Success Australia Group Pty Ltd v Minister for Immigration (No.2)
[2014] FCCA 439
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUCCESS AUSTRALIA GROUP PTY LTD v MINISTER FOR IMMIGRATION (No.2) | [2014] FCCA 439 |
| Catchwords: COSTS – Whether proceedings unreasonable –– whether taxed or according to costs schedule. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.79 Federal Circuit Court Rules 2001 (Cth), Sch.1, Parts 1 and 3 Federal Court Rules 2011 (Cth), Part 40 |
| SZCTH v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 26 SZQDZ & Orsv Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207; [2012] FCAFC 26 |
| Applicant: | SUCCESS AUSTRALIA GROUP PTY LTD |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 48 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 February 2014 |
| Date of Last Submission: | 28 February 2014 |
| Delivered at: | Perth |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Lee |
| Solicitors for the Applicant: | Lily Chen & Associates |
| Counsel for the Respondent: | Mr P Corbould |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant pay the respondent’s costs in an amount determined by a Registrar of this Court in a taxation of costs in accordance with Part 40 of the Federal Court Rules 2011 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 48 of 2013
| SUCCESS AUSTRALIA GROUP PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The nature of the application in this particular case is that it is a migration application, and would ordinarily attract costs against the losing party in a fixed amount in accordance with Sch.1 Part 3 to the Federal Circuit Court Rules2001 (Cth) (“FCC Rules”). This case was, however, different in a number of respects in that there was an argument concerning injunctions to be issued (“Injunction Application”) in respect of what the Court has found to be a primary decision, and in respect of which the Court has concluded that it had no jurisdiction to hear the actual application itself, which has not necessitated the Court dealing with the merits of the matter.
As the Court has observed in the course of the Reasons for Judgment on the application, part of the argument was in fact an argument which would not have been run by a first year law student on the basis of the law, and the fact that the application has failed on what the Court considers to be relatively clear jurisdictional grounds does, in part, make a case for a non-standard costs order even though this is a migration proceeding. Furthermore, that is reinforced by the fact that the primary decisions referred to in aid of the Injunction Application were all decisions which were distinguishable, in the Court’s view, particularly SZQDZ & Orsv Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207; [2012] FCAFC 26, SZQGA v Minister for Immigration & Citizenship & Anor (2012) 204 FCR 557; [2012] FCA 593 and SZCTH v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 26. The former were distinguishable on the basis that they did not involve migration decisions, let alone primary decisions, and the latter on the basis that, in fact, the legislation had been amended to avoid the very argument which was put in this case, and amended as long ago as 2005. Both of those issues might, in ordinary circumstances, be the basis for an argument, which may or may not have succeeded, for costs on an indemnity basis.
Given what has been said by Counsel appearing today on the handing down of the Reasons for Judgment in relation to the costs application and the amount of costs which have been incurred by the Minister, which were substantial, and having regard for the nature of the arguments which were run and lost by the applicant, and having regard also for the fact that there was significant affidavit evidence filed in this case, part of which was struck out and all of which the Court has observed was really relevant to a determination by the Migration Review Tribunal of any application for review from any primary decision made by a delegate, it does seem to the Court that there would have been significant additional costs incurred by the Minister in these proceedings above and beyond the ordinary fixed costs which would have been incurred in relation to an application for judicial review of a Migration Review Tribunal decision.
The question arises as to whether those costs ought to be assessed, as in accordance with Sch.1 Part 1 of the Federal Circuit Court Rules 2011 (Cth) or referred to a Registrar for taxation. That taxation would have to be, given the nature of the cost schedules in this Court, in accordance with Part 40 of the Federal Court Rules 2011 (Cth). The Court has a broad discretion under s.79, particularly s.79(2) of the Federal Circuit Court of Australia Act 1999 (Cth), with respect to costs. Having regard to what the Court has already said with respect to costs, particularly as to the sum of costs which it is said, and there is no reason to doubt, have been incurred by the Minister, this is a proper matter to be taxed in accordance with Part 40 of the Federal Court Rules 2011 (Cth) by a Registrar of this Court.
The Court makes the following order: That the applicant pay the respondent’s costs in an amount determined by a Registrar of this Court in a taxation of costs in accordance with Part 40 of the Federal Court Rules 2011 (Cth).
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Deputy Associate:
Date: 11 March 2014
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