SZCGO v Minister for Immigration

[2006] FMCA 1009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCGO v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1009

MIGRATION – Application to review decision of Refugee Review Tribunal remitted by consent.
COSTS – Whether costs should be fixed by court or order made that costs be as agreed and taxed in the absence of agreement.

Migration Act 1958 (Cth), s.424A
Federal Court Rules, Order 62
Federal Magistrates Court Rules2001, rr.21.02, 44.15

Applicant: SZCGO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2842 of 2003

Judgment of: Barnes FM

Hearing date: 21 March 2006

Delivered at: Sydney

Delivered on: 21 March 2006

REPRESENTATION

Counsel for the Applicant: Mr J. Azzi

Solicitors for the Respondents: Clayton Utz

ORDERS BY CONSENT

1. Leave be granted to join the Refugee Review Tribunal as second respondent to these proceedings.

2. A writ of certiorari issue quashing the decision of the second respondent handed down on 2 December 2003.

3. A writ of mandamus issue requiring the second respondent to redetermine the matter according to law.

IT IS FURTHER ORDERED

1. That the first respondent pay the costs of the applicant fixed in the sum of $2500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2842 of 2003

SZCGO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for costs in relation to an application for review of a decision of the Refugee Review Tribunal (the Tribunal) in which the parties agree that the matter should be remitted by consent to the Tribunal for reconsideration on the basis of a jurisdictional error. The error conceded for the respondent has been identified from the bar table as consisting of a failure by the Tribunal to comply with s.424A of the Migration Act 1958 (Cth).

2. The applicant seeks that the Court makes an order assessing costs in the sum of $3,000.  The first respondent seeks an order that while the first respondent should pay the applicant's costs and disbursements of and incidental to the proceedings, the costs should be as agreed or, in the absence of agreement, taxed in accordance with Order 62 of the Federal Court Rules. 

3. The Court has power to fix costs in a particular amount, or to specify the method by which the costs are to be calculated, or to refer the costs for taxation under Order 62 of the Federal Court Rules (Rule 21.02(2) of the Federal Magistrates Court Rules 2001).  If no other order is made a party is entitled (see Rule 21.10) to costs in accordance with Part 1 of Schedule 1 to the Rules. 

4. The matter in question is an application for review of a decision under the Migration Act. I have had regard to all the circumstances including the present provisions in the Federal Magistrates Court Rules 2001 in relation to proceedings under the Migration Act (although they are not directly in point as this proceeding was commenced prior to 1 December 2005). These provisions provide some guidance, albeit that the Court is not obliged in the circumstances of this case to order that costs be in accordance with those Rules. Rule 44.15 indicates the amounts that may be ordered where a matter is discontinued prior to a hearing or where a matter is remitted by consent prior to a hearing (see Part 2 of Schedule 1 and in particular note that if the proceeding is concluded after the first court date and at or before an interlocutory hearing the suggested amount is $2,500 and $5,000 if the proceeding is concluded at a final hearing).

5. In this instance counsel for the applicant seeks costs in the sum of $3,000.  He attended the directions hearing on 27 January 2005 and prepared an amended application in accordance with the directions.  The matter was listed for hearing on 21 March 2006.  Tendered as an exhibit is a further amended application prepared and dated 14 March 2006 but not filed because the solicitor for the respondent initiated discussions which led to the remittal by consent.  Also tendered is a copy of submissions for the applicant which were prepared some time ago (prior to the directions hearing) apparently under the misapprehension that the directions hearing would be a final hearing.  A transcript of the Tribunal hearing was obtained and an accompanying affidavit sworn on 31 January 2005.  This indicates that work was done prior to these proceedings, such as one would have expected would be done in proceedings that were resolved in the lead-up to the hearing.

6. No written legal submissions or list of authorities for the applicant were filed before the hearing date (although the further amended application raises somewhat different issues to those dealt with in the earlier submissions). 

7. In all of the circumstances, as is the usual practice in matters of this nature, I consider that the Court should fix the costs.  It is not appropriate that the costs should be as agreed or assessed in accordance with the Federal Court Rules.  Additional costs would be incurred in that instance.  The costs should be on a party/party basis as was contended for by the respondent.  In light of the nature of this and other matters that have been remitted or discontinued in similar circumstances and the sorts of costs orders that are made in those matters as well as the Federal Magistrates Court Rules, I consider that an appropriate amount in all of the circumstances is the sum of $2500.

8. I will make the other orders sought by consent. 

RECORDED   :   NOT TRANSCRIBED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  20 July 2006