FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v CZBB (No 2) [2013] FCA 1186

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to file in Court the affidavit of Jan Kathryn Cumming affirmed on 6 November 2013.

2.    Order 4 made by the Court earlier this day (8 November 2013) be varied by substituting the following order in place of the said earlier order:

4.    Pursuant to r 40.02(b) and (c) of the Federal Court Rules 2011, the first and second respondents to the appeal pay the appellant’s costs of and incidental to the appeal assessed in the amount of $27,500.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    After I announced the orders which I made in this appeal (as to which see Minister for Immigration and Border Protection v CZBB [2013] FCA 1172), Counsel for the first and second respondents to the appeal applied to have me vary the orders for costs which I had announced. He submitted that I should make each party pay his or her own costs of the proceeding below and of the appeal.

2    As far as the proceeding below is concerned, Counsel relied upon the circumstance that the two matters which the Circuit judge regarded as the foundation for his decision were both matters which had been raised by the Circuit judge after the hearing of the first and second respondents’ application for judicial review and of the Circuit judge’s own motion. Counsel submitted that these two contentions or points had never been any part of his clients’ case in the Court below.

3    It is true that both of these bases for his Honour’s decision were raised by his Honour of his own motion and raised after the conclusion of the hearing below.

4    However, had those matters not been raised, it is quite clear that the Minister would have succeeded in the Court below and, in the ordinary course of events, costs would have followed the event. That is to say that, had the Circuit judge not raised these matters, the applicants below would have lost the case and would have had to pay the Minister’s costs of the proceeding in the Federal Circuit Court in any event. There might be an argument that the costs were increased slightly by the need for the Minister to lodge a Written Submission in answer to the matters raised by the Circuit judge of his own motion but, in the end, I do not think that that circumstance warrants any separate consideration in respect of the costs below. Therefore, I decline to vary the existing order for costs of the proceeding below in the manner sought by the first and second respondents.

5    As far as the costs of the appeal are concerned, the first and second respondents need not have opposed the Minister’s appeal and could have conceded that the Minister’s appeal was meritorious and thus obviated the need for a full-blown consideration of the issues on appeal. It is true that the Court would, nonetheless, have had to consider the grounds of appeal raised by the Minister but the circumstances in which the Court would have been called upon to do so would have been very different. Alternatively, the first and second respondents could have settled the appeal by consenting to orders setting aside the orders made in the Court below thereby obviating the need for any appeal hearing. They did not do either of these things. For these reasons, I do not think that I should vary the order for costs which I made earlier today in respect of the appeal.

6    In addition to the matters raised by Counsel for the respondents to the appeal, the advocate who appeared for the Minister today made an application for lump sum costs in respect of the appeal and in respect of the proceeding below. In support of that application, she sought to file an affidavit affirmed by her on 6 November 2013. I grant leave to the Minister to file in Court the affidavit of Jan Kathryn Cumming affirmed on 6 November 2013.

7    The amount sought by way of lump sum costs in respect of the appeal is $27,668.70. As I understand the make-up of that lump sum figure, it comprises 70% of the fees charged and intended to be charged to the Minister by his solicitors and 100% of disbursements incurred by those solicitors. It is estimated that Counsel who appeared for the Minister will ultimately render fees totalling $4,531 and that fees and charges payable to the Court by the Minister for the privilege of having his appeal heard total $13,085. These latter fees are fees prescribed by the Government and not by the Court. Thus, it seems that the Minister will have to pay $17,616 by way of disbursements. In addition, his solicitors have rendered or will render memoranda of fees in respect of their costs totalling a little over $14,000, 70% of which is now sought.

8    The fees rendered and to be rendered by Counsel are reasonable. The fees charged by the Court are compulsory. Seventy per cent of the Minister’s solicitors’ actual profit costs (viz $10,052.70) is also a reasonable party/party claim in respect of those costs. I think that the total amount claimed is reasonable although I propose to round it down slightly.

9    I think that it is appropriate to save the Minister and, indeed, the respondents, the cost, time and trouble of a taxation of costs when it is likely that a figure of the order of the figure claimed will be recovered. I think that it is very likely that 100% of the disbursements which I have identified (which, as I have said, total $17,616) will be recovered and that something approaching 70% of the profit costs rendered and to be rendered by the Minister’s solicitors will be recovered. I think that the best thing to do is to determine a rounded figure close to that which is claimed. I propose to allow $27,500 as a lump sum for the Minister’s costs and disbursements of the appeal for the reasons which I have briefly explained.

10    I will therefore make a further order varying the order for costs of the appeal which I have already announced. I order that Order 4 made by the Court earlier this day (8 November 2013) be varied by substituting the following order in place of the said earlier order:

4.    Pursuant to r 40.02(b) and (c) of the Federal Court Rules 2011, the first and second respondents to the appeal pay the appellant’s costs of and incidental to the appeal assessed in the amount of $27,500.

11    The Minister’s advocate has also sought a lump sum order in respect of the Minister’s costs of the proceeding in the Federal Circuit Court. He claimed $6,646. I decline to make such an order. I prefer to leave the costs of the proceeding below to be dealt with by the taxing officer.

Associate:

Dated:    13 November 2013