SZHVN v Minister for Immigration

[2006] FMCA 1117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1117

MIGRATION – COSTS – Where applicant and respondents had agreed that orders should be made by consent quashing the decision of the Refugee Review Tribunal and remitting the application to the Tribunal for determination according to law – issue as to costs – quantum of costs.

Migration Act 1958 (Cth)

Applicant: SZHVN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File number: SYG 3688 of 2005

Judgment of: Scarlett FM

Hearing date: 25 July 2006

Date of last submission: 25 July 2006

Delivered at: Sydney

Delivered on: 25 July 2006

REPRESENTATION

Counsel for the Applicant: Mr Lloyd

Solicitors for the Applicant: Craddock Murray Neumann Lawyers

Solicitor for the Respondent: Mr Chami

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application be granted.

2. A writ of certiorari issue, quashing the decision of the Second Respondent dated 2 December 2005 (Ref:N05/52229).

3. A writ of mandamus issue, requiring the Second Respondent to determine the matter according to law.

4. The First Respondent is to pay the Applicant's costs fixed in the amount of $10,754.00.

5. The First Respondent is to pay the Applicant's costs of the day fixed in the amount of $700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3688 2005

SZHVN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURALAFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The parties have agreed that orders should be made by consent that a writ of certiorari should issue, quashing the decision of the Second Respondent, the Refugee Review Tribunal. They have also agreed that a writ of mandamus should issue, requiring the Second Respondent to determine the matter according to law.

2. What they do not agree about is the question of the Applicant’s costs. The Applicant is legally represented. The Applicant’s solicitors have briefed counsel. Whilst they do not disagree that there should be a costs order, the Respondents are a long way away from the Applicant on the matter of the quantum of those costs. 

3. In respect of the orders that had been sought to be made by consent, I understand there is no objection to those orders being made, quite the reverse.  I propose to make those orders.

4. On the question of costs, the Applicant’s solicitors estimate their solicitor/client costs at $14,800.00. What they seek on a party and basis is an amount of 75% of that figure, together with disbursements that include counsel’s fees of $2,520.00 and an amount of $834.00 (in round figures) paid to Skandinavisk Sprakanalys AB, which is a Swedish linguistic analysis agency which was engaged to provide a linguistic analysis report in relation to the Applicant. The Respondent’s solicitors submit that the application was not conceded on the basis of the linguistic analysis but on other grounds. They are also of the view that the amount claimed for professional costs is excessive. I propose order, in the exercise of my discretion, that the First Respondent should pay the Applicant’s costs fixed in the sum of $10,754.00 inclusive of counsel’s fees and other disbursements. 

5. The Applicant’s solicitors also seek an order for costs of the day in the sum of $1,500.00. I am mindful of the fact that counsel was here to argue the question of costs and because this was not an ordinary case I do not consider that to be inappropriate.  As to whether or not the costs order that I make exceeds an order made by my brother Nicholls in a completely separate case, as was put to me by Mr Chami for the First Respondent, is to my mind not a matter to which I propose to give any relevance whatsoever.  The question of reasonableness is perhaps like anything else, a matter for the discretion of the individual judicial officer. I am satisfied enough as to my own ability to exercise that discretion.  .

6. I am satisfied that I should make an order for costs in respect of this morning's proceedings, noting as I do that whilst the proceedings this morning have taken less than three quarters of an hour, there was a considerable amount of preparation work beforehand.  What I propose to allow for this morning is the sum of $700.00.

7. I am prepared to order a transcript of my reasons for the costs decision, in case any party wishes to challenge it in another place.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  7 August 2006