Hewavasam v Minister for Immigration
[2004] FMCA 415
•28 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEWAVASAM v MINISTER FOR IMMIGRATION | [2004] FMCA 415 |
| MIGRATION – PRACTICE AND PROCEDURE – Costs – discontinuance. |
Oshlack v Richmond River Council (1998) HCA 11
De Silva v Minister for Immigration and Multicultural Affairs (31 March 1998 unreported)
Seevarajah Selliah v Minister for Immigration and Multicultural Affairs (1998) 469 FCA (5 May 1998)
| Applicant: | VARUNA PRIYANTHI HEWAVASAM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1166 of 2002 |
| Delivered on: | 28 June 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 May 2003 |
| Date of Last Submissions: | 30 May 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Ms J Davis |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant shall pay the respondent's costs fixed in the sum of $4500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1166 of 2002
| VARUNA PRIYANTHI HEWAVASAM |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter orders were made by the court that the applicant be granted leave to discontinue an application seeking review of a decision by the respondent refusing the granting of a family (residence) visa to the applicant. The only issue remaining is one of costs. Both parties were given the opportunity to file and serve written submissions on that issue.
The respondent submitted that costs should follow the event (see Oshlack v Richmond River Council (1998) HCA 11 per Brennan CJ and McHugh J at paragraphs 3 and 66-7, Gaudron and Gummow JJ at paragraph 35 and Kirby J at paragraph 134).
It was submitted that the court has an unfettered discretion whether to make an order as to costs, although it must be exercised judicially in accordance with established principles and factors directly connected with the litigation. Reference was made to a decision of Merkel J in De Silva v Minister for Immigration and Multicultural Affairs (31 March 1998 unreported) where his Honour states the following:
“It is well-established that the court has an absolute and unfettered discretion to make orders as to costs, but the discretion must be exercised judicially. In some cases the court may be justified in departing from the usual orders in relation to costs when the justice of the case so requires because of a "special or unusual" feature; see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 733; or because of 'exceptional or special' circumstances: Oshlack v Richmond River Council (1998) HCA 11 at 135 and 143 per Kirby J.”
It was submitted by the respondent that "special or unusual" features and "exceptional or special circumstances" justifying a departure from the usual orders are to be determined by reference to factors that arise from and are directly connected to the litigation and not factors that arise from the personal circumstances of an applicant (see, for example, the decision of R.D. Nicholson J in Seevarajah Selliah v Minister for Immigration and Multicultural Affairs (1998) 469 FCA (5 May 1998) where the court held the applicant's capacity to pay a costs order did not amount to a "special circumstance" justifying a departure from the usual order). It was submitted that similarly Merkel J in De Silva to which reference has already been made found that the possibility that a costs order could cause the Migration Regulations to operate harshly and oppressively against an individual applicant was not a factor connected to the litigation. It was therefore not relevant to the exercise of the court's discretion.
The applicant by letter filed 12 June 2003 refers to a medical condition of thyroid cancer and an inability to pay costs. Reference was otherwise made to surgery and extensive treatment. This was claimed to be the basis upon which the applicant was not able to continue with the case. It would seem from the correspondence by the applicant that she believed that notifying the court by letter faxed 13 May 2003 with a hearing date due on 23 May 2003 would obviate the need for attendance at court and/or any other orders to be made. The 13 May 2003 letter to which reference is made solely for the purpose of the issue of costs simply recites that the applicant has decided not to proceed with the application and claims the applicant withdraws the application "due to financial hardship with family cost of living". The applicant did not attend the hearing on 23 May 2003 but rather provided a statutory declaration setting out her personal circumstances and in particular her medical condition preventing her from attending court.
By way of reply to the applicant's submissions the respondent relied upon the authorities to which reference has already been made and submitted that the matters raised by the applicant would properly be characterised as circumstances which are personal to the applicant and not factors that are directly connected in the relevant sense to the litigation.
The respondent relied upon an affidavit of Jacqueline Anne Davis sworn 30 May 2003 setting out the history of the litigation and noting that a significant proportion of the work undertaken in the matter occurred prior to transfer to the Federal Magistrates Court, given that the application had been commenced on 26 February 2002 in the Federal Court and was not the subject of transfer to the Federal Magistrates Court until an order was made on 12 November 2002. The affidavit of Ms Davis indicates that no advice was given to the respondent or its solicitor prior to 13 May 2003 of the applicant's intention to withdraw the application for review and accordingly the respondent proceeded on the basis that the application would progress to hearing.
The respondent submitted that in the circumstances it had appropriately responded to the applicant's application for judicial review by progressing the matter towards a hearing and had otherwise conducted the litigation in good faith incurring significant legal costs as a consequence. It was submitted there are no special circumstances arising from the litigation which warrant a departure from the usual orders for costs that costs follow the event.
In my view, the respondent's submissions in this matter are correct. Whilst the court has some sympathy for an applicant having regard to her current medical and personal circumstances, I am satisfied that those matters are not matters which should provide a basis upon which the court should exercise its discretion not to make an order of a kind which would effectively mean that costs follow the event. They are indeed personal matters not connected with the litigation and not therefore relevant to the exercise of the court's discretion. Whilst the factors may have influenced the decision to withdraw, they remain personal factors in the decision-making process of the applicant who ultimately decided to withdraw proceedings but only after considerable time and expense had been devoted to the litigation by the respondent who, in this instance, I accept, has acted in good faith throughout the course of the litigation.
It follows therefore that in the exercise of the court's discretion having regard to the authorities to which reference was made by the respondent, which I accept as being relevant and applicable, the appropriate order to make is that the applicant should pay the respondent's costs.
In a matter of this kind it is my view that the court should endeavour to make an assessment of the amount of costs and to fix those costs in order to save the parties any further trouble and expense in this litigation. It is noted there has been a significant delay in the delivery of this decision on costs as a result of a misunderstanding as to the nature of the matter to be decided by the court. It is now evident that this is a less complex matter which having regard to the delay should now be determined expeditiously. To do that would be in the interest of the parties that the court fix the costs.
In fixing the costs I do not regard schedule 1 of the Federal Magistrates Court Rules as being appropriate as the scale of costs in that schedule was introduced prior to the court having jurisdiction to hear and determine matters of this kind. It has become a preferable and usual practice of this court to fix costs and in particular to note those costs which may have been incurred in the Federal Court prior to transfer. Allowance should be made for the fact that the proceedings did not advance to a contested hearing and that counsel did not appear for and on behalf of the respondent at the scheduled hearing date. In the circumstances doing the best I can on the available material some reduction should be made in the total amount of costs. In my view, the appropriate amount to fix would be $4500. Had the matter proceeded to trial, then I would have been minded to fix costs in the range of $6000 to $8000.
In the circumstances the appropriate order of the court will be as follows:
The applicant shall pay the respondent's costs fixed in the sum of $4500.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 June 2004
0
2
0