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

[2015] FCCA 2725

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGN v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 2725

Catchwords:
MIGRATION – Costs – simple costs order previously made – parties unable to agree on costs outcome – application to fix costs granted.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

SZTGN v Minister for Immigration & Anor [2014] FCCA 1467

Applicant: SZTGN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESMENT REVIEWER

File Number: SYG 2137 of 2013

Judgment of: Judge Driver

Hearing date: 28 September 2015

Delivered at: Sydney

Delivered on: 28 September 2015

REPRESENTATION

Counsel for the Applicant: Ms D Dinnen

Solicitors for the Applicant: Lander & Rodgers

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave is granted for the first respondent to make an oral application, subject to the undertaking to pay any application fee payable.

2. Pursuant to rule 16.05(2)(f) of the Federal Circuit Court Rules 2001 (Cth), order 3 made on 3 October 2014 is vacated.

3. The first respondent is to pay the applicant’s costs and disbursements of and incidental to the substantive application, including counsel’s fees, fixed in the sum of $22,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2137 of 2013

SZTGN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

KERRY-ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(reasons for judgment)

1. On 3 October 2014 I gave judgment for the applicant in this matter[1].  When I handed down judgment there was a brief discussion about costs.  The parties were not in a position either to agree on costs or to make submissions, as the applicant’s costs, although expected to be substantial, were not quantified.  In the circumstances I made the following order:

   The first respondent is to pay the applicant’s costs of and incidental to the proceedings which, if not agreed, are to be assessed and, if necessary, taxed in accordance with the Federal Court Rules.

   [1] SZTGN v Minister for Immigration & Anor [2014] FCCA 1467

2. Over the following twelve months the parties remained unable to agree on a costs outcome.  Neither was the prospect of an assessment or taxation attractive to them.  They requested that the matter be listed for argument on costs, which I acceded to.

3. The affidavits of Liam Dennis made on 8 September 2015 and Joanna Renkin made on 25 September 2015 detail what has transpired and the competing positions of the parties.  Briefly, the applicant’s solicitor and own client costs come to $78,399.04 including $24,510.24 in disbursements, being primarily counsel’s fees.

4. The applicant would be willing to accept $51,454.79.  The Minister maintains that he will not pay more than 150% of scale costs, in other words approximately $10,200.

5. The parties asked me to fix costs in a specific amount.

6. In essence, I have accepted that the Court should intervene to break the deadlock between the parties that flowed from the costs order made by the Court last year.  A few things are obvious.  The first is that the original claim on behalf of the applicant for costs in excess of $78,000 was extraordinary and, secondly, the fallback position of a costs claim in excess of $50,000 was still excessive.  On the other hand, I do accept that the proceedings were more complex than many other migration proceedings and costs in excess of scale are called for.

7. I have had regard to the fact that counsel for the applicant was new to the jurisdiction and also, as far as I know, the applicant’s solicitors were not particularly experienced in migration proceedings.  While that may be so, it is not appropriate that the Minister should bear the burden of legal practitioners coming to terms with a new field of law. 

8. Having heard the representatives on the issue of costs, I am persuaded that costs of approximately one and a half times scale should be awarded for professional costs of the applicant’s solicitors.  I will order that costs of $10,200 in respect of solicitors’ costs be paid.  There was, it seems to me, some degree of overlap between the work done by the solicitors and the work done by counsel.  While I note that counsel’s fees have been paid by the applicant’s solicitors, that should not prevent the Court from reducing counsel’s fees recoverable on a party and party basis. 

9. I have no difficulty in accepting that disbursements of approximately $2,000 should be paid and, in addition, I have determined that 50 per cent of counsel’s fees should be paid by the Minister.  This leads to a conclusion of an all-inclusive costs order of $22,200. 

10. I will order that the first respondent pay the applicant’s costs and disbursements, including counsel’s fees, of and incidental to the application, fixed in the sum of $22,200.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  8 October 2015