Great excitement on the costs front with a Full Fed decision dealing with lawyers in the migration zone.
Estrin Saul Lawyers in Perth acted for Toomas Gehlert, who had been refused a visitors visa by the Minister for Refusals and Evictions.
It went to Judge Tony Lucev of the Circuit Court in Perth, who quashed the refusal decision by consent.
Danny Estrin from Estrin Saul is the same Danny Estrin whose prog-synth-pop metal band Voyager achieved a measure of fame with Promise at the Eurovision Song Contest.
As victors in the litigation, Estrin Saul applied for their legal costs to be awarded in the sum of $6,377, which included the court filing fee of $3,047 on top of the firm’s professional costs.
The minister submitted that the costs payable should only be $3,930 being the amount set out in the scale, which covered the filing fee but left peanuts for professional costs.
Lucev agreed with the minister and awarded costs of $3,930. HH concluded that the applicant’s lawyers had failed to make out a case that costs above those in the scale were warranted.
He referred to the tens of thousands of judicial reviews in migration cases over more than two decades, where in only a few instances were costs higher than the prescribed amount awarded.
Recognising the case’s immense importance to migration practitioners the Federal Court assembled a bench of three, comprising Debbie Mortimer CJ (herself no slouch in the refugee law area), and the two Craigs – Colvin and Dowling.
The minister saddled up with a team of three, Perry Herzfeld SC, Rachel Francois and Greg Johnson, while Estrin Saul engaged Hamish Bevan SC and Chris Honnery.
The Fulls overturned Lucev’s decision, skewering the nine reasons he gave for his conclusion, finding that he had imposed an “erroneous burden … on the appellant to positively demonstrate his circumstances warrant receiving an amount of costs ‘above scale’.”
That was not a correct understanding of the manner in which the costs discretion should be exercised.
The FCA also thought that Judge Lucev did not make any real analysis of whether fixing the appellant’s costs at $3,930 was fair and just in circumstances where he had paid a filing fee of $3,330.
Mortimer, Colvin and Dowling referred disapprovingly to HH’s “somewhat dismissive” characterisation that the proceeding was a “simple run-of-the-mill judicial review proceeding”.
“If that observation had been preceded by a careful analysis of what the appellant was claiming, and how that claim was to be measured against the amount set out in Pt 2 of Sch 2, then the characterisation might have had a different flavour. Here it did no more than, again, distract the FCFCOA from its statutory task, and lead it into an erroneous approach.”
The costs discretion was re-exercised with an award of $6,377.
Migration practitioners are over the moon as they celebrate greater recompense in the small percentage of cases they win against the minister’s well-padded, top-tier blitzkrieg panel.