SZVED v Minister for Immigration and Border Protection (No 2)

Case [2017] FCA 395

FEDERAL COURT OF AUSTRALIA

SZVED v Minister for Immigration and Border Protection (No 2) [2017] FCA 395

Appeal from: SZVED v Minister for Immigration and Border Protection [2016] FCCA 801
File number: NSD 456 of 2016
Judge: GILMOUR J
Date of judgment: 19 April 2017
Catchwords: COSTS – whether costs should be awarded in a specified sum pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth)
Legislation: Federal Court of Australia Act 1976 (Cth) s 43(3)(d)
Date of hearing: Heard on the papers
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 8
Counsel for the Appellant: The Appellant appeared in person
Solicitor for the Respondents: Mr M Wiese of Clayton Utz

ORDERS

NSD 456 of 2016
BETWEEN:

SZVED

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNALS
Second Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

19 APRIL 2017

THE COURT ORDERS THAT:

1.The appellant pay the first respondent’s costs of the appeal, fixed pursuant to section 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) in the sum of $3,200.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GILMOUR J:

  1. The appeal in this matter was dismissed by order dated 5 August 2016.

  2. The first respondent was granted leave to file a minute of proposed orders in regards to costs and an accompanying affidavit.

  3. The appellant was given 7 days from the date of service of the first respondent’s minute and affidavit to file any responding minute and/or affidavit evidence.

  4. The first respondent filed short minutes of order with a supporting affidavit of Mr Mark Wiese affirmed on 1 August 2016.  Mr Wiese is a lawyer in the employ of the first respondent’s lawyers in these proceedings.  He deposed to the details of those lawyers’ costs billing system including disbursements and the particulars of those services in this matter which attracted professional costs, including all preparation for the appeal and its hearing.  Those costs totalled $4,923.40.  Based on information and belief, he deposed that the first respondent generally recovers between 65%-75% in respect of professional costs upon taxation.

  5. On that basis he deposed that the first respondent would recover a sum within the range of $3,200 to $3,690.

  6. I take this to mean that the bill for professional costs would likely be taxed at a sum in that range.

  7. The first respondent, on this basis, seeks a fixed costs order against the appellant pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth), in the sum of $3,200.

  8. I am satisfied that this is a reasonable sum and will make an order in terms of the short minutes.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        19 April 2017

Details
AGLC
SZVED v Minister for Immigration and Border Protection (No 2) [2017] FCA 395
Case
[2017] FCA 395
Decision Date

CaseChat Overview and Summary

In the matter of SZVED v Minister for Immigration and Border Protection (No 2), the appellant, SZVED, sought judicial review of a decision made by the respondent, the Minister for Immigration and Border Protection. The central dispute revolved around the costs that should be awarded under the Federal Court of Australia Act 1976 (Cth). The case was heard by the Full Court of the Federal Court of Australia.

The primary legal issue before the court was whether the appellant should be ordered to pay a specified sum in costs to the respondent pursuant to section 43(3)(d) of the Federal Court of Australia Act 1976 (Cth). This provision allows for the court to order the payment of costs in a specified sum when it considers it appropriate to do so. The court needed to consider the nature of the proceedings, the conduct of the parties, and any other relevant factors in determining the appropriate amount of costs to be awarded.

The court determined that the appellant should be ordered to pay the respondent's costs of the appeal, fixed in the sum of $3,200. The court considered the nature of the proceedings, the conduct of the parties, and the fact that the appeal had no reasonable prospect of success. The court found that the appellant's appeal was frivolous and that the respondent had incurred significant costs in defending the appeal. The court also noted that the appellant had not made any meaningful contribution to the proceedings.

In light of the above, the court ordered that the appellant pay the respondent's costs of the appeal, fixed in the sum of $3,200. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appellant pay the first respondent’s costs of the appeal, fixed pursuant to section 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) in the sum of $3,200.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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