SZNAJ v Minister for Immigration & Anor (No.2) - [2009] FMCA 1084

FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

[2009] FMCA 1084

MIGRATION – Costs – quantum of costs – where successful respondent seeks an order for costs above the Court scale – where hearing aborted due to interpreting difficulties – where respondent’s witness ill on a scheduled hearing day – applicant not to be held responsible for costs of events over which he had no control – parties to pay own costs for some matters.

Applicant:

SZNAJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3197 of 2008

Judgment of:

Scarlett FM

Hearing date:

29 October 2009

Date of Last Submission:

29 October 2009

Delivered at:

Sydney

Delivered on:

29 October 2009

REPRESENTATION

Solicitors for the Applicant:

Mr Silva

Solicitor for the Respondent:

Ms Buchanan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The parties are to pay their own costs in respect of the hearing dates of 25 February, 14 April and 1 July 2009.
The parties are to pay their own costs in respect of the directions hearing on 4 May 2009.
Subject to Orders 1 and 2 above, the Applicant is to pay the First Respondent’s costs in the sum of $9,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3197 of 2008

SZNAJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application before the Court is an application by the First Respondent, the Minister for Immigration and Citizenship for an order for costs against the Applicant.
On 20^th October 2009 I handed down a decision dismissing the Applicant’s application for review of a decision of the Refugee Review Tribunal. The question of costs was left in abeyance until the Applicant’s solicitor, Mr Silva, could consider the contents of an affidavit relating to costs prepared by the solicitors for the Minister.
The Minister is seeking an order for costs in the sum of $16,000.00, that is, of course, significantly above the scale figure provided in Schedule 1 to the Federal Magistrates Court rules which is $5,865.00.
The submission is that this was a matter which was always going to take the question of costs out of the ordinary scale figure because it was an allegation of fraud by a migration agent. Such an allegation will involve the calling of evidence, the cross-examination of the parties and, indeed, in this case, both the Applicant and the former migration agent gave evidence and were cross-examined.
The submission is also that the subject matter of this application made it a proper matter for counsel to be briefed. For those reasons, the submission is that it is appropriate to deal with the matter by handing down a costs figure above the scale.
I have before me an affidavit of Louise Bernadette Buchanan, solicitor, affirmed on 20^th October 2009 setting out the figures upon which the Minister seeks to rely. The figures are set out in paragraphs 3 to 7 of the affidavit, which I will read onto the record:
[3] The solicitors’ costs which have been incurred by the first respondent to date, exclusive of GST, amount to over $11,900.
[4] The disbursements incurred to date amount to over $7700. Disbursements include counsel’s fees, filing and photocopying fees.
[5] Based on the above figures I assess the total costs incurred by my client in relation to this matter will amount to over $19,900.
[6] I estimate that the costs likely to be awarded on a party party basis on taxation amount to over $16000.
[7] The first respondent seeks an order for costs fixed in the sum of $16,000.
Paragraph 8 contains a description of the work done in preparation for the hearing and attending on the hearing. It includes a variety of Court attendances including attendance at First Court Date before me, an attendance at return of subpoena before a Registrar, an attendance of a directions hearing before me on 4^th May 2009, three attendances with counsel at adjourned hearings on 25^th February 2009, 14^th April 2009 and 1^st July 2009 and attendance with counsel at the hearing where the matter was heard to finality on 26^th August, 2009.
The submission is, on behalf of the Minister, that an appropriate figure for costs on a party party basis would be $16,000.00.
Mr Silva, who appears for the Applicant, submits that that amount is excessive. As I understand it is not submitted that this is a matter to which the scale would apply but Mr Silva has pointed out that there were a number of Court events over and above what would normally be expected in a matter of this type which incurred costs to the parties, including his client for which it is not appropriate that his client should have the burden of the Respondent’s costs.
He referred specifically to the three aborted hearings on 25^th February 2009, 14^th April 2009 and 1^st July 2009 where there were problems with, amongst other things, the availability of a suitable interpreter and also the attendance at a directions hearing before me on 4^th May 2009. The submission is that the Applicant, through no fault of his own, has been put to a considerable amount of extra expense involving the attendance of his own solicitor, and it would not be just and equitable to require him to meet the expenses of the Minister’s lawyers attending on those days.
The submission also is that most of the matters referred to in paragraph 8 of the affidavit, setting out the work that has been done by the Minister’s lawyers in preparing the matter for hearing, were matters that would have to be done in any event, although it is conceded that where the Minister calls a witness or witnesses in reply to an Applicant’s case that will involve additional preparation, including drafting of affidavits, conferences with witnesses and matters of that nature.
It is well-established that an order for costs is discretionary. Not only is it within the discretion of the Court to make an order for costs in the first place, but it is also a matter within the discretion of the Court as to the quantum of the costs to be awarded, if the Court considers it appropriate for a costs order to be made.
This is a matter that has had an unfortunate history and it is fair to say that the initial attendances can hardly be sheeted home to the parties on either side. The matter was originally listed for hearing on a one-day basis on 25^th February 2009. At that stage it was anticipated that the Applicant would give evidence and a migration agent, a Mr Ratuvou would give evidence. It was necessary for an interpreter in the Fijian language to be available in order to assist these witnesses give their evidence.
Regrettably, the Court was unable to provide an interpreter on that occasion. Although a Fijian language interpreter had been ordered by my associate in plenty of time, as Mr Silva for the Applicant appropriately put, the Court was not happy. Clearly, without an interpreter, the matter could not proceed.
The matter was adjourned until 14^th April 2009. On that occasion there was a Fijian language interpreter. The Applicant went into the witness-box and his examination-in-chief commenced. It soon became apparent, to all concerned, that the skills of the particular interpreter were inadequate for the purpose of Court proceedings.
Both Mr Smith of counsel, who appeared for the Minister, and Mr Silva, who appeared for the Applicant, expressed particular concern that the interpreter was unable to interpret some of the legal terms required and it was clear that the Applicant would not be able to give his evidence, either in chief or in cross-examination, with that particular interpreter. Quite clearly with Mr Ratuvou, a similar problem may well have occurred. Accordingly, a decision was made to abort the hearing on that day and to require the Court registry to make additional efforts to provide a competent interpreter, one who would be up to the task of Court proceedings, especially in a matter of this degree of complexity.
It was for that reason that a directions hearing was held on 4^th May 2009. The Court was reluctant to commit the parties to an extra hearing date without an assurance, from the Court registry, that an interpreter of sufficient capability would definitely be available on the next occasion. The purpose of the directions hearing on 4^th May 2009 was to set a further hearing date, having been once the Court had been assured that this was to take place.
The hearing was set for 1^st July 2009. An interpreter in the Fijian language was available. Lawyers for the party attended. The Applicant attended in person. Regrettably, the witness for the Minister, Mr Ratuvou, was not present.
The Court was informed that Mr Ratuvou had called in sick and would not be well enough to attend Court that day. It is my understanding that this was a very recent development which was something unforeseen by the lawyers for the Minister. It was, in my view, necessary for all the legal advisers to attend on the morning of the hearing because it would have been open to the Court to direct that the hearing would commence with the Applicant’s evidence and then go part heard until the presence of Mr Ratuvou could be guaranteed. That was not seen as a desirable procedure and, indeed, it was considered to be a more efficient way of dealing with the proceedings to take all the evidence on the one day and for submissions to be made at the conclusion of the evidence.
That is, in fact, what happened on 26^th August 2009. All parties were able to attend. There was a competent interpreter in the Fijian language and, indeed, a very good one and the evidence was taken on both sides, submissions were made and the matter was then stood out of the list pending the handing down of the decision.
It is that history which provides an explanation for the significant costs figure which has been submitted to the Court today.
This is a matter of the degree of complexity that justified the briefing of counsel by the Minister. It is a matter that was going to incur costs over and above the scale figure due to the necessity for evidence to be taken and, in fact, on both sides.
However, I am not satisfied that the amount of $16,000.00 which is claimed, is one which provides a just and equitable figure for worth of costs. It is quite clear that the three aborted hearings on 25^th February 2009, 14^th April 2009 and 1^st July 2009, were not matters to which any blame could be attributed to either party.
I accept the submission from Mr Silva that the attendance at the directions hearing on 4^th May 2009, was an attendance entirely necessitated by the previous difficulty with interpreters and it will be recalled that by 4^th May 2009 there had been two prior hearing dates where, for one reason or another, the matter could not proceed because of an interpreter problem.
In my view a fair outcome is for the parties to pay their own costs of the adjourned hearings on 25^th February, 14^th April and 1^st July 2009. It is also, in my view, appropriate that the attendance at the directions hearing, which arose entirely from the interpreter problem, was also a matter where the parties should pay their own costs and I propose to make orders accordingly.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 11 November 2009