VWSW v Minister for Immigration; and Anor (No.2)
[2006] FMCA 848
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWSW v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 848 |
| PRACTICE & PROCEDURE – COSTS – Application for costs against counsel acting for the applicant on a person basis – application refused – costs order made against applicant generally. |
| Federal Magistrates Court Rules 200, r.21.07 Migration Act 1958, s.91R |
| MZWOR v Minister for Immigration [2005] FMCA 845 VWSW v Minister for Immigration & Anor [2006] FMCA 166 |
| Applicant: | VWSW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG1635 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 15 & 16 November 2005, 13 February 2006 |
| Date of Last Submission: | 7 April 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | TA Fernandez |
| Counsel for the Respondent: | Mr Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant pay the first respondent’s costs in the sum of $9,588.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1635 of 2004
| VWSW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent seeks orders with respect to the cost of the proceedings in this matter.
At the hearing it became apparent that the issues being argued by the applicant were not squarely covered by the applicant’s application containing his grounds for review. Nor was the central issue relating to whether or not the tribunal dealt with matters raised at page 9 of the transcript initially raised: see VWSW v Minister for Immigration & Anor [2006] FMCA 166 at paragraph [17]. It appeared from this exchange in the evidence that there was a potential claim within the meaning of s.91R of the Migration Act 1958 although this was not raised in his written material previously forwarded to the tribunal.
Ultimately this claim was unsuccessful given the findings of the Tribunal with respect to the lack of fear on the part of the applicant, who later returned to the country despite the events that he relied upon (at paragraph [22] of the judgment in this matter). As a result the applicant failed in the application.
As this matter was not raised squarely in the grounds of the application or the outline of argument filed by the applicant, the matter had to be adjourned to the next day to enable the Minister’s counsel to obtain instructions and answer the argument.
The first respondent seeks costs against the lawyer acting for the applicant on a personal basis. The first respondent relies upon r.21.07 of the Federal Magistrates Court Rules 2001 as discussed in MZWOR v Minister for Immigration [2005] FMCA 845. I note that in this case the application was made before the Migration Litigation Reform Act 2005 took affect. It is argued that should the lawyer acting for the applicant have raised this issue in the written material filed before the application then no adjournment would have been required.
The submissions made by the lawyers acting for the applicant, in the written outline, were largely unhelpful in the matter and clearly did not raise this specific point. Even in oral argument, this point arose largely as a result of it being identified by me, and counsel for the applicant then pursuing the issue. Counsel for the applicant was acting pro bono, having agreed to waive any professional fees in respect of the matter.
It is important to be mindful of the fact that it is always easier to look back at a case with hindsight and see what might have been a better course or a better point to be run than to face the difficulties of presenting a case from the outset. A pro bono lawyer has the added difficulty of rarely being involved in the initial filing of the application, and often having less time and resources to prepare an argument in a case. While counsel’s arguments were largely unhelpful in the matter, it was not a case where counsel had come to specifically argue the point and recklessly failed to disclose the issue prior to the hearing, rather, a case where counsel responded to interest from the bench with respect to a particular issue. He only realised that it had some substance where it was raised in questions from the bench during the course of the hearing.
In one sense this case highlights the difficulty that judicial review in Refugee Review Tribunal cases presents to the court. The ultimate outcome of the case, potentially being one of life and death for the applicant, is as serious as any case that comes before the court. For this reason, when applicants are unrepresented or are under represented, the court feels obliged to none the less carefully consider the potential arguments that are available on the material to ensure that a lack of legal knowledge or presentation skills does not thwart an otherwise deserving litigant, in a serious matter.
As a result, when points arise in cases such as this, it can be a difficult question to determine whether or not the circumstances deserve a costs order against counsel for the applicant. Upon reflection, I am not satisfied that this particular case crosses that line, having regard to the fact that the point was in substance raised by the court and then taken up by the applicant who was represented by a pro bono counsel.
In these circumstances, I refuse the application for costs against the Counsel for the applicant.
There is no reason why costs ought not follow the event with respect to the matter generally. I therefore order that the applicant pay the first respondent’s costs. The first respondent seeks costs in the sum of $9,588, as calculated in accordance with the Federal Magistrates Court scale (see Schedule H of the affidavit of Tiffany Veschetti).
I therefore order the applicant to pay the first respondent’s costs fixed in the sum of $9,588.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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