SZTBL and Anor v Minister For Immigration and Anor (No.2) - [2014] FCCA 1218

FEDERAL CIRCUIT COURT OF AUSTRALIA

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

[2014] FCCA 1218

Catchwords:
MIGRATION – Costs – whether Applicant should recover any part of costs where granted an extension of time under s.477(2) of the Migration Act 1958 (Cth) but application dismissed on its merits.

Legislation:

Migration Act 1958 (Cth), s.477
Federal Circuit Court Rules 2001 (Cth), r.44.05

CGM Investments Pty Ltd v Chelliah (No.3) [2003] FCA 405
Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No.2) (2005) 225 ALR 569; [2005] FCA 1400
Forster v Farquhar and Others [1893] 1 QB 564
Ritter v Godfrey [1920] 2 KB 47; [1918-19] All ER Rep 714
SZTBL & Anor v Minister for Immigration & Anor [2014] FCCA 976

First Applicant:

SZTBL

Second Applicant:

SZTBM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1622 of 2013

Judgment of:

Judge Barnes

Hearing dates:

15 November and 21 November 2013

Last date of submissions:

23 May 2014

Delivered at:

Sydney

Delivered on:

16 June 2014

REPRESENTATION

Counsel for the Applicants:

Mr P Bodisco

Solicitors for the Applicants:

Stanford Lawyers

Counsel for the Respondents:

Mr M Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

In addition to the costs order made on 21 November 2013, the First Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1622 of 2013

SZTBL & SZTBM

Applicants

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 21 May 2014 I made orders extending the time for making an application for review of a decision of the Refugee Review Tribunal up to and including 17 July 2013. However the application was dismissed. On delivery of judgment the parties were granted leave to file submissions as to costs. The First Respondent seeks costs in accordance with Part 3 of Schedule 1 to the Federal Circuit Court Rules (the Rules). The Applicants submitted that either they should be awarded their costs consequent on the success of their application for an extension of time or that the costs awarded to the First Respondent should be reduced by 50 per cent.
The application for review was filed five days outside the 35 day limit in s.477(1) of the Migration Act 1958 (Cth) (the Act). Under s.477(2) the Court has a discretionary power to extend the time for an applicant to seek such judicial review.
The Applicants sought an extension of time in the application (and in subsequent amended applications). However it was not until the day of the hearing (after the First Respondent’s submissions pointing out the absence of an affidavit explaining the reasons for the delay as required under r.44.05(2)) that the Applicants (who were legally represented) sought leave to file an affidavit explaining the delay (see SZTBL & Anor v Minister for Immigration & Anor [2014] FCCA 976 at [4] – [5]). Leave was granted. The First Respondent opposed the application to extend time on the basis that even if there was a satisfactory explanation for the delay, the grounds themselves lacked merit.
On the basis of the affidavit evidence, I was satisfied the Applicants had provided a reasonable explanation for the 5 day delay. While in all the circumstances I was satisfied that it was necessary in the interests of the administration of justice to extend the time for making the application, I dismissed the application as neither of the grounds relied on in the further amended application filed on 15 November 2013 were made out.
At the hearing on 15 November 2013 the Applicants sought to file a further amended application. I granted leave and adjourned the hearing until 21 November 2013. It was indicated that a costs order would be made against the First Applicant (the Second Applicant being a child) in relation to the First Respondent’s costs thrown away by reason of the amendment and adjournment, to be quantified on 21 November 2013.
On 21 November 2013 I made the following order by consent:
The first applicant pay the first respondent’s costs to prepare for and attend the further hearing on 21 November 2013 at 2.15 pm before Judge Barnes, fixed in the sum of $1,100.00.
The costs now in issue are in addition to the costs thrown away by reason of the amendment and adjournment. The First Respondent submitted that costs should follow the event in circumstances where the substantive application for review was unsuccessful and there was no separate hearing in relation to the application for an extension of time.
The Applicants acknowledged that ordinarily costs follow the event such that the successful party receives his costs in the absence of special circumstances justifying some other order: Ritter v Godfrey [1920] 2 KB 47; [1918-19] All ER Rep 714, but pointed out that where a litigant succeeded only upon a portion of his claim, the circumstances may make it reasonable that he or she bear the expense of litigating that portion upon which he or she has failed: Forster v Farquhar and Others [1893] 1 QB 564.
Reference was also made to the observation of French J (as he then was) in CGM Investments Pty Ltd v Chelliah (No.3) [2003] FCA 405 at [5] to the effect that if a party failed on an issue that was quite distinct from the issue on which he or she had succeeded so that an apportionment of costs could easily be made, a departure from the usual rule would often be justified.
The Applicants submitted that despite the difficulties of calculating an allocation of costs (see Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No.2) (2005) 225 ALR 569; [2005] FCA 1400) it was appropriate to take into account the success of their application for an extension of time.
It was also contended that it was “because of” the First Respondent’s opposition that it was “necessary” for the Applicants to be “put to time and expense of proving and arguing that aspect of their claims” and that as the Applicants had succeeded in their application for an extension of time they should be awarded their costs consequent on the success of that part of their application (or that the First Respondent’s costs should be reduced by 50 per cent).
The disputed costs are separate from and in addition to the costs ordered on 21 November 2013. The need for an extension of time was solely attributable to the delay on the part of the Applicants. Part of the costs relating to the application for an extension of time reflected the Applicants’ failure to file an affidavit explaining that delay with their application in advance of the written submissions. The question of whether the Applicants’ substantive case for judicial review was sufficiently arguable to justify an extension of time was ultimately determined by reference to the further amended application which was not filed until the first hearing date. The application for an extension of time was heard at the same time as the substantive application.
In other words, the costs in relation to the application for an extension of time fell as part of costs in the cause in the sense that there was no separate hearing dedicated to the extension of time issue. The parties’ submissions on the extension of time were included within their substantive submissions. The Applicants’ substantive application failed on its merits.
I am not persuaded that this is a case in which it is appropriate that the First Respondent meet any part of the Applicants’ costs whether directly or by a reduction in the costs recoverable. In addition to the extant costs order, it is appropriate that a further costs order should be made in favour of the First Respondent in accordance with Part 3 of Schedule 1 to the Rules in the amount of $6,646. Such costs should be paid by the First Applicant.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate:

Date: 16 June 2014