SZHXB v Minister for Immigration (No 2)
[2006] FMCA 1379
•18 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXB v MINISTER FOR IMMIGRATION & ANOR (No 2) | [2006] FMCA 1379 |
| MIGRATION – Costs. |
| Federal Magistrates Court Rules 2001, r. 44.15 |
| SZHXB v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1118 Oshlack v Richmond River Council (1998) 193 CLR 72 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 |
| Applicant: | SZHXB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3752 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 15 August 2006 |
| Date of Last Submission: | 25 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms. M. Byers |
| Solicitors for the Applicant: | Michaela Byers Solicitor |
| Counsel for the Respondents: | Ms. C. Gray |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant pay the first respondent’s costs set in the amount of $7,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3752 of 2005
| SZHXB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 20 December 2005 the applicant filed an application in this Court seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 November 2005 to affirm the decision of a delegate of the respondent Minister made on 24 April 2003 to refuse a protection visa to the applicant.
On 15 August 2006 I handed down Judgement in this matter (SZHXB v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1118) dismissing the application. Ms. Gray appeared for the respondent and Mr. Archibald (of Counsel) for the applicant.
On that day Ms. Gray made an application that the applicant’s litigation guardian pay the first respondent’s costs (on a party/party basis) set in the amount of $9,000. In relation to the amount sought Ms. Gray submitted:
1)Although acknowledging this amount was “higher than the schedule”, that the Court has the power to dispense with the Federal Magistrates Court Rule 2001 (“the Rules”) in “the interests of justice”.
2)There was a “quite extensive” Court Book prepared.
3)There were numerous documents that were “unusual in this case”.
4)The respondent’s representatives attended:
i)A directions hearing in the matter.
ii)A final hearing that went for over three hours.
5)There were various documents to be considered including:
i)An affidavit from the applicant’s solicitors, annexing the Tribunal’s decision.
ii)The applicant’s original and amended applications.
iii)A transcript that needed to be verified.
iv)An affidavit made by the applicant’s litigation guardian.
6)A Notice to Produce had been served on the respondent.
7)There was an “unusual” issue raised about the constitution of the Tribunal.
8)Counsel was briefed and there were extensive written and oral submissions from both the applicant and the respondent.
At the conclusion of Ms. Gray’s submissions, Mr. Archibald indicated that as he was not in a position, at that time, to “cast his mind” back to the salient features of the matter, and further that as he was not in a position to address matters between his “instructing solicitor and the other side”, that a form of written submissions on this issue may be appropriate. Ms. Gray opposed this course of action, submitting that it was clear that costs would be “in that amount”, and the applicant’s Counsel should have been “prepared for that” on that day. Further, that any such course would only serve to further increase costs.
I was persuaded by Mr. Archibald’s argument that written submissions were appropriate in this matter, and gave leave for the filing and serving of those submissions by an agreed date. I was particularly persuaded in light of the amount of costs sought by the respondent, and by Mr. Archibald’s submission that he could not recall the “salient features”. In these circumstances, I was concerned that the applicant (in this case the applicant’s litigation guardian) be given every opportunity to make submissions on the matter. Written submissions in this regard were filed by the applicant’s solicitor on 25 August 2006. The respondent’s solicitors subsequently confirmed that they were content to rely on the oral submissions made by Ms. Gray at the handing down of the Judgment.
Written submissions for the applicant are as follows:
“1. The Directions Hearing,
There was nothing in relation to the Directions hearing which would warrant a higher amount.
2.The length of the hearing,
The mere fact of a three hour hearing is not sufficient to warrant a higher order.
3.The allegedly large Court Book,
The Court book is in the normal range.
4.The documentation filed by the applicant including the Application, Affidavits, and a transcript which required verification,
The transcript is within the range. There was no extra work occasioned by the Amended Application as it is only when the respondent comes to prepare her Submissions that the grounds are considered.
5.The Notice to Produce,
The Respondent provided simple documents in response to the Notice to Produce relating to appointment of a single member to constitute the Refugee Review Tribunal. Extra legal work would have been minimal.
6.The Submissions,
The Submissions involved no greater analysis than for a normal application where the applicant is represented by solicitor and counsel.
7.Counsel being briefed,
This of itself is no reason to go above the scale.
8.The argument going to the Constitution of the Tribunal,
This was simply one of the arguments considered. It is not a reason for an extra award of costs.
9.The correspondence between the parties,
The extent of correspondence was normal.
The Applicant’s litigation guardian considers that $6,500.00 is an appropriate figure.”
On what is before me, I can see no reason to depart from the general rule that costs follow the event. In Oshlack v Richmond River Council (1998) 193 CLR 72 at 67, McHugh J. said:
“[67] The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [104]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.”
In all the circumstances, it is clearly appropriate that an order for costs be made.
It is also appropriate that such an order should be made in relation to the applicant’s litigation guardian. In this case the applicant was a 4 ½ year old child at the time of the hearing before the Court. It was clearly necessary to appoint a litigation guardian for the applicant. Prior to the hearing the applicant’s solicitor had filed a “Consent to Act” signed by the applicant’s mother. This was supported by a “Solicitor’s Certificate” signed by Ms. Byers asserting that the applicant’s mother was “the proper person for appointment as tutor.” In the circumstances I took this to mean “litigation guardian” as referred to in the Rules of this Court. At the time of appointing the applicant’s mother as her litigation guardian I was satisfied that (amongst other things) the applicant’s mother had the opportunity to have the relevant consequences of such an appointment explained to her by her legal representatives.
The issue remains however as to the quantum of costs and whether, in exercising the discretion to award costs, the amount sought by the first respondent in all the circumstances is a reasonable amount. I have considered the oral submissions made on the first respondent’s behalf and Ms. Byers’s written submissions in response. I saw the reference by Ms. Gray to the amount in the Schedule to the Rules as a reference to Part 2 of Schedule 1 to the Rules dealing with costs in migration proceedings. Relevantly, the Rules provide that for proceedings that are concluded at a final hearing (as is the case here) an amount of $5000 is payable (Item 1 of Part 2 of Schedule 1).
Rule 44.15 however, provides that an order for costs in the amount set out at Schedule 1 is discretionary. I do not see this as an occasion of “dispensing with the Rules”, but rather that the Court’s power to make such an order is discretionary and although the amount of $5000 may be used as a guide, ultimately the amount to be ordered is what is reasonable having regard to the circumstances.
The respondent submits that this case required work (in effect) above what would normally be done in a matter of this type. I agree that the Court Book prepared in this case was “extensive” (532 pages) and that the written outline of submissions by the applicant were also lengthy, but not inordinately so. The respondent was required to check the transcript of the hearing before the Tribunal and required to put an affidavit annexing an amended version of the hearing transcription.
The applicant’s solicitor advised that the litigation guardian considers $6500 as an appropriate figure. This appears to contradict the thrust of the rest of the submissions which argue that there was nothing unusual or “extra” in this case, and submits specifically in relation to counsel being briefed:
“This of itself is no reason to go above the scale.”
In any event the amount seen as appropriate is “above the scale”.
I do not see the Notice to Produce as having put the respondent to any extraordinary expense. Part 1 of the Notice was couched in such wide terms, with no relevance to specific issues, that the respondent could have expected that it would not be enforced. Significantly however, the respondent has put nothing before the Court now that any work was done to obtain or assemble the wide range of documents to which Part 1 of the Notice would have referred. Part 2 involved two documents easily obtained from the second respondent.
The “unusual issue” about the constitution of the Tribunal was pressed before the Full Court handed down Judgment in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 and it was open to the applicant to press it before me.
I cannot see that attendance at a directions hearing or an affidavit annexing the Tribunal’s decision would involve additional work. The assertion that the hearing went for over three hours is correct. The parties at the first Court date were advised that the estimated duration would be about two hours. But I cannot see, and nor has anything been put before me to show, that the extra hour or so would have incurred additional costs for the respondent. Nor has anything been put before me to explain the respondent’s reference to “unusual documents in this case”, unless this was a reference to the Notice to Produce and the affidavits. I also note that while an amended application was filed in this matter it removed two of the three grounds in the originating application to this Court, and provided two grounds with sufficient particularity to enable a focused response. The grounds in the amended application were foreshadowed to the respondent within the timetable (as amended), set at the first Court date.
In all the circumstances before me therefore, while I agree that some of the features before me do lend to an argument for an award of costs “above the scale”, or beyond what is ordinarily seen in matters involving a challenge to a decision of the Tribunal, I cannot see in the circumstances, and in particular in relation to what has been submitted to the Court, that an amount of $9000 is reasonable. In all the circumstances as set out above, $7000 would be the reasonable amount. I will make an order that the applicant’s litigation guardian pay the first respondent’s costs set in that amount.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 18 September 2006
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