Kaur and Ors v Minister For Immigration and Anor (No.2)

[2019] FCCA 815

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 815

Catchwords:
MIGRATION – Costs – applicant to pay Minister’s costs – costs to be assessed.

Legislation:

Federal Circuit Court Rules 2001

Federal Court Rules 2011 (Cth), Pt.40

Cases cited:

Kaur and Others v Minister for Immigration and Another [2018] FCCA 166

First Applicant:

Second Applicant:

Third Applicant:

KULDEEP KAUR

BACHITTER SINGH

AVROOP KAUR

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 299 of 2017

Judgment of: Judge Riethmuller

Hearing date: 21 September 2018

Date of Last Submission: 28 February 2019

Delivered at: Melbourne

Delivered on: 1 April 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr Petrie

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Applicants pay the Minister’s costs of and incidental to the proceeding, those costs to be taxed under Part 40 of the Federal Court Rules 2011 (Cth) by way of the following process:-

   a)on or before 4.00 pm on 15 April 2019, the Minister file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 on the Federal Court’s Costs Practice Note;

   b)on or before 4.00pm on 29 April 2019., the Applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note; and

   c)in the absence of any agreement having been reached on or before 13 May 2019, the matter of an appropriate lump sum figure for the Minister’s costs be referred to a Registrar of the Federal Court for determination.  

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 299 of 2017

KULDEEP KAUR

First Applicant

BACHITTER SINGH

Second Applicant

AVROOP KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is the costs judgment following a decision made on 31 January 2018 in this matter, reported as Kaur and Others v Minister for Immigration and Another [2018] FCCA 166.

2. In the principal proceedings, the Applicant was unsuccessful for the reasons set out in that judgment. The Minister in this matter argues that the Minister’s costs significantly exceed the scale fee of $7,467 provided for under the Federal Circuit Court Rules 2001, and ask that costs be fixed in a sum in excess of $80,000. Alternatively, the Minister seeks an order for costs to be taxed under the Federal Court Rules 2011 (Cth), and processes for taxation to take place.

3. The matter was originally listed for hearing in May 2018, but adjourned to later in the same week as a result of the Applicant identifying matters that gave rise to a new ground for review relating to the conduct of the Applicant’s agents. The Applicant was unrepresented throughout. On 24 May 2018, I made orders for the application to be amended, and for subpoenas to be issued and affidavits to be filed to deal with the issues as set out in the main judgment. As a result, the Minister issued five subpoenas and arranged for them to be served, although encountered considerable difficulties in attempting to serve the various subpoenas, involving at least 15 attempts to effect service.

4. With respect to one of the subpoenas directed to a law firm, documents were sent by the firm to the Minister rather than the court, requiring the Minister to notify the solicitors to produce the documents to the court.  Notices to produce were also issued, resulting in 62 pages of documents being filed by the Applicant in response to that notice.

5. Affidavits were required by the parties and the Minister filed an affidavit of 185 pages for the final hearing. As the Applicant was unrepresented and the matter had not proceeded smoothly, a directions hearing was held on 30 July 2018 to ensure that the matter would be ready to proceed, and one of the witnesses was granted leave to give evidence from Brisbane by way of video link. The Minister then filed two further affidavits by an officer of the Department of 151 and 155 pages respectively. At the hearing on 30 July 2018, the Applicant and two witnesses were cross-examined. The matter was then adjourned to September 2018 to allow the parties to consider the evidence and make submissions. Given the nature of the matter the Minister obtained a transcript and filed written submissions of 22 pages. On 21 September 2018, the Applicant (who was still unrepresented) sought to place further material before the Court, and leave was granted for her to file an affidavit by 29 September 2018, followed by further written submissions (if any).

6. The matter was a lengthy and difficult matter, given the issues that it involved, and the importance of ensuring that the Applicant, who was unrepresented, was able to articulate her claims in full.

7. The Applicants set out seven reasons why she submits that costs should be capped at $7,467 as follows:-

   (i) I was only heard about Federal Circuit Court maximum cost $7,567.

   (ii) No one makes me aware me about the cost not even court and Clayton –Utz.

   (iii) Court and Clayton lawyers know from the first day I do not have any lawyer who will tell me about the cost, I was repeated every time in the court I do not have any lawyer even I was not afforded any lawyer because I do not have money to pay lawyer, do not have work rights.

   (iv) I am not in the situation to pay that cost I can only pay $7,467 in instalments.

   (v) I do not have valid visa, no work rights only my family and friends helped me in everything but no one can help me to pay $80,093.64.

   (vi) If I have $80,093.64 why I need to struggle here and fight for justice I can settle in my country with that money.

   (vii) I was just hope to get justice and got that big cost bill.

8. The Applicant gives no evidence as to how it is that she says she heard that the Federal Circuit Court had a maximum costs of $7,467, which is not correct in law, but represents only the standard scale fee for an average matter. Whilst it is open to litigants to obtain an order capping costs before proceedings commence, such steps were not taken in this case.

9. Ultimately, the Applicant has been unsuccessful in this matter. Neither the costs in running this matter, nor the cause of the litigation, cannot be said to have been as a result of the conduct of the Minister for Immigration. Whilst I accept the Applicant’s concerns that she has not obtained justice because of the way in which her agents dealt with her, these are matters as between the Applicant and the persons operating that business.

10. Ultimately, I am persuaded that the Applicant ought to pay the costs of the proceedings as she has been unsuccessful, and there are no circumstances that could justify refusing to make a costs order, or requiring the Minister to bear part or all of the costs of the proceedings.

11. The quantum of the costs sought by the Minister is particularly large in comparison to a usual costs order of $7,467. On the material before me, and having regard to the amount sought by the Minister, I am not prepared to set a lump sum amount for costs. The appropriate course is, therefore, to order that costs be assessed on the scale under part 40 of the Federal Court Rules 2011 (Cth).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  1 April 2019