Axx18 v Minister for Home Affairs and Anor (No.2)

[2019] FCCA 1399

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXX18 v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2019] FCCA 1399

Catchwords:
MIGRATION – COSTS – where the hearing was adjourned due to a non-appearance by the solicitor on the record – where the solicitor on the record failed to file submissions as per the Court’s orders – where the solicitor on the record failed to file a notice of ceasing to act – costs awarded against the solicitor under r 21.07 of the Federal Circuit Court Rules 2001 – costs awarded against the applicant.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.21.07

Applicant: AXX18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 519 of 2018

Judgment of: Judge Humphreys

Hearing date: 22 May 2019

Date of Last Submission: 24 May 2019

Delivered at: Parramatta

Delivered on: 24 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr Nazer, Byron & Associates

Solicitors for the Respondents: Ms Given, HWL Ebsworth

ORDERS

1. The solicitor for the applicant, Mr Nazar of Byron & Associates, pay the costs of the first respondent fixed in the amount of $1620.00, pursuant to r 21.07 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the costs of the first respondent fixed in the amount of $5760.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 519 of 2018

AXX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from transcript)

1. This is judgment in relation to a costs application in the matter of AXX18 v Minister for Home Affairs and Anor. This matter was heard and determined by the Court on 22 May 2019, when an application for judicial review of a decision not to grant the applicant a protection visa was dismissed. Costs in the amount of $7380 were ordered to be paid to the first respondent. However, an issue arose as to whether or not costs that were thrown away as a result of a necessary adjournment of the matter on 16 May, should be paid personally by the solicitor on the record for the applicant, Mr Byron Nazer of Byron & Associates.

Background

1. The matter was originally listed before the Court on 16 May 2019. Court records showed at the time that Mr Nazar was listed as the applicant’s solicitor. When the matter was called on, there was no appearance by the applicant or any legal representative on his behalf. I am advised by Ms Lloyd, who was the solicitor appearing for the first respondent that she then spoke to Mr Nazer by telephone. Mr Nazer advised Ms Lloyd that the applicant had told him late on 15 May 2019 that he did not want Mr Nazer to attend the hearing and would represent himself.

2. At approximately 10.30 am on 16 May, the applicant arrived at Court having previously attended the Sydney CBD Court location. The applicant did not have with him a copy of the Court book or the first respondent’s written submissions. Both of these documents had been served upon Mr Nazer as the applicant’s solicitor on the record. As the applicant was, according to the Court records, still represented, in addition, no Tamil interpreter had been organised. It is the practice of this Court only to order an interpreter where one is specifically requested by the legal representatives of the applicant or if the applicant is unrepresented. After some considerable delay, a telephone interpreter was secured.

3. The applicant provided a contradictory account of why he was not represented. He stated that Mr Nazer had not told him anything and that when he telephoned Mr Nazer’s office to enquire about the status of his hearing, he was told that he should attend himself. The factual circumstances of what occurred between Mr Nazer and the applicant really are not a matter that the Court need involve itself in, in relation to the consideration of this application. As the applicant did not have a copy of the Court book, nor a copy of the first respondent’s written submissions and there was only a telephone interpreter present, it was necessary for the matter to be adjourned.

4. Enquiries made by my associate by email, as to why Mr Nazer did not attend, produced a written response that he had forgotten to file the required notice of ceasing to act. In Court, Mr Nazer has conceded that the failure to file a notice of ceasing to act in all of the circumstances amounts to negligence or default. I understand that such a notice of intention of ceasing to act was filed on 17 May 2019. I also note that Mr Nazer, while solicitor on the record, failed to comply with the Court’s order of 23 August 2018 to file and serve written submissions 14 days prior to the hearing date. This failure is at odds with the suggestion that Mr Nazer was prepared to attend the hearing the night before, but was told by the applicant that he was not required.

5. Following judgment in the substantive application, I was provided with a copy of a letter of 17 May 2019 from Ms Lloyd, solicitor for the first respondent, putting Mr Nazer on notice of an intention to make a personal costs order against him. So as to ensure compliance with r 21.07(5)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), the matter was adjourned to this morning and Mr Nazer was provided with a written notification as to the time and date of the hearing by email on 22 May 2019 and given an invitation to attend. I have listened to what he has had to say this morning, but find his responses not persuasive.

6. In terms of r 21.07 of the Rules, I am reasonably satisfied that, firstly, additional costs in the sum of $1620.00 had been incurred as a result of the failure of Mr Nazer to either file a notice of ceasing to act or comply with the order of 18 August 2018, to file written submissions within 14 days of the hearing date. Additionally, having filed a notice of ceasing to act, which I note under the rules requires seven days’ notice, failed to attend the hearing or send a person to attend the hearing on 16 May 2019. In this regard, I note r 21.07(2)(a) of the Rules. The failure to file the notice of ceasing to act constitutes, to my mind, either negligence or default, as admitted by Mr Nazer, that has caused costs to be thrown away.

7. I order the solicitor for the applicant, Mr Nazar of Byron & Associates, pay the costs of the first respondent fixed in the amount of $1620.00, pursuant to r 21.07 of the Federal Circuit Court Rules 2001 (Cth).

8. I order the applicant pay the costs of the first respondent fixed in the amount of $5760.00.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 18 July 2019