KAUR v Minister for Immigration
[2005] FMCA 831
•24 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION | [2005] FMCA 831 |
| MIGRATION – Costs. |
| Migration Act 1958 (Cth) |
| Applicant: | NARJAN KAUR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 155 of 2003 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 24 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr Brereton |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Order 2 of Chief Federal Magistrate Bryant’s Orders of 17 June 2004 be discharged.
The applicant pay the respondent's costs fixed in the sum of $9,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 155 of 2003
| NARJAN KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this case, having regard to the consent of the respondent in whose favour the order is made, it appears to me that I do have power to alter a previous order under rule 16.05(2).
The reason for the requirement to alter the order is that there remains some disquiet as to the operation of schedule 1 of the Federal Magistrates Court Rules and order 62 of the Federal Court Rules. The Federal Magistrates Court Rules provide for costs by way of a scale, and alternatively the orders provide for matters to be listed for taxation or assessment by the Registrar of the Federal Court, having regard to the rules of that court.
Whilst, as a matter of principle, it does not appear to me to be an overwhelming difficulty for a Registrar to have regard to the specific items of the Federal and Family Court Rules as may be applicable, and the overall lump sum items provided for in schedule 1 in coming to a reasonable figure; I accept that it is an attempt to merge two quite different systems of assessing costs. One is an item-by-item system with specific sums attached to each item. That is how the scale is set out in the Federal and Family Court Rules. The other is a lump sum amount having regard to the various stages that proceedings reach.
It is clear that when making the orders in this case the Chief Federal Magistrate wished to have regard to the lump sum amounts provided for in schedule 1 when ordering costs as agreed or in default taxed pursuant to the Federal Court Rules having regard to schedule 1.
It appears to me that the intention of the Chief Federal Magistrate was to award costs in accordance with schedule 1, and that as the matter has been listed before me for mention, it is more appropriate for me to deal with it finally today rather than sending it back to the taxing officer.
I therefore propose to make orders fixing the amount of costs, having regard to schedule 1.
In this case a schedule of costs claimed has been filed by the respondent wherein they make a claim of $10,614.72. In my view, the claims for drawing a statement of facts and contentions, counsel's fees for perusing affidavits, together with a small amount for photocopying, (which are all claimed in addition to the other lump sums for stages) are not generally to be considered additional items on top of the lump sums provided for each stage.
It appears to me that generally speaking the stages are intended to cover the work associated with that stage, whether it be undertaken by a solicitor or briefed to counsel for settlement. There will, of course, be some cases where the amount of work is less than that contemplated by the lump sum for the stage, and other cases where the amount of work clearly exceeds that. I am not pressed with argument that this case falls within either of those particular categories. Counsel for the Minister today indicated that the Minister would be happy with an order for costs fixed at $9,000.00, which is slightly less than the amount that would be calculated using the lump sum stages without the additional amounts as set out in the bill of costs that was filed.
It appears to me that this is a reasonable sum in the circumstances of the case.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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