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

VDAT v Minister for Immigration (No.2) [2003] FMCA 166 (9 May 2003)

VDAT v Minister for Immigration (No.2) [2003] FMCA 166 (9 May 2003)
Last Updated: 12 May 2003

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

1. 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.

2. 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 reason to deny a successful party his costs."

3. It was submitted on behalf of the Respondent that the relevance of impecuniosity may apply in relation to the issue of whether or not to enforce a costs order (See Dranichnickov v Minister for Immigration & Multicultural Affairs (2001) FCA 94, Islam v Minister for Immigration & Multicultural Affairs (2001) FCA 1419). It may further be relevant in deciding at what point instalment arrangements may be in force. This is not, it was submitted, public interest litigation. It was further submitted that Condition 4004 of Schedule 4 of the Migration Regulations 1994 is not relevant to the exercise of the costs discretion (See Desilva & ors v Minister for Immigration & Multicultural Affairs VG 607 of 1997, Merkel J (31 March 1998).

4. In relation to the quantum of the costs the Respondent set out the following chronology:

Date
Event


11 June 2002

Applicant files application for judicial review with Federal Court


19 July 2003

First Federal Court directions hearing


29 July 2003

Respondent files and serves court book


2 August 2002

Second Federal Court directions hearing; matter transferred to Federal Magistrates Court


21 August 2002

Respondent files and serves contentions of fact and law


27 August 2002

Directions hearing before Federal Magistrates Court


20 September 2002

First Federal Magistrates Court hearing date; matter adjourned at applicant's request


22 November 2002

Second Federal Magistrates Court hearing date


5. It was then argued that pursuant to Rules 21.10 and 21.16 and Part 1 of Schedule 1 of the Federal Magistrates Court Rules the costs and disbursements should be calculated on the following basis:

(a) stage 5: preparation for final hearing (one-day matter) - $4.090;

(b) short mention on 19 July 2002 (Merkel J) - $190;

(c) short mention on 2 August 2002 (Merkel J) - $190;

(d) short mention on 27 August 2003 (Efthim R) - $190;

(e) half-day hearing on 20 September 2002 (McInnis FM) - $685 (solicitor) and $1027.50 (counsel)

(f) half-day hearing on 22 November 2002 (McInnis FM) - $685 (solicitor) and $1027.50 (counsel)

(g) counsel's preparation of the respondent's contentions of fact and law - $1200;

(h) photocopying - $84.

6. In addition to seeking an order for costs the Respondent also sought a certificate for counsel's appearance.

7. The Applicant in a brief written submission dated 26 January 2003 opposed the order for costs and in particular emphasised that a claimed amount of $4,090 being preparation for the final hearing was "unbelievable". His written submission referred to the hearing taking place over a period of half or one hour.

8. It is noteworthy that in this matter when I delivered an ex tempore decision on 22 November 2002 the total court time including the delivery of the decision was 2 hours and 5 minutes. A further period of 1 hour 10 minutes was devoted to the hearing on 20 September 2002.

9. In my view it is clear that in the present case there does not appear to be any material which would encourage the Court to exercise its discretion not to make an order for costs. The costs should follow the event. The matter was argued by the Applicant both on 20 September 2002 when orders were made for the filing of further documentation including an Outline of Submissions and again the Applicant was heard and made submissions on 22 November 2002. To the extent that impecuniosity is alleged by the Applicant in his written submissions where he refers to an inability to engage a lawyer I accept that in the circumstances of the present case that the impecuniosity is not a basis upon which I should not make an order for costs. I otherwise accept the submissions made by the Respondent to which I have already referred and apply the authorities relied upon in those submissions.

10. In relation to the quantum of the costs, it is clear to me that in migration matters it is rare for the proceedings to take more than half a day of court time. Unfortunately Schedule 1 of the Federal Magistrates Court Rules provides in Stage 5 for a fee of $4,090.00 for a "one day matter". In the circumstances it is clear that this was never a one day matter and to that extent I am satisfied that Schedule 1 should not apply. Instead I am satisfied that I should apply Rule 21.02(2) where the court may set the amount of costs. In my view as the application was only a half day hearing it is more appropriate that I should allow $2.045.00 for preparation for that hearing. I will otherwise allow the amounts claimed in paragraphs (b), (c), (d), (e) and (f).

11. I do not believe it is appropriate in the circumstances to make allowance for the preparation of Contentions of Fact and Law where it is clear that those contentions are not particularly unique to this application and I regard it as part of the preparation fee in migration matters in any event.

12. The photocopying fee claimed of $84.00 as a disbursement needs to be according to Schedule 1 needs to be a disbursement which has "been reasonably incurred". I note there seems to be some confusion in the language in the Rules as Rule 21.10(b) refers to "disbursements properly incurred". As the Court has not received any indication of the basis upon which the sum of $84.00 is calculated it is therefore not possible to determine whether that represents a per page amount of 52 cents referred to in Schedule 1 or applying either test which appears in the Rules it is not possible for the court to determine whether that has been "reasonably incurred" or "properly incurred". I therefore will not allow that amount.

13. The total costs therefore which in the circumstances are appropriate amount to $6,040.00.

14. The order of the Court will be as follows:

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

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 9 May 2003
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