulted in significant additional work in any event.
In SZRTP (No 2) in awarding slightly more than $3,000 over the Migration Costs Scale prescribed amount the Court observed that:
(a)the discretion with respect to costs is not to be exercised capriciously, but rather judicially, having regard to the relevant rules of Court: at [12] per Judge Nicholls;
(b)the Migration Costs Scale is not to be rigidly applied: at [45] per Judge Nicholls;
(c)the Migration Costs Scale is a guide to what may generally be considered to be reasonable in the matters to which it applies, and the Court’s discretion may be exercised with reference to the actual circumstances presented in each case: at [47] per Judge Nicholls; and
(d)there was additional work required to be done by the Minister as a result of there being several iterations of the judicial review application, and because it also evolved further during the hearing: at [56] per Judge Nicholls.
In SZSNU v Minister for Immigration, Multicultural Affairs and Citizenship (No 2) [2013] FCCA 1603 the Court awarded $10,706 in costs, being $4,060 above the scale amount: at [9] and [11]-[12] per Judge Manousaridis, where the Minister had to:
(a)review the transcript of the Tribunal hearing tendered by the applicant against the audio recording of the Tribunal hearing for accuracy;
(b)consider certain passages in the audio recording of the Tribunal hearing as the applicant relied on the “tone” of what was said in the Tribunal hearing; and
(c)respond to post-hearing written submissions: at [8] per Judge Manousaridis.
In SZTWE v Minister for Immigration and Border Protection [2014] FCCA 955 the Court, in dismissing an application for non-appearance by an applicant, found that it was appropriate that an order for costs above scale be made given the size of the Court Book, and the fact that multiple copies of the Court Book were produced, filed and served by the Minister: at [7] per Judge Nicholls.
In CZB16 v Minister for Immigration and Border Protection s[2017] FCCA 2382 at [25]-[26] per Judge Reithmuller the Court adopted what was said in SZRTP and SZSNU, and found in favour of the applicant who sought costs above scale in order to include the costs of the preparation of the transcript of the Tribunal hearing.
In AZZ17 & Ors v Minister for Immigration and Border Protection [2019] FCCA 889 (“AZZ17”) at [64] per Judge Humphreys the Court simply indicated that it was not prepared to order costs above the Migration Costs Scale, and ordered payment by the applicant to the Minister of $8,322.16, being the Migration Costs Scale amount of $7,006 and the costs of the checked translation of the Tribunal proceedings of $1,116.16, without further explanation.
In AXV16 v Minister for Immigration & Anor [2019] FCCA 2707 the Court was satisfied that it was appropriate to make an order for costs sought by the Minister in the sum of $9,500 because the additional costs were reasonably and properly incurred by the Minister:
(a)in filing a complete transcript of the Tribunal hearing in circumstances where the applicant had filed a partial transcript of the Tribunal hearing (less than ten per cent thereof), and where the Minister argued successfully that the whole of the transcript was necessary to understand the applicant’s case that the Tribunal had failed to do certain things: at [11]-[15] per Judge Mercuri; and
(b)in preparing additional submissions in relation to a Federal Court judgment handed down on the morning of the Court hearing, and which the applicant had argued had some relevance to the proceedings: at [16]-[24] per Judge Mercuri.
Costs and disbursements on the Federal Court scale
In Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 781 (“Chen”) the parties recognised that the recoverable costs would be above the Migration Costs Scale and, rather than seek to quantify them, they agreed to a generic costs order: Chen at [70] per Judge Driver as follows:
70.The applicant shall pay the costs and disbursements of the first respondent in relation to the application as agreed, or, in the absence of agreement, as assessed and if necessary taxed in accordance with the Federal Court Rules 2011 (Cth).
For a migration judicial review proceeding the order in Chen is unusual in two respects:
(a)first, it orders costs and disbursements to be paid; and
(b)second, it orders that in the absence of agreement costs and disbursements be assessed, and if necessary taxed, in accordance with the Federal Court Rules 2011 (Cth), rather than there being an award of costs on the Migration Costs Scale.
An order for costs above the Migration Costs Scale might have been explicable in Chen by reason of the fact that the hearing was conducted over two days, but, in the absence of reasons by the Court, the only rational explanation for the unusual form of the order is the fact that it was what was agreed to by the parties.
No costs awarded
In SZIRS v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 214 at [53] per Lucev FM the Court, having granted prerogative relief to the applicant, observed that ordinarily the applicant would be entitled to costs, however, because:
(a)a relevant issue was not raised by the applicant until the hearing of the matter, and the failure to raise it was seemingly deliberate and based on legal advice, and the issue ought properly have been raised earlier to enable the respondents to give consideration to their position prior to any hearing, which had the consequence of the scheduling of a further hearing; and
(b)the applicant failed to comply with orders made for filing of a further amended application and relevant affidavits prior to the hearing, with the consequence that the hearing was longer than it ought to have been,
the Court exercised its discretion to make an order that there be no order as to costs: at [54] per Lucev FM.
Costs less than scale awarded
The Court notes that the Minister frequently seeks, and is granted, costs in an amount less than that prescribed by the Migration Costs Scale. This practice (for it occurs frequently enough to be described as such) has not, to the best of the Court’s knowledge, been the subject of explanation by the Minister to the Court, nor does it appear to have been the subject of judicial consideration by the Court.
CONSIDERATION
In essence, Mr Gehlert submits that costs under the Migration Costs Scale in this matter are inadequate because of the quantum of the filing fee payable upon the filing of the Judicial Review Application.
There is no question that the Court has the power, in the exercise of its broad discretion to award costs, to order that costs above the Migration Costs Scale be ordered in migration judicial review proceedings: FCFCOA Act, s 214(2), the power to do so not being limited by s 214(3) of the FCFCOA Act, when read in conjunction with r 29.13 of the GFL Rules, as read with rr 22.02(2) and 22.09 of the GFL Rules. The Court has therefore, occasionally, made orders for costs above the Migration Costs Scale in migration judicial review proceedings: see [34]-[47] above. The question is whether, in the exercise of its discretion, the Court should do so in these proceedings, effectively to allow Mr Gehlert to recover his filing fee. The answer is “No”, for the reasons set out below.
First, recovery of disbursements (and in particular and relevantly filing fees) as part of costs orders in migration judicial review proceedings are not specifically provided for by r 29.13 of the GFL Rules which provides for costs orders in migration judicial review proceedings in the amounts prescribed by the Migration Costs Scale (that is, Div 1 of Pt 2 of Sch 2 to the GFL Rules). By contrast, the recovery of disbursements are specifically provided for in general federal law proceedings other than migration: GFL Rules, r 22.09(b), and see also item 11 of Pt 1 of Sch 2 to the GFL Rules which expressly provides for the recovery of disbursements, including “Court fees and other fees”. Separate provision for filing fees was also made in the costs scale included in another set of Court rules, the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) at Item 16 of Sch 1. It is evident that when making the GFL Rules at issue in these proceedings consideration must have been given to whether scale amounts should or should not include filing fees in particular kinds of proceedings. The exclusion of disbursements from the Migration Costs Scale is indicative of an intent that disbursements generally, including filing fees, not be included in costs awards for migration judicial proceedings.
Second, although there have been some occasions where disbursements have been ordered to be paid, such as for the cost of larger than average Court Books, the preparation of transcript of Tribunal hearings, or the translation of documents put in evidence before the Court or the Tribunal, or which appear in the Court Book, there does not ever appear to have ever been a specific order for the payment of filing fees in an award of costs in migration judicial review proceedings in this Court.
Third, the unifying feature of all the cases where costs above the Migration Costs Scale have been awarded by this Court in migration judicial review proceedings is that there is some matter arising after the judicial review application has been filed, that is, in the course of the litigation after it has been initiated, which warrants the award of an amount above the Migration Costs Scale. Many of those matters are set out in the cases cited at [34]-[47] above, but they include:
(a)the necessity to be represented by Counsel in particular matters (and in particular in some matters, the seniority of Counsel);
(b)whether further, or more than normal, additional work, including amended responses or further submissions, is required of the Minister arising from:
(i)the complexity of the judicial review application;
(ii)the length of, or number of grounds in, a judicial review application;
(iii)whether a judicial review application has been through a number of iterations;
(iv)the size of the Court Book;
(v)the tendering of further evidence and having to deal with objections thereto;
(c)the checking of Tribunal hearing transcripts where they are tendered in proceedings;
(d)the length of the hearing or hearings (often associated with factors referred to in (b) above); and
(e)whether the proceedings are an abuse of process.
It suffices to observe that:
(a)the “unifying factor” is absent here: the basis for the additional costs sought by Mr Gehlert being the filing fee payable on the filing, and thus the initiation, of the Judicial Review Application; and
(b)none of the matters referred to in [57(a)-(e)] above are applicable in this matter.
Fourth, where above scale costs have included disbursements, such as the cost of larger than average Court Books, the preparation of transcript of Tribunal hearings, or the translation of documents put in evidence before the Court or the Tribunal, or which appear in the Court Book, they have only included disbursements incurred in the course of the litigation after the originating application has been filed.
Fifth, the Court’s judgment in AAS17 in which the Court was persuaded that the Migration Costs Scale was inclusive of filing fees is not obviously wrong: at [46] per Judge Reithmuller, and in the Court’s view is correct, and ought therefore to be followed as a matter of the desired and expected comity between first instance judges in the same court: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [21]-[22] per Allsop CJ; See v Granich & Associates [2008] FMCA 27 at [17] per Lucev FM; Lamichhane v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1172 at [16] per Judge Raphael; Ko v Minister for Immigration & Anor [2019] FCCA 2176 at [15] per Judge Lucev. Further, there is nothing in the text of Div 1 of Pt 2 of Sch 2 to the GFL Rules to suggest that the costs specified in the Migration Costs Scale are exclusive of filing fees.
Sixth, there are reasons associated with the conduct of litigation in this Court that would tell against an application for costs possibly, or arguably, including the filing fee, either in this matter, or generally, in proceedings brought in this Court. Pursuant to the provisions of s 190(1) of the FCFCOA Act the overarching purpose of the civil practice and procedure provisions (which include the GFL Rules: FCFCOA Act, s 190(4)(a)) includes the facilitation of the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
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.
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.
Pursuant to s 190(2) of the FCFCOA Act the objects of the overarching purpose of the civil practice and procedure provisions are as follows:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Further litigation on costs in judicial review migration proceedings, such as might arise from consideration in individual cases of whether filing fees are recoverable as costs, would not be conducive to the conduct of that litigation in accordance with the overarching purpose under the FCFCOA Act as it would likely:
(a)encourage litigation over the payment of other filing and administrative costs (for example, for amended originating applications, responses and hearing setting down fees), which would result in the commitment of additional judicial and administrative time for these matters to dealt with by the Registry, a Registrar, and, if necessary, a Judge;
(b)by encouraging litigation over the payment of other filing and administrative costs, create uncertainty in every migration judicial review proceeding as to a party’s ultimate liability for costs, and hence uncertainty as to the ultimate disposition of those proceedings;
(c)increase the expense of migration proceedings, at least for the Minister (and hence the taxpayer) in cases where the Minister was unsuccessful; and
(d)increase the overall time required to dispose of the Court’s migration judicial review caseload by reason of additional argument and hearings,
contrary to the intent of s 190(2)(b)-(e) of the FCFCOA Act.
The matters in the preceding paragraph also need to be considered against the backdrop of migration judicial review proceedings in this Court being high volume litigation, by number of applications, of increasing procedural complexity and increases in the time necessary to hear and conduct cases: witness the matters now seemingly required to be put to self-represented applicants prior to migration judicial review hearings as set out in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J. Further complexity arising from arguments about the costs of disbursements in individual cases does not need to be unnecessarily overlaid on an already increasingly complex litigation process in migration judicial review proceedings. Doing so would be antithetical to the quicker, cheaper, simpler objective which has traditionally underpinned this Court’s costs processes: see the references to Hansard at [23(a)] above, and Maskenas (No 2) at [5] per Raphael FM; Top Plus at [7] per Raphael FM, and now reinforced by the “as quickly, inexpensively and efficiently as possible” purpose provided for in s 190(1)(b) of the FCFCOA Act.
Seventh, there is no matter arising after the filing of the Judicial Review Application, that is, in the course of this proceeding after it has been initiated, which warrants the award of an amount above scale costs, and whilst Mr Gehlert correctly submits that the Court has power to depart from the Migration Costs Scale in an appropriate matter, nothing in Mr Gehlert’s submissions assert that there is some factor about this particular matter, separate from his payment of the filing fee and matters related thereto, that means costs should be awarded in excess of the Migration Costs Scale amount. Further, the Court notes that:
(a)in relation to Mr Gehlert’s representation by lawyers in these proceedings the quantum of legal fees incurred by Mr Gehlert has in this matter has not been the subject of any evidence or submission;
(b)this was not an unusually complicated or labour-intensive proceeding matter, as evidenced by:
(i)the Judicial Review Application containing two grounds totalling approximately one page in length. The first ground is a “no evidence” ground directed to two paragraphs of the Tribunal Decision: CB 133 at [46]-[47], whilst the second ground raises a narrow question of law;
(ii)the only evidence filed by Mr Gehlert was an affidavit which did no more than annex the Tribunal Decision, and it can be inferred that no further evidence was, in Mr Gehlert’s view, necessary to make good his case;
(iii)the Court is unaware as to whether Mr Gehlert engaged Counsel in addition to his solicitors, and there is no evidence of the involvement of Counsel in the proceedings, including in the preparation of any relevant documents;
(iv)the evidence is otherwise quite confined, and the Court Book is less than 150 pages;
(v)the Registrar Orders were made in Chambers without the necessity for an appearance by any party; and
(vi)by reason of the Consent Orders which brought the matter to a conclusion at an early stage by the issuance of prerogative writs, Mr Gehlert did not, or was not required to, comply with any of the Registrar’s Orders.
Eighth, the Migration Costs Scale is not unjust or unfair as submitted by Mr Gehlert as:
(a)it is a scale that applies equally to all applicants in Mr Gehlert’s position;
(b)it is a scale the amounts in which were prescribed by the Court after the filing fees were set; and
(c)importantly, the filing fees were the subject of the Disallowance Motion, which was unsuccessful in the Senate. Thus, the Migration Costs Scale when considered in conjunction with the filing fee, is a scale which has the imprimatur of the Court, whilst the filing fee has the imprimatur of not just the Court, but also the Parliament (or at least one House thereof), and the filing fees can be taken to be considered appropriate by the bodies entrusted with respectively setting and disallowing them, in circumstances where both the Court and the Senate must be taken to be aware of the Migration Costs Scale.
Ninth, even if the Migration Costs Scale had failed to keep pace with actual costs incurred by litigants in migration judicial review proceedings in this Court that would not, of itself, be an appropriate basis to depart from the scale. In Konieczka v Police [2006] SADC 288 at [32] per Perry J (with Nyland and Sulan JJ concurring at [44] and [45] respectively) dealing with a submission that a magistrates court criminal costs scale was uncommercial and wholly inadequate for work undertaken, the Supreme Court of South Australia observed that:
32.If the First Schedule costs have drifted out of touch with the actual costs of litigation, that may justify a review of the schedule, but the level of fees in the schedule must remain the norm unless it is amended.
Finally, it is reasonably clear that this was a simple run-of-the-mill migration judicial review proceeding dealt with relatively swiftly, essentially by the parties themselves with limited involvement from a Registrar, and there is nothing which warrants a departure from the Migration Costs Scale: Atkins v Police [2021] SASC 19 at [35] per Parker J.
CONCLUSION AND ORDERS
The Court has concluded that Mr Gehlert has failed to make out a case that costs above those in prescribed in the Migration Costs Scale are warranted in this matter. It follows that there will therefore be orders that:
(a)the Minister pay Mr Gehlert’s costs in the sum of $3,930.
(b)the parties are to each bear their own costs of and incidental to the costs dispute.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 29 June 2023
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