SZMJQ v Minister for Immigration & Anor [2009] FMCA 19 (28 January 2009)

Last Updated: 4 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJQ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 19

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – where applicant sought leave to discontinue. PRACTICE & PROCEDURE – Discontinuance – costs – whether the scale costs are appropriate.

Migration Act 1958 (Cth), s.474 Federal Magistrates Court Rules 2001 R.44.15, Schedule 1, Part 2, item 2

Applicant:

SZMJQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1504 of 2008

Judgment of:

Scarlett FM

Hearing date:

8 December 2008

Date of Last Submission:

8 December 2008

Delivered at:

Sydney

Delivered on:

28 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr Reynolds

Solicitors for the Applicant:

Fragomen

Appearance for the Respondents:

Ms Anniwell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The applicant is granted leave to discontinue the application.
(2) The applicant is to pay the first respondent’s costs as agreed or taxed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1504 of 2008

SZMJQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The applicant seeks to discontinue his application for review of the decision of the Refugee Review Tribunal refusing him a protection visa. The first respondent, the Minister for Immigration and Citizenship, does not oppose leave being granted to discontinue the application but seeks an order for costs in the sum of $10,000.00.
2. The applicant submits that this amount is excessive and that the amount provided by the scale, either $2,500.00 or $3,500.00, would be appropriate.

Background

3. The applicant commenced proceedings on 12th June 2008. He was an inmate of the Immigration Detention Centre at Villawood, New South Wales, at the time. The application was listed before Orchiston FM for directions on 16th June 2008. Her Honour made directions for hearing and the application was listed for final hearing on 23rd September 2009.
4. The application did not proceed to hearing before Orchiston FM on 23rd September. The applicant attended Court, as did the lawyers for the Minister. The Minister had briefed counsel to appear. The applicant had been released from detention and sought an adjournment of the proceeding. Orchiston FM granted the adjournment and transferred the proceeding to my docket, as her Honour was about to transfer to another registry and would no longer be available to deal with the matter.
5. On 13th October 2008 the application was listed for mention and directions. The applicant appeared, as did a solicitor for the Minister. The application was listed for hearing on 8th December 2008.
6. The applicant obtained legal representation. On 1st December 2008 his solicitor forwarded an email to my associate, attaching a Notice of Discontinuance and advising that the applicant was seeking leave to discontinue. The reason given was that the applicant had commenced other proceedings in the High Court.
7. The application remained in the list on 8th December 2008 and the parties made submissions about costs.

Costs

8. The Minister did not oppose the grant of leave to discontinue, but sought an order for costs in the sum of $10,000.00, relying on an affidavit of Brin Ellen May Anniwell, solicitor, sworn on 8th December 2008. The affidavit said, in part:
   3. The solicitor’s costs which have been incurred by the first respondent to date amount to approximately $11,600.
   4. The disbursements incurred to date amount to approximately $3,200.
   5. Based on the above figures, I assess the total costs incurred by my client in relation to this matter will amount to approximately $14,800.[1]
9. There followed a list of all the work the Minister’s lawyers claimed to have done in preparation for the hearing of this matter. The affidavit dealt with disbursements in this way:

Disbursements incurred include, but are not limited to:

(a) counsel’s fees for providing advice, drafting submissions, preparation and attendance at the hearing before Orchiston FM on 23 September 2008 in the sum of approximately $1,800;
(b) community relations Commissions fees of $260 for the provision of interpreter services;
(c) filing, postage and photocopying fees.[2]

10. Ms Anniwell, who appeared for the Minister, submitted that there were two issues in the applicant’s substantive case:
    • (1) the question of competency, which turned on whether the applicant had received a copy of the Tribunal decision; and
    • (2) the applicant’s claim that the Tribunal had not provided him with proper interpreter services.
11. She also told the Court that the Minister’s lawyers would not object to taxation of costs.
12. Mr Reynolds of counsel, who appeared for the applicant, referred the Court to Rule 13.02 and Rule 21.10. He submitted that the Notice of Discontinuance had been sent 16 days prior to the final hearing and therefore item 2(c) of Part 2 of Schedule 1 applied and the scale would allow costs in the sum of $2,500. If the Court did not accept that view, then he submitted that item 2(d) would apply, which allow for costs in the amount of $3,500.00.
13. Mr Reynolds further submitted that the Court must be satisfied that a higher amount than the scale amount is justified. There was not enough evidence in the affidavit to justify the claim; he said it was impossible to work out whether the costs were properly incurred. Something in the nature of a bill of costs was required. The very purpose of introducing the scale was to allow parties not to go to the expense of preparing a bill of costs in most cases.

Conclusions

14. Subrule 44.15(2) provides that:
    • Unless the Court otherwise orders, an applicant who files a notice of discontinuance of an application for an order to show cause is liable to pay a respondent’s costs in accordance with item 2 of Part 2 of Schedule 1.
15. Item 2 of Part 2 of Schedule 1 of the Federal Magistrates Court Rules provides:

Proceedings that are discontinued

For Subrule 44.15(2), the costs are:

(a) if the notice of discontinuance is filed and served at least 14 days before the first court date for the proceeding - $500; or
(b) if the notice of discontinuance is filed and served within the period beginning 14 days before the first court date for the proceeding and ending 15 days before the hearing under rule 44.12 or other interlocutory hearing - $1250; or
(c) if the notice of discontinuance is filed and served within the period beginning 14 days before the hearing under rule 44.12 or other interlocutory hearing and ending 15 days before the final hearing - $2500; or
(d) in any other case - $3500.

16. In this case, the application was listed for final hearing on
    8th December 2008. The applicant’s solicitors, by their email dated 1/12/2008, sought leave to file the Notice of Discontinuance attached to that email. Quite clearly, this was within 14 days before the final hearing. On the applicant’s contentions, item 2(d) of Part 2 of Schedule 1 would apply, resulting in an order that the applicant should pay the sum of $3,500.00 by way of costs.
17. That proposition, however, ignores the context of this particular matter. The application had already been listed for final hearing before Orchiston FM on 23rd September 2008 and was adjourned on the application of the applicant. On that date, her Honour made these orders:
    • (1) Today’s hearing date be vacated.
    • (2) The matter is adjourned for mention before Federal Magistrate Scarlett on Monday 13 October 2008 at 10:00 am in court 7B, John Maddison Tower, 88 Goulburn Street, Sydney.
18. The situation is outside that envisaged by item 2 of Part 2 of Schedule 1 of the Rules. No order for costs was made on 23rd September 2008, but that does not mean that costs should not be payable. The Minister had briefed counsel and the matter was ready for hearing on that date. The matter was adjourned at the request of the applicant. what followed was a further mention on 13th October, where the matter was listed for final hearing, and the hearing on 8th December 2008, which was restricted to costs because the applicant had elected to discontinue.
19. Counsel for the applicant has submitted that something in the nature of a bill of costs would be needed to justify the Minister’s claim for costs in the sum of $10,000.00, because there is insufficient evidence in the affidavit relied on. Ms Anniwell, who appeared for the Minister, submitted that the Minister’s lawyers would not object to taxation of costs.
20. Whilst it will not always be the case that a claim for costs in excess of the scale would justify the preparation of a bill of costs for taxation, and in my view most cases would not require such a step, this appears to be a case where taxation is justified. The applicant has complained of the absence of a bill of costs, or something in the nature of an itemised bill of costs, and the first respondent has, if not actually invited the Court to order taxation, at least indicated a preparedness, even a willingness, to go down that path.
21. In the circumstances, I will order that the costs will be taxed if they cannot be agreed. In that way, the Minister’s lawyers will be able to prepare an itemised bill of costs for taxation, which will meet the applicant’s request for further information. If the parties still do not agree, the bill can be taxed by a Registrar.
22. The applicant is to pay the first respondent’s costs as agreed or taxed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 15 January 2009

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[1] Affidavit of Brin Ellen May Anniwell sworn 8 December 2008 [3]-[5]
[2] Ms Anniwell’s affidavit at [9]