Santos and Anor v Minister for Home Affairs and Anor (No.2)

[2020] FCCA 68

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANTOS & ANOR v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2020] FCCA 68

Catchwords:
MIGRATION – Costs – Application under the Migration Act 1958 (Cth) – application dismissed – power to award costs under the Federal Circuit Court Rules 2001 (Cth) – Costs order made.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.79(2), 79(3)

Federal Circuit Court Rules 2001 (Cth), r. 44.15, Schedule 1
Migration Act 1958 (Cth)
Ministerial Direction No 69

Cases cited:

Santos & Anor v Minister for Home Affairs &Anor [2019] 2318

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72; 152 ALR 83

re Elgindata Ltd (No 2) [1992] 1 WLR 1207; [1993] 1 All ER 232

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403

SZRTP v Minister for Immigration & Anor (No 2) [2013] FCCA 711

Applicant: GUSTAVO COLOMBO SANTOS

Second Applicant CAROLINA PINHEIRO BONNEL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: CAG 29 of 2018

Judgment of: Judge Tonkin

Hearing date: By written submission

Date of Last Submission: 13 September 2019

Delivered at: Brisbane

Delivered on: 16 January 2020

REPRESENTATION

Solicitors for the Applicant: Self-Represented

Solicitors for the Second Applicant: Self-Represented

Counsel for the Respondents: Mr Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. As per Schedule 1 Part 3 of the Federal Circuit Court Rules 2001 the Applicant shall pay the First Respondent’s costs in the amount of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 29 of 2018

COLOMBO SANTOS GUSTAVO

Applicant

CAROLINA PINHEIRO BONNEL

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant sought judicial review of a decision of the Tribunal on 26 March 2018 not to grant the applicant a student (temporary) (class TU) subclass 572 visa. The matter was heard in Canberra on 22 and 26 March 2019. On 30 August 2019 I delivered judgment in the proceedings and ordered that the application be dismissed: Santos & Anor v Minister for Home Affairs & Anor [2019] FCCA 2318. Though the Respondent sought an order for costs that matter was not argued before me. Orders were made for the parties to file written submissions with respect to costs.

2. On 6 September 2019 the First Respondent filed written submissions seeking an order that the Minister’s costs of the proceedings, in the amount of $13,065.92, be paid by the Applicant.

3. The Applicant filed written submissions on 13 September 2019. Though not stated directly I infer from his submissions that he opposes any order for costs.

4. Neither party adduced any evidence in support of their submissions. The First Respondent argued that the sum sought by the Minister of $13,065.92 represents 75% of costs incurred by the First Respondent’s solicitors and 100% of the First Respondent’s Counsel’s costs. The total costs incurred in this matter are said to amount to $16,415.54 being $13,398.50 representing solicitor’s professional fees and $3017.04 for Counsel’s fees in connection with the performance of the following tasks:

   (a)     Preparing, filing and serving initial documents;

   (b)     attending to file and perusing correspondence;

   (c)liaising with the legal officers in the employ of the Respondent’s department in relation to the file including seeking instructions and providing advice;

   (d)     attending a first Court date before Judge Neville;

   (e)     liaising with the applicant throughout the proceeding;

   (f)         preparing, arranging and filing a Court Book;

   (g)     instructing Counsel to appear at a final hearing;

   (h)     preparing, arranging and filing the Respondent’s submissions;

   (i)     attending hearings before Judge Tonkin on 22 and 26 March 2019;

   (j)     preparing post hearing submissions as required by Court order in relation to audio recording evidence;

   (k)     preparing a judgment report for the client; and

   (l)     preparing these submissions.

5. In his submissions the Applicant argued that due to his financial circumstances he “would not be able to afford a lawyer to defend us in this case.” He said he made some enquiries and obtained “quotes …all costs for a representative are extremely high.” He argued that he understood that the First Respondent had expenses “to make his defence but unfortunately we cannot afford such costs…if we could afford it, we would hire a representative for us.”

6. He argued that he works as a casual employee without a permanent contract and earns $25 an hour working 20 hours or less a week. His wife works 20 hours a week on a permanent part time contract earning $450.77 a week. He indicated he attached his wife’s pay slip to his submissions however no document was attached.

7. He argued that he was required to pay an application fee to the Federal Circuit Court when lodging his application and hearing fees. These fees were not specified.

Consideration

1. Subsection s.79 (2) of the Federal Circuit Court of Australia Act 1999 (Cth) provides:

   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.

   Subsection 79 (3) provides:

   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.

2. The Court has a discretion to award costs provided that the discretion is exercised judicially and in the context of the relevant Court rules. In Oshlack v Richman River Council (1998) 193 CLR 72 at [65] the Court said as follows:

   [65] Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation.[1] - In this manner, the law has gradually developed principles to guide the proper exercise of the discretion and, in some cases, to highlight extraneous considerations which, if taken into account, will cause the exercise of the discretion to miscarry. Consistent with the aim of justice, the law could not have developed otherwise. As Mason CJ said in Latoudis v Casey[2]:

   “it does not follow that any attempt to formulate a principle or a guideline according to which the discretion should be exercised would constitute a fetter upon the discretion not intended by the legislature. Indeed, a refusal to formulate a principle or guideline can only lead to exercises of discretion which are seen to be inconsistent, a result which would not have been contemplated by the legislature with any degree of equanimity.”

   [1] In re Elgindata Ltd (No 2) [1992] 1 WLR 1207; [1993] 1 All ER 232

   [2] [1990] HCA 59; (1990) 170 CLR 534 at 541; see also Dawson J at 558

   [66] By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs. …….The combined force of the sentiments recognised above by Mason CJ, regarding the need for consistency in order to avoid injustice…..

   …..

   [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.[3] 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.

   [68] As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.”

   [3] Latoudis [1990] HCA 59; (1990) 170 CLR 534 at 543 per Mason CJ, at 562-563 per Toohey J, at 566-567 per McHugh J; Cachia v Hanes[1994] HCA 14; (1994) 179 CLR 403 at 410 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ

3. The relevant Rules of Court, in the context of which the discretion should be exercised, are set out in Part 21, Rule 44.15 and Part 3 of Schedule 1 (Schedule) of the Federal Circuit Court Rules 2001 (Cth) (Rules). Rule 44.15 provides that the Court may, in relation to a proceeding brought under the Migration Act 1958 (Cth) 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. The amount set out in Part 3 of Schedule 1 where proceedings are concluded at a final hearing is $7,467.

4. As Judge Nicholls observed in SZRTP v Minister for Immigration & Anor (No.2)[4] the existence of the Schedule does not mean that the Court does not retain a discretion. I agree that the Schedule serves as “a guide to what may be generally considered to be reasonable in matters” of the sort to which the Schedule applies,[5] and the “Court’s discretion should be exercised with reference to the actual circumstances presented in each case”.[6]

   [4] SZRTP v Minister for Immigration & Anor (No.2) [2013] FCCA 711 at [45]

   [5] SZRTP v Minister for Immigration & Anor (No. 2) [2013] FCCA 711 at [47]

   [6] SZRTP v Minister for Immigration & Anor (No. 2) [2013] FCCA 711 at [46]

5. The applicant’s challenge to the Tribunal’s decision was relatively straightforward. He argued (albeit unsuccessfully) that the Tribunal had failed to take into account relevant considerations. In addition he argued that an interpreter had not been provided. Following the receipt of the audio recording of the Tribunal hearing the Court found that the applicant failed to establish any error regarding the fact that an interpreter had not been made available.

6. An issue was raised by the First Respondent regarding the construction of Ministerial Direction No 69 which added a degree of complexity to the matter. The First Respondent submitted that the use of the term “should” in Ministerial Direction No 69 did not import any requirement by the Tribunal to consider something but rather was permissive in nature giving guidance to the decision maker as to matters that may need to be considered depending on the circumstances of each case.

7. The applicant did not assert that the Tribunal had fallen into any error in failing to consider any matter in Ministerial Direction No 69 that the Tribunal was bound to consider. The applicant did not address the issue in either written or oral submissions. Ultimately the Court was satisfied that the Tribunal had considered either expressly or impliedly the factors it was required to consider in Ministerial Direction No 69 and did not fall into error.

8. I take into account that the First Respondent’s costs would have included work undertaken with respect to the issue regarding the construction of Ministerial Direction No 69 and in fairness to the applicant the issue was complex and not put in issue by the applicant.  His case was fairly straightforward. As such I consider the amount of $7467 a reasonable amount for any costs incurred in light of the application.

Conclusion

1. For those reasons there will be an order that the applicant pay the first respondent’s costs set in the amount at $7,467.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Tonkin

Date: 16 January 2020