SZJLE and Anor v Minister for Immigration and Anor (No.2) - [2007] FMCA 1502

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLE & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2007] FMCA 1502

MIGRATION – Application for costs where applicant successful – costs above amount set out in Schedule – appropriate that costs order be made – reasonable costs in the circumstances – costs allowed in the sum of $6,000.

Migration Act 1958, s.424A(1)

SZJLE & Anor v Minister for Immigration & Anor [2007] FMCA 970

First Applicant:

SZJLE

Second Applicant:

SZJLF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2775 of 2006

Judgment of:

Nicholls FM

Hearing date:

26 June 2007

Date of Last Submission:

10 July 2007

Delivered at:

Sydney

Delivered on:

3 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr J Gormly (on a direct access basis)

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms G Broderick

Solicitors for the Respondents:

Clayton Utz

ORDERS

The first respondent pay the applicants’ costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2775 of 2006

SZJLE

First Applicant

SZJLF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is the costs matter SZJLE v Minister for Immigration & Citizenship & Anor [2007] FMCA 1502.
I handed down judgment in this matter (SZJLE v Minister for Immigration & Citizenship & Anor [2007] FMCA 970) and found for the applicants. Mr Gormly representing the applicants applied for an order in those circumstances that the first respondent pay the applicant’s costs set in the amount of $9,355. Given what is an unusually high amount sought in a matter of this type, I granted leave for the parties to provide written submissions on this issue and subsequently received submissions from Mr Gormly on behalf of the applicants and from the Minister’s solicitors.
Mr Gormly submits that this amount is made up by:

“Time Spent as a direct access counsel on a party/party basis pursuant to a conditional costs agreement and the time sheet attached to these submissions

20.5 hours at $330.00

Hearing Fee

Transcription cost (of the hearing before the Tribunal)

$6,765.00

$2,500.00

$90.00”

I should just note that the first respondent’s submission referred to rule 45.15(1) of the Federal Magistrates Court Rules 2001 which provides that an unsuccessful party, where a migration matter has been concluded at a final hearing, may be ordered to pay $5,000. I take the view that I am not bound by what is set out in the Schedule, given that the rule provides a discretion to the Court in relation to the making of such an order which in my view, includes such a discretion as to the amount.
I take the view that once having concluded that a costs order should be made, that an application for a set sum should be informed by what is reasonable in the circumstances.
I am satisfied that it is appropriate that a costs order be made in this matter. There is nothing before the Court now to argue that such an order should not be made and indeed I note that no such submission is made by the Minister.
Turning then as to what is a reasonable amount in all the circumstances, I agree with the first respondent’s submissions that not all the costs that are itemised as an attachment to Mr Gormly’s submission are properly claimable on a party/party basis. These items are:
1)T/A [telephone attendance] on Mr Urquijo re. tapes.
2)Research.
3)Attend clients to sign Not[ice] to Prod[uce]
I would discount these items as not coming within the consideration of what is reasonable in the circumstances.
I also note that in this regard, as the Minister submits, a full day hearing fee of $2,500 is claimed in circumstances where the hearing was listed for a half-day only on 22 March 2007 and indeed was set down for an estimated duration of 2 hours and actually ran for about an hour and forty minutes.
I also note that the amount sought includes an amount for work done by Counsel previously acting for the applicants, and in particular, in the preparation of an amended application which was filed on 14 February 2007. I note however in this regard that at the hearing, this amended application was not relied upon and that Mr Gormly proceeded on a further amended application (see [3] of SZJLE & Anor v Minister for Immigration & Anor [2007] FMCA 970). I note in this regard that the further amended application relied on one particularised ground being an assertion that the Tribunal’s decision was affected by jurisdictional error because of a failure to comply with the requirement of s.424A(1) of the Migration Act 1958 (“the Act”). Grounds 1 and 2 in the amended application prepared by the applicant’s first Counsel appear to derive from the same factual basis as the sole ground of the further amended application.
The work therefore done by Mr Gormly was, on his own submission, a period of two weeks prior to the hearing and is set out at paragraph 3 of his submission.
I also note that Mr Gormly asserts that extra time was spent on this application and the preparation of the hearing because of the claim that the respondents failed to comply with the filing of a bundle of relevant documents. This necessitated that he consider “various contingencies” and the preparation of a Notice to Produce. Mr Gormly submits that the costs in preparing for the hearing of this matter included “extra” costs because of the failure of the respondents to have provided all the relevant documents in the first place.
In this regard I note that orders were made by a Registrar of this Court on 2 November 2006 in relation to these proceedings which directed (by Order 2) that “the First Respondent file and serve a bundle of relevant documents (green book) by 16 November 2006”. A bundle of relevant documents was filed on that date. The first respondent submits that to the extent that the applicants allege that the first respondent (intentionally) failed to include the documents which were the subject of the Notice to Produce, that it is “not usual practice” to include such documents in the green book. Whether or not it is “usual practice” is not in my view the relevant standard to be applied in these circumstances. The orders of the Registrar were not to file documents as against some “usual practice” but were very clearly to file and serve a bundle of documents relevant to the proceedings before the Court.
The documents that were ultimately submitted to the Court in response to the Notice to Produce were three pages. They were email communication between from the Minister’s Department and as between employees of the Minister and officials of Australian Consulate General in Guangzhou in China going to the issue of the communist identity. While this matter was generally raised by way of the application filed on 27 September 2006, these documents subsequently produced as relevant documents related to the specific issue of an investigation which had been conducted by the first respondent’s Department with the relevant Australian mission in Guangzhou (ultimately this was the issue on which the Court found for the applicants).
The relevance of these documents would not have been immediately ascertained from the applicant’s originating application. In fact, the applicant’s complaint (see ground 2, particular 1(b)) was that on the issue of identification, the Tribunal should have contacted “the relevant Chinese authorities, instead of Australian ones”. The complaint was that the Tribunal had failed to do so. Further, while the applicants also complained (see ground 2, particular 1(c) & (d)) about whoever it was who informed the Minister’s Department on the issue of their identity (the springboard for the communication and investigation with the overseas post), that the investigation itself was a relevant matter does not arise from the applicant’s complaints in this regard, such that it could be said that the Minister or his solicitors failed to include documents which were in the Court Book which were relevant documents as would have been understood at that time. I also note and agree with the Minister to any extent that the Minister intentionally failed to do so, any such assertion is clearly to be rejected.
In all the circumstances, I agree with the first respondent’s submissions that this matter was in relative terms “simple and straightforward” and one limited to the application of s.424A of the Act. I agree with the Minister that the principles argued in the case were neither novel, nor unusual. This case did not involve complex legal argument. The case turned on a reading of the Tribunal’s decision in light of clearly established principles.
Notwithstanding the above, it is also clear that the Notice to Produce did ultimately lead to the production of documents going to the issue of the investigation with the overseas post. Although I note that whilst ultimately the content of such documents was not a determining factor in the Court’s Judgment, that the Tribunal relied on an investigation having been conducted by the Minister’s Department with the overseas post was plain from the Tribunal’s own decision record. On the basis, however, that this may not have been immediately apparent until the Notice to Produce procured these documents, I am prepared to include the preparation to the Notice to Produce as part of the reasonable costs incurred by the applicants, noting of course that the Notice to Produce was filed and served some nine days before the hearing.
In all, taking into account the above and looking at the work done by
Mr Gormly (work done by the applicants’ earlier Counsel did not in my view, given what occurred in this case, amount to more than some preliminary preparation notwithstanding that an amended application was filed) and in any event, given the overlap between it and the further amended application, the Minister should not have to reimburse the applicant for the same work done twice. In my view, a reasonable amount is $6,000 and I make an order in that amount in favour of the applicants.
The order then is “The first respondent to pay the applicant’s costs set in the amount of $6,000”.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Dawnie Lam

Date: 17 September 2007