SZGCM v Minister for Immigration and Citizenship (No.2)

[2008] FCA 1368

FEDERAL COURT OF AUSTRALIA

SZGCM v Minister for Immigration and Citizenship (No.2) [2008] FCA 1368

SZGCM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 352 OF 2008

BUCHANAN J
25 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 352 OF 2008

BETWEEN:

SZGCM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	25 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appellant pay the first respondent’s costs, fixed in the sum of $2,700.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 352 OF 2008

BETWEEN:

SZGCM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	25 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. On 10 June 2008, I dismissed the appellant’s appeal (SZGCM v The Minister for Immigration and Citizenship [2008] FCA 863). On the issue of costs, I said at [10]:

   ‘10.Although written submissions for the Minister asked that the appeal be dismissed with costs, at the hearing of the appeal Mr Cleary, who appeared for the Minister, indicated that he wished to advance some evidence on that issue.  In the circumstances I will deal with the issue of costs in the light of any further, more specific, application made in that regard.’

2. Shortly after the hearing of the appeal on 19 May 2008, an affidavit sworn by Richard John Baird was filed in support of an application on behalf of the first respondent for a gross sum order of costs, although no separate application for costs was then made and, when judgment was delivered, there was no appearance by any party.  Mr Baird has explained to me this morning that the affidavit was served upon the appellant on 19 May 2008, and that the failure of the respondent to appear when judgment was delivered was due to some form of misunderstanding or lack of information about when judgment would be delivered.  He has told me that the intention was to make an application for a fixed sum of costs at the time that judgment was handed down.

3. Such an application has now been made by notice of motion filed on 21 July 2008.  In the affidavit in support of that notice of motion, Mr Baird explained that normally upon taxation, the experience of his firm when acting for the first respondent is that 50% of professional costs would be recovered, 100% of counsel’s fees, and also the costs of preparing an appeal book, if the sum is “just and reasonable”.  The affidavit outlines the costs which were incurred to the hearing of the appeal.  Costs after that date are not sought.  The estimate of the amount which would be recovered on taxation is $2,726.  The amount which is now claimed is $2,700.

4. The appellant has appeared at the hearing to deal with the question of costs.  He has explicitly agreed that I should assess the costs rather than a taxing officer.  In the circumstances, I am prepared to do so.  The appellant’s only submission concerning the amount of costs was that they are too high and that he cannot afford to pay those costs.  No submission was made which was directed at the amount of costs disclosed by Mr Baird’s affidavit or his assessment about the proportion which would be recovered upon taxation.  That is scarcely surprising, as the appellant may be assumed to have no legal training and little knowledge or experience of the procedures of this Court.  However, I do not feel that I can reduce the amount of the costs claimed further by reference to his concern that he will not be able to pay them. 

5. In the circumstances, I am satisfied that a proper case has been made out for the costs which have been claimed in the notice of motion.  The order which I make is that the appellant is to pay the first respondent’s costs, fixed in the sum of $2,700.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        4 September 2008

The Appellant appeared in person.
Solicitor for the First and Second Respondents:	Clayton Utz

Date of Hearing:	25 August 2008
Date of Judgment:	25 August 2008