Re Minister for Immigration and Multicultural Affairs; - [2004] HCA 27

HIGH COURT OF AUSTRALIA
GUMMOW J
Matter No. P1/2001
RE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS & ANOR  RESPONDENTS
EX PARTE BRIAN GERALD
JAMES GOLDIE & ANOR  APPLICANTS/PROSECUTORS
Matter No. P22/2001
RE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS & ANOR  RESPONDENTS
EX PARTE BRIAN GERALD
JAMES GOLDIE  APPLICANT/PROSECUTOR
Matter No. P47/2001
BRIAN GERALD JAMES GOLDIE  APPLICANT
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS  RESPONDENT
Re Minister for Immigration and Multicultural Affairs; Ex parte Goldie
Re Minister for Immigration and Multicultural Affairs; Ex parte Goldie
Goldie v Minister for Immigration and Multicultural Affairs
[2004] HCA 27
15 June 2004
P1/2001, P22/2001 and P47/2001
ORDER
(1)Application to review taxation granted.
(2)The Minister to recover the items for counsel's fees which were disallowed.

(3)The taxing officer to complete taxation accordingly.
(4)Mr Goldie to pay the Minister's costs of the summons.

Representation:
H C Burmester QC for the Minister for Immigration and Multicultural Affairs in all matters (instructed by Australian Government Solicitor)
No appearance for Brian Gerald James Goldie
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GUMMOW J. In three proceedings in this Court instituted in 2001, a lawyer employed by the Australian Government Solicitor ("the AGS") appeared for one of the parties, the Minister for Immigration and Multicultural Affairs ("the Minister"). Two of these proceedings (P1/2001 and P22/2001) were applications by Mr B G J Goldie under s 75(v) of the Constitution and were dismissed by a Justice on 3 September 2001 with costs orders in favour of the Minister. The other proceeding was an application by Mr Goldie (P47/2001) for special leave to appeal against a decision of the Full Court of the Federal Court. That application was not prosecuted and, on 21 June 2002, a Deputy Registrar issued a certificate of deemed abandonment under O 69A r 13(2) of the High Court Rules ("the Rules"). As a result, Mr Goldie was required to pay the costs of the Minister in respect of the special leave application, these to be taxed unless agreed upon between the parties.
Section 64 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") provides:
"In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject." (emphasis added)
The term "suit" is defined in s 2 as including any action or original proceeding between parties. The Minister is included in the term "the Commonwealth" as used in s 64[1].
[1]See Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136 at 143 [15], 152‑153 [48]; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 582 [43].
One effect of s 64 is to make it clear there is no room in federal law for the application of the principle that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] HCA 27
Decision Date: 15 June 2004

CaseChat Overview and Summary

The High Court considered an application to review the taxation of costs in a matter involving the Minister for Immigration and Multicultural Affairs. The dispute concerned the allowance of fees charged by the Australian Government Solicitor (AGS) for services rendered by its in-house counsel. The taxing officer had disallowed these fees, leading to the Minister's application for review.

The central legal issues before Gummow J were whether the High Court Rules permitted the recovery of fees for services performed by in-house counsel employed by the AGS, and whether the AGS itself constituted a "practitioner or firm of practitioners" or "the Commonwealth" for the purposes of those rules. Specifically, the court had to determine if the brief marked at a daily and hourly rate by an AGS solicitor to AGS in-house counsel, and the subsequent invoices for counsel's services, were allowable expenses under Order 71, Rule 91 of the High Court Rules.

Gummow J reasoned that the AGS, in providing both solicitor and counsel services through its in-house staff, was acting as a firm of practitioners. The rules, particularly Order 71, Rule 93, contemplated that a party could recover costs for services rendered by a practitioner or firm of practitioners, even if that practitioner was employed by the party. The distinction between solicitor and counsel roles within the AGS was a matter of internal organisation, not a bar to recovering fees for the distinct legal services performed. Therefore, the disallowance of the counsel fees was incorrect.

The application to review the taxation was granted. The Minister was ordered to recover the disallowed items for counsel's fees, and the taxing officer was directed to complete the taxation accordingly. Mr Goldie was ordered to pay the Minister's costs of the summons.

Orders

Orders of the court

(1) Application to review taxation granted.

(2) The Minister to recover the items for counsel's fees which were disallowed.

(3) The taxing officer to complete taxation accordingly.

(4) Mr Goldie to pay the Minister's costs of the summons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GUMMOW J

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Ratio Decidendi

Legal Principle Established

Established by: GUMMOW J

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