SZGUR v Minister For Immigration and Anor (No.2)
[2009] FMCA 925
•12 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGUR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 925 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application for costs – applicant to pay first respondent’s costs in set amount. |
| Applicant: | SZGUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2565 of 2008 |
| Judgment of: | Nicholls FM |
| Hearing date: | 12 August 2009 |
| Date of Last Submission: | 12 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2009 |
REPRESENTATION
| Appearing for the Applicant: | No appearance |
| Appearing for the Respondents: | Ms K Dunn |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant pay the first respondent’s costs set in the amount of $12,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2565 of 2008
| SZGUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an application for costs in this matter, a matter in which I handed down Judgment on 7 August 2009, dismissing two applications made by the applicant. The first was the substantive originating application as subsequently amended. The second was an application to reopen the case after the final hearing in relation to the substantive application.
Today the Minister presses that I make an order for costs, and that I make the order fixed in the amount of $12,900.
Turning first to the issue of whether the order should be made, a successful party in proceedings of this type before the Court should expect that (or are entitled to ask for) an order for costs, which is to be made in the normal course of events.
Despite opportunity, the applicant has not presented himself today to raise any argument against the making of any such order in the normal course. Nor, in at all the circumstances before the Court, can I see any such factor as would argue against the making of such an order. I will, therefore, make such an order.
As to the amount, I note that the amount is greatly in excess of (if not more than double) the amount set out in the relevant schedule to the Rules of this Court. I take the view that I am not bound strictly by what is set out in that schedule. Rather, that schedule is a guide as to what generally may be a reasonable amount.
I consider that there are factors in this case that take it beyond what is contemplated by the Rules as being a reasonable amount in relation to these types of matters before this Court.
This case contained a number of unusual or, should I say more properly, additional features than what is normally seen in cases of this type.
First, there was the involvement of two counsel, at different times putting forward arguments – in one case, in writing only, and in another case, both in writing and orally, on behalf of the applicant. This necessitated a great deal of additional work to be done, not only by the Minster’s solicitors, but also by counsel that the Minister had engaged.
Second, the number of occasions on which this matter came before the Court is also greatly in excess of the occasions that are normally encountered in matters of this type. The applicant appeared in person at the first court date in this matter before a Registrar of this Court on 23 October 2008. The matter was set down to be heard by Raphael FM, but was subsequently transferred to my docket by orders made by his Honour on 6 March 2009, an occasion which, again, required attendance by the Minister’s solicitors.
But far more importantly, the applicant’s matter as it unfolded before the Court required not only a final hearing on 24 March 2009, but (because of an issue that arose during the course of that hearing), also required additional submissions to be filed by the Minister, which were filed.
Further, there was necessity for yet another hearing involving another counsel for the applicant on the application to reopen the applicant’s case. This again resulted in further written submissions being required. Therefore, the history of this matter before this Court certainly has some atypical features that, in my view, warrant the Court giving consideration to an amount beyond that which is set out in the schedule to the Rules of this Court.
Having regard to the material that is on the Court’s file, the work that has been done by the Minister’s solicitors, and by counsel, the many attendances at Court, involving attendances by counsel, the number of written submissions filed, and the preparation and filing of a Court book, I am satisfied that the amount sought, although a large amount, is nonetheless a reasonable amount in all the circumstances. I will, therefore, make an order fixed in that amount.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 17 September 2009
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