SZEKQ v Minister for Immigration (No 2)

[2006] FMCA 994

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEKQ v MINISTER FOR IMMIGRATION & ANOR (No 2) [2006] FMCA 994

PRACTICE AND PROCEDURE – Costs – personal costs order against solicitor – costs of the hearing – application to vary orders – judgment under appeal – application dismissed.

Federal Magistrates Court Rules, r.16.05

Applicant: SZEKQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2853 of 2004

Judgment of: Mowbray FM

Hearing date: Decided on written submissions

Date of Last Submission: 16 June 2006

Delivered at: Canberra

Delivered on: 14 July 2006

REPRESENTATION

Counsel for the Applicant: Mr J Patel

Solicitors for the first Respondent: Sparke Helmore

Advocate for Mr Goldsmith: Mr B Goldsmith

ORDERS

1. The application filed by Mr Goldsmith on 22 March 2006 be dismissed.

2. Mr Goldsmith pay the costs of the applicant and first respondent as agreed or taxed for this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

SYG 2853 of 2004

SZEKQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Following a lengthy hearing I ordered Mr Goldsmith to pay the first respondent, the then Minister for Immigration and Multicultural and Indigenous Affairs, $2,500 for costs thrown away due to an adjournment of the principal proceedings on 17 June 2005. 

2. Mr Goldsmith was also ordered to pay the costs of the Minister and the applicant from the principal proceedings, SZEKQ, for the costs hearing.  Mr Goldsmith now seeks to have this costs order varied.

3. I refer in these reasons to the applicant in the principal proceedings as SZEKQ, to the Minister (the first respondent in the principal proceedings) as the respondent, and to Mr Goldsmith (the applicant in these proceedings) by his name.  

Background

1. The hearing on the Minister’s costs application against Mr Goldsmith extended over two and a half days – 4 August 2005, 20 September 2005 and 14 March 2006.  After submissions concluded on 14 March 2006 I indicated that I would deliver an ex tempore judgment on

   
   

   15 March 2006.  There had been no submissions on the costs of this hearing to this point.

2. After I delivered judgment on 15 March 2006 Ms Rayment, for the Minister, and SZEKQ both sought costs orders against Mr Goldsmith for the costs hearing.  I then gave Mr Goldsmith an opportunity to put submissions to me.  He did not address me at any length.   He did not oppose the Minister’s application for costs.  He said that the most appropriate course would be to have those costs taxed.  He objected to paying SZEKQ’s costs on the basis that SZEKQ “should not properly have been involved in the hearing of this application.” 

3. I consequently made the orders which Mr Goldsmith now wants varied.

4. The following day Mr Goldsmith wrote to me seeking leave to make submissions on costs and asking me to vary the orders.  He acknowledged that he “should have sought to address [me] yesterday on the question of costs”.  The Minister submitted that I should not consider this correspondence.  My Associate advised Mr Goldsmith on 23 March 2006 that I did not agree to his request.

5. On 22 March 2006 Mr Goldsmith filed his current application.

6. On 29 March 2006 he filed an appeal in the Federal Court from the whole of my judgment given on 15 March 2006.

The current application

1. The final orders sought in the application are:

   1.  The order for costs made on 15 March 2006, be varied.

   2.  Such further or other order or orders as to the Court seems fit.

2. I decided to deal with the application on the basis of written submissions, an option put to me by Mr Goldsmith.

3. Mr Goldsmith’s submissions of 8 May 2006 note that the precise orders sought have not been specified in the current application.  What he wants is for the costs order to be limited to only cover those parts of the hearing which related to “the transcript of the hearings that took place on 17 June 2005”.  In turn the Minister should pay his costs for the remainder of the hearing.  He says that considerable costs were incurred unnecessarily and inappropriately because the hearing was not limited to matters arising on 17 June 2005.

4. In written submissions filed on 16 June 2006 SZEKQ says that the application should “be dismissed as frivolous and vexatious and lacking any merits”.  The Minister did not file any written submissions.

Should the orders be varied

1. Mr Goldsmith says the Court has power to vary the costs order relying on rr.16.05(1) and (3) of the Federal Magistrates Court Rules 2001.  He has not referred to any supporting authority. 

2. I note that the orders have yet to be entered, awaiting a decision on this application.

3. Accepting for present purposes that the Court does have the power, should I exercise that power in this case?  I have reached the view that I should not:

   ·there is a clear public interest in the finality of litigation

   ·Mr Goldsmith was given the opportunity to put submissions on costs at the conclusion of my ex tempore judgment on 15 March 2006

   ·this was the appropriate time and would have been in accordance with the usual practice of the Court

   ·Mr Goldsmith acknowledges that he should have done so then

   ·however, he only made very brief submissions, accepting that he should pay the Minister’s costs, but objecting to any payment for SZEKQ’s costs

   ·I would have considered any request at that time for leave to make written submissions on costs.  No such request was made

   ·I consequently made on the day the orders now sought to be varied

   ·the orders followed the usual position where costs follow the event

   ·Mr Goldsmith has now appealed “from the whole of the judgment”.

Conclusions

1. The time to put submissions on costs was when offered at the end of my ex tempore judgment.  Alternatively, leave could have been sought to put written submissions.  It is inappropriate for a party to say very little about costs – including as in this case to not oppose costs for the successful party – and then to later seek to have the orders varied under the setting aside provisions in rule 16.05.

2. Furthermore, it would not be proper to set aside or vary orders of a judgment under appeal.

3. The application must be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate:  Natasha Werner

Date:  14 July 2006