FEDERAL COURT OF AUSTRALIA Heyward v Minister for Immigration and Citizenship [2011] FCA 463 Citation: Heyward v Minister for Immigration and Citizenship [2011] FCA 463 Parties: JULIAN HEYWARD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL File number(s): NSD 895 of 2009 Judge: EMMETT J Date of judgment: 29 April 2011 Legislation: Federal Court Rules O 62 rr 40B, 40C, 40D, 45, 46, Sch 2 Date of hearing: 14 April 2011 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 13 Counsel for the applicant: The applicant did not appear Solicitor for the first respondent: Mr R. Baird of Clayton Utz Counsel for the second respondent: The second respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 895 of 2009 BETWEEN: JULIAN HEYWARD Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: EMMETT J DATE OF ORDER: 29 April 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The certificate of taxation signed by the Deputy District Registrar on 3 September 2010 be set aside. 2. The first respondent be granted leave to withdraw the short form bill dated 11 August 2010. Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules. The text of entered Orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 895 of 2009 BETWEEN: Julian Heyward Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: EMMETT J DATE: 29 April 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 21 August 2009, Mr Julian Heyward commenced a proceeding against the Minister for Immigration and Citizenship (the Minister) and the Administrative Appeals Tribunal (the Tribunal), seeking an order quashing a decision of the Tribunal made on 17 July 2009. In that decision, the Tribunal confirmed a decision of the Minister to cancel Mr Heyward's visa issued under the Migration Act 1958 (Cth). On 28 October 2009, I ordered that the application be dismissed and ordered Mr Heyward to pay the Minister's costs of the proceeding. An appeal to the Full Court was dismissed with costs on 17 December 2009. 2 On 4 August 2010, the Minister's solicitors were instructed to seek an assessment of the Minister's costs ordered to be paid on 28 October 2009 and 17 December 2009. The solicitors were instructed to prepare a full bill of costs in respect of the costs ordered in the present proceeding and a short form bill of costs in respect of the costs ordered in the appeal proceeding. 3 Notwithstanding those instructions, the solicitors mistakenly prepared a short form bill of costs in the present proceeding and a full bill of costs in the appeal proceeding. On 11 August 2010, the solicitors filed the short form bill in this proceeding, claiming legal costs in the sum of $5,670. Mr Heyward was notified of that filing by letter addressed to him at his address for service at the Villawood Detention Centre, notwithstanding that he had been removed from Australia. On 3 September 2010 a Deputy District Registrar certified that the Ministers costs, as between party and party, were deemed to be $5,670. 4 When the solicitors' mistake was discovered, a full bill of costs was filed on 24 September 2010 claiming total costs of $12,104.94. The solicitors were informed that, under Order 62 Rule 40D(6)(a) of the Federal Court Rules (the Rules), the Minister had no further claim to recover under Order 62 any of the costs ordered in this proceeding. 5 The Minister then applied by notice of motion for orders that would permit him to proceed with taxation of the bill filed on 24 September 2010. In his motion of 24 March 2011, the Minister asks that the Court: 1. Set aside the certificate of taxation issued on 3 September 2010. 2. Direct the Registrar to assess the Minister's bill of costs filed on 24 September 2010 pursuant to Order 62 Rule 46(3) of the Rules. 6 Order 62 Rule 40B provides that a party to a standard migration case may claim as costs of the proceeding, including disbursements, the amount that, on the date when the proceeding was commenced, was the prescribed amount in item 43D of Schedule 2 to the Rules. Under Rule 40B(1), this proceeding is a standard migration case. The prescribed amount in item 43D was $5,670. 7 Rule 40D provides that a party who claims costs under Rule 40B must serve on the other party a bill of costs that need not include an itemised account of the work or services performed or the disbursements incurred. There is provision for the other party to give written notice of any objection. 8 Rule 40D(5) provides that Rule 40B does not limit a party's right to claim the taxed cost of a proceeding under Order 62. However, Rule 40D(6)(a) provides that a party who claims costs under Rule 40B has no further claim to recover any of the taxed costs of the proceeding under Order 62. Those Rules are not felicitously expressed, in that they purport to preclude recovery of taxed costs but appear to be intended to preclude further taxation of costs that have been claimed under Rule 40B. 9 Rule 45 provides that, on completion of taxation, the taxing officer must issue a sealed certificate of taxation. The certificate of taxation must be served on the party responsible for its payment. Under Rule 45(3), if the costs remain unpaid after 14 days from the date of service of the certificate of taxation, then the Registrar must, at the request of the party in whose favour the costs are awarded, draw up, sign and seal an order in favour of that party for the sum shown in the certificate and enter the same. 10 The certificate of taxation signed by the Deputy District Registrar on 3 September 2010 has not been served on Mr Heyward. Accordingly, Rule 45(3) has not been triggered. That is to say, the Registrar has not at this stage drawn up, signed and sealed an order in favour of the Minister for the sum shown in the certificate of 3 September 2010. 11 Rule 46(3)(a) relevantly provides that a taxing officer may, in the absence of the parties and without making a determination on the individual items in a bill, make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue. The Registrar must then notify each party interested in the bill in writing of an estimate so made. A party interested may file and serve on each other party a notice of objection to the estimate. Under Rule 46(3)(ca), if there is no notice of objection, the amount of the estimate is deemed to be the amount for which a certificate of taxation may be issued. 12 The certificate sealed by the Deputy District Registrar on 3 September 2010 certified that, pursuant to Order 62 Rule 40B, the Minister's costs were deemed to be $5,670. That certificate appears to be incorrect, in that there is nothing in Rule 40B that has the effect of deeming an amount to be a party's costs as between party and party. Indeed, there does not appear to be any provision in the Rules having that effect in relation to a claim under Rule 40B, as there is in Rule 46(3). 13 Under Order 62 Rule 11, every taxation of costs is subject to review by a judge. It appears to me that the certificate is erroneous in so far as it certifies that the costs of the Minister are deemed to be $5,670. Accordingly, I am prepared to order that the certificate be set aside. I would also be disposed to give leave to the Minister to withdraw the short form bill of 11 August 2010. That document is itself erroneous in that it claims costs pursuant to Order 62 Rule 40C rather than Rule 40B. Once the certificate is set aside and leave to withdraw the claim dated 11 August 2010 is given, there will be no impediment to the Minister claiming costs on a basis different from that specified in Rule 40B. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 10 May 2011