NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1509 (25 October 2002)

Last Updated: 23 December 2002

FEDERAL COURT OF AUSTRALIA

NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1509

COSTS - applicant previously granted opportunity by Court to challenge Bill of Costs - applicant seeks percentage reduction - security for costs required for challenge - whether Court should waive requirement for security for costs - whether costs against applicant should be reduced

NAES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 228 OF 2002

TAMBERLIN J

SYDNEY

25 OCTOBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 228 OF 2002

BETWEEN:	NAES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	25 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Motion filed by the applicant on 25 September 2002 be dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 228 OF 2002

BETWEEN:	NAES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	25 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In this matter a Notice of Motion was heard by me on 1 October 2002 in relation to waiving the requirement of security for a notice of objection challenging an estimate of the taxation of costs. On that occasion I delivered a judgment in which I set out the background circumstances. There was some dispute on 1 October as to whether there had been service and whether the applicant had been given the proper opportunity to deal with the matter. I proceeded on the assumption that the applicant had not received the itemised bill of costs until shortly before the hearing before me on 1 October. Some evidence to confirm that assumption was given to me this morning by the applicant from the witness-box.

2 After hearing the submissions on the last occasion and setting out my reasons for judgment, I was of the view that the applicant had not been given an opportunity, within 14 days after receipt of the bill of costs, to consider the estimate informed by reference to the itemised bill of costs. This was the basis on which Mr Asuzu on the last occasion made submissions that there had been a denial of natural justice.

3 In view of the submissions and without deciding whether there had in fact been a breach of natural justice, I thought it appropriate to give the applicant an opportunity to consider the estimate made by the Registrar, which he said he had received shortly before 1 October, in light of the itemised bill and to raise any objections that he thought might be necessary.

4 I directed the applicant to serve a draft Notice of Objection to the Court's estimate and to file and serve any evidence on which he relied in relation to a waiver of security application he might make, within fourteen days. There has been before me no specific reference to any particular item of dispute which the applicant challenges but rather there has been a suggestion that the bill ought to be reduced by the Court in the order of thirty per cent under O 62 r 36A of the Federal Court Rules ("FCR").

5 The two issues raised by Mr Asuzu for the applicant were firstly, whether the Court should waive the applicant's requirement to pay the security and secondly whether the taxation of costs should be allowed in full and not reduced by one-third before allowing for taxation, by virtue of O 62 r 36A.

6 Order 62 r 36A of the FCR is concerned with circumstances where a party is awarded judgment for less than $100,000 on a claim for a money sum and the Judge is of the opinion that proceedings brought in this Court could more suitably have been brought in another court or in a tribunal.

7 The present case is not an application which concerns a monetary claim or one in which any amount has been awarded. Accordingly O 62 r 36A is not applicable to the circumstances of the present case.

8 The second point raised was whether the Court should waive the requirement imposed by O 62 sub-rule 46(3)(d) on the applicant to pay security for costs. In relation to this aspect, I note that no evidence has been filed objecting to any specific item of the bill for costs to establish the merits of any case challenging the estimate of the taxation of the bill of costs, but rather a global suggestion has been made that the total should be reduced by some generalised amount without any specification.

9 The evidence that the applicant gave before me, which I accept, is that he is impecunious and cannot obtain suffic ient money to pay the bill of costs. The issue of a party's ability to pay costs constantly arises in this Court in cases involving claims for refugee status. However, the question for the Court is whether there should be a liability for costs imposed and on many occasions it is known that the applicant may not be able to meet the costs order, but this is not, in accordance with the Full Court binding authority on me, a reason for granting a reduction in relation to the payment of costs.

10 My conclusion that a reduction of costs is not appropriate is reinforced by the fact that the applicant has now been given an opportunity, and indeed a direction, to raise any specific objections to the bill of costs but has not done so and unfortunately has come before the Court without any basis for suggesting that the bill of costs is erroneous. Accordingly, I am not prepared to waive the security for costs requirement. If the applicant wishes to challenge the bill of costs, then it will be necessary to provide the security.

11 I should also add that in the applicant's written submissions and submissions made orally by Mr Asuzu, the former of which I assume were seen by Mr Asuzu, if not prepared by him, there are unfortunate comments made in respect of which no basis has been shown which suggest that there may be a motive of bias or of some prejudice towards the applicant on racial or ethnic grounds. There is absolutely no material which would justify the making of any such allegation or suggestion in the present case and I wish to make that perfectly clear in giving my reasons for this decision.

12 In the circumstances of this case and in the absence of any basis being presented by the applicant through his counsel for deciding either of the issues raised in the applicant's submissions in favour of the applicant, I would dismiss the application and it would follow, in accordance with the general principle that costs must usually follow the event, that the applicant should pay the respondent's costs of this application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 23 December 2002

Counsel for the Applicant:	Mr Asuzu
Solicitor-Advocate for the Respondent:	Ms Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	25 October 2002
Date of Judgment:	25 October 2002