SZMSD v Minister for Immigration and Anor (No.2)
[2009] FMCA 1243
•26 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMSD v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 1243 |
| MIGRATION – Visa – protection visa – application for review of decision of the Refugee Review Tribunal. COSTS – Order for costs – where applicant unsuccessful – quantum of costs – where First Respondent seeks amount greater than amount provided by scale – whether scale figure appropriate. |
| Federal Magistrates Court Rules 2001, r.44.15, Sch. 1, Part 2, Item 1 |
| SZMSD v Minister for Immigration & Anor [2009] FMCA 96 |
| Applicant: | SZMSD |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1715 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 November 2009 |
| Date of Last Submission: | 26 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wilcsek |
| Solicitor for the Respondent: | Ms Weston |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1715 of 2009
| SZMSD |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful and it is an appropriate matter for an order for costs to be made.
The matter at issue between the parties is the quantum of those costs. Ms Weston, who appears for the First Respondent, the Minister, has submitted that an appropriate figure in all the circumstances would be a figure of $8,500.00. She concedes that this is significantly above the scale, but relies on an affidavit filed in Court today to which she is the deponent, setting out how she has arrived at the total figure on a solicitor/client basis.
The total figure for costs has been calculated at $10,837.64, inclusive of GST. The principle disbursement is a sum of $3,000.00, representing counsel’s fees. The body of the affidavit sets out a total showing, very helpfully, a breakup of the areas of work done, which includes a significant figure of $1,960.00 for the preparation and filing of a Court Book, another figure of some substance of $1,270.00 for preparation and advice as to client consideration of issues, attendances on client and on counsel, and attending to general work on file. A further substantial amount of $1,400.00 is for attending to, considering, and filing of the First Respondent’s outline of submissions, and listing and reviewing RRT hearing CDs, of which there were three. The fourth substantial figure is $1,320.00 being for preparation for, and attendance at hearing on 1st October 2009.
Ms Wilcsek, who appears for the Applicant, has submitted that this amount is excessive. She is of a view that the amount provided by the Court’s scale, namely, $5,865.00 would be appropriate in all the circumstances. In particular, she takes issue with the substantial figure for the preparation, printing, and filing of the Court Book, submitting that this is a task largely done by paralegals, rather than solicitors. She has also submitted that there appears to be a degree of duplication in the subject matter relating to some of the other entries.
Against this, Ms Weston submits that the work was given an added complexity by the fact that this was a matter that had been remitted on a previous occasion and, indeed, I am conscious of the fact that on 24th February 2009 Smith FM remitted the earlier Tribunal decision to the Tribunal. (See SZMSD v Minister for Immigration & Anor [2009] FMCA 96).
A further point made by Ms Weston is that the Applicant’s submissions were received late. In fact, they were received some five days late. The complaint about that goes to the fact that the Minister’s lawyers, striving to comply with the timetable set by the Court, had already filed an outline of submissions within the time required. However, upon then receiving the Applicant’s submissions, they considered it necessary to redo their own.
Ms Wilcsek submits that this was perhaps unnecessary as the Applicant’s submissions, prepared by Mr Zipser of counsel, had made it clear that the Applicant, whilst continuing to press the ground in paragraph 1 of the application, no longer pressed the grounds in paragraphs 2 and 3. It would, she submitted, have been no major task for the Minister’s solicitors to have withheld their submission until they had received that of the Applicant, or when noting that the second and third grounds were no longer being pressed, seeking to rely only on that part of their submission which went towards the first ground.
Against this, it’s been put that the Minister’s lawyers are conscious of the need to stick strictly to the timetables set out in the directions made by consent on the First Court Date, and are also conscious of the fact that on many occasions applicants do not file submissions at all.
In my view, it would be ill advised for a Court which requires practitioners to comply with the timetables usually made by consent on First Court Dates to penalise a Respondent for proceeding to file a submission on time, notwithstanding the fact that a submission from the Applicant had not yet arrived. It was not unreasonable, in my view, for consideration to be given for redoing the Respondent’s submissions in order to meet squarely the submissions made by the Applicant.
This was not the most difficult or complex matter that the Court has heard this year. It was, nevertheless, a matter that had a degree of complexity in it. It is certainly a matter that justified the briefing of counsel on each side, and, indeed, if I may say so, the application was well argued by counsel on each side. It certainly took me a reasonable amount of time to consider the arguments and prepare a reserved judgment.
There were no additional Court events. There was the First Court Date on 17th August 2009, a hearing on 1st October 2009, and the mentions today for the purpose of handing down the judgment and arguing the question of costs. As it turned out, arguing is exactly what the Court has had to do.
Ms Wilcsek has submitted that even taking various matters into account, there is no justification for an order of costs above the scale. With respect, I disagree. I am of the view that an order for costs above the scale figure of $5,865.00 is appropriate. However, I am not of the view that the Court should go as high as $8,500.00. I am of the view that a lesser amount, whilst still significantly above the scale would be appropriate.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 15 December 2009
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