Karrob Pty Ltd and Anor v Minister for Immigration and Anor

[2017] FCCA 1264

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARROB PTY LTD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1264

Catchwords:
MIGRATION – Costs – what costs should be ordered.

Legislation:

Federal Circuit Court Act 1999, s.44

Federal Circuit Court Rules 2001, r.9.04

Cases cited:

Cachia v Hanes (1994) 179 CLR 403

First Applicant: KARROB PTY LTD

Second Applicant ARNULFO ANUNUEVO DOGMOC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1277 of 2016

Judgment of: Judge Jones

Hearing date: On the papers

Date of Last Submission: 6 April 2017

Delivered at: Melbourne

Delivered on: 30 June 2017

REPRESENTATION

Solicitors for the Applicants: Self-represented

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The First Respondent pay the First Applicant’s costs in a fixed amount of $1,445.00.

2. The First Respondent pay the Second Applicant’s costs in a fixed amount of $615.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1277 of 2016

KARROB PTY LTD

First Applicant

ARNULFO ANUNUEVO DOGMOC

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns a dispute between the First Respondent and the Applicants with respect to costs Orders which should be made.

2. On 6 April 2017, Orders were made by consent in respect of the Applicants’ application for judicial review, quashing two decisions of the Second Respondent made respectively on 13 May 2016 and 31 May 2016, and remitting the matters to the Second Respondent to be determined according to law.

3. The concession by the First Respondent, that the decisions of the Second Respondent made on 13 May 2016 and 31 May 2016 fell into jurisdictional error, was made on 13 September 2016, prior to the first Court return date.

4. Mr Grapsas, an accountant who is not a qualified legal practitioner, filed the First and Second Applicants’ applications for judicial review along with an affidavit, on 17 June 2016 for the First Applicant and on 5 July 2016 for the Second Applicant.

5. Rule 9.04 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) provides that:

   Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.

6. Section 44 of the Federal Circuit Court Act 1999 (Cth) (“the Act”) provides that:

   A party to a proceeding before the Federal Circuit Court of Australia is not entitled to be represented by another person unless:

   (a)  under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or

   (b)  under the regulations, the other person is taken to be an authorised representative; or

   (c)  another law of the Commonwealth authorises the other person to represent the party.

7. Mr Grapsas is not entitled to act as a barrister or solicitor, nor has he been granted leave to represent the Second Applicant. Furthermore, there is no other law of the Commonwealth to which my attention has been drawn, which authorises Mr Grapsas to represent the Second Applicant.

8. Mr Grapsas, therefore, has no standing in these proceedings to represent either Applicant. Notwithstanding this, Mr Grapsas has purported to act for the Applicants at all relevant times.

9. The dispute as to the appropriate costs Order has been largely engaged in by correspondence between the First Respondent and Mr Grapsas. The First Respondent initially proposed an Order that the First Respondent pay the Applicant’s costs incurred in filing fees for both Applicants. Mr Grapsas seeks an Order that the First Applicant be paid $6,945.00 (reflecting $5,500.00 in professional costs it incurred arising from the work engaged in by Mr Grapsas in the preparation and filing of the application, plus the filing fee of $1,445.00) and that the Second Applicant be paid $2,115.00 (reflecting $1,500.00 in professional costs he incurred arising from the work engaged in by Mr Grapsas, plus the filing fee of $615.00).

10. Having failed to resolve the question of costs, the matter was listed before me on 6 April 2017. The First Respondent now seeks a costs Order setting off the First Applicant’s costs of the filing fee ($1,445.00) against the First Respondent’s costs incurred at the directions hearing on 6 April 2017 ($441.00), and an Order setting off the Second Applicant’s costs of the filing fee ($615.00) against the First Respondent’s costs incurred at the directions hearing on 6 April 2017 ($441.00).

11. Neither Applicant nor Mr Grapsas attended Court on 6 April 2017. Rather, Mr James Kewley of Counsel announced his appearance. However, he readily and properly conceded that he had no standing before the Court, as there was no solicitor on the record. He remained in attendance and requested that the Applicants be given 14 days in which to file their submission as to costs. The Applicants were granted until 27 April 2017 to file written submissions and any affidavits.

12. Mr Grapsas, by communication with my Chambers, requested an extension of time of one month to file written submissions. An extension of time to file written submissions by 15 May 2017 was granted. No submissions on the question of costs have been filed by the Applicants (or Mr Grapsas) by 15 May 2017 or, indeed, at the date of this decision. The First Respondent’s written submissions were filed on 5 April 2017.

13. I have decided that an appropriate costs Order is to require the First Respondent to pay the Applicants the costs incurred in filing their applications for judicial review. I do so having regard to the following.

14. Generally, an unrepresented litigant is not entitled to recover costs for their own personal time lost, as costs are reimbursement for work done or expense incurred by a practitioner or practitioner’s employee: Cachia v Hanes (1994) 179 CLR 403 at 410 (“Cachia v Hanes”) per Mason CJ, Brennan, Deane, Dawson and McHugh JJ. It is noted, however, as stated by the majority in Cachia v Hanes (at 410-411), that:

    … costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant.

15. Courts have also indicated a tendency to broadly construe the meaning of “out-of-pocket expenses” so as to include some compensation to an unrepresented litigant for loss of earning incurred in consequence of time spent in the preparation and presentation of litigation.[1]

    [1] See, for example, Secretary Department of Foreign Affairs and Trade v Boswell (1992) 38 FCR 288; 111 ALR 553.

16. The Applicants have not filed any submission in support of the claim made by Mr Grapsas on their behalf, as to why they should be reimbursed for costs that they incurred through the engagement of Mr Grapsas to prepare their applications for judicial review.

17. In any event, the directions hearing was an unnecessary cost incurred by the Minister, as the Applicants failed to attempt, by written submissions, to support their position on costs. However, I am not satisfied that the Applicants should be held accountable for what was clearly an unreasonable position driven by Mr Grapsas.

Conclusion

1. For the reasons set out in this judgment, an Order will be made that the First Respondent pay the Applicants’ costs in a fixed amount equivalent to the relevant filing fees of each Applicant.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:  Barbora Jezek

Date:  30 June 2017