Nguyen v Minister for Immigration
[2016] FCCA 525
•17 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 525 |
| Catchwords: MIGRATION – Costs and disbursements – advocacy certificate – discretion to award costs. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.79(2) & (3) Federal Circuit Court Rules 2001 (Cth), rr.21.10, 21.15, 21.16, 44.15(1) & (5) |
| Noble v Baldwin and Anor (No.2) [2011] FMCA 700 |
| First Applicant: | THI NGOC TUYEN NGUYEN |
| Second Applicant: | NHAN VIEN VU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 197 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 26 February 2016 |
| Date of Last Submission: | 26 February 2016 |
| Delivered at: | Adelaide |
| Orders made on: | 11 March 2016 |
| Delivered on: | 17 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Dr R Gray |
| Solicitors for the Applicant: | McDonald Steed McGrath Lawyers |
| Counsel for the Respondents: | Mr K Tredrea |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
STATEMENT ACCOMPANYING CONSENT ORDERS
The first respondent accepts that the decision of the second respondent is affected by jurisdictional error because its discretionary decision under s.361(3) of the Migration Act 1958 (Cth) not to obtain oral evidence from two witnesses was unreasonable, in the sense of lacking an evident and intelligible justification (see [64] of the second respondent’s decision record).
The first respondent accepts that the Tribunal must consider the application of cl.100.221(4) of Schedule 2 to the Migration Regulations 1994 (Cth).
BY CONSENT, THE COURT ORDERS THAT
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 28 April 2015.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 24 October 2014 according to law.
THE COURT FURTHER ORDERS THAT
The first respondent to pay the applicants’ costs fixed in the sum of NINE THOUSAND, THREE HUNDRED AND FORTY EIGHT DOLLARS AND NINETY NINE CENTS ($9,348.99).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 197 of 2015
| THI NGOC TUYEN NGUYEN |
First Applicant
| NHAN VIEN VU |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 11 of March 2016 I made consent orders for Constitutional writs to issue in this matter. These orders followed a brief hearing on 26 February 2016. Those orders quashed a decision of the second respondent, dated 28 April 2015, and required it to determine the application made to it for review of a decision of a delegate of the Minister for Immigration and Border Protection according to law. This is an application by the first and second applicants for its costs in having pursued its application.
I shall set out briefly the procedural background to this matter.
The Application for Review was filed on 2 June 2015. The usual supporting affidavit annexing a copy of the decision record of the Migration Review Tribunal (as it then was) (‘the Tribunal’) was filed at that time. A Response was filed on behalf of the first respondent on 10 June 2015. Procedural orders were made by Registrar Bochner of 17 July 2015. On 17 August 2015, the applicants filed an affidavit annexing a copy of the transcript of the Tribunal hearing.
This matter was listed before me for a final hearing to take place on 26 February 2016 at 2.15pm.
The applicant filed an Outline of Submissions on 18 February 2016.
On 23 February 2016, the applicants were advised by the first respondent that the application would be conceded.
The matter came before me on 26 February 2016 for the consent orders to be made. When the matter was called on, it was apparent that the parties were not ad idem as to the explanatory statement that was to accompany the consent orders, and there was no agreement as to the quantum of costs. Draft consent orders were prepared by the first respondent and they were provided to counsel for the applicants at the bar table. The first respondent indicated that it conceded one, but not all, of the grounds of the application. This had implications for the applicants in terms of the wording of the explanatory statement. There was a dispute as to whether the concession by the first respondent was dispositive of the application for review.
Counsel for the applicants submitted that the quantum of costs identified in the draft orders was not acceptable to them. After a brief adjournment counsel were able to come to an agreement as to the content of the explanatory statement. The quantum of costs sought by the applicants was subject to brief submissions. I gave leave to both parties to file within 7 days a list of authorities in support of the costs argument. The applicants filed a brief written note as to costs. This was not opposed by the first respondent. I have received that outline and have taken it into account. In referring to the submissions of the applicants on this argument, I am referring to both the oral submissions and the written submissions.
Counsel for the applicants, Dr Gray, submits that they are entitled to costs on the general federal law scale, as set out in Part 1, Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).
As a starting point, Dr Gray submits that this is a matter which is appropriate for the Court certify as being fit for counsel.[1] Dr Gray submits that the first respondent has been on notice of the grounds of application since June 2015, and that in effect it has waited until the applicants have incurred the costs of engaging counsel, preparing the matter for final hearing, and preparing an outline of submissions, before properly turning its mind to the merits of the application. Dr Gray notes that as the model litigant, the first respondent had a duty to make an early assessment of the merits of the matter, and that given the concession came late in the piece, this appears not to have occurred. She submitted firstly that pursuant to r.44.15 (5) of the Rules, the Court is not bound by the amount stipulated in Part 3, Schedule 1 and that the Court has discretion to award an amount over and above that amount in accordance with Part 21 of the Rules. Rule 21.10 stipulates that a party is entitled to costs in a proceeding in accordance with Part 1 of Schedule 1, and disbursements properly incurred. Dr Gray seeks the daily hearing fee payable to counsel, and the advocacy loading in accordance with Parts 1 and 2 of Schedule 1.
[1] Federal Circuit Court Rules 2001 (Cth), Rule 21.15.
In summary, the applicants seek payment of costs and disbursements on the general federal law scale as follows:
a)Item 1: $2,735
(Initiating Application up to completion of first court date)
b)Item 6: $6,150
(Preparation for final hearing –one day matter)
c)Item 13: $1,024
(Daily hearing fee ½ day matter)
d)Item 12: $512
(Advocacy loading)
e)Item 14: $300
(other fees and payments to the extent that they have been reasonably incurred)
f)Item 15: $687.99[2]
(Disbursements – photocopying $.71c per page)
[2] This amount is itemised as $286.84 for photocopying of the Court Book (404 pages) and $401.15 for photocopying of a Book of Authorities (565 pages).
Total:$11,408.99
Counsel for the first respondent, Mr Tredrea, has submitted that the table of costs for migration proceedings set out in Division 1 of Part 3 to Schedule 1, applies in this matter and that the applicants are not entitled to their costs over and above Item 6 in that schedule namely, $6,825. He submits, in effect, that the Schedule sets out an event based structure for fees in migration matters, and that there is no good reason in this matter for the Court to depart from that structure by having recourse to r.44.15(5). He argues that to do so would be akin to making an award for indemnity costs and that there is nothing remarkable in the manner in which this matter resolved.
In Mr Tredrea’s submission, there was nothing special or unusual in the nature of this matter that would warrant it being certified as being fit for counsel. He says that the applicants were advised on 23 February 2016 that the matter would be conceded, and there was accordingly no need for counsel to have attended at Court for the consent orders to be made. He disputed that any inference could be drawn that the first respondent had failed in its duty as the model litigant. The matter was conceded as soon as the first respondent concluded that the application had sufficient merit to warrant a concession.
Consideration
The power of this Court to award costs derives from s.79 sub-sections (2) and (3) of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the Act’) which provide as follows:
“(2)The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or Judge.”
Rule 44.15 deals with costs in migration matters. Relevantly it says:
“44.15 Costs
(1)The Court may, in relation to a proceeding that is concluded, order that an unsuccessful party in the proceeding must pay the costs of a successful party in accordance with Division 1 of Part 3 of Schedule 1.
…
(5)This rule does not limit a party’s right to apply, under Part 21, for an order as to costs of the application.”
The table of costs in Part 3, Schedule 1 of the Rules is therefore a guide to be applied unless a matter has been certified as fit for counsel or for some other reason the court determines to exercise its discretion to award costs under Part 21 of the Rules.
Part 21 of the Rules relevantly provides:
“21.10 Costs and disbursements
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 Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.
21.15 Advocacy 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.
21.16 Counsel 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 Parts 1 and 2 of Schedule 1.”
The Court clearly has an unfettered discretion with respect to the quantum of costs. The combined effect of rr.44.15(5) and 21.10 is that I am able to depart from the tables of costs in Schedule 1 if I am satisfied in the exercise of my discretion that it is appropriate to do so.
The discretion to award costs must be exercised judicially and in the context of the court rules.[3] In my view, the context of the court rules is that the court must have regard to the relevant tables of costs set out in Schedule 1 in determining an appropriate award of costs, keeping in mind the discretion to depart from those tables. In a migration matter there will often be no good reason to depart from the table of costs Division 1 of Part 3 to Schedule 1. However, if I take the view that a matter warrants certification as being fit for counsel, then consequences will flow for the award of costs to a successful party.
[3] Noble v Baldwin and Anor (No.2) [2011] FMCA 700.
I am satisfied that this matter is of sufficient complexity to warrant it being certified as fit for counsel and I make that certification.
I do not find that the first respondent failed to fulfil its duty as the model litigant in this matter. In any event, I do not understand the import of Dr Gray’s submission to have gone so far. Rather, she was pointing to that obligation to demonstrate that the decision of the first respondent to concede this matter could have been made at an earlier stage given it would inevitably have made an early review of the merits of the application.
The applicants are correct to submit that this matter did resolve at a time all of the preparation work had effectively been done. Whilst it had resolved in principle by the afternoon of 26 February, there remained outstanding issues as to the explanatory statement. There was also of course the unresolved issue of costs. I accept that it was appropriate in those circumstances for counsel for the applicant to attend before me on 26 February 2016.
I have considered the applicants’ submissions as to costs. I am not satisfied that a departure should be made from the migration scale, except as to counsel fees and disbursements. In my view, solicitor’s costs for this application are adequately and fairly catered for in Item 3 of the migration scale. It is appropriate for me to make an award of costs by reference to both the scales indicated in Schedule 1 of the Rules for general federal law proceedings, and migration proceedings.
Accordingly, I have calculated and order costs for the applicants as follows:
a)Item 3 - $6,825.00[4]
b)Item 13 - $1,024.00[5]
c)Item 12 - $512.00[6]
d)Item 14 - $300.00[7]
e)Item 15 - $687.99[8] ($286.00 and $401.15)
[4] Federal Circuit Court Rules 2001 (Cth), Division 1 of Part 3 to Schedule 1.
[5] Federal Circuit Court Rules 2001 (Cth), Part 1 of Schedule 1.
[6] Ibid.
[7] Ibid.
[8] Ibid.
Total $9,348.99
I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 17 March 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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