NBIF v Minister for Immigration
[2006] FMCA 182
•10 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBIF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 182 |
| MIGRATION – Costs. |
| Federal Magistrate Court Rules, rr.21.02(2)(a). |
| Oshlack v Richmond River Council (1998) 193 CLR 72 Yilanv Minister for Immigration and Multicultural Affairs [1999] FCA 1212 Minister for Immigration and Multicultural Affairs v Zamora [1998] FCA 1170 |
| Applicant: | NBIF & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2400 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 16 November 2005 |
| Date of Last Submission: | 30 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. K. Sinnadurai |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant pay the first respondent’s costs set in the fixed amount of $12,563.81 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2400 of 2004
| NBIF & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 9 July 2004 the applicants (NBIF and NBIG) filed an application in this Court seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 June 2004 to affirm the decision of a delegate of the respondent Minister made on 19 June 2004 to refuse protection visas to the applicants. On 16 November 2005 I handed down Judgement in this matter (NBIF & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FMCA 1305) dismissing the application.
On that day the respondent’s legal representative (Mr. K. Sinnadurai) made an application that the applicants pay the first respondent’s costs on a party/party basis set in the amount of $13,000. Actual costs were said to be in excess of $19,000.
The applicants are citizens of the People's Republic of China. The applicant NBIF is male and for the relevant period of the conduct of the matter before me, and including on the day of the handing down of the Judgement, was held in detention by the first respondent at the Villawood Immigration Detention Centre except for the times when he appeared in Court. Applicant NBIG was not held in detention during this period. While the parties do not appear to be legally married (this was somewhat of an issue before the Tribunal) for the purposes of the conduct of litigation before me they acted together. Only NBIF appeared before me at the handing down of the Judgement. He gave by way of explanation for the absence of applicant NBIG that in the circumstances he had not been given sufficient time to notify her of the need to be in Court. I should just note that throughout the conduct of the matter before me which required two full hearings, applicant NBIG would not give a separate address to the Court, and confirmed that she would rely on correspondence from the respondent and the Court being sent to applicant NBIF at the Villawood Immigration Detention Centre, and that she was content for him to then notify her of any correspondence. Applicant NBIF claimed that he had not had time to do so and that this was the reason for her not being in Court to receive the Judgement.
In light of the fact that this was a much larger amount sought than normally seen in such matters I requested that the first respondent provide detailed submissions so that I was able to determine if that was a reasonable amount. Mr. Sinnadurai for the first respondent indicated that he was not in a position to make those submissions orally, and on that basis I also gave directions on that day that the first respondent file and serve on both applicants (in the case of NBIG through NBIF) submissions and/or evidence as to costs within two weeks (by 30 November 2005), and that the applicants file and serve submissions or evidence in reply two weeks after that (that is by 14 December 2005).
In this regard the respondent filed an affidavit sworn by Deborah Susan Vine-Hall on 29 November 2005. The respondent confirms that copies of this affidavit were also sent separately to both applicants by way of service. The affidavit of Krishan Nathaniel Sinnadurai, a solicitor in the employ of the respondent’s solicitors, sworn on 2 February 2006, was filed in support of this, on 3 February 2006. It annexes two letters each dated 30 November 2005 (see annexures “A” and “B” of the affidavit), separately addressed to both applicants, enclosing by way of service the affidavit of Deborah Susan Vine-Hall, together with a copy of a letter to the Court. On 27 January 2006 the respondent received notice that the letter to applicant NBIG was returned as undeliverable. On
2 February 2006 the respondent resent this letter to the applicants’ address, as per annexure “C” of the affidavit, as notified in their Federal Court appeal application (I understand that the applicants had since filed an appeal from my Judgment). The applicants did not file any further submissions, or evidence, as they related to costs.
I should just note that at the handing down of my Judgment the applicant was assisted by an interpreter in the Mandarin language. I explained to him that I was not prepared to make an order at that time in relation to costs in all these circumstances. I further explained to applicant NBIF that I had given the first respondent two weeks to make further submissions, and the applicants had a further two weeks after that to put to the Court any submissions or evidence. The applicant asked if that meant that he had to come back to Court in four weeks and I explained that it was likely that after I had received both sets of submissions that I would be in a position to proceed on that basis alone, but that if it was necessary sufficient notice would be given to the applicants to attend. I am satisfied that NBIF understood the opportunity given to him to make submissions on the issue of costs. After confirming that the application had been dismissed on that day (and indicating that he would probably appeal) he specifically sought, and received from the Court, confirmation that on the issue of costs he could “put in anything.” However, as I have already stated, no written submissions were received from the applicants. The time that I allocated for this purpose has now passed. The Court has heard nothing further from the applicants, in particular applicant NBIF, who was in many respects the primary applicant.
On what is before me, I can see no reason to depart from the general rule, that costs follow the event. In Oshlack v Richmond River Council (1998) 193 CLR 72 at 97, McHugh J. said:
“[67] The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [104]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.”
The applicants initiated proceedings and pursued them as is their right. The applicants have made no submissions as to costs but I note in any event that impecuniosity of an applicant, as is often pleaded in such matters, would not constitute a “good or special reason” for a departure from the general rule. The applicants’ lack of funds are not special reasons in all the circumstances to warrant a costs order not being made. There is no evidence, or even assertion before me, that the applicants have had to divert or expend funds on any urgent or life threatening medical treatment, since commencing proceedings. In Yilanv Minister for Immigration and Multicultural Affairs [1999] FCA 1212 the Federal Court applied Minister for Immigration and Multicultural Affairs v Zamora [1998] FCA 1170 and held that:
“[5] As to the inability to meet a costs order, this has never been a sufficient reason to deny a successful party his or her costs, special reasons apart… There are no special reasons here.”
In all the circumstances it is appropriate that an order for costs be made. However in all the circumstances I am not prepared to make a costs order against applicant NBIG. There is nothing before me to show that applicant NBIG has received any notice of the application for costs made by the first respondent, nor that applicant NBIF has passed on in turn what occurred at the handing down of my Judgement on 16 November 2005, and in particular of the opportunity to make submissions on this issue on her own behalf. While it is open to infer, given the history of the conduct of the litigation, and indeed the history of the matter before the Tribunal that applicant NBIF may continue to act on her behalf, it is in my view not appropriate to do so now on the issue of costs. On that basis therefore, while I consider it appropriate that an order for costs be made, it will only apply in respect of applicant NBIF.
The issue remains however, as to the quantum of costs and whether, in exercising the discretion to award costs, the amount sought by the first respondent in all the circumstances is a reasonable amount. By way of submission and with reference to the affidavit filed on 30 November 2005 of Deborah Susan Vine-Hall, a solicitor and legal costs consultant, sworn on 29 November 2005, the first respondent submits that costs should be fixed in the amount of $14,390.90 in accordance with the “Cost Assessor’s Assessment” based on Schedule 1 of the Federal Magistrates Court Rules2001 (“the Rules”), or in the alternative, in the amount of $12,563.81 on the basis that this would be the amount the respondent would likely be awarded on a party/party basis should the matter proceed to taxation.
I note that Schedule 1 to the Rules referred to at paragraph 8.1 of the affidavit of Deborah Vine-Hall is no longer operative as a new schedule came into effect on 1 December 2005. In considering what is a reasonable amount in all the circumstances, I have not relied on the calculation relating to the old Schedule 1 of the Rules, but have proceeded to examine whether the amount of $12,563.81 is a reasonable amount of in all the circumstances. In this regard I note the evidence before me as to the relevant experience of Debra Susan Vine-Hall and accept the matters set out in paragraphs 14 to 21 inclusive of her affidavit as they go to the issue of what may be a reasonable amount for costs in this case.
“14.Without preparing a full bill of costs it is still possible to estimate the likely Schedule 2 costs by considering the hours spent, adjusting those hours to reflect the likely party/party component of the work undertaken and then applying the item 31 rate. This produces an estimate only as Schedule 2 to the Federal Court Rules provides a range of rates for different types of work; however, in my experience, this methodology provides a “ball park” figure which is usually fairly close to a fully costed bill of costs.
15.From my review of the records kept by the first respondent’s solicitor, I have identified that a total of more than 46 hours was spent on the matter from the receipt of instructions to the taking of judgment.
16.Applying a reduction of 33% to reflect the work/time which might not be allowed on a party/party basis results in 30.5 hours of “party/party” work.
17.Applying the item 31 rate of $61.00 per 15 minutes plus an allowance of 12% for general care and conduct ($273.00) results in costs of $8,326.50.
18.Counsel’s fees were incurred in the sum of $3,745.90 (exclusive of GST). Counsel’s rates are well within the range allowed in the Practice Note which assists the taxing officers to determine rates. Counsel’s fees reflect the fact that there were two hearing days and additional submissions.
19.I consider that counsel’s fees are reasonable and that the first respondent would be likely to recover counsel’s fees in the amount charged if the costs were taxed in accordance with Order 62 of the Federal Court rules.
20.The first respondent has incurred photocopying costs for the production of a large court book and a supplementary court book and for the preparation of the transcript of the Tribunal hearing. Photocopying costs at the rate of 25 ¢ per page total about $200.00. There was a further disbursement of $40.00 for the hearing tapes.
21.Accordingly in my opinion the first respondent’s party/party costs are as follows:
Schedule 1 costs $14,390.90
Schedule 2 costs $12,563.81.”
Further, in looking at the material before me on the Court file, and in particular the attendances of solicitors at the first Court date, two hearings and the handing down of Judgement, and the attendance of Counsel at two full hearings and the large amount of material put forward by the applicants before the Court (which necessitated review and response by way of two sets of written submissions from the first respondent's Counsel) the amount sought is in my view, given all the above, a reasonable amount for what has been put forward by the applicants in this case, and the response that this necessitated by the first respondent.
In all the circumstances therefore I am satisfied that the amount sought is a reasonable amount. I will make an order that the first named applicant NBIF pay the first respondent's costs in the amount of $12,563.81.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 10 February 2006
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