M174 of 2003 v Minister for Immigration & Anor - [2007] FMCA 45

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M174 OF 2003 v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 45

MIGRATION – Practice and Procedure – Costs – liberty to apply – whether Schedule 1 of Federal Magistrates Court Rules 2001 apply – advocacy certificate.

Federal Magistrates Court Rules 2001, rr.21.10, 21.02, 21.15, 21.16

Applicants

APPLICANT M174 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 145 of 2004

Judgment of:

McInnis FM

Hearing date:

28 November 2006

Date of last submission:

12 December 2006

Delivered at:

Melbourne

Delivered on:

29 January 2007

REPRESENTATION

Counsel for the Applicants:

Mr A. Krohn

Solicitors for the Applicants:

Pushpa Hettiarachi & Associates

Counsel for the First Respondent:

Mr T. Mosby

Solicitors for the First Respondent:

Clayton Utz

ORDERS

Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 the Court certifies that it was reasonable for the Applicants to employ an advocate to appear on 17 March 2004, 21 April 2004 and 16 March 2005.
The First Respondent shall pay the Applicants costs and disbursements fixed in the sum of $12,360.90.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 145 of 2004

APPLICANT M174 OF 2003

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this matter the court made orders on 20 December 2005 which included an order as follows:
“The First Respondent shall pay the Applicants costs.”
In addition, the court granted liberty to apply to the parties. For reasons not fully explained, it has taken a considerable time for the parties to bring to the attention of the court that the issue of costs remains unresolved, and hence the parties seek an order of the court fixing those costs and rely upon the liberty to apply which was granted by the court.
The Applicants have provided a memorandum of costs and disbursements seeking a total amount of $18,194.00. That comprises $9,785.00 costs together with $978.50 GST and disbursements of $7,431.00. The disbursements include counsel's fees of $6,220.00 and photocopying expenses of $1,211.00. The parties were granted leave to file and serve a brief outline of submissions in relation to the photocopying expenses, with the Applicants required to itemise the photocopying expenses rather than simply rely upon the description "Photocopy Approx" which appears in the memorandum.
To understand the costs and disbursements now claimed, which I will set out in further detail, it is useful to note the chronology of these proceedings as follows:
·31 May 2001 (Refugee Review Tribunal decision affirms decision of delegate of First Respondent refusing to grant protection visa).
·18 March 2002 (Federal Court dismisses Application for judicial review).
·27 May 2003 (Affidavit and draft order nisi filed in High Court of Australia).
·24 September 2003 (Notice of Appearance filed in Federal Court by Respondents on remittal from High Court of Australia).
·17 October 2003 (Federal Court orders made in relation to filing and service of certain documents).
·2 December 2003 (Applicant's solicitors file Notice of Appearance in Federal Court).
·2 December 2003 (Applicant's solicitors file "particulars of ground for the application and for the issue of prerogative/constitutional writs together with supporting Affidavit of Applicant").
·5 February 2004 (Federal Court order transferring proceedings to Federal Magistrates Court).
·17 March 2004 (Federal Magistrates Court order adjourning Application for directions to 21 April 2004).
·21 April 2004 (Federal Magistrates Court orders including listing for hearing on 23 March 2005).
·23 June 2004 (Applicant's Supplementary Contentions of Fact and Law).
·13 September 2004 (Respondent's Contentions of Fact and Law filed).
·16 March 2005 (final hearing).
·7 June 2005 (audio-link hearing in chambers, leave granted to Third and Fourth Applicants to file and serve Notice of Discontinuance).
·20 December 2005 (judgment delivered and orders made, including order that First Respondent pay the Applicants costs).
A number of observations may be made in relation to the chronology. The first observation is that these proceedings commenced in the High Court after an unsuccessful application had been dealt with in the Federal Court. The High Court proceedings were then remitted to the Federal Court and transferred to the Federal Magistrates Court. The solicitors currently on record for the Applicants did not file a Notice of Appearance until 2 December 2003.
The Notice of Appearance was filed in the Federal Court and occurred before the Application was transferred to the Federal Magistrates Court, though it would appear that the solicitors, whilst having been retained perhaps in October 2003, were not on record in the Federal Court upon remittal of the Application from the High Court to the Federal Court when orders were made on 17 October 2003. The date of remittal from the High Court to the Federal Court is not clear from the file, though is not material to the present application.
It should also be noted from the file that the Applicants supplementary contentions of fact and law dated 23 June 2004, by order of the court, replaced another document on file which was simply entitled "Memorandum Concerning Applicant's Supplementary Contentions of Fact and Law", which was a memorandum from counsel which was not intended to have been filed.
A further document apparently entitled "Applicants Contentions of Fact and Law," purportedly filed on 8 March 2005, was removed by order of the court on 16 March 2005. It is not necessary for the court to explore the reasons for that removal, though I simply note that it occurred, leaving the Applicants to rely upon one document setting out facts and contentions, which will become relevant when the court considers the question of costs.
As noted earlier, the Applicants seek an order that the First Respondent pay costs and disbursements in the total sum of $18,194.00. The First Respondent has opposed that application and instead has submitted that the court should make an order that the Applicants costs be fixed in the sum of $6,500.00 payable by the First Respondent.
The Applicants memorandum of costs and disbursements sets out the following items claimed to be party/party costs:
“1.    Initiating application   $ 2005.00
2.     Direction Hearing on 17/10/03   $ 205.00
3.     Transfer to the Federal Magistrates court
from Federal Court - Consent Orders  $ 205.00
4.     Direction Hearing on 17/03/04   $ 750.00
5.     Directions Hearing on 21/04/04   $ 205.00
6.     Preparation for final hearing   $ 4505.00
7.     Court Attendance for final hearing on 16/03/05     $ 1500.00
8.     Telephone mention on 7/06/05  $ 205.00
9.     To take judgement and explain on 20/12/05            $ 205.00
Sub Total  $ 9785.00
GST  $ 978.50
Disbursements
All counsel's fees  $6220.00
Photocopy approx                   $1211.00  $ 7431.00
Total   $ 18,194.00”
The disbursements are claimed to be as follows in relation to counsel's fees:
“28/11/03  Draw Contention and facts
(Federal Court) Counsel Hurley…  $ 1650.00
25/02/05 Draw Supplementary contentions
Counsel A Krohn  $ 550.00
17/03/04 Appearance Directions Hearing
Counsel A Krohn  $ 660.00
21/04/04 Appearance Directions Hearing
Counsel A Krohn  $ 770.00
23/06/04 Draw supplementary submissions
Counsel A Krohn   $ 660.00
16/03/05 Appearance final hearing
Counsel A Krohn  $ 1650.00
07/06/05 Appearance telephone mention
Counsel A Krohn  $ 280.00
Sub Total of counsel's fees at the end of case hearing     $ 6220.00
Add Counsel Anthony Krohn’s fees for preparation
of all documents
Advice and appearance 28 November, 2006  $ 880.00
Total   $ 7100.00”
A number of observations need to be made in relation to the party/party costs and disbursements and, in particular, counsel's fees. It is clear from the dates set out above that there is a duplication of dates when presumably the solicitor acting for and on behalf of the Applicants has sought to obtain a fee when an appearance was required at a directions hearing on 17 March 2004 and 21 April 2004 together with the telephone mention on 7 June 2005. Likewise, both the solicitor and counsel seek fees for the attendance at the final hearing on 16 March 2005.
The order made by the court on 20 December 2005 was expressed in simple terms, that "The First Respondent shall pay the Applicants costs." The Federal Magistrates Court Rules 2001 (the Rules) contemplate an order of that kind and it is relevant to set out r.21.10 which provides as follows:
“Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Part 1 of Schedule 1; and
(b) disbursements properly incurred.”
The Rule provides that costs should be in accordance with Part 1 of Schedule 1. The Rules should be read, however, in the light of Rule 21.02 which provides as follows:
“(1)   An application for an order for costs may be made:
(a)     at any stage in a proceeding; or
(b)     within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2)In making an order for costs in a proceeding, the Court may:
(a)     set the amount of the costs; or
(b)set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of the costs, which may be before the proceeding is concluded.”
In the present case, the order for costs having been already made, the court was satisfied that by granting liberty to apply, each party had the opportunity to invite the court to set the amount of costs, which has occurred in the present application. This is not a case where r.21.02(1)(b) applies as the order has already been made and there is no need for the application for "an order for costs" to be made within a

28 day period. In any event, it is clear that it is in the interests of both parties that the court now makes an order setting the amount of costs, given that the parties cannot reach agreement, despite the apparent application of Part 1 of Schedule 1 of the Rules.
It is also relevant to note that the structure of the Rules, and in particular Division 21.02, provides in r.21.15 an Advocacy Certificate and in r.21.16 clearly indicates that counsel may appear as an advocate. It is relevant to set out those Rules:
“21.15Advocacy certificate
The Court or a Registrar may certify that it was reasonable to employ an advocate, or more than 1 advocate, to appear for a party in a proceeding.
21.16Counsel as Advocate
If the employment of an advocate is certified as reasonable, the amount payable for counsel to appear is the daily hearing fee and advocacy loading in accordance with Part 1 of Schedule 1.”
To the extent that it is necessary, the court is prepared to grant an Advocacy Certificate in relation to certain hearings where it is appropriate to conclude that it was reasonable to employ an advocate to appear for the Applicants in the proceeding. In particular, the court is satisfied that in the present case an Advocacy Certificate should apply for the appearance on 17 March 2004, 21 April 2004 and at the final hearing on 16 March 2005. A certificate should not issue for the telephone mention on 7 June 2005 and it is noted that a certificate is not required for the taking of judgment on 20 December 2005.
I further accept that at the appearance on a final hearing which was a one day matter, in addition to an Advocacy Certificate and an advocacy loading applying to counsel, it is also appropriate to allow for the attendance of an instructing solicitor of the amount set out as the daily hearing fee for a full-day hearing.
I do not accept that it was necessary for both counsel and the solicitor to otherwise attend at the directions hearing where an Advocacy Certificate was allowed namely, 17 March 2004 and 21 April 2004. It is further noted that the solicitor attended the directions hearing in the Federal Court on 17 October 2003 without counsel, and I am prepared to conclude that it would not be appropriate to grant an Advocacy Certificate for that appearance.
It is clear that in this instance the costs set out in Schedule 1 of the Federal Magistrates Court Rules 2001 did not make any or any adequate allowance for the fact that proceedings may commence in the High Court and then be remitted to the Federal Court which in turn transfers the proceedings to the Federal Magistrates Court.
It is also noted and I accept that although the Applicant's solicitors were not on record in the Federal Court until 2 December 2003, the material lodged for and on behalf of the Applicants soon after would properly have been the subject of fees payable to counsel, as in this case, for drawing contentions of fact on 28 November 2003. However, given that, only one set of contentions were ultimately used, I do not accept that it is appropriate to make an allowance for those expenses for more than one set of documents.
In my view it is clear that Schedule 1 of the Rules did not contemplate this court dealing with applications for judicial review under the Migration Act, and to some extent the event‑based fee structure was more appropriate for proceedings in other jurisdictions. It is helpful to set out the relevant parts of Schedule 1 as follows:
“Work performed  General federal
  law
amount ($)
Stage 1: Initiating or opposing
application up to completion
of first court day
Lump sum  2 005.00
Plus: Court attendance  Daily hearing
  Fee
...
Lump sum  2 250.00
Stage 5: Preparation for final
Hearing
For a 1 day matter
…
Stage 6: Final hearing costs
For solicitor
Attendance at hearing  Daily hearing
To take judgement and explain  fee
orders  205.00
…
Advocacy loading
Increase relevant daily hearing  50%
fee”
It will be noted that the amount of $2,005.00 is fixed as a lump sum for Stage 1, which is "initiating or opposing application up to completion of first court day". In the present case, the application having been remitted from the High Court to the Federal Court and then transferred to this court, it is somewhat artificial to use the term "first court day". I am prepared to allow an amount, however, for costs incurred up to and including the first hearing before the Registrar in this court which occurred on 17 March 2004.
Whilst I am not prepared to allow an amount of $2,005.00, it is my view, having regard to the fact that the solicitors only became involved in October 2003 with a notice of appearance being filed on 2 December 2003, that some allowance should be made for the Affidavit material and other attention given to the file which I fix in the sum of $1,000.00.
I should also note from the above that the lump sum amount of $4,505.00 set out in the schedule for preparation for final hearing in Stage 5 for a one-day matter in normal circumstances should not be regarded as a maximum amount but the amount prescribed in the schedule. Having regard to the history of this matter, I am satisfied that the amount of $4,505.00 is reasonable in the circumstances and provides some guidance, albeit perhaps a somewhat generous amount having regard to the nature of this application.
I should add in passing that the schedule in the Rules now provides in Part.2 for a total sum of $5,000.00 payable in migration matters where a proceeding is concluded at a final hearing and, moreover, the court as a matter of practice has tended to fix total costs and disbursements in a total sum of an amount significantly less than the amount which would otherwise be achieved by strictly applying the stages set out in Part 1 of Schedule.1. Nevertheless, in the present case I am prepared to allow $4,505.00, being the amount up to Stage 5 namely, preparation for final hearing for a one-day matter.
I am not prepared to allow an amount for the attendance by the solicitor in the Federal Court on 17 October 2003 as those orders were made by consent and the solicitors for the Applicant were not then on record.
I am prepared to allow the sum of $205.00 claimed for the attendance of the solicitor for orders made on 5 February 2004 transferring the proceedings to the Federal Magistrates Court from the Federal Court.
In relation to the directions hearing on 17 March 2004, having indicated that I am prepared to grant an Advocacy Certificate for counsel, it is my view that in the circumstances it is only appropriate to then make an allowance, having regard to the Schedule, for a short mention daily hearing fee of $205.00 with a 50 per cent advocacy loading, making a total of $307.50.
I make the same allowance for the appearance of counsel at the directions hearing on 21 April 2004 that is, $307.50 and make no allowance for the solicitor.
As I have indicated, I am prepared to allow $4,505.00 preparation for final hearing and it is appropriate to allow for the solicitor to receive a daily hearing fee for attendance at the final hearing of $1,500.00 and for counsel to receive the same amount plus 50 per cent advocacy loading. That means that for the solicitor and counsel attending the final hearing day, the amount payable for the solicitor is $1,500.00, whilst the amount payable to counsel with the advocacy loading is $2,250.00.
The telephone mention on 7 June 2005 only required the attendance of a solicitor and I am only prepared to allow $205.00 for what I regard as a short mention. I am not prepared to make any allowance for counsel for that attendance.
Likewise, I am only prepared to allow for the solicitor to take judgment on 20 December 2005 for the sum of $205.00.
It is appropriate then to summarise the amounts allowed as party/party costs for the solicitor and then also list the amounts allowed for counsel as follows:
Amounts Allowed for Solicitor
1.    Work performed up to and including the first
court date in the Federal Magistrates Court,
namely, 17 March 2004  $ 1000.00
2.    Preparation for final hearing  $ 4505.00
3.    Court attendance for final hearing on
16 March 2005   $ 1500.00
4.    Telephone mention 7 June 2005   $ 205.00
5.    Taking judgment, 20 December 2005   $ 205.00
Total   $ 7415.00
It should be noted that Schedule 1 contains a notation that "The amounts in this schedule include GST," and hence it is unnecessary to add "GST" to the total.
I should also add that the amount that I regard as reasonable for the drawing of contentions and facts, bearing in mind that I am only prepared to make an allowance for one document, in all the circumstances I regard as being appropriate to fix in the sum of $1,000.00. To that may be added the following for counsel:
17 March 2004, directions hearing   $ 307.50
21 April 2004, directions hearing   $ 307.50
Appearance at the final hearing, 16 March 2005                 $ 2550.00
I am not prepared to consider adding any further fees in relation to counsel, save for the appearance at the hearing in relation to this application for costs, for which I am only prepared to allow a daily hearing fee for counsel of $307.50. I do not regard it as necessary for the solicitor to attend and no allowance is made, though I am prepared to grant an Advocacy Certificate for counsel.
Accordingly, the total amount for counsel's fees (including $1,000.00 for drawing facts and contentions) is $4,165.00.
In relation to the photocopying expenses, I have considered the submissions filed by the parties and in my view it is necessary for the court to determine the amount payable given that the disbursements in schedule 1 refer to an amount of 57 cents photocopying per page. I am satisfied the total amount payable is $780.90 being the amount submitted by the First Respondent as reasonable for the reasons advanced.

It follows therefore that the total amount of costs and disbursements payable by the First Respondent to the Applicants should be $12,360.90.
I should add that the process undertaken by the court in this instance is somewhat unusual, and it is to be hoped that with the introduction of Part 2 to Schedule 1 of the Federal Magistrates Court Rules, this process will not be required in future applications and, moreover, the number of applications commenced in the High Court remitted to the Federal Court and then transferred to the Federal Magistrates Court will be insignificant.
On those occasions, however, when additional costs have been incurred, parties are still able to invite the court to exercise the power it undoubtedly has, pursuant to Division 21.02 of the Rules, to set the amount of the costs and disbursements. It is noted that the court otherwise has a residual power, pursuant to Rule 1.06, to dispense with compliance or full compliance with any of the Rules at any time in the interests of justice. For my part, however, I regard the exercise of a power dispensing with Rules in the interest of justice in relation to costs matters as being a power, along with the power to fix costs in migration matters, which would only be exercised in what I would describe as exceptional circumstances.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 29 January 2007