Kaur v Minister For Immigration & Anor (No.2)

[2012] FMCA 300

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2012] FMCA 300

PRACTICE AND PROCEDURE – Costs – where interlocutory proceedings set aside dismissal – where costs at first instance included matters still extant – whether to amend initial costs order – costs in interlocutory proceedings.

Kaur v Minister for Immigration & Anor [2012] FMCA 239
O’Keeffe Nominees Pty Limited v BP Australia Limited (No 2) [1995] FCA 1079
Scherer v Counting Instruments Ltd [1986] 2 All ER 529

Applicant: JASPREET KAUR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2312 of 2011

Judgment of: Raphael FM

Hearing date: 28 March 2012

Date of Last Submission: 4 April 2012

Delivered at: Sydney

Delivered on: 16 April 2012

REPRESENTATION

Counsel for the Applicant: A. Kumar

Solicitors for the Applicant: Harish Prasad and Associates

Solicitors for the Respondents: DLA Piper

ORDERS

1. That Order 2 of 17 November 2011 be vacated and replaced with the following order:

   (a)Applicant to pay the First Respondent’s costs assessed in the sum of $500.00.

2. Costs of the interlocutory hearing of 6 March 2012 be costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2312 of 2011

JASPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 28 March 2012 I set aside an order made on 17 November 2011 dismissing an application on the grounds of the applicant’s non-attendance at the first court date.  I did this after hearing lengthy evidence.  In my decision Kaur v Minister for Immigration & Anor [2012] FMCA 239 I reserved the costs pending submissions from the parties. I indicated that in my view the appropriate order for costs would be that they were the respondent’s costs in the cause.

2. I have now received the parties’ outlines of submissions.  The applicant suggests that the respondents were wrong in not telephoning the applicant at the first court date to find out why she was not in attendance; that had they done so the matter might have been resolved.  However, I have found that Ms Kaur told the respondent’s solicitor, Ms Hooper, at a later date, that she was aware of the first court date.  The applicant also says that much of the hearing time was taken up with examination and cross-examination of the applicant that resulted in findings that she had been the victim of her agent’s unauthorised activities.  As a result I concluded that her case could not be said to have no reasonable prospects of success.

3. The respondents rightly point out that this is an interlocutory matter and that therefore the principles approved by Spender J in O’Keeffe Nominees Pty Limited v BP Australia Limited (No 2) [1995] FCA 1079 and the English Court of Appeal in Scherer v Counting Instruments Ltd [1986] 2 All ER 529 at [536] that in interlocutory matters where it is not possible to see on which side justice requires that the decision as to who to bear the costs of the interlocutory steps should ultimately fall, an order reserving the costs, or making them costs in the cause, is to be preferred. This was the proposal that I had outlined, although with the gloss that they be the respondents’ costs in the cause meaning that there were no circumstances in which the interlocutory costs will be awarded to the applicant.

4. There have been two hearings, the first at the first court date.  The applicant did not attend but I have found that she was aware of the hearing.  In relation to those proceedings I will maintain the order I made at the time that the applicant should pay the respondent’s costs but the figure of $1,250.00 that was assessed included matters that are still extant and I would therefore vacate Order 2 of 17 November 2011 and replace it with the order that:

   “Applicant to pay the First Respondent’s costs assessed in the sum of $500.00.”

5. In regard to the costs of the interlocutory hearing, it was only occasioned by the applicant’s failure to turn up at the original hearing date. Telephoning the applicant would not have been of assistance because I have found that the telephone number that was used on the application was not that of the applicant’s but of a woman called Rama.  I should not speculate on what might have occurred if a telephone call had been made because it was not.  I believe that in all the circumstances the most appropriate order for costs in relation to the hearing on 6 March 2012 is that they should be the costs in the cause and so available to whoever shall ultimately succeed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  16 April 2012