Sapkota v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 32
•15 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sapkota v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 32
File number(s): SYG 1096 of 2023 Judgment of: JUDGE LAING Date of judgment: 15 January 2025 Catchwords: MIGRATION – Costs – application for costs to be awarded in a fixed amount after determination of the matter following a final hearing – fixed costs order made Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Part 2 Schedule 2
Migration Regulations 1994 (Cth)
Cases cited: Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172
Sapkota v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 19
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 15 January 2025 Place: Sydney Solicitor for the Applicant: Ms Q Ren, HWL Ebsworth Lawyers Solicitor for the First Respondent: Mr B Bhattarai, O’Connell Solicitors Second Respondent: Submitting notice, save as to costs ORDERS
SYG 1096 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RABIN SAPKOTA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
15 JANUARY 2025
THE COURT ORDERS THAT:
1.The applicant pay the first respondent’s costs fixed in the amount of $16,700.
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
JUDGE LAING:
The first respondent (Minister) in this matter seeks an order fixing costs in the amount of $16,700. This follows delivery of judgment today in the matter: Sapkota v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 19.
Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 contains what is commonly referred to as the Court’s “scale” in relation to migration proceedings:
Part 2—Migration proceedings
Division 1—Migration proceedings that have concluded
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 Division 2—Migration proceedings that have been discontinued
Costs for migration proceedings that have been discontinued Item Description Amount (including GST) 1 A proceeding in which the notice of discontinuance is filed and served at least 14 days before the first court date for the proceeding $833.61 2 A proceeding in which the notice of discontinuance is filed and served:
(a) less than 14 days before the first court date for the proceeding; and
(b) at least 15 days before an interlocutory hearing$2,089.36 3 A proceeding in which the notice of discontinuance is filed and served:
(a) less than 15 days before an interlocutory hearing; and
(b) at least 15 days before the final hearing$4,189.38 4 Any other case $5,859.80
Whilst regard may 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, “in the particular circumstances proven before it, what is a fair and just amount to fix” for costs: Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129; (2024) 305 FCR 172 at [94] (Mortimer CJ and Colvin and Dowling JJ).
The Minister relies upon an affidavit of Mengqi Ren dated 14 January 2025. That affidavit details solicitor-client costs incurred by the Minister in these proceedings, which were estimated at $15,349.31 (excluding GST and Counsel’s fees). An estimate of $500 was expressed regarding attendance today and Counsel’s fees were said to have been incurred in the amount of $5,568.19 (exclusive of GST).
As was discussed with Ms Ren during the listing today, there are some difficulties regarding the calculations in the affidavit relied upon relating to percentages said to convert the Minister’s solicitor-client costs into what was said to be an appropriate amount of party-party costs. However, I accept that the Minister has incurred solicitor-client costs in the amount claimed and also Counsel’s fees in the amount claimed.
The work performed in the matter is said to have included the following tasks, set out at [9] of Ms Ren’s affidavit:
9. … This includes, but is not limited to, attending to the following tasks that resulted in the costs incurred by the Minister being higher than contemplated by the Court’s rules:
a. Considering and responding to the applicant’s Subpoena to produce documents filed 2 July 2024 and preparing, settling and serving a Notice of Objection on 25 July 2024
b. Corresponding extensively with the applicant’s solicitor regarding the Subpoena and Notice of Objection;
c. Preparing and attending a total of 6 callovers and 1 interlocutory hearing tin relation to the applicant’s Subpoena (the applicant ultimately withdrew the Subpoena);
d. Reviewing and considering affidavit deposed by applicant’s lawyer filed on 2 July 2024 containing one new ground of review which abandoned three grounds in the original application;
e. Reviewing the applicant’s amended application filed on 15 July 2024, which abandoned the ground pleaded in the applicant’s lawyer’s affidavit filed on 2 July 2024 and pleaded one new ground;
f. Drafting amended Response withdrawing a summary dismissal application in response to the amended application filed on 15 July 2024;
g. Reviewing the applicant’s further amended application filed on 13 August 2024 which pleaded an additional particular;
h. Retaining and instructing Counsel;
i. Considering a novel and complex statutory interpretation issue raised in the proceedings, as to whether paragraph 4 in IMMI 15/062 was invalid by reason of a ‘drafting error’ as found in Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132;
j. Additional professional fees which were incurred in the day to day carriage of the proceeding before the Court with skill, care and responsibility.
(As per the original)
I accept that this matter has involved a substantial amount of work. This has included multiple appearances on the part of the Minister and work associated with a subpoena that was ultimately withdrawn by the applicant. The Minister has also been required to consider and respond to amended applications.
The matter, ultimately, involved a complex issue of statutory interpretation concerning construction of the Migration Regulations1994 (Cth) and also a statutory instrument, namely IMMI 15/062. It required consideration of a previous decision of this Court that both parties sought for the Court to depart from in different respects and for different reasons.
From the foregoing, it is apparent that the Court’s scale would not adequately compensate the Minister for costs reasonably incurred in this matter. Having regard to the circumstances of this matter as a whole, I accept that the amount of $16,700 represents a fair amount to fix in relation to costs.
For these reasons, I will make an order fixing costs in the amount that has been sought by the Minister. I note that the applicant has not sought to be heard in relation to the issue of costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 15 January 2025
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