SZSDP and Ors v Minister for Immigration and Anor (No.2)

[2013] FCCA 2159

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSDP & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2013] FCCA 2159

Catchwords:
MIGRATION – Costs – application for costs greater than costs set out in Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 – whether Part 1 or Part 3 of Schedule 1 applies – whether costs reasonable in the circumstances.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.21.02(2), 21.10, 44.15, Schedule 1

Migration Act 1958 (Cth), s.476

SZRTP v Minister for Immigration & Anor (No.2) [2013] FCCA 711
SZSNU v Minister for Immigration, Multicultural Affairs and Citizenship (No.2) [2013] FCCA 1603

First Applicant: SZSDP

Second Applicant: SZSDQ

Third Applicant: SZSDR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2580 of 2012

Judgment of: Judge Manousaridis

Hearing date: 20 August 2013

Date of Last Submission: 8 November 2013

Delivered at: Sydney

Delivered on: 13 December 2013

REPRESENTATION

Counsel for the Applicant: Mr T Ower

Solicitors for the Applicant: Baker & McKenzie

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The first applicant pay the first respondent’s costs fixed in the amount of $6,146.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2580 of 2012

SZSDP

First Applicant

SZSDQ
Second Applicant

SZSDR
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 October 2013, when I ordered that this application be dismissed (SZSDP v Minister for Immigration & Anor [2013] FCCA 1647) and the first applicant (applicant) pay the first respondent’s (Minister) costs, the Minister sought an order that his costs be fixed in the amount of $15,903.

2. In response to that application, I directed the Minister and the applicant to file short submissions on the issue of assessment of costs. The Minister filed his submissions on 22 October 2013 and the applicant filed submissions on 7 November 2013. In addition, the Minister relies on the affidavit of Natasha Simone Blake, affirmed on 22 October 2013 (Minister’s costs affidavit) and the applicant relies on the affidavit of Kate Louise Gillingham sworn on 7 November 2013 (Applicant’s costs affidavit).

Source of power for assessing costs

1. There are a number of rules, relevant to this application, which deal with the assessment of costs. The first is r.21.02(2) of the Federal Circuit Court Rules 2001 (Cth) (Rules) which provides, among other things, that in making an order for costs in a proceeding, the Court may set the amount of the costs, set the method by which the costs are to be calculated, or refer the costs for taxation under the Federal Court Rules. The second is r.21.10 of the Rules which provides that, unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act1966 (Cth) applies) is entitled to costs in accordance with Parts 1 and 2 of Schedule 1 of the Rules and disbursements properly incurred. The third rule is r.44.15 which provides that the Court may, in relation to a proceeding brought under s.476 of the Migration Act 1958 that is concluded, order that an unsuccessful party pay the costs of the successful party in accordance with Part 3 of Schedule 1 of the Rules.

2. As has been noted by the applicant in his written submissions, there is some authority for the view that Part 21 of the Rules, and the scale in Part 1 of Schedule 1, not Part 44, applies to applications, for judicial review of an independent merits reviewer (who fulfilled the role that is now fulfilled by an independent protection assessor). As has been noted by the applicant, however, there have been numerous cases of judicial review of independent merits reviewers and independent protection assessors where the Court accepted or assumed that the amounts specified in Part 3 of Schedule 1 apply to such applications.

3. The Minister did not address the question of whether it was open to the Court to assess costs by reference to the scale specified in Part 3 of Schedule 1. That was so because the Minister does not seek to have the costs assessed by reference to any part of Schedule 1.

4. In my opinion, it is not necessary to decide whether Part 21 rather than r.44.15 is the relevant provision that applies to an application for judicial review of an independent protection assessor. As the applicant submits, the type and amount of work involved in preparing such cases is comparable to the work undertaken in the cohort of migration matters to which Part 3 of Schedule 1 was intended to apply. For this reason, it is within the proper exercise of the discretion conferred by r.21.02 of the Rules for the Court, when assessing costs in applications for judicial review of an independent protection assessor, to regard the amounts fixed in Part 3 of Schedule 1 in the same manner. Judge Nicholls in SZRTP v Minister for Immigration & Anor (No. 2) regarded the amounts in Part 3 of Schedule 1 when assessing costs in applications for judicial review of decisions of the Refugee Review Tribunal. That is, as amounts that are “a guide to what may be generally considered to be reasonable in matters” of the sort to which the Schedule applies.[1]

   [1] SZRTP v Minister for Immigration & Anor (No. 2) [2013] FCCA 711 at [47]

Principles for assessing costs

1. The Minister submits that in assessing the quantum of costs regard should be had to the “legal” work properly and reasonably done by him in order to respond to the application made.[2] The Minister further submits that, based on the evidence set out in the Minister’s costs affidavit, it is not appropriate that the applicant should avoid paying an appropriate portion of the Minister’s actual costs, where the applicant’s own conduct, including the advancement of unsuccessful grounds requiring consideration of lengthy interview transcripts, filing an amended application and requesting the Minister obtain specified documents on their behalf, has increased the amount of those costs.[3]

   [2] First Respondent’s outline of submissions in relation to costs at [12]

   [3] First Respondent’s outline of submissions in relation to costs at [12]

2. The applicant submits that the relevant scale to apply to this application is that prescribed in Part 3 of Schedule 1 to the Rules. The applicant, relying on what I said in SZSNU v Minister for Immigration, Multicultural Affairs and Citizenship (No.2),[4] also submits that the Court should not depart from the costs prescribed in Part 3 of Schedule 1 unless the Minister can show that he has undertaken more work than one would expect for a matter of the sort before me, or unless the complexity of the matter warrants a departure from the amounts specified in Part 3 of Schedule 1.

   [4] [2013] FCCA 1603 at [6]

3. I adhere to what I said in SZSNU v Minister for Immigration, Multicultural Affairs and Citizenship (No.2).[5] Being only a guide to what is reasonable, the Court is not bound to assess costs in the amount fixed in Part 3 of Schedule 1. The “Court’s discretion should be exercised with reference to the actual circumstances presented in each case”.[6] Factors which are relevant to the exercise of the discretion include whether a party undertook more work than one would expect would usually be undertaken in the matter, and the complexity of the issues that were raised in the matter.

   [5] [2013] FCCA 1603 at [6]

   [6] SZRTP v Minister for Immigration & Anor (No. 2)[2013] FCCA 711 at [46]

4. In my opinion, therefore, the issues which arise on this application are whether the Minister has shown that he undertook more work than one would reasonably expect would usually be undertaken in the matter, or whether there was some complexity which warrants a departure from the amount fixed by Part 3 of Schedule 1.

Should costs in excess of the applicable scale be awarded?

1. Paragraph 4 of the Minister’s costs affidavit lists the tasks performed by the Minister’s solicitors in this matter. Those are as follows:

   a)receiving instructions from the client;

   b)reviewing the application of the Applicants, and affidavit of Ms Kate Louise Gillingham filed 8 November 2012;

   c)drafting, filing and serving the First Respondent’s Notice of Address for Service and Response filed 19 November 2012;

   d)liaising with the legal officer in the employ of the Department of Immigration and Citizenship in relation to the file including seeking instructions;

   e)reviewing files relating to the Applicants and preparing the Court Book filed 24 January 2013;

   f)reviewing the affidavit of Susan Archer, filed 28 February 2013, to which copies of the transcripts of three interviews with the First Applicant were exhibited;

   g)reviewing the amended application filed 7 March 2013;

   h)obtaining and providing documents requested by the Applicants regarding country information to the Applicants on 20 February 2013;

   i)reviewing the submissions of the Applicant’s file 5 August 2013;

   j)preparing the brief to Ms Reg Graycar of Counsel, and liaising with Ms Graycar in relation to the file;

   k)settling the submissions of the First Respondent filed 13 August 2013;

   l)preparing for and attending the hearing at the Federal Circuit Court on 20 August 2013; and

   m)attending the Federal Circuit Court for the handing down of judgment.

2. Items (a), (b), (c) and (d) above are preliminary tasks usually undertaken in each migration matter before a First Court Date directions hearing. Items (e)-(g), (i), (j) and (k)-(l) above are tasks performed as a result of the orders made at the First Court Date directions hearing. Item (j), too, is a task that is ordinarily performed, assuming the Minister chooses to brief counsel. The submissions prepared by the applicant were four pages and the submissions prepared by the Minister were seven pages which were comparable to the length of submissions received in most migration matters. The length of the final hearing was one hour forty-two minutes which was less than the estimated two hours. The Minister, therefore, does not appear to have undertaken more work than one would reasonably expect to have been undertaken in a matter of this kind.

3. The applicant, referring to item (g) above, submits that the effect of the amended application was to delete one of the grounds relied upon[7], reducing the number of grounds from five to four grounds. The amended application was ‘marked-up’ and the deletion was easily identifiable. The applicant submits that the task of ‘reviewing the amended application filed 7 March 2013’ is not one which makes it justifiable or reasonable for the Court to order an amount of costs in excess of the applicable scale. I agree. The “legal” work the Minister would properly and reasonably have undertaken to respond to the application had in fact reduced and the Minister was called upon to address in submissions and at the hearing one less ground of review.

   [7] First Applicant’s outline of submissions in relation to costs at [19]

4. As for item (h), it is a clerical task that does not appear to have been time consuming.

5. Finally, the Minister has not identified any unexpected complexity in the case, or any other complexity which may warrant the Court assessing costs beyond that prescribed in Part 3 of Schedule 1.

Conclusion and disposition

1. In my opinion, the Minister has not shown that the application before the Court required more work, or work which was more complex, than one would usually expect for applications of that sort. In my opinion, subject to what I say in the following paragraph, the costs which the Minister should be entitled to recover are the costs prescribed by Part 3 of Schedule 1 to the Rules, namely, $6,646.

2. The applicant claims that the Court should deduct from the Minister’s costs a reasonable amount of no less than $500 on account of the applicant’s responding to the Minister’s application regarding costs.  I propose to accept that claim. I do so because the Minister’s application has failed, and the applicant has consequently been put to unnecessary expense.

3. Accordingly, I propose to order that the Minister’s costs be fixed in the amount of $6,146.

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

Associate: 

Date:  13 December 2013