SZSZA v Minister For Immigration and ANOR and; SZSZB v Minister For Immigration and ANOR

[2014] FCCA 379

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZA v MINISTER FOR IMMIGRATION & ANOR and
SZSZB v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 379

Catchwords:
MIGRATION – Assessment of costs.

Applicant: SZSZA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1407 of 2013

Applicant: SZSZB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1408 of 2013

Judgment of: Judge Driver

Hearing date: 3 March 2014

Delivered at: Sydney

Delivered on: 3 March 2014

REPRESENTATION

Solicitors for the Applicant:

Mr F Varess

Fragomen

Solicitors for the Respondents:

Ms R Jones

Australian Government Solicitor

ORDERS

1. The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500, in each of matters SYG1407/2013 and SYG1408/2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1407 of 2013

SZSZA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

SYG 1408 of 2013

SZSZB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a costs dispute in two migration proceedings, SZSZA v Minister for Immigration and SZSZB v Minister for Immigration.  In both matters, the legal issues agitated in the judicial review applications have been resolved by consent orders I made on 14 February 2014. 

2. In both matters, the Minister conceded jurisdictional error on the basis that the Refugee Review Tribunal (Tribunal) committed jurisdictional error when it failed to consider the applicant’s claim that he feared persecution by reason of being a Tamil fisherman. 

3. The parties have had discussions on the applicants’ costs in each matter but have been unable to reach agreement.  Offers and counter-offers have been made.  While the applicants’ costs and disbursements in each matter exceed $13,000 and scale costs in each matter to the point of settlement would be $3,326, both parties concede that a costs outcome somewhere in between those two extremes would be appropriate.

4. In other words, there is no dispute that the applicants should receive costs in excess of scale costs but that a costs outcome in excess of $10,000, in each matter, would be excessive.  The most recent offers made by the applicants are for an all inclusive sum of $9,000 in the case of SZSZB and $8,800 in the case of SZSZA.  The Minister has offered $6,000 in the case of SZSZB and $5,000 in the case of SZSZA. 

5. The affidavits of Farid Varess made on 3 March 2014 in each matter detail the work undertaken in each proceeding and the discussions between the parties on the issue of costs.  What is apparent is that the legal issues arising in each case were very similar, although not identical.  The Tribunal made two decisions on the same day in very similar terms.  One concern of the applicants was the similarity of the two decisions.  The judicial review applications were amended in September 2013, again, in very similar terms.  A notice to produce was issued in each matter also in September.  When the matters came before me, initially for directions, I directed that they be listed for hearing today consecutively. 

6. It is, in my view, difficult for the Court to distinguish between the two cases on the issue of costs.  While somewhat more work may have been undertaken in the case of SZSZB, it is apparent that in circumstances such as this, solicitors for one party or the other where there is common representation, have a degree of discretion as to how to allocate costs between the matters.

7. I accept that the applicants should recover an amount in excess of scale costs, especially having regard to the involvement of counsel in each matter which, in my view, was reasonable and which no doubt played a factor in the clarification of the legal issues and the ultimate resolution. 

8. A fair outcome, when the costs are considered on a party and party basis is somewhat more than that currently offered by the Minister’s solicitors.

9. I will order that the first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500, in each of matters SYG1407/2013 and SYG1408/2013.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 4 March 2014