S1486 of 2003 v Minister for Immigration
[2005] FMCA 1464
•24 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1486 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1464 |
| MIGRATION – Costs. |
| Federal Magistrates Court Rules 2001, rr.21.02(2)(a), 21.02(2)(b), 21.07(1), 21.07(2), 21.07(3), Schedule 1 |
| 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: | APPLICANT S1486 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2433 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 26 August 2005 |
| Date of Last Submission: | 1 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. C. J. Gray |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The applicant shall pay the first respondent's costs fixed in the amount of $8,443.28 pursuant to rule 21.02(2)(a) of the Federal Magistrate Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2433 of 2004
| APPLICANT S1486 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & NDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
On 30 July 2004 the applicant filed an application in this Court seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 August 1999 to affirm the decision of a delegate of the respondent Minister made on 29 October 1997 to refuse a protection visa to the applicant.
On 26 August 2005 I handed down Judgement in this matter and made the following orders dismissing the application.
1.The application is dismissed.
2.The Refugee Review Tribunal to be joined as the second respondent in the proceedings.
3.The first respondent file and serve evidence as to costs within seven (7) working days.
4.The applicant file and serve any submissions in reply within seven (7) working days after that date or contact the Associate to arrange for that matter to be listed for hearing on that issue.
In relation to orders 3 and 4 above, following dismissal of the application the first respondent, on that date, sought an order for costs set in the amount of $10,000. As a result, I gave the parties additional time to file and serve any additional material as to the issue of costs.
I now have before me:
1)
The affidavit with annexures, of Catherine Jane Gray, a solicitor in the employ of the first respondent’s solicitors, sworn on
31 August 2005.
2)The affidavit of the applicant sworn on 8 September 2004.
3)An affidavit, sworn and filed by the applicant on 11 October 2005. In this affidavit the applicant states that:
“2. As regard costs order at 3 and 4 in above letter, the Respondents Affidavit dated 1st September 2005 and my reply of 8th September 2005 refers. I have yet to receive further evidence as to costs from the respondent.”
4)The affidavit of Catherine Jane Gray of 13 October 2005, with attachment being a letter dated 1 September 2005 from the respondent’s solicitors to the applicant stating that the respondent’s solicitors enclose by way of service the earlier affidavit of Catherine Jane Gray of 1 September 2005.
The applicant made no submissions as to costs at the handing down of the Judgment. In his affidavits the applicant appears to argue against a costs order being made on the grounds of impecuniosity, or that the order as to costs should be deferred until after the outcome of the appeal against my order dismissing his application. Further, the applicant asserts that the amount of $4448.28 being the total amount of the items sought by the respondents, for which invoices were copied in the Annexures to the affidavit of Catherine Jane Gray of 31 August 2005, is a “hearing toll” for the applicant, given his “meagre resources”.
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 applicant initiated proceedings and pursued them as is his right. But, impecuniosity of the applicant would not constitute a “good or special reason” for a departure from the general rule. The applicant’s lack of funds, his claimed dependence on his children may well equal a hearing toll for him, but they are not special reasons in all the circumstances to warrant a costs order not being made. Further, the applicant’s referral to being “without Medicare” does in the absence of anything else consolidate a special reason. There is no evidence, or even assertion before me, that the applicant has had to divert or expend funds on any urgent or life threatening medical treatment, since commencing proceedings. The applicant also makes reference to the respondent’s representatives “silence” on the “High Court judgment of 8th August 2002 in S89/1999”. To the extent that this may be a reference to any costs paid or owed in any other proceedings, there is nothing to show its reliance to the costs application currently before me. 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.
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. On 26 August 2005 I gave the parties additional time to provide written evidence and submissions, given that the amount of $10,000 being sought by the first respondent was in excess of what is normally sought in migration matters of this type that come before this Court.
In relation to the quantum of costs the first respondent put forward the following (the numbers correspond to the paragraph numbers in the Affidavit of Catherine Jane Gray):
| Para | Date | Event |
| 4 | 30 July 2004 | Applicant’s solicitors filed application for judicial review with the Federal Magistrates Court |
| 5 | 06 August 2004 | Letter from the respondent’s solicitors to the applicant’s solicitors |
| 6 | 16 August 2004 | Respondent filed and served Notice of Objection to Competency |
| 7 | 30 August 2004 | First Federal Magistrates Court date |
| 8 | 13 September 2004 | Prepared Court Book (Diskovery) |
| 9 | 13 September 2004 | Served Court Book |
| 10 | 24 November 2004 | Respondent filed and served Notice of Motion and accompanying affidavit and proposed consent orders |
| 11 | 24 November 2004 | Counsel was briefed to appear at the first hearing |
| 12 | 29 November 2004 | Respondent filed and served written submissions |
| 13 | 02 December 2004 | Respondent receives two facsimiles from the applicant’s former solicitors enclosing an affidavit |
| 14 | 02 December 2004 | Respondent replies to applicant’s fax and accompanying affidavit objecting to Federal Magistrate Nicholls hearing and determining the matter |
| 3 | 03 December 2004 | Respondent briefed senior Counsel regarding the matter raised in the applicant’s fax |
| 16 | 09 December 2004 | First Federal Magistrates Court hearing date with senior Counsel in attendance. Hearing was adjourned as the applicant’s solicitors did not appear |
| 17 | 10 December 2004 | Respondent signed tax invoice in relation to Kate Morgan’s fees of $825 |
| 18 | 10 December 2004 | Respondent wrote to applicant’s former solicitors advising of the orders made on 9 December 2004 |
| 19 | 15 December 2004 | Respondent received a letter from applicant’s solicitors enclosing a Notice of Ceasing to Act |
| 20 | 09 February 2005 | Respondent receives the applicant’s averments |
| 21 | 21 February 2005 | Respondent receives an affidavit from applicant |
| 22 | 23 February 2005 | Second Federal Magistrates Court hearing with senior Counsel in attendance |
| 23 | 02 March 2005 | Respondent signed a memorandum of fees for Mr. Beech-Jones for the amount of $3200 |
| 25 | 26 August 2005 | Respondent attended judgment delivery in the matter |
| - | 01 September 2005 | Respondent filed and served evidence as to costs |
There appear to be two bases put forward by the first respondent in seeking an order in the amount of $10,000:
1.The amount of work done, which equates to work ordinarily done in responding to applications complaining about decisions of the Tribunal.
2.The additional work, and the factors relevant in this case, flowing from the applicant’s former solicitors and Counsel notifying the first respondent of the intention to argue at the final hearing that I should disqualify myself from these proceedings on the basis that in the past I was employed by the Department of Immigration in NSW. The applicant’s former solicitors and Counsel withdrew just prior to the date for final hearing in this matter (9 December 2004) and at the hearing the applicant, after I drew his attention to the letter from his former legal representatives to the first respondent, said:
“I'm not pursuing that matter.”
I emphasised with the applicant that as I was, in any event, going to adjourn the final hearing date to enable him to obtain alternative or further legal advice, and that if at some later date (up to and including the final hearing) he did wish to pursue the matter, that course of action remained open to him. The matter was finally heard on 23 February 2005 and the applicant did not raise or make any reference to this issue. The first respondent's position is that notwithstanding that this issue was abandoned by the applicant at the first date of the final hearing, that as a consequence of the matter being raised, and also considering the conduct of the applicant’s former legal advisers in withdrawing from the proceedings at such a late stage prior to the date set for final hearing, that additional time and resources were expended on behalf of the respondents and in particular, that additional costs were incurred in the briefing of more senior Counsel, in addition to the fact that the first respondent still had to pay the costs of Counsel who had originally been briefed in this matter.
The first respondent seeks an amount of $10,000. The evidence submitted by the first respondent’s solicitors does not itemise the work done as against the amount of costs allowable as set out in Schedule 1 to the Federal Magistrate Court Rules 2001 (“the Rules”). In any event, I understood the respondent to be seeking that costs should be set pursuant to Rule 21.02(2)(a) of the Rules where the Court may set the amount of costs. Further, in relation to assessing the quantum of costs, it is clear that in migration matters it is rare for proceedings to take more than half a day of Court time. In the case before me, even over the two hearing dates, the total time spent for the proceedings was approximately two hours and 20 minutes. Schedule 1 of the Rules provides in “Stage 5” “Preparation for final hearing” for a fee of $4090 for “a 1 day matter”. In the circumstances, even though this matter required a final hearing to be held on two separate days, it is clear that the total time spent did not amount to a “1 day matter” and to that extent it is not appropriate that Schedule 1 in this regard should apply.
The first respondent has sought the following amounts in relation to specific items:
1.
Preparation of Court Book (“Diskovery”): $423.28 [Paragraph 8 and Annexure “C” of the Affidavit of Catherine Jane Gray of
31 August 2005]
In relation to the amount of $423.28 to “Diskovery”, I note that a party is entitled to costs in relation to disbursements that are properly incurred pursuant to Rule 21.10(b) of the FMC Rules and that costs are in accordance with Schedule 1. It is clear that the Court Book preparation was a requirement flowing from the orders made by the Court at the first Court date, that the respondent file and serve relevant documents. Using the Schedule as a guide: “Stage 7”: “Disbursements” provides for 0.52 cents photocopying per page. The Court Book in this matter is 284 pages in length. At least three copies of the Court Book, that is, two for the Court file and one for the applicant, would need to be prepared and this would, on the Schedule fee allowed, exceed the amount of $423.28 sought by the respondent. On this basis this amount should be allowed.
2.Counsel fees (Mr. Beech Jones): $3200 [Paragraph 23 and Annexure “K”]
In relation to Counsel's fees, the additional costs for a more senior Counsel were actually $3200. The applicant's former legal representatives raised the issue of the objection to my hearing and determining this matter with the respondent’s solicitors prior to the first date of the final hearing. Given the seriousness of this matter it was clearly reasonable for the first respondent to seek to brief a more senior Counsel in this matter. Further, the first respondent was involved in additional expense, time and resources when the matter was adjourned from the first date that had been set down for final hearing, to a second date to allow the applicant to explore the possibility of obtaining alternative legal advice in circumstances where his legal representatives withdrew from the proceedings the day before the hearing on 9 December 2004. In all the circumstances it was reasonable therefore for a more senior Counsel to be briefed, and who appeared on two occasions. In these circumstances the amount of $3200 is reasonable for this purpose.
3.Counsel fees (Ms. Morgan): $825 [Paragraph 17 and Annexure “M”]
Further, Ms. Morgan who had been previously briefed to appear in this matter was paid an amount of $825 and in all the circumstances this also was a reasonable expense incurred by the first respondent.
The total amount itemised by way of exact dollar amounts by the first respondent is therefore $4448.28 and should be allowed.
As to the remainder, the respondent has not provided a breakdown of each of the items sought, nor assigned any dollar amount. While exercising my discretion to set reasonable costs pursuant to Rule 21.02(2)(a), I use as a guide the amounts as set out in Schedule 1 of the Rules, and in this regard would see the following as being reasonable:
1)Preparation for a one-day matter is set in the Schedule 1 is $4090. In the case before me, the combined hearing times of the two hearings were in the order of two hours and 20 minutes. In my view, as the application was therefore dealt with essentially as a combined half-day hearing, it is more appropriate that I should allow $2045 for preparation of “the hearing”.
2)Further, I am of the view that the additional work involved in preparing for the disqualification issue in relation to Counsel, albeit that it was not pressed, and the work done in dealing with the late withdrawal of the applicant’s former legal representatives, was in all probability reflected in the amount of $3200 paid to the senior Counsel. Counsel fees set out in “Schedule 1 of the Federal Magistrates Court Rules” even for two half-day hearings, would amount to $2055. “Schedule 1 – Stage 7”, Daily Hearing Fee:
Half Day Hearing $685
Plus Advocacy loading 50% $342.50
= $ 1,027.50
Times 2 Hearing Dates = $2,055
Therefore, in relation to Counsel, no additional amount should be allowed for this purpose. However, I deal below with other additional costs incurred as a result of the action of the former legal representatives.
3)In terms of preparation for the hearing, I note the following items put forward in the affidavit of Catherine Jane Gray as not being as a result of the “additional factors”:
Para 4: Application filed
Para 5: Respondent Appearance
Para 6: Notice of Objection to Competency
Para 8: [Work done other than by “Diskovery”]
Para 9: Copy of the Court Book
Para 10: Notice of Motion
Para 12: Respondent’s written submissions
Para 14: Service of Applicant’s affidavit
Para 18: Orders and advice
Para 20: Applicant’s written submissions
Para 21: Applicant’s affidavit
These items would be caught within the amount of $2045 as referred in paragraph 10. 1) above.
4)The following items can be seen as additional items arising out of the former solicitor’s conduct in late withdrawal and the matter of objection raised:
Para 13: Letter advising of objection
Para 15: Notice of Withdrawal by Solicitors
Para 19: Notice of Ceasing to Act
An amount of $200 would appear reasonable in dealing with these issues by the first respondent’s solicitors.
5)As to the other items, and again using the Schedule as a guide and looking at the items put forward by the first respondent, it is appropriate that the following amounts to be allowed:
Solicitor attendance at first Court date (Para 7): $190
Solicitor attendance at hearings on 9 December 2004 and
23 February 2005, $685 times two (Paras 16 and 22), equalling: $1370
Solicitor attendance at judgement (Para 25): $190
6)The total costs therefore, which in the circumstances are reasonable and appropriate:
Paragraph 9 $4448.28
Paragraph 10. 1) $2045.00
Paragraph 10. 4) $200.00
Paragraph 10. 5) $1750.00
amount to $8,443.28.
At the date of the first hearing of this matter, Counsel for the first respondent sought directions, which I subsequently gave, that any Notice of Motion and affidavit filed in support by the first respondent, that the solicitors for the applicant pay the costs thrown away by reason of the adjournment on that date, be filed and served by 31 January 2005 and returnable on 23 February 2005. No such Notice of Motion was subsequently filed. Nor did the first respondent pursue this issue with the Court subsequently. The application for costs is sought against the applicant. Further, while Rule 21.07(3) of the Rules provides that an order for costs against a lawyer may be made on the motion of the Court, there is nothing in the material before me to show that the applicant’s former lawyers acted in any of the ways set out in Rule 21.07(1) of the Rules in relation to the conduct of this case, or that they acted unreasonably in the circumstances in the manner contemplated by Rule 21.07(2) of the Rules to warrant any order for costs against them.
Therefore, the order of the Court will be as follows:
The applicant shall pay the first respondent's costs fixed in the amount of $8,443.28 pursuant to rule 21.02(2)(a) of the Federal Magistrate Court Rules 2001.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 24 October 2005
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