Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 277
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 277
File number(s): MLG 1378 of 2020 Judgment of: JUDGE LAING Date of judgment: 27 March 2024 Catchwords: MIGRATION – costs – fixed costs application – above scale amount sought by the Minister – relevant principles – fixed costs order made Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 22.02, 22.09, 29.13
Cases cited: CIQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3467
Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 22 March 2024 Place: Sydney Appearing for the Applicant: No appearance Solicitor for the First Respondent: Ms S Lloyd of MinterEllison Second Respondent: Submitting appearance, save as to costs Appearing for Other: No appearance ORDERS
MLG 1378 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD AREEB SHAHZAD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1.Mr Warraich pay the first respondent’s costs of these proceedings fixed in the amount of $16,900.
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).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application made by the first respondent (Minister) for costs to be fixed in an amount above scale. This follows delivery of judgment in Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138 (Substantive Judgment).
In the Substantive Judgment, reasons were given for declining to reinstate an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). However, a costs order that was previously made against the applicant was set aside and replaced with an order that the applicant’s former solicitor, Mr Imran Warraich (Mr Warraich), pay the Minister’s costs of the proceedings up to the time that orders were made on 27 February 2023 in an amount not exceeding $5,900. Mr Warraich was also ordered to pay the Minister’s costs of the proceedings following that time.
The relevant positions
The Minister seeks that costs in his favour be fixed in the amount of $21,090 comprising:
(a)$5,900 in respect of the proceedings up to 27 February 2023; and
(b)$15,190 in respect of the reinstatement application filed on 12 April 2023 (Reinstatement Application).
Neither Mr Warraich nor the applicant appeared at the hearing of the Minister’s application regarding the quantification of costs on 22 March 2024.
Principles
Section 214(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act) refers to the general jurisdiction of this Court to award costs in proceedings that are before it. The award of costs is generally at the discretion of the Court, except as otherwise provided for under legislation or the Court’s rules: s 214(3) of the FCFCA Act.
Rule 22.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) permits the Court to set an amount of costs in a proceeding. Rule 22.09 relevantly provides that a party entitled to costs is entitled to such costs in accordance with Schedule 2 to the Rules, as well as disbursements properly incurred, unless the Court orders otherwise.
Pursuant to rule 29.13(1), the Court may order an unsuccessful party in a proceeding to pay the costs of the successful party in accordance with Division 1 of Part 2 of Schedule 2 to the Rules. However, rule 29.13(3) confirms that a party may seek costs under Part 22 of the Rules.
Division 1 of Part 2 of Schedule 2 to the 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.
Evidence regarding the costs incurred
The Minister relied upon an affidavit affirmed by Felicidade Freire Tavares Lay on 21 February 2024.
That affidavit stated that the actual legal costs incurred by the Minister in respect of the Reinstatement Application were approximately $19,170.13, comprising:
(a)$15,920.13 in fees charged by MinterEllison (excluding GST); and
(b)$3,250 in Counsel’s fees.
The costs were stated to include the following:
(a)consideration of the Reinstatement Application;
(b)preparation of correspondence to the applicant and the Court;
(c)consideration of the affidavit evidence of the applicant and Mr Warraich;
(d)preparation of Court documents including three sets of written submissions;
(e)preparation for, and attendance at, the hearings on 22 June 2023, 15 September 2023 and 18 December 2023; and
(f)briefing counsel to appear at the resumed hearing on 18 December 2023.
Consideration
I accept that the amount of $5,900 is reasonable in relation to the work performed up to the time that orders were made on 27 February 2023. This amount, which was below scale at the time of the first hearing of the matter, was the amount that was sought and awarded to the Minister on 27 February 2023. Nothing has been placed before the Court indicating that the sum is unreasonable for work performed up to that time.
I accept that this is a matter that involved a considerable amount of work that was over and above what might generally be expected in a migration matter. The applicant made serious allegations in relation to the conduct of his former solicitor. The former solicitor needed to be provided with an opportunity to be heard in relation to the allegations that had been made against him. Due to the approach taken to the evidence by both the applicant and Mr Warraich, further hearing dates were required. As neither the applicant nor Mr Warraich were represented, the Minister, appropriately, played a particularly involved role in the facilitation of evidence. This would have required flexibility and preparation on the part of the Minister, which would have resulted in additional costs.
However, I am conscious that there is limited material before the Court regarding the costs that were incurred. The affidavit relied upon by the Minister was fairly general and brief in nature. This is not a criticism, nor is it an unusual or inappropriate approach for the Minister to have taken on the question of costs. It would not be a sensible approach for a party to pursue a fixed costs application such as the present with the level of evidentiary material (and associated cost) that might be expected in substantive proceedings more generally, or in undertaking a full taxation process. A level of proportionality is required, particularly against a background where the presiding judge may be expected to have some level of familiarity with the procedural steps and work involved.
That said, the level of costs sought by the Minister is substantial, being in excess of $20,000. Whilst much of this is explicable by reference to the multiple steps (and hearing dates) that were required in the matter, at least some of this is also potentially explicable by reference to other factors in the matter (such as staffing changes that occurred, with the result that the person who appeared for the Minister on the second last day of hearing was not the same as the person appearing at the adjourned final day of hearing in the matter). It seems likely that some level of duplication therefore occurred, although I of course make no criticism of the Minister or his representatives in this regard, nor of the capable solicitor who appeared at the earlier hearing, nor of the decision subsequently to brief Counsel (which was entirely understandable given the complexity and seriousness of the matter).
Considering the above in its totality, and the circumstances of this matter overall, I consider that an amount of $16,900 would be a “fair indemnity” for the Minister’s costs.
Conclusion
I will accordingly order that Mr Warraich pay the Minister’s costs of these proceedings fixed in the amount of $16,900.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 27 March 2024
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