Purnama v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 640
•16 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Purnama v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 640
File number(s): SYG 179 of 2019 Judgment of: JUDGE LAING Date of judgment: 16 July 2024 Catchwords: MIGRATION – costs – application for costs fixed in an amount above scale – fixed costs order made Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Sch 2 Cases cited: Atta v Minister for Immigration & Anor and El Gindy v Minister for Immigration & Anor [2019] FCCA 3594
CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467
Fairy v Minister for Immigration & Anor (No.2) [2017] FCCA 3095
Purnama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 619
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of hearing: 16 July 2024 Place: Sydney Counsel for the Applicant: Ms Z Graus Solicitor for the First and Third Respondents: Mr A Taverniti of Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 179 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID PRAKASA PURNAMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
COMMONWEALTH OF AUSTRALIA
Third Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
16 JULY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $15,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE LAING:
Before the Court is an application for costs fixed in an amount above scale. This follows delivery of judgment today in Purnama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 619 (primary judgment), in which I dismissed an application for judicial review of a decision by an officer of the Administrative Appeals Tribunal regarding an application for fee reduction.
Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) contains what is commonly referred to as the Court’s scale in relation to migration proceedings. It states the following in relation to such proceedings that have been determined other than by discontinuance:
Costs for migration proceedings that have concluded Item Description Amount (including GST) 1 A proceeding concluded at or before the first court date for the proceeding $1,675.75 2 A proceeding concluded:
(a) after the first court date for the proceeding; and
(b) at or before an interlocutory hearing$4,189.38 3 A proceeding concluded at a final hearing $8,371.30
Whilst due regard is to be had to the Court’s scale, the Court is not bound to impose it. In an application such as the present, the Court will consider what represents “a fair indemnity for the costs the successful party has incurred”: CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467 at [23]-[28] per Judge Manousaridis.
The Minister relies upon an affidavit of Bethany Rose McNamara dated 16 July 2024. That affidavit details solicitor-client costs incurred by the Minister in these proceedings, which were estimated as exceeding $21,715.98 (excluding GST). This was said to include:
(a)professional fees in the amount of $13,832.51 (excluding GST); and
(b)Counsel fees in the amount of $6,136.94 (excluding GST).
These costs were said to have been incurred in respect of the following actions:
(a)perusing the application and accompanying affidavit filed on 29 January 2019;
(b)preparing, filing and serving the notice of address for service filed on 1 February 2019;
(c)preparing, filing and serving the response filed on 4 February 2019;
(d)preparing draft short minutes of order and attending the first court date before a Registrar on 21 February 2019;
(e)perusing orders made by the Court on 21 February 2019;
(f)perusing the notice of address for service filed on 21 February 2019;
(g)preparing, filing and serving the court book, filed on 20 March 2019;
(h)preparing, filing and serving the notice of address for service filed on 18 March 2022;
(i)preparing, filing and serving the notice of address for service filed on 27 April 2023;
(j)preparing for and attending the callover before a Registrar on 31 May 2023;
(k)perusing orders made by the Court on 31 May 2023;
(l)preparing, filing and serving the notice of address for service filed on 3 July 2023;
(m)preparing, filing and serving the outline of submissions and list of authorities filed on 3 August 2023;
(n)perusing outline of submissions filed by the applicant on 10 August 2023;
(o)preparing for and attending the hearing on 17 August 2023;
(p)perusing orders made by the Court on 17 August 2023;
(q)preparing, filing and serving the notice of address for service filed on 23 October 2023;
(r)preparing draft short minutes of order and various correspondence with applicant's Counsel regarding proposed orders;
(s)perusing orders made by the Court on 9 February 2024;
(t)preparing draft short minutes of order and various correspondence with applicant's Counsel regarding proposed orders;
(u)perusing orders made by the Court on 6 March 2024;
(v)perusing outline of submissions filed by the applicant on 25 March 2024;
(w)perusing amended application filed by the applicant on 25 March 2024;
(x)preparing draft short minutes of order and various correspondence with the applicant's Counsel regarding proposed orders;
(y)perusing orders made by the Court on 27 March 2024;
(z)filing and serving the further outline of submissions, prepared by Counsel, filed on 8 April 2024;
(aa)preparing for and instructing Counsel at the hearing on 5 July 2024;
(bb)perusing orders made by the Court on 5 July 2024; and
(cc)preparing, filing and serving the notice of address for service filed on 11 July 2024.
The Minister seeks that costs be fixed in the amount of $15,000. This represents slightly under 65% of the Minister's solicitor-client costs in respect of the law firm that acted for the Minister, as well as 100% of Counsel fees in the amount of $6,136.94 (excluding GST).
I accept that work of some complexity has been required of the first respondent (Minister) in this matter. Determination of this matter occurred after two hearings. The first hearing was adjourned, and a pro bono referral was made, after some variance in the approach taken in the cases was identified: see Fairy v Minister for Immigration & Anor (No.2) [2017] FCCA 3095 (Judge Manousaridis) and Atta v Minister for Immigration & Anor and El Gindy v Minister for Immigration & Anor [2019] FCCA 3594 (Judge Humphreys). There was also some question of the appropriate parties to the matter arising by reference to those decisions, which was considered in the primary judgment.
The Minister has, accordingly, been required to prepare for two hearings in this matter and has filed two sets of submissions. The Minister has also been required to give some consideration to the appropriate parties to the matter. This has included seeking and obtaining instructions to appear on behalf of the Commonwealth in circumstances that have been detailed in the primary judgment.
Given the identified complexity in this matter, I accept that it was reasonable to brief an experienced Counsel in these proceedings.
Taking into account all of these matters, I accept that the amount of $15,000 does represent a fair indemnity regarding the Minister's costs in these proceedings. This is having regard to the complexity of the matter and the work that has been performed by the Minister. I note that the applicant neither consented to nor opposed costs being fixed in that amount, nor sought any adjournment to further consider his position.
CONCLUSION
For the foregoing reasons, the costs ordered in this matter will be fixed in the amount of $15,000.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 26 July 2024
0
4
1