KUMAR v Minister for Immigration (No.2)

[2003] FMCA 225

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION (No.2) [2003] FMCA 225

MIGRATION – Application for costs – Applicant to pay Respondent’s costs pursuant to the Federal Court Rules.

Judiciary Act 1903 (Cth), s.39B(1)
Federal Court Rules 1976

Applicant: RAJESH KUMAR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 613 of 2002

Delivered on: 24 January 2003

Delivered at: Melbourne

Hearing date: 29 October 2002

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicant: Mr Porceddu

Solicitors for the Applicant: Armstrong Ross

Counsel for the Respondent: Ms Riley

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. THAT the Applicant pay the Respondents costs pay the Respondents costs to be agreed, or in default of agreement, to be taxed pursuant to the Federal Court Rules 1976.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 613 of 2002

RAJESH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me by way of an application for costs. The respondent has now sought an order for costs in view of the dismissal of the application made under Section 39B(1) of the Judiciary Act 1903 (Cth) for prerogative relief in respect of the decision of the Migration Review Tribunal.

2. Written submissions have been made by the applicant and respondent in relation to costs.  The applicant seeks costs in the sum of  $10,000 comprising $2,520 council fee and $7,480 costs and disbursements.

3. The applicant concedes that costs should follow the event and that the application is liable to pay the respondent’s costs but the amount of those costs is disputed.

4. The amount sought by the respondent is $10,000 including council fees.  The applicant contends that this sum is excessive and that a figure of $5,000 inclusive of council fees would be more appropriate.

5. It is not possible for a Federal Magistrate to embark upon an exercise in taxing costs and it is not immediately apparent to me in regard to the work involved in the matter whether or not the costs sought by the respondent are reasonable.   Although I prefer to stick to costs, it seems to me that the only fair way that the question of costs can be properly determined is to order a taxation and make an order that the applicant pay the respondent’s costs to be agreed, or in default of agreement, to be taxed pursuant to the Federal Court Rules 1976.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate:  Peter Smith

Date:  6 June 2003