SZSNU v Minister For Immigration and Anor (No.2)

[2013] FCCA 1603

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSNU v MINISTER FOR IMMIGRATION & ANOR (No.2) [2013] FCCA 1603

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 costs reasonable in the circumstances.

Legislation:

Federal Court Rules 2011, Schedule 3
Federal Circuit Court of Australia Act 1999 (Cth), s.79

Federal Circuit Court Rules 2001, rr.21.02, 44.15, Part 3, Schedule 1

Noble v Baldwin & Anor (No. 2) [2011] FMCA 700
Oshlack v Richman River Council (1998) 193 CLR 72
SZRTP v Minister for Immigration & Anor (No.2) [2013] FCCA 711

Applicant: SZSNU

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 143 of 2013

Judgment of: Judge Manousaridis

Date of Last Submission: 3 September 2013

Delivered at: Sydney

Delivered on: 11 October 2013

REPRESENTATION

Solicitors for the Applicant: McArdle Legal

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The applicant pay the first respondent’s costs in the amount of $10,706.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 143 of 2013

SZSNU

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 30 August 2013, when I ordered that this application be dismissed (SZSNU v Minister for Immigration & Anor [2013] FCCA 1219) the First Respondent (Minister) sought an order that his costs be fixed in the amount of $16,700. The Minister relied on the affidavit of Alexandra Jane Black McCaughan, sworn on 29 August 2013 (costs affidavit).

2. In response to that application, I directed the Minister to file short submissions on the issue of why a costs order in accordance with Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) should not be made. I also directed the applicant to file short submissions. The Minister filed his submissions on 3 September 2013, but the applicant has not filed submissions.

Principles

1. The Minister submits the Court has an “unfettered discretion” under s.79 of the Federal Circuit Court of Australia Act 1999 (Cth) (Act) to award costs, provided such discretion is “exercised judicially and in the context of the relevant Court rules”.[1] Section 79(2) of the Act provides:

   The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

   And s.79(3) provides:

   Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or Judge.

   [1] First Respondent’s outline of submissions in relation to costs at [5] referring to Oshlack v Richman River Council (1998) 193 CLR 72 at [65] per McHugh J, cited in Noble v Baldwin & Anor (No. 2) [2011] FMCA 700 at [9] and SZRTP v Minister for Immigration & Anor (No. 2) [2013] FCCA 711

2. The relevant Rules of Court, in the context of which the discretion should be exercised, are set out in Part 21, r.44.15 and Part 3 of Schedule 1 (Schedule) of the Federal Circuit Court Rules 2001 (Cth) (Rules). Rule 21.02(2) provides 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 2011. Rule 44.15 provides that the Court may, in relation to a proceeding brought under the Migration Act 1958 (Cth) that is concluded, order that an unsuccessful party in the proceeding must pay the costs of a successful party in accordance with Division 1 of Part 3 of Schedule 1.

3. Rule 44.15 does not, however, require the Court to assess costs in the amount specified in the Schedule. That point was made by Judge Nicholls in SZRTP v Minister for Immigration & Anor (No.2):[2]

   I do not accept that the Schedule (regardless of which part of the Schedule) is to be rigidly applied . . .nor . . . does the existence of such scales mean that the Court does not retain discretion.

   [2] SZRTP v Minister for Immigration & Anor (No.2) [2013] FCCA 711 at [45]

4. As Judge Nicholls also observed in SZRTP, although the Court is not bound to assess costs in the amount fixed in the Schedule, the amounts specified in the Schedule are “a guide to what may be generally considered to be reasonable in matters” of the sort to which the Schedule applies,[3] and that the “Court’s discretion should be exercised with reference to the actual circumstances presented in each case”.[4] Factors which are relevant to the exercise of the discretion include whether a party undertook more work that one would expect would usually be undertaken in the matter, and the complexity of the issues that were raised.

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

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

Minister’s submissions

1. The Minister submits that, in assessing the amount of costs regard should be had to the “legal” work properly and reasonably done by him in order to respond to the application made.[5] The Minister further submits that, based on the evidence set out in the costs affidavit, it is not appropriate that the applicant should avoid paying an appropriate portion of the Minister’s actual costs, where his own conduct, including the filing of an unparticularised amended application, filing of supplementary submissions (after the conclusion of the hearing), and raising new issues at the hearing, has increased the amount of those costs.[6]

   [5] First Respondent’s outline of submissions in relation to costs at [11]

   [6] First Respondent’s outline of submissions in relation to costs at [11]

Should costs be assessed for an amount different to that specified in Schedule?

1. In my opinion, there are three features of this case which warrants the Court fixing the Minister’s costs in an amount in excess of that specified in the Schedule:

   a)The applicant put in evidence a transcript of the hearing before the second respondent (Tribunal) prepared by a witness called by the applicant. That necessitated the Minister to review the transcript provided by the applicant against the audio recording of the hearing to check the accuracy of the transcript. I find from my having listened to the audio recording of the hearing that that would have taken at least six hours. 

   b)The applicant relied on the tone of what was said before the Tribunal as evidence of bias. That would have required the Minister to consider the relevant passages of the audio recording of the hearing. In my opinion, three hours would have been a reasonable time to spend on this task.

   c)The Minister made submissions after the hearing before me in response to submissions the applicant made after the hearing.  In my opinion, two hours would be a reasonable time to have spent on this task.

2. Accordingly, I propose to allow an amount for the hours of work to which I refer in paragraph 8. The work to which I refer in paragraph 8(a) is work that would have been appropriate for a law graduate to have done. I propose to apply the rate provided for in Schedule 3 of the Federal Court Rules 2011 for work done by law graduates, namely $21 for every six minutes, which means I will allow the Minister a total of $1,260 for the work to which I refer in paragraph 8(a) (6 x $210).

3. As for the work to which I refer in paragraphs 8(b) and (c), I propose to apply the rate provided for in Schedule 3 of the Federal Court Rules 2011 for work required to be done by a lawyer, namely $56 for every six minutes. That means that for the five hours of work referred to in those paragraphs, I will allow a total of $2,800 (5 x $560).

4. Accordingly, the additional amount I will allow the Minister for his costs is $4,060.

5. I therefore propose to order that the applicant pay the Minister’s costs in the amount of $10,706.

I certify that the preceding twelve (12)paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 11 October 2013