SZWCR v Minister for Immigration
[2016] FCCA 2385
•16 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWCR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2385 |
| Catchwords: PRACTICE & PROCEDURE – Appointment of litigation guardian – whether the litigation guardian is liable to pay the costs of the proceedings where the application is unsuccessful – no utility in ordering the applicant to pay the first respondent’s costs – litigation guardian to pay costs. |
| Legislation: Federal Court of Australia Act 1976 (Cth), s.43 Federal Circuit Court of AustraliaAct 1999 (Cth), s.79 |
| Cases cited: NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247; [1999] FCA 433 |
| Applicant: | SZWCR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 362 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 28 July 2016 |
| Date of Last Submission: | 4 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2016 |
REPRESENTATION
| The applicant’s litigation guardian appeared in person. |
| Solicitors for the Respondents: | Mr J Pinder, Minter Ellison |
ORDERS
The application be dismissed.
The name of the second respondent be amended to Administrative Appeals Tribunal.
The applicant’s litigation guardian pay the first respondent’s costs fixed in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 362 of 2015
| SZWCR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant sought judicial review of a decision of the Refugee Review Tribunal[1] dated 30 January 2015. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The applicant is three years old. In light of that, orders were made on 29 October 2015 appointing his mother as litigation guardian in the interests of the applicant pursuant to r.11.11(1) of the Federal Circuit Court Rules 2001 (Cth) (“Rules”).
The matter was heard on 28 July 2016 and I gave reasons on that day to the effect that there was no jurisdictional error affecting the Tribunal’s decision and that the matter would be dismissed. The Minister then sought an order that the applicant’s mother, as litigation guardian, be ordered to pay his costs of the proceedings.
Neither the Rules nor the Federal Circuit Court of AustraliaAct 1999 (Cth) (“Act”) make any express provision for an order that a litigation guardian pay the costs of proceedings. As the solicitor for the Minister was unable at the hearing to identify any authority on the point, I gave leave to the parties to file written submissions on the issue of costs. I did not make any other orders on that day so that the applicant would not be prejudiced in respect of the time within which an appeal must be lodged from a judgment dismissing his application.
Both parties filed submissions after the hearing addressing the issue of costs.
The submissions filed by the litigation guardian did not address the question of whether there should be a costs order made against her. The submissions made included that any such order should be reduced because “we are the big family with 3 kids and only the father of [the applicant] have income.” There were a number of documents attached to the submission including bank statements and electricity bills.
The Minister submitted that the award of costs in the Court is discretionary: ss.79(2) and (3) of the Act. Further, he submitted that the position at common law was that one of the reasons that a minor is required to have a litigation representative (or next friend or “prochein ami[2]”) is to provide a person against whom the liability for costs can be incurred: NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247; [1999] FCA 433 at [27] – [29].
[2] A person who is entitled to act on behalf of an infant (Oxford Online Dictionary).
The Minister also directed the Court’s attention to a number of decisions of this Court, in which an order was made requiring a litigation guardian to pay the costs of an unsuccessful applicant where the only applicant was a minor, as well as to decisions of the Federal Court to the same effect.
In SZNCT v Minister for Immigration & Citizenship [2009] FCA 907 (“SZNCT”) Flick J considered the issue of whether costs ought to be ordered against the father of a minor applicant who was appointed a tutor for the purposes of the proceedings. His Honour not only found that there was power to make such an order, but also that in the circumstances of the case it was appropriate to do so. His reasons were as follows:
[55]In the event that the Appeal was to be dismissed, the Respondent Minister sought an order that the father pay the costs of the Appeal. The appointment of the father as a tutor avoids any difficulties that may otherwise have arisen in making such an order. Indeed, it has been said that “[t]he object of appointing a next friend is really to secure the defendant in respect of his costs if he should succeed …”: Ex parte Davis (1901) 1 SR (NSW) 187 at 189 per Darley CJ.
[56]Even in the absence of an order pursuant to O 43, however, it should be noted that s 43 of the Federal Court of Australia Act 1976 (Cth) confers adequate power to make an order against the father. In Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192 to 193 Mason CJ and Deane J observed:
For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.
See also: Manton International Pty Ltd (In Liquidation) v Deputy Commissioner of Taxation [2006] FCAFC 76 at [10] per Tamberlin, Weinberg and Allsop JJ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 at [20] to [21] per Collier J. Even had an order not been made pursuant to O 43, an order would nevertheless have been made that the father pay the costs of the appeal. The father had filed the Notice of Appeal ostensibly as “guardian” and sought to advance a case which, if successful, would have been of benefit to his children and perhaps himself.
(Emphasis in original)
The provisions of s.79 of the Act are relevantly identical to those of s.43 of the Federal Court of Australia Act 1976 (Cth). In light of that, I consider that the reasoning of Flick J in SZNCT is applicable to proceedings in this Court.
The applicant’s mother was instrumental not only in bringing and conducting these proceedings on behalf of her son but also in making an application for a protection visa on his behalf. In those circumstances, it is open to infer that she stood to benefit from both the visa application and these proceedings in the event that they were successful. For that reason, and given that a costs order against the applicant personally would be of little utility I consider that it is appropriate to make an order that the applicant’s mother (as litigation guardian) pay the Minister’s costs of these proceedings.
As I have noted, for the reasons that I gave on 28 July 2016, there is no jurisdictional error in the Tribunal’s decision and so the proceedings must be dismissed. For those reasons I make the orders set out above.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 16 September 2016
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