VMAM v Minister for Immigration (No.2)
[2003] FMCA 574
•28 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VMAM v MINISTER FOR IMMIGRATION (No.2) | [2003] FMCA 574 |
| MIGRATION – Submission re costs – application dismissed. PRACTICE AND PROCEDURE – Costs. |
| Applicant: | VMAM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 227 of 2003 |
| Delivered on: | 28 November 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 28 November 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Ms De Leo |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application filed 23 January 2003 be dismissed.
That the applicant shall pay the respondent's costs fixed in the sum of $5,940.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 227 of 2003
| VMAM |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter I made orders on 14 November 2003 dismissing the application and fixed costs in the sum of $5700. I granted liberty to the applicant to apply in relation to the issue of costs by 4 pm on or before 25 November 2003.
The court file reveals that prior to 25 November 2003 there was a telephone conversation or telephone call made to the court by the applicant. The applicant was advised that the costs issue would be dealt with this day and he advised he may seek some legal advice. There is a further file note which states, “A voice mail message was left at 11.30 last night advising that the applicant had made an appointment to see a lawyer and a lawyer advised him if he wins the case he will give costs but if he loses he will get costs again. He will not be able to attend on Friday, 28 November 2003.”
On 28 November 2003, at 8.50 am a file note says:
“He has not been able to get advice from lawyer. He is unable to attend court today.” It provides a phone number.
I then have a printout of an email which was forwarded to my deputy associate. It would appear to follow from a conversation about which
I have no file note but alleges there was a conversation between my Deputy Associate and a person called ‘Lisa’. The identity of Lisa is not referred to in the note. This email provides:
“Further to our telephone conversation of earlier today (24 November 2003 4.20 pm) I would like to submit for consideration a reduction to the fixed sum payable to the Respondent that was applied by McInnis FM. The orders show that the amount payable is $5700.00.
Based upon the decision of:
NAGY v Minister for Immigration [2002] FMCA 189 (20 August 2002) where Driver FM, stated that ‘I would ordinarily make a costs order between $4,000 to $5,000’ I was expecting costs in/around these numbers.
I also reviewed another order,
VMAC v Minister for Immigration [2003] FMCA 508 (14 November 2003] where the costs associated were $4.650.
With this in mind I would like to apply to have the costs of my husbands case reduced. I would like to ask that these be submitted at $4,000 to $4,500.
Thank you for your help with this matter, I look forward to your response.”
I assume the author is the wife of the Applicant. The first I became aware of this email was this morning. I am not aware of any conversation that occurred on 24 November 2003. The matter is listed for today for the purpose of giving the applicant an opportunity to make submissions and unless there is any objection taken I will treat the email, despite its inadequacy and inaccuracy and inappropriate format, as a submission. I am prepared to deal with the matter in the Applicant’s absence.
In this matter I made orders on 14 November 2003 and heard submissions in relation to the fixing of costs following dismissal of the application. On that occasion I was satisfied that a reasonable amount of costs to be fixed in exercise of my discretion would be the sum of $5700. Matters were raised in support of that application on that occasion by the representative of the respondent. To some extent those matters are reiterated today by Ms De Leo on behalf of the respondent. In particular, it is noted the matter did commence in the Federal Court. It was transferred to this court. At one stage there was some representation for and on behalf of the applicant. A court book was prepared, a full hearing occurred in this court and the result, as I have indicated, was that the application was dismissed.
If I were to apply schedule 1 of the Federal Magistrates Court Rules
I am satisfied that the total costs and disbursements would be an amount clearly in excess of $5700. As I indicated in the order made on 14 November 2003, and I should state partly as a result of what I regarded as perhaps short notice that the decision was about to be delivered, I decided to give the applicant a further opportunity to make application in relation to the issue of costs. He did that, at least in some form, by apparently having a telephone conversation at a time that is not recorded but nevertheless referred to and a further email communication which I am prepared to accept constitutes a submission made on his behalf by a person named Lisa purporting to be the wife of the applicant. For the present purposes I am prepared to accept that this is an authentic communication despite the obvious inadequacies and inappropriateness of that form of communication with my deputy associate.
Nevertheless, without there being objection I am prepared to consider for the purpose of this cost application the matters raised in that email communication. In that communication reference is made to a request that the costs be in the region of $4000 to $4500 in lieu of $5700. Reference has been made to a decision of the Federal Magistrates Court in the matter of NAGY v Minister for Immigration [2002] FMCA 189 where his Honour Driver FM stated:
“I would ordinarily make a costs order between $4000 and $5000.”
I have during the course of submissions referred to the entire paragraph of His Honour's decision, that is, paragraph 11, which provides as follows:
“The Minister seeks costs in the sum of $2,200. No costs are sought for today's hearing or for the fee payable upon filing the costs application. In matters going to a hearing where the applicant was unsuccessful, I would ordinarily make a costs order between $4,000 and $5,000. I estimate that the Minister has been saved about $2,000 in the cost of representation at a hearing as well as the costs of preparation of written submissions in advance of a hearing.”
As I indicated during the course of submissions, I do not regard myself as being bound by that decision, nor is it helpful to me to be made aware of what another Federal Magistrate may ordinarily do in relation to costs, particularly where the basis for that practice is not made clear in the reasons for decision. The issue of costs is a matter of discretion for each court. In my view, the authority to which reference has been made is unhelpful.
Likewise, a further reference has been made to a decision in the matter of BMAC v Minister for Immigration [2003] FMCA 509 where costs ordered in that case were $4,650. Again it is not helpful to this court to refer to other matters of that kind, but rather this court should be able to make an assessment of the costs based upon the material before it having regard to the submissions made by the respondent and the submission by email of the Applicant
It is further submitted that the costs of and associated with this day are $240, which in my view appears to be entirely reasonable and a fair amount. That leaves the question of whether the amount of $5700 is a fair and reasonable amount of costs which I should be encouraged to fix. In my view, having regard to the chronology of events and having had the advantage of considering this matter both at hearing and of course reviewing the file, I can see no reason why the amount of $5,700 should not be allowed as a fair and reasonable sum to be fixed together with the costs of this day making a total of $5,940.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 November 2003
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