SZNLW v Minister for Immigration and Anor (No.2)
[2009] FMCA 1307
•9 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNLW v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2009] FMCA 1307 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application for costs – amount sought above Schedule – amount reasonable in circumstances – costs ordered. |
| SZNLW v Minister for Immigration & Citizenship & Anor [2009] FMCA 814 |
| Applicant: | SZNLW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 882 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 9 September 2009 |
| Date of Last Submission: | 9 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2009 |
REPRESENTATION
| Appearing for the Applicant: | No appearance |
| Solicitors for the Applicant: | - |
| Appearing for the Respondents: | Ms T Quinn |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the applicant pay the first respondent’s costs set in the amount of $8,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 882 of 2009
| SZNLW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
The applicant applied for review of a decision of the Refugee Review Tribunal. I heard and considered her application and handed down Judgment on 26 August 2009. (See SZNLW v Minister for Immigration & Citizenship & Anor [2009] FMCA 814.) The applicant was unsuccessful.
At the handing down of this Judgment, the Minister sought costs. I was reluctant to proceed to consider that matter, given, first, the non appearance of the applicant and, second, given the size of, the amount sought ($8,900), which was an amount in excess of that set out in the relevant Schedule to the Rules of this Court for matters of this type that have proceeded to a final hearing. I therefore felt it appropriate that the applicant be given another opportunity to argue whatever she may wish to argue in relation to the Minister’s application for costs.
This was a matter in which the applicant insisted on the matter proceeding in Sydney, although she normally resided in Melbourne.
On the Court’s file are letters from the Court, both dated 26 August 2009. One has been sent to the address for service, and one has been sent to the applicant’s residential address. I note, in particular, that both letters provide the applicant with the opportunity to attend this hearing by telephone should she be unable to travel from Melbourne. Having regard to those letters (respondent’s exhibits 1, 2 and 3), I am satisfied that the applicant has had reasonable notice of the matter for costs being set down for hearing.
I am satisfied that the applicant has had reasonable notice. I am satisfied that the applicant was given an alternative means of appearing at the hearing. I note that when the matter was called (having been scheduled to be heard at 9.30am) there was no appearance by the applicant. Again, when the matter was called over an hour later, there was still no appearance by the applicant. I am satisfied, in all those circumstances, that I should proceed.
I have before me the affidavit of Therese Quinn, affirmed on
24 August 2009, in support of the Minister’s application for costs, and itemising and breaking down the amount sought into its various component parts, which is an amount, as Ms Quinn has just said, set on a party/party basis. I note that the actual costs set out in the affidavit amount to $11,900, but that, of course, is inclusive of solicitor/client costs.
The first issue then, is whether it is appropriate that a costs order be made. In my view, it is appropriate that a costs order be made in the normal course. Despite opportunity, the applicant has not appeared at the hearing to argue against the making of such an order.
If there is any reason of a particular nature that would argue against the making of the costs order, the applicant has not appeared to put forward that reason, nor is it otherwise apparent that there is any such reason in the material that is already before the Court. The Minister should be entitled to be recompensed, at least in part, for what is, after all, an application made by the applicant. In all the circumstances, I cannot see that there is anything that could be said to argue against the making of the order in the usual way.
As to the amount, as I have already said, it is an amount in excess of that set out in the relevant Schedule to the Rules of this Court for matters of this type which have reached a final hearing. I take the view that I am not bound by what is set out in the Schedule. It is, of course, a useful guideline as to what may be regarded as reasonable, but the issue of reasonableness must be considered in the circumstances of the particular case that is before the Court. In that regard, I note that this is a case where quite a deal of additional work was done by the Minister’s solicitors to that which would normally be required in similar matters of this type. The amount set out in the Schedule is, of course, a general amount that presumes that a certain level of work has been done.
In my view, in the current case, there was quite substantial and significant work that was done by the Minister’s legal representatives, above and beyond what would be normally be the situation in many other similar matters. For example, the quite voluminous Court Book that has been prepared, filed and served, and I note that a number of copies of the Court Book are required for proceedings of this type. The applicant had provided an amended application, which of itself is not necessarily to be seen as being “additional” but, nonetheless, the matters asserted by the applicant certainly would have required preparation and action in addition to what one would normally see in matters of this type.
This matter also involved the situation where a transcript of the hearing before the Tribunal was provided in late circumstances, a transcript which had (my Judgment referred to it) some unusual features in the sense of no affidavit as to its provenance, and the bold quotations from the Bible. (See [37] to [40] of my Judgment.) Nonetheless, what I refer to here is that the late inclusion of the transcript before the Court would have required additional work by the Minister’s legal representatives.
Turning to the affidavit of Ms Quinn, I note what is set out at paragraph 4, and I am satisfied that there is nothing to suggest that any of the amounts against each of the items to which the amounts apply is excessive or unreasonable.
In all, therefore, I am satisfied that, in the circumstances of this case, the amount sought, $8,900, is a reasonable amount, and I will make an order fixing the amount to be paid at $8,900.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 19 January 2010
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