VDAT v Minister for Immigration (No 2) - [2003] FMCA 166

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VDAT v MINISTER FOR IMMIGRATION (No.2)

[2003] FMCA 166

MIGRATION – Costs fixed by court – impecuniosity of applicant not sufficient reason to refuse costs order.

Migration Act 1958, ss.425, 426, 474
Federal Magistrates Court Rules 2001, R 21.02(2) Sch 1; R 21.10(b)

Oshlack v Richmond River Council (1998) 193 CLR 72.
Yalan v Minister for Immigration & Multicultural Affairs (1999) FCA 1212 Minister for Immigration & Multicultural Affairs v Zamora NG 785 of 1997, Black CJ Branson and Finkelstein JJ (21 September 1998)
Scott v Secretary Department of Social Security (2000) FCA 1450

Dranichnickov v Minister for Immigration & Multicultural Affairs (2001) FCA 94

Islam v Minister for Immigration & Multicultural Affairs (2001) FCA 1419 Desilva & ors v Minister for Immigration & Multicultural Affairs VG 607 of 1997, Merkel J (31 March 1998)

Applicant:

VDAT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 800 of 2002

Delivered on:

9 May 2003

Delivered at:

Melbourne

Hearing Date:

Submissions filed on 29 November 2002 and 26 January 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr C. Horan

Solicitors for the Respondent:

Clayton Utz

ORDER

The Applicant shall pay the Respondent’s costs fixed in the total sum of $6,040.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 800 of 2002

VDAT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter I made an order on 22 November 2002 that the application for judicial review of a decision of the Refugee Review Tribunal dated 8 April 2002 be dismissed. After I dismissed the application of the Applicant I made further orders that in relation to the issue of costs and the lump sum amount claimed by the Respondent that the Respondent should file and serve written submissions and the Applicant a reply by 29 November 2002 and 6 December 2002 respectively. The date for the reply by the Applicant was extended by further order of the Court to 28 January 2003.
In support of its submissions the Respondent claimed the total sum of costs and disbursements of $9,369.00. It was argued that the costs in the present case should follow the event and that there was no reason to depart from the general rule that costs do follow the event (See Oshlack v Richmond River Council (1998) 193 CLR 72. Impecuniosity of the Applicant would not constitute a good reason for a departure from the general rule (See Yalan v Minister for Immigration & Multicultural Affairs (1999) FCA 1212; Minister for Immigration & Multicultural Affairs v Zamora NG 785 of 1997, Black CJ Branson and Finkelstein JJ (21 September 1998). Reference was also made to the decision of Scott v Secretary Department of Social Security (2000) FCA 1450 where the Full Court stated,
“Inability to meet a costs order or the fact that the losing party has limited financial means has never been a sufficient…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 166
Decision Date: 9 May 2003

CaseChat Overview and Summary

The case of VDAT v Minister for Immigration (No 2) was heard in the Federal Magistrates Court of Australia. The applicant, VDAT, had brought an application for judicial review against the respondent, the Minister for Immigration and Multicultural Affairs, regarding a decision made by the Refugee Review Tribunal. The primary legal issue before the court was whether the applicant's impecuniosity could be considered a valid reason to refuse an order for costs in this matter.

The court considered the principle that costs should follow the event, as established in Oshlack v Richmond River Council (1998) 193 CLR 72. The court also referred to Yalan v Minister for Immigration and Multicultural Affairs (1999) FCA 1212 and Minister for Immigration and Multicultural Affairs v Zamora NG 785 of 1997, Black CJ Branson and Finkelstein JJ (21 September 1998), which held that the impecuniosity of a party does not justify a departure from the general rule of costs following the event. The court further noted that inability to meet a costs order or limited financial means have never been sufficient reasons to deny a successful party their costs, as stated in Scott v Secretary Department of Social Security (2000) FCA 1450.

The court found that the costs should follow the event and that the impecuniosity of the applicant was not a sufficient reason to exercise its discretion not to make an order for costs. The court calculated the costs based on the time spent in court, and the application of Rule 21.02(2) of the Federal Magistrates Court Rules, allowing for costs to be set by the court. The court concluded that the costs should be fixed at $6,040.00, after considering the time spent on the hearing and various stages of the proceedings, while excluding certain costs deemed unreasonable.

Orders