SZMSF v Minister for Immigration

[2010] FMCA 221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSF v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 221

MIGRATION – Costs – application for costs – quantum of costs – application for costs above scale.

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001, Schedule 1 Part 2

SZMSF v Minister for Immigration & Anor [2010] FMCA 22

Applicant: SZMSF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYC 2300 of 2008

Judgment of: Scarlett FM

Hearing date: 12 March 2010

Date of Last Submission: 12 March 2010

Delivered at: Sydney

Delivered on: 29 March 2010

REPRESENTATION

Solicitors for the Applicant: Simon Diab & Associates

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The applicant is to pay the first respondent’s costs in the sum of $24459.54.

2. The applicant is allowed six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 2300 of 2008

SZMSF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for costs by the first respondent, the Minister for Immigration and Citizenship. It arises as a result of the earlier dismissal with costs of an application for review of a decision of the second respondent, the Refugee Review Tribunal (SZMSF v Minister for Immigration & Anor[1]).

   [1] [2010] FMCA 22

2. The Minister seeks costs fixed in the sum of $26,622.00, which is, of course, significantly above the scale in the Federal Magistrates Court Rules 2001. The scale figure would be $5,865.00.

3. Mr Shiba, solicitor, who appeared for the applicant, submitted that the amount sought was of such magnitude that a bill of costs should be prepared for taxation. Against this, Ms Dinihan, who appeared for the Minister, submitted that there was sufficient material before the Court to enable an assessment to be made, and that taxation would be an unnecessarily lengthy and costly process.

4. The Minister relies on an affidavit of Carla Mills, solicitor, sworn and filed on 19^th February 2010, setting the way in which the figure has been calculated. In my view, the affidavit is sufficiently detailed to allow a relatively simple and quick calculation of an appropriate figure for costs.  

Consideration

1. Ms Mills deposes in her affidavit that the Minister’s solicitors use a computer-based time billing and recording system called Aderant Expert, which records the description of the task undertaken, the time spent in performing the task and the monetary value of the task. The system also records the monetary value of any disbursements.

2. Based on this system, Ms Mills calculates that an amount of $25,490.00 has been incurred for professional costs in this matter and a further $915.00 would be incurred for the following:

   a)Attendance at a further costs hearing;

   b)Reporting to the client;

   c)Drafting and settling final orders;

   d)Filing the final orders with the Court Registry; and

   e)Writing to the applicant, attaching a sealed copy of the orders and seeking payment of the costs.

3. The amount of disbursements incurred is calculated as follows:

   a)Counsel’s fees                 $5,424.32;

   b)Dr Furst, Psychiatrist     $3,000.00

   c)Transcript:  $1,035.22       

4. The Minister is seeking, on a party and party basis, an amount of $17,163.00, being 65% of the actual professional costs incurred or estimated to be incurred, plus 100% of disbursements representing counsel’s fees, expert medical report and transcript, totalling $9459.54.

Conclusions

1. This matter has had a lengthy procedural history. The matter has been before the Court on six separate occasions to date.

2. The first court date was on 13^th October 2008, where the Minister’s solicitor mentioned the matter by consent. The application was listed for final hearing on Thursday 4^th December 2008.

3. The hearing did not proceed on 4^th December 2008. The hearing was vacated by consent the day before and the application was listed for final hearing on 9^th April 2009.

4. The hearing did not proceed on 9^th April 2009. Counsel appeared for both the applicant and the first respondent and, on the application of the applicant, the matter was adjourned to 22^nd June 2009 for directions. The applicant was ordered to pay the first respondent’s costs of the day.

5. On 22^nd June 2009 the application was adjourned to 1^st September 2009 for final hearing.

6. The hearing took place on 1^st September 2009 and lasted a full day. Judgment was reserved. The parties were ordered to file and serve further written submissions.

7. Judgment was handed down on 27^th January 2010. The application was dismissed with costs. The first respondent was directed to file and serve an affidavit setting how the amount sought for costs was quantified.    

8. The application came before the Court for argument about costs on 12^th March 2010.

9. In my view, some of the matters raised by the applicant do not apply. There is no requirement for drafting and settling final orders or filing the final orders with the Registry. This Court prepares its own orders.

10. The matter was one of greater length and complexity than most applications of this type. It required oral evidence to be taken, including evidence from two medical practitioners. There was a need for further written submissions to be filed after the hearing.

11. In my view, an appropriate figure for professional costs on a party and party basis is $15,000.00.

12. As for the disbursements, I am satisfied that they were properly incurred. This was clearly a matter that required experienced counsel to argue the case on both sides. The medical evidence was appropriate and necessary. In the circumstances, it was not unreasonable to order a transcript of the proceedings. I propose to allow the following disbursements:

    a)Counsel’s fees                 $5424.32

    b)Dr Furst, psychiatrist       $3000.00

    c)Transcript  $1035.22

    TOTAL   $9454.54

13. As I have allowed professional costs of $15,000.00, this makes a total of $24459.54.

14. In light of the amount of the costs allowed, it is appropriate to allow time to pay. I allow six months to pay.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  29 March 2010