FEDERAL CIRCUIT COURT OF AUSTRALIA
| SWA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 437 |
| Catchwords: COSTS – Migration – where leave sought to discontinue judicial review application at hearing – whether costs payable – quantum – whether discontinuance at hearing “Any other case” for purposes of migration costs schedule. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.79 Fair Work Act 2009 (Cth) Migration Act 1958 (Cth), Part 5, Division 5, ss.357, 357A, 362B, 422B, 425, 476 Workplace Relations Act 1996 (Cth), s.240 |
| Applicant: | NYARNA KYAW SWA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 220 of 2015 |
| Judgment of: | Judge Lucev |
| Hearing date: | 26 February 2016 |
| Date of Last Submission: | 26 February 2016 |
| Delivered at: | Perth |
| Delivered on: | 3 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr F A Robertson |
| Solicitors for the Applicant: | Legal Care Australia |
| Counsel for the First Respondent: | Mr RJS French |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That leave be granted to the applicant to discontinue the application (as amended) in these proceedings.
That the applicant pay the first respondent’s costs in the sum of $4,778 by 3 April 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 220 of 2015
| NYARNA KYAW SWA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 22 May 2015 the applicant, Mr Swa applied for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) made on 17 April 2015 which confirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (“Medical Treatment Visa”). The Tribunal Decision is at Court Book (“CB”) 96-99. The Court Book is exhibit 1 in the proceedings. An amended Judicial Review Application was filed on 10 February 2016.
When the matter came on for hearing on 26 February 2016, Counsel for Mr Swa sought leave to discontinue the proceedings. Discontinuance was not opposed by the Minister, but the parties are in dispute as to whether the Court ought to make an order for costs.
Factual and procedural background to Judicial Review Application
The factual and procedural background to the Judicial Review Application is, in summary, as follows:
a)on or around 27 August 2014 Mr Swa lodged an application for a Medical Treatment Visa;
b)on 13 October 2014 the Delegate’s Decision was to refuse the Medical Treatment Visa application;
c)on 31 October 2014 Mr Swa applied to the Tribunal for a review of the Delegate’s Decision. On 23 March 2015 the review hearing before the Tribunal (“Tribunal Hearing”) was listed for 15 April 2015;
d)on 15 April 2015 Mr Swa alleged he was unfit to attend the Tribunal. Mr Swa’s representative sought an adjournment of the Tribunal Hearing. Mr Swa provided a “registered heath certificate” from a pharmacist (“Pharmacist’s Certificate”) in response to a request from the Tribunal; and
e)on 17 April 2015, the Tribunal Decision affirmed the Delegate’s Decision. Further detail of the Tribunal Decision is set out below.
Tribunal Decision
The Tribunal Decision affirmed the Delegate’s Decision not to grant Mr Swa a Medical Treatment Visa: CB 99 at [23]. Essentially, the Medical Treatment Visa application failed for want of evidence, in circumstances where the applicant did not attend the Tribunal Hearing: CB 99 at [19]-[21].
The circumstances in which the applicant did not appear before the Tribunal were referred to by the Tribunal in the Tribunal Decision, as follows:
6. On the day of the hearing, shortly before it was due to commence, the representative contacted the Tribunal to advise that the applicant was ill and unable to attend the hearing. He was advised that the Tribunal required a medical certificate providing information as to the applicant's illness and how his illness prevented him from participating in the hearing. He was requested to provide the certificate by the close of business that day. The representative was also advised that the Tribunal was prepared to hold the hearing by telephone, which would enable the applicant to participate by telephone rather than attend at the Tribunal offices.
7. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.
8. The applicant provided to the Tribunal a medical certificate issued by a registered pharmacist from Health 1 Goldfield Pharmacy. The certificate indicated that he was a registered health practitioner within the meaning of s240 of the Workplace Relations Act 1996. The certificate stated that in his professional opinion, based on the information provided to him at the time, the applicant is unfit to attend work for the period 15/4/2015 to 15/4/2015 inclusive. This opinion was provided in his capacity as a pharmacist for the purpose of informing the employer of the named person that he is unfit for work due to illness.
9. The Tribunal is satisfied from the evidence that the applicant was notified of the hearing date, time and location.
10. The Tribunal is not satisfied from the evidence provided that he was unable to participate in the hearing. The medical certificate provided simply indicates he is unfit for work for one day. It provides no information as to the nature of the work that he. is unable to participate in to enable the Tribunal to consider whether there is similarity between the nature of that work and a Tribunal hearing nor does it provide any information as to how his illness prevents him from participating in a hearing in a meaningful and beneficial manner.
11. The applicant was specifically asked to provide the requested information to the Tribunal and the Tribunal finds that the certificate provided does not contain the requested information. The Tribunal also offered to allow the applicant to appear by telephone. After considering the available evidence, the Tribunal is not satisfied that the applicant was unable to participate in the hearing and has not provided the requested information to support his claim to be unable to participate.
12. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
13. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CB 97-98 at [6]-[13].
Amended Judicial Review Application
Orders sought
An amended Judicial Review Application filed by Mr Swa on 10 February 2016 seeks the following orders:
1.An interim order to stop the first respondent and or his agents, servants, employees to take any steps of deporting the applicant until the conclusion of this proceeding.
2.The applicant be allowed to amend or add more grounds at a later stage.
Grounds
The amended Judicial Review Application contains the following grounds (with particulars omitted):
Ground 1
In reviewing the decision to refuse to grant to the applicant a Medical Treatment (Visitor) (Class UB) visa (" Visa" ), the Tribunal made a legally unreasonable decision by affirming the decision under review in circumstances where it denied the applicant's request for an adjournment of the hearing before the Tribunal on the ground of illness.
Ground 2
In reviewing the decision to refuse to grant to the applicant the Visa, the Tribunal made a jurisdictional error by affirming the decision under review in circumstances where the applicant was denied procedural fairness.
Affidavit in support
Mr Swa filed an affidavit (“Mr Swa’s Affidavit”) in support of the Judicial Review Application in which he stated as follows:
1.I am the applicant in these proceedings.
2.I have been unwell for an extended period and made an application for a medical treatment visa which was refused by the Department of Immigration.
3.On 14 April 2015 I received a call from my migration agent reminding me the Migration Tribunal Hearing was scheduled for tomorrow, 15 April 2015 at l.30pm. I told him that I was available to attend.
4.On 15 April 2015 at around 9.00am I suddenly got very sick and went to see a local doctor in Girrawheen. I asked to see a doctor immediately but I was told by a medical receptionist it was fully booked. I then left and went to another medical practice nearby.
5.On 15 April 2015 at around 9.20am 1went to see another local doctor and was again told that l needed to make a booking a day prior. There was no spot available for me. I then left.
6.I telephoned my migration agent and told him that I could not attend the hearing because I was sick. He advised that I needed to provide a medical certificate so he can request an adjournment.
7.After my telephone call, I then went to a pharmacist to get some medication. The pharmacist at Health 1 Pharmacy, provided a medical certificate for me.
8.I provided the medical certificate to my migration agent.
9.I was shocked to hear the Migration Tribunal had made a decision without me. I did not get an opportunity to present my case. I believe it was unfair and unreasonable to refuse my request for an adjournment.
10.I believe my migration agent provided the medical certificate to the Migration Tribunal on 15 April 2015. It was my first and only request to adjourn the hearing. It was clear I only needed l day to recover from my illness.
Court’s orders
By order of a Registrar of this Court made on 5 August 2015 the Judicial Review Application was listed for hearing at 10.15am on 26 February 2016. The Registrar also ordered that submissions be filed by Mr Swa 42 days before the hearing, and by the Minister 21 days before the hearing. Further orders were made by the Court by consent on 2 February 2016, ordering that time for:
a)Mr Swa to file and serve:
i)any amended application giving complete particulars of each ground of review relied upon be extended to 1 February 2016; and
ii)written legal submissions be extended to 29 January 2016; and
b)the Minister to file and serve submissions by 12 February 2016.
Further consent orders were made by the Court on 26 February 2016 providing for time for the Minister to file and serve written submissions to be extended to 15 February 2016.
Submissions
Both Mr Swa and the Minister filed written outlines of submissions. Mr Swa’s submissions were filed on 28 January 2016, and the Minister’s submissions were filed on 15 February 2016. It is not unfair to describe both Mr Swa’s and the Minister’s written submissions as being at a relatively high level of generality. Mr Swa, having regard to the High Court judgment in Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 (“Li”); the judgment of the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 and the judgment of the Federal Court in Kaur v Minister for Immigration & Border Protection [2014] FCA 915; (2014) 141 ALD 619 (“Kaur”), asserted that there was an unreasonable refusal to adjourn by the Tribunal, and the Tribunal’s consequent decision to proceed to determine the application, ostensibly pursuant to s.362B of the Migration Act, and not to adjourn the Tribunal Hearing, was legally unreasonable. The Minister’s submissions, likewise referring to Li and Kaur, argued that in light of the Tribunal’s factual finding that it was not satisfied that Mr Swa could not attend the Tribunal Hearing there was no lack of an evident and intelligible justification for the refusal by the Tribunal to adjourn the Tribunal Hearing. Further, that the Tribunal explained the need for precision with respect to any medical certificate to be provided by Mr Swa, and that an opportunity was given to Mr Swa to attend the Tribunal Hearing, both in person and by telephone, before the Tribunal decided to refuse Mr Swa’s adjournment application, and consequently proceeded to determine the Medical Treatment Visa application. For similar reasons the Minister submitted that there was no want of procedural fairness, particularly given the provisions of Division 5 of Part 5 of the Migration Act which operated as an exhaustive statement of the natural justice hearing rule by reason of the provisions of s.357A of the Migration Act.
On 25 February 2016 the Court caused to be forwarded to the lawyers for the parties a note referring to four recent Federal Court judgments, and requesting that the parties address those judgments at the hearing of the amended Judicial Review Application. The judgments referred to were:
a)SZUWM v Minister for Immigration & Border Protection [2016] FCA 92 (“SZUWM”), delivered on 15 February 2016;
b)Singh v Minister for Immigration & Border Protection [2016] FCA 108 (“Singh-2016”), delivered on 15 February 2016;
c)MZAMF v Minister for Immigration & Border Protection [2016] FCA 121 (“MZAMF”), delivered on 16 February 2016; and
d)MZAHI v Minister for Immigration & Border Protection [2016] FCA 129 (“MZAHI”), delivered on 17 February 2016.
In SZUWM the undisputed relevant facts were as follows:
8. At about 2.13 pm on 7 July 2014, the Tribunal received a letter by fax from the appellants’ migration agent. The letter requested that the hearing be postponed because the husband and wife were “sick” and that the Tribunal provide another hearing date. The letter concluded: “Should you have any queries regarding this matter, please feel free to contact the writer at the above address.”
9. Accompanying the letter were two documents which were described in the letter as “medical certificates”:
(1) The first document purported to be on the letterhead of a medical specialist; it was undated and unsigned. It indicated only that the wife had a medical appointment scheduled for 8 July 2014 at 2.45 pm at Brookvale.
(2) The second document pertained to the husband. It was dated 7 July 2014 and appeared to be on the letterhead of, and signed by, a medical practitioner who had “today examined” the husband. It stated that the husband was suffering from “a medical condition” and that he would be unfit for “his normal work from 7 July 2014 to 9 July 2014 inclusive.”
10. By letters dated 7 July 2014 and faxed to the appellants’ migration agent at 4.23 pm, the Tribunal stated that “[t]he Presiding Member has considered the request carefully but has decided not to postpone the hearing” and that “[t]he hearing will proceed as scheduled pending receipt of further information: the nature of the illness.”
SZUWM at [8]-[10] per Farrell J.
The appeal grounds in SZUWM were as follows:
24. The appellants filed a notice of appeal from the Federal Circuit Court's decision on 28 September 2015. The appellants list three grounds of appeal (as written):
The Second Respondent exercised its jurisdiction unreasonably and denied the appellant procedural fairness and omitted the principles in MIC v Lie [2013] HCA 18, regarding this issue the Court below erred in dealing this issue.
The Second Respondent denied the appellant hearing where the main Appellant was too sick to attend the hearing and the Tribunal did not take any initiative to know the condition about the appellant from the doctor and did not take any queries by the Second Respondent. The trial Judge erred in deciding this issue.
The Second Respondent made an error not providing an opportunity to the Second and third appellant to be appeared at the hearing. The trial judge erred to dealing this issue.
SZUWM at [24] per Farrell J.
The Federal Court’s consideration of the grounds led it to conclude that:
a)it was appropriate for the Tribunal to seek clarification from the appellants’ migration agent who had been appointed by the appellants as their authorised recipients for the purposes of communication with the Tribunal, and that this Court (from which the appeal was brought) did not err in finding that it would not have been appropriate for the Tribunal to contact the applicants or the applicants’ doctors directly: SZUWM at [35] per Farrell J;
b)the circumstances of the case were such that it was not appropriate for an appellate court to intervene in this Court’s finding that the husband was not too sick to attend and participate in the hearing before the Tribunal: SZUWM at [24] and [36] per Farrell J; and
c)having regard to the legislative scheme in Division 4 of Part 7, and in particular s.422B of the Migration Act (which has its equivalent in these proceedings in s.357A of the Migration Act) meant that there was no denial of procedural fairness, and that there was no error in this Court’s finding that it was not the husband applicant’s illness but rather, his agent’s failure to provide the Tribunal with the requested information which deprived him of the opportunity to attend a hearing as contemplated by s.425 of the Migration Act: SZUWM at [39] per Farrell J.
In Singh-2016 the Federal Court dealt with an application for adjournment on the basis of a medical certificate provided by a doctor who appeared to practise as a chiropractor. Relevantly, the Federal Court observed as follows:
2 I should deal with whether an adjournment should be granted before considering the Minister’s application. An application for an adjournment in generally similar circumstances was rejected by Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. His Honour said at paragraphs 5 to 11 in that case:
5. The medical certificate dated 13 December 2003 in respect of the male applicant states as follows:
‘This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.’
The certificate of the same date in respect of the female appellant states:‘This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.’
6 The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing.
7 I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.
8 If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.
9 I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.
10 In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.
11 I refuse the application for an adjournment.
Singh-2016 at [2] per Pagone J.
In MZAMF the Federal Court had, ex tempore, dismissed the application applying for an extension of time in which to seek leave to appeal the dismissal by this Court of the applicant’s application for review of a decision of the then Refugee Review Tribunal. It subsequently came to light that an email had been sent to the Registry by the applicant shortly prior to the hearing seeking an adjournment, which email had not been seen by the Court because when received it had gone into the Registry’s junk mail folder: MZAMF at [1] and [12] per Davies J. In a postscript to the ex tempore reasons for judgment revised from the transcript and published in writing the Federal Court said as follows:
13 The medical certificate is dated 15 February 2016 and states as follows:
“This is to certify that [MZAMF] will be unfit for work for three day, as he is suffering from medical condition.”
14 The “medical condition” is not identified and, moreover, it is a certificate that the applicant is “unfit for work”. The certificate is totally inadequate to justify the applicant's non-attendance at Court. The certificate has no meaningful detail about the nature of the applicant's “medical condition” or any meaningful content which would enable the Court to conclude that the applicant could not participate in the hearing either in person or by telephone, if necessary.
15 In NAKX v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 1559, Lindgren J refused an application for an adjournment in circumstances where medical certificates were similarly lacking in detail about the nature of the condition which would prevent the appellants in that case from attending Court. His Honour stated that the certificates were “quite unsatisfactory” because they did not address the critical question of whether, and if so why, the medical conditions would prevent the appellants from travelling to the Court and participating effectively in a Court hearing. Other cases where medical certificates have been rejected because of lack of detail are MZZGY v Minister for Immigration and Border Protection[2014] FCA 488 and Singh v Minister for Immigration and Border Protection[2014] FCA 538.
16 I note that the applicant stated in his email that he was suffering diarrhoea but without an acceptable medical certificate verifying his inability to attend Court the applicant has not provided a satisfactory explanation for his non-attendance.
17 Moreover, the applicant left wholly unexplained why he waited until 2:00pm on the day of the hearing, which was scheduled to commence at 2:15pm, to send the email, when he had obtained the certificate the day before. He did not give the Minister or the Court prior notice that he was suffering the condition he claims has prevented him from attending Court but waited until the very last moment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice.
MZAMF at [13]-[17] per Davies J.
In MZAHI the then Refugee Review Tribunal had rejected medical evidence provided by an applicant as wholly inadequate to explain his inability to attend at hearing, and gone on to refuse the application: MZAHI at [2] per Davies J. An application this Court for review of that decision of the Refugee Review Tribunal was dismissed, this Court apparently doing so on the basis that Federal Court authority indicated that a medical certificate of the type provided to the Tribunal would not, in the Federal Court, be an adequate justification for an adjournment: MZAHI at [7] per Davies J.
In MZAHI the medical certificate provided to the Refugee Review Tribunal was in the following form:
In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive, (medical condition).
The Federal Court found as follows with respect to the medical certificate:
The medical certificate was plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant’s illness, or any meaningful content which would enable the Tribunal to conclude that the appellant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate it was open to the Tribunal to reject that certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day.
MZAHI at [7] per Davies J.
As it did in MZAMF the Federal Court went on to refer to the Federal Court judgments in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1559 (“NAKX”), MZZGY v Minister for Immigration & Border Protection[2014] FCA 488 (“MZZGY”) and Singh v Minister for Immigration & Border Protection[2014] FCA 538 (“Singh-2014”), and to further observe that:
The obligation was on the appellant to provide a medical certificate that sufficiently explained why his medical condition prevented him from attending the Tribunal hearing. There is no merit in his claim that his certificate was wrongly rejected because he was not given a clear explanation as to what was required.
MZAHI at [9] per Davies J.
Costs – some principles
Relevant principles with respect to costs include the following
a)costs are awarded not to punish an unsuccessful party, but rather to indemnify, at least partially, the successful party in respect of the costs of bringing or defending the litigation: Cachia v Hanes (1994) 179 CLR 403; (1994) 68 ALJR 374; (1994) 120 ALR 385; CLR at 410-411 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ;
b)costs usually follow the event: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs & Citizenship [2013] HCA 53; (2013) 251 CLR 322; (2013) 88 ALJR 324; (2013) 304 ALR 135; (2013) 136 ALD 457 at [241] per Kiefel and Keane JJ (“Plaintiff M76/2013”);
c)special features are necessary to justify departure from the usual rule that, unless good reason to the contrary is shown, a wholly successful respondent should receive costs: NAMU of 2002 v Secretary, Department of Immigration & Multicultural &Indigenous Affairs [2002] FCA 961 at [8] per Beaumont ACJ (“NAMU”);
d)because the discretion to award costs must be exercised judicially, “good reasons” mean reasons connected with or leading up to the litigation: NAMU at [8] per Beaumont ACJ; Latoudis v Casey (1990) 170 CLR 534; (1990) 65 ALJR 151; (1990) 97 ALR 45; (1990) 50 A Crim R 287; CLR at 557 per Dawson J (“Latoudis”);
e)a party seeking an order different from that which reflects the usual rule that costs follow the event, bears an onus to convince the Court that the usual order ought not issue: Latoudis at 569 per McHugh J; and
f)the opportunity to challenge the decision of a Minister or Commonwealth agency does not mean that the Minister or Commonwealth agency should be deprived of a costs order: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (No. 2) [2011] FCAFC 84; (2011) 280 ALR 91 at [12] per Emmett, McKerracher and Foster JJ.
The Court does not usually undertake a hypothetical trial for the purposes of determining who should bear the costs of a matter which has not proceeded to a final hearing (for example, because a notice of discontinuance has been filed). Where, however, there are no complex issues of fact, and the Court is able to form a clear view of the merits of the case without a trial, a costs order may nonetheless be made against a party: see the cases cited in Ann Street Mezzanine Pty Ltd v KPMG [2011] FCA 453 at [24]-[26] per Kenny J.
Costs in migration proceedings in this Court
Costs in migration proceedings in this Court are fixed by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), but where circumstances make it justifiable or reasonable for costs to be awarded in an amount greater or lesser than the fixed amount, the Court may do so in the exercise of its discretion under s.79 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and r.21.02(2) of the FCC Rules. The circumstances need not be exceptional, but rather such as to justifiably or reasonably warrant the setting of costs in an increased or decreased amount: Bunnag v Minister for Immigration & Anor (No. 2) [2008] FMCA 430 at [9]-[18] per Lucev FM (“Bunnag (No. 2)”) (and the cases there cited); SZQOG v Minister for Immigration & Anor (No. 2) [2013] FCCA 689 at [9] per Judge Lucev.
Consideration
Costs usually follow the event, with the unsuccessful party paying the successful party’s costs: Plaintiff M76/2013 at [241] per Kiefel and Keane JJ; Manatiy v Minister for Immigration & Multicultural Affairs (No. 2) [2007] FCA 267 at [3]-[5] per Finn J; and that rule generally applies to migration proceedings in this Court, notwithstanding the existence of an event-based fixed costs schedule, with fixed costs capable of variation in the exercise of the Court’s discretion: FCCA Act, s.79; FCC Rules, rr.21.02(2) and 44.15(1) and (2); Bunnag (No. 2); WZAQP for Minister for Immigration & Anor [2012] FMCA 187 at [4] per Lucev FM.
The effect of r.13.01 of the FCC Rules is to allow a party to discontinue without leave more than 14 days before the day fixed for the final hearing of an application, or with the leave of the Court or a Registrar, at a later time, with r.13.02(1) of the FCC Rules providing that where a party discontinues an application the other party in the proceedings may apply for costs. Generally speaking, a notice of discontinuance will be acceded to by a court, although a court’s discretion to grant leave is unfettered and not automatic: Bunbury Health Care Ltd v Australian General Practice Network Ltd [2012] FCA 174. Leave to file a notice of discontinuance would generally be acceded to where an applicant does not wish to proceed, it not being desirable that an applicant should be compelled to litigate against the applicant’s will, as was observed in Trade Practices Commission v APM Investments Pty Ltd (No. 2) (1983) 74 FLR 276; [1984] ATPR 40-434 where the Federal Court cited earlier observations in the United Kingdom in Covell Matthews & Partners v French Wools Ltd [1977] 2 All ER 591; [1977] 1 WLR 876. And a notice of discontinuance being filed in these circumstances would generally be acceded to where there is no injustice to a respondent.
Discontinuance either with leave (if the discontinuance application was brought less than 14 days before the scheduled hearing) or without leave may result in a significant reduction in the costs which the Court might award on the fixed event scale: see Division 1 of Part 3 of Schedule 1 of the FCC Rules and WZAUT v Minister for Immigration [2015] FCCA 418 at [33] per Judge Lucev.
The argument put for Mr Swa that no costs or reduced costs ought to be ordered because the judgments, and in particular SZUWM, to which the parties were referred the day before the hearing were recent judgments of which the parties were not aware, misses the rather obvious point that the various authorities referred to in those judgments, including:
a)NAKX;
b)MZZGY; and
c)Singh-2014,
as well as the first instance decision of this Court which was under appeal in SZUWM – that is, SZUWM & Ors v Minister for Immigration & Anor [2015] FCCA 2153 – all rested upon a point of principle which had been applied by the Federal Court, and also by this Court, over more than a decade. That principle was that it was open to an administrative decision-maker to refuse a request for adjournment where a medical certificate relied upon in support of the adjournment was unsatisfactory by reason of the paucity and inadequacy of information as to, firstly, the medical condition of the person concerned, and, secondly, why the person concerned was not able to attend a hearing.
Contrary to the submissions made on behalf of Mr Swa it follows from the Federal Court authorities cited in the preceding paragraph that Mr Swa’s case did not have arguable merit prior to the parties being referred to, and prior to the judgment in, SZUWM.
The suggestion that the principle set out in [27] above is one of recent genesis is readily belied by an examination of cases which have referred to NAKX. A Lawcite search on for cases which have referred to NAKX shows that it has been referred to 60 times prior to the end of 2015 in cases before the Federal Magistrates Court and this Court, and the Federal Court of Australia, including the Full Court of that Court. In 2015 alone NAKX was applied to uphold the decisions of administrative decision-makers or of Courts to not adjourn matters where medical certificates were inadequate by:
a)the Full Court of the Federal Court in Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [49]-[50] per Collier, Griffiths and Mortimer JJ;
b)on three occasions by the Federal Court of Australia in appeals from this Court in migration judicial review proceedings; and
c)by this Court on six occasions in migration judicial review proceedings.
The principle is therefore a longstanding one, regularly applied in the federal courts, particularly in migration judicial review proceedings. Rather than being supportive of an argument that no costs or reduced costs ought to be ordered, the longstanding and regularly applied principle might more readily have supported an argument by the Minister for indemnity costs on such usual bases as:
a)that a party should have known that there was no prospect of success in the case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397 at 401 per Woodward J; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991) at page 8 per French J; and
b)the making of allegations which ought not have been made, or the undue prolongation of groundless contentions: Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 46 FLR 225; (1993) 118 ALR 248; (1993) 28 IPR 561; FCR at 233 per Shephard J.
It is of course relevant to note that the Minister’s lawyers, like Mr Swa’s lawyers, did not advert to the specific cases in the federal courts in migration judicial review proceedings dealing with the issue of the inadequacy of a medical certificate relied upon in support of an adjournment in proceedings before an administrative decision-maker or a court.
Mr Swa’s Affidavit made it plain that he knew that a medical certificate would be required in order to found an argument for an adjournment of the Tribunal Hearing. Even before contacting his representative he apprehended that he would require a medical certificate, seeking a medical certificate from not one, but two, medical practices, and being unable to obtain one by reason of not being able to obtain an appointment: Mr Swa’s Affidavit at [4]-[6]. Ultimately, he obtained the Pharmacist’s Certificate. Although the Pharmacist’s Certificate stated it was issued by a “Registered Health Practitioner” for the purposes of s.240 the Workplace Relations Act 1996 (Cth) (“WR Act”) that provision has been repealed. There is no equivalent provision in the WR Act’s successor the Fair Work Act 2009 (Cth).
In the Court’s view not much turns upon the communications between the officer of the Tribunal and Mr Swa’s representative, given that:
a)Mr Swa either knew, or perceived, that a medical certificate would be required;
b)this was confirmed by the officer of the Tribunal to Mr Swa’s representative;
c)Mr Swa was unable to obtain a medical certificate from a doctor; and
d)Mr Swa was ultimately successful in obtaining the Pharmacist’s Certificate.
The terms of the Pharmacist’s Certificate were plainly inadequate. The Pharmacist’s Certificate did not say what the medical condition was that Mr Swa was said to suffer from. Nor did it say why Mr Swa could not attend a hearing in person, or, given the offer made by the Tribunal, by telephone. The paucity of information and the inadequacy of its content justifies the Tribunal Decision. The Tribunal Decision is also entirely consistent with binding Federal Court authorities, as set out above. Nor was there, as was alleged by Mr Swa, a denial of procedural fairness, particular so in circumstances where procedural fairness is governed by the provisions of Division 5 of Part 5 and s.357A of the Migration Act, and where it was plainly open to Mr Swa to either attend the Tribunal Hearing, either in person, or, more particularly – and taking a benevolent view of his illness – by telephone.
In the above circumstances, it is plain that there was no error, jurisdictional or otherwise, in the Tribunal Decision, a conclusion reinforced by the concession properly made by Counsel for Mr Swa in seeking leave to discontinue the amended Judicial Review Application. Further, the Tribunal Decision was in conformity with longstanding and binding Federal Court authority. In those circumstances, it is appropriate to grant leave to Mr Swa to discontinue the amended Judicial Review Application, but costs must follow the event. Consequently, Mr Swa must pay the Minister’s costs.
The issue then becomes what quantum of costs ought to be payable.
Ordinarily a party losing a case following a final hearing receives costs in the sum of $6,825: FCC Rules, Schedule 1, Part 3, Division 1, Item 3. The fixed event scale in the FCC Rules, Schedule 1, Part 3, Division 2 deals with migration proceedings that have been discontinued, and provides for a costs scale as follows:
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 $680 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 the hearing under rule 44.12 or other interlocutory hearing$1,706 3 A proceeding in which the notice of discontinuance is filed and served:
(a) less than 15 days before the hearing under rule 44.12 or other interlocutory hearing; and
(b) at least 15 days before the final hearing$3,416 4 Any other case $4,778
This case is not a case of a party losing a case following a final hearing, and therefore costs in the sum of $6,825 are not appropriate, that sum, and that item and its description, envisaging a full hearing of a judicial review application before this Court and a judgment thereon. Nor does the case fit within the first three Items of costs for migration proceedings that have been discontinued, because this is not a case of a notice of discontinuance being filed and served at any time, but rather of an applicant seeking to discontinue the proceedings at the outset of the final hearing. That is a circumstance which falls within the description of Item 4 being “Any other case”, with a costs amount of $4,778. For reasons set out above, there is nothing which takes these proceedings out of the ordinary insofar as it might justify an order for a lesser amount of costs than that prescribed, or an order for no costs at all. For reasons also set out above, the converse is the case, and an order for indemnity costs might have been justified, if it had been sought by the Minister.
It follows from the above reasons that Mr Swa should pay the Minister’s costs in the sum of $4,778.
Conclusions and orders
The Court will make orders to reflect its conclusions which are:
a)leave ought to be granted to Mr Swa to discontinue the amended Judicial Review Application; and
b)Mr Swa should pay the Minister’s costs in the sum of $4,778 by 3 April 2016.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 3 March 2016
- AGLC
- Swa v Minister for Immigration [2016] FCCA 437
- Case
- [2016] FCCA 437
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Federal Court were whether the applicant should be granted leave to discontinue the judicial review application and, if so, what orders should be made regarding the costs of those proceedings. Specifically, the Court was required to consider whether the discontinuance at the hearing constituted "any other case" for the purposes of the migration costs schedule.
Judge Lucev granted the applicant leave to discontinue the judicial review application. The Court noted that the applicant had sought to discontinue the proceedings at the earliest opportunity after being put on notice of relevant Federal Court precedents concerning the adequacy of health practitioner certificates. In light of this, and the fact that the respondent had not yet filed a defence, the Court ordered that there be no order as to costs.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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