Baik & Hankuk Grocery Pty Ltd v Minister for Immigration - [2004] FMCA 543

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAIK & HANKUK GROCERY PTY LTD v MINISTER FOR IMMIGRATION

[2004] FMCA 543

MIGRATION – PRACTICE & PROCEDURE – COSTS – application for costs pursuant to Rule 21.07 of the Federal Magistrates Court Rules – costs order sought against a solicitor – whether any undue delay, negligence, improper conduct, misconduct or default on the part of the solicitor.

Federal Magistrates Act 1999 (Cth), ss.79, 79(2), 79(3),
Federal Court of Australia Act 1976 (Cth), s.43(2)
Federal Court Rules 1976 , Order 62, Rule 9
Federal Magistrates Court Rules 2001, Rules, 21.02(2)(a), 21.07, 21.07(5)

Da Sousa v Minister for Immigration & Local Government & Ethnic Affairs (1993) 114 ALR 708
Bent v Gough (1992) 36 FCR 204
Re Benedeich (1994) 196 ALR 643
White Industries (Qld) Pty Ltd v Flower and Hart (a firm) (1998) 156 ALR 169
Flower and Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 163 ALR 744
Myers v Elman (1940) AC 282
SZABF v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2003] FMCA 178

Applicant:

KYUNG SOO BAIK & HANKUK GROCERY PTY LTD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1070 of 2003 & SZ1071 of 2003

Delivered on:

30 November 2004

Delivered at:

Sydney

Hearing Date:

20 August 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr V. Wan

Solicitors for the Applicant:

Goh Lawyers

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That pursuant to Rule 21.07 of the Federal Magistrates Court Rules the applicant’s solicitor pay the respondent’s costs fixed in the amount of $2,000 in relation to the matters Hankuk Grocery Pty Ltd v MIMIA and Baik v MIMIA such sum to be paid within 21 days of today’s date.
That except as provided for in Order 1 the parties bear their own costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1070 of 2003 & SZ1071 of 2003

KYUNG SOO BAIK

Applicant

and

HANKUK GROCERY PTY LTD

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

These are cross-applications in relation to the costs of proceedings for judicial review of two related decisions of the Migration Review Tribunal (the Tribunal) concerning Hankuk Grocery Pty Ltd and Kyung Soo Baik. The background to these proceedings is that on

|11 July 2001 Hankuk Grocery Pty Ltd applied to the respondent for approval of the nomination of a business activity and for approval of a standard business sponsorship. On the same day Kyung Soo Baik, (the ‘visa applicant’) sought a Temporary Business Entry (Class UC) visa on the basis that he proposed to be employed by Hankuk Grocery Pty Ltd. The respondent refused to approve the nomination of a business activity by Hankuk Grocery Pty Ltd and refused Mr Baik’s visa application. Both applicants sought review by the Tribunal. The Tribunal affirmed both decisions on 19 May 2003. Each applicant sought review in this court in separate applications filed on 16 June 2003. The two matters were dealt with together as associated proceedings.
At the time the applications were filed the applicants were both represented by the same solicitor. The matters were listed for directions on 31 July 2003. On 29 July 2003 the applicants’ then solicitor filed a notice of ceasing to act in each matter and advised the Court of the last known address of each applicant.
At the directions hearing held on 31 July 2003 Mr Wan of Counsel appeared for both applicants. Consent orders were made in each matter in identical terms requiring that the respondent file and serve a bundle of relevant documents in each matter on or before 21 August 2003 and that each applicant file and serve an amended application and any evidence upon which he (or it) proposed to rely on or before 30 September 2003. The matters were both listed for hearing at 10.15 am on 5 July 2004. Orders were also made for the applicants to file and serve written submissions in each matter five working days prior to the hearing date and for the respondent to file and serve written submissions two working days prior to the hearing date. The parties had liberty to apply on three days notice.
On 5 August 2003 notices of appearance were filed by Mr Frank Ngo advising that the solicitor for both applicants was GOH Lawyers. Neither applicant filed any amended application before 30 September 2003 or prior to the hearing date of 5 July 2004. Nor was any evidence filed. Neither applicant filed and served written submissions prior to the hearing on 5 July 2004. On 2 July 2004 the respondent filed written submissions and served them by facsimile letter on the applicants’ solicitor. The written submissions addressed both applications on the basis of the applications filed on 18 June 2003.
At the hearing on 5 July 2004 the applicants sought an adjournment of the hearing through their Counsel. Counsel for the applicants told the court that although he had attended the directions hearing in July 2003, he had just been briefed to appear at the hearing on 5 July 2004 and was not familiar with the contents of the file. He also told the court that his instructing solicitor had not received the bundle of relevant documents (the Court Book) in relation to one of the applicants (Hankuk Grocery).
As requested, the hearing was adjourned to 21 July 2004. Orders were made that the applicants file and serve amended applications and written submissions on or before Friday 16 July 2004 and that the respondent file and serve any further written submissions by Tuesday 20 July 2004. Counsel for the respondent foreshadowed that on the next occasion the respondents intended to seek that the costs of the day be met by the solicitor for the applicants. It was noted that if Mr Ngo wished to be heard in relation to the application for costs against him personally he would have an opportunity on 21 July 2004.
Amended applications and written submissions in each of the matters were filed by the applicants on Monday 19 July 2004 (not 16 July 2004 as ordered on 5 July 2004). The respondent then sought an adjournment of the hearing scheduled for 21 July 2004. The hearing was adjourned to 13 August 2004. On that day the parties advised the Court at the commencement of the hearing that they agreed that orders should be made by consent setting aside each decision of the Tribunal and remitting the matters to the Tribunal for reconsideration subject to two issues.
First, Counsel for the applicants indicated that the applicants proposed that an additional order be made including the reason for setting aside the Tribunal decision. This was opposed by the solicitors for the respondent who had written to the solicitor for the applicant on 12 August 2004 and also provided a letter to the Court dated 13 August 2004, which was to be attached to the proposed consent orders, with an explanation of the basis upon which they had agreed to the matters being remitted. Such letter states “In a letter to the Tribunal dated 14 February 2003 the business sponsor applicant, Hankuk Grocery Pty Ltd, requested the Tribunal to consider in the alternative the nominated position of Retail Buyer [ASCO code: 3996] (CB87.5). In failing to address the claim advanced by the applicant the Tribunal made a jurisdictional error”. In these circumstances, I declined to make the additional orders sought by the applicants, being satisfied that the consent orders proposed were within power and appropriate and that the jurisdictional error had been sufficiently identified.
The other disputed issue was costs. As foreshadowed on 5 July 2004 the respondent sought that the applicants’ solicitor pay the costs incurred and thrown away prior to and in relation to 5 July 2004 under Rule 21.07 of the Federal Magistrates Court Rules. Prior to consideration of this matter Mr Wan, who had been appearing for the applicants, advised that he would be appearing for Mr Ngo.
On 13 August 2004 the respondent filed in Court an affidavit sworn by Rohan White, a solicitor employed by the solicitors for the respondent with carriage of the matter, addressing matters relevant to the application under Rule 21.07. In order to ensure that the applicants’ solicitor had a proper opportunity to address the matters raised in this affidavit, the costs application was adjourned to 20 August 2004. On that day the solicitor for the applicants opposed the application that he pay the costs of 5 July 2004. He also sought that the respondent pay the applicants' costs of these proceedings. The respondent had proposed that the only order as to costs be that the applicant’s solicitor pay the respondent’s costs fixed at $2,000.
Hence, the present proceedings involve first, an application by the respondent that the solicitor for the applicants pay the respondent’s costs in the sum of $2,000 pursuant to Rule 21.07 of the Federal Magistrates Court Rules and secondly, an application by the applicants that the respondent pay the applicants’ costs of these proceedings in an amount to be set by the Court pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules. In response to this last application the respondent seeks that if such an order is made the applicants’ solicitor pay a greater proportion of the respondent’s costs. Mr Wan of Counsel appeared for Mr Ngo and Mr Ngo then appeared for the applicants.
The court has power under s.79 of the Federal Magistrates Act 1999 (Cth) to award costs in all proceedings before the Court, other than proceedings in respect of which any other Act provides that costs must not be awarded (s.79(2)). Subsection (3) provides that, except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.
The Court may order costs against a non‑party, including an order that a solicitor acting for a party in the proceedings pay the whole or part of the costs of the successful party direct (Da Sousa v MILGEA (1993) 114 ALR 708). However as French J said (at [172]) in that case:
The jurisdiction is to be exercised with care and discretion and only in clear cases. The mere fact that litigation fails is plainly no ground for its exercise. There has to be something which amounts to a serious dereliction of duty.
Rule 21.07 of the Federal Magistrate Court Rules provides:
(1)The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a)to be incurred by a party or another person; or
(b)to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
(2)A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a)to attend, or send another person to attend, the hearing; or
(b)to file, lodge or deliver a document as required; or
(c)to prepare any proper evidence or information; or
(d)to do any other act necessary for the hearing to proceed.
(3)An order for costs against a lawyer may be made on the motion of the Court or Registrar, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.
(4)The order may provide:
(a)that the costs, or part of the costs, as between the lawyer and party be disallowed; or
(b)that the lawyer pay the costs, or part of the costs incurred by the other person; or
(c)that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.
(5)Before making an order for costs, the Court or Registrar:
(a)must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and
(b)may order that notice the order, or of any proceeding against the lawyer be given to party for whom the lawyer may be acting or any other person.
The respondent contends that the circumstances are within Rule 21.07 and that more generally Mr Ngo committed a breach of his duty to the court to conduct the litigation on behalf of his clients with due propriety, that the breach involved conduct that amounted to gross negligence and that as a result of such dereliction of duty by Mr Ngo the respondent had incurred costs that would not otherwise have been incurred (see In the Matter of Bendiech (1994) 196 ALR 643).
In considering the application I have borne in mind that the jurisdiction must be exercised with caution (Bent v Gough (1992) 36 FCR 204 and Re Bendeich) and that the authorities in relation to the general discretion of a Court to award such costs suggest that the power should only be exercised in cases of gross neglect or substantial departure from proper professional standards (see White Industries (Qld) Pty Ltd v Flower and Hart (a Firm) (1998) 156 ALR 169 and Flower and Hart (a Firm) v White Industries (Qld) Pty Ltd (1999) 163 ALR 744). As Lord Wright stated in Myers v Elman (1940) AC 282 at 319:
A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which is a solicitor's duty to ascertain with accuracy may suffice.
It is clear that an order for costs against a lawyer is not to be made lightly and indeed only in exceptional cases. Rule 21.07(2) itself requires that the lawyer must have ‘unreasonably failed’ to act as specified for there to be the requisite default (See SZABF v MIMIA (No.2) [2003] FMCA 178).
I am satisfied that Mr Ngo, who was represented by Mr Wan, had the opportunity to be heard as required under Rule 21.07(5). Indeed the hearing on 13 August 2004 was adjourned to ensure that he had as full an opportunity as possible to file any affidavit material and make any written or oral submissions. He filed an affidavit in court on 20 August 2004 sworn by him on 19 August 2004 and his Counsel filed written submissions in court and also made oral submissions.
The respondent seeks an order that Mr Ngo meet the costs thrown away in connection with the preparation for and attendance at the hearing set down for 5 July 2004 (which was adjourned at the applicants' counsel's request) including the costs of letters reminding Mr Ngo of the need to file any amended application, Counsel’s and solicitor’s fees for the appearance on 5 July 2004 and the costs of preparation of written submissions by Counsel for the respondent which dealt with the application then on foot (thrown away because the applicants’ case was radically changed in the subsequent amended application and written submissions). The respondent’s solicitor clarified that while the usual costs awarded for a case that proceeded to a final hearing on the first occasion would be in the order of $3,500 to $4,500 and while the respondent had incurred costs in the order of $4,000 up to and including 5 July 2004, it was acknowledged that a lesser amount in the sum of $2,000 was appropriate in recognition of the legitimate costs that the applicants had ultimately incurred in finally preparing the amended application and written submissions that led to the matter being remitted by consent. The respondent sought such costs order on the basis that otherwise no order as to the costs of the proceedings should be made.
As it is contended by the respondent that Mr Ngo caused costs to be incurred by the respondent in connection with preparation for and attendance at the hearing of 5 July 2004 and in the preparation of the respondent's written submissions which were thrown away because of his default, it is necessary to have regard to the circumstances preceding 5 July 2004. In this respect I accept the evidence of Mr White in his affidavit of 13 August 2004. Mr Ngo (through Mr Wan) did not seek to cross-examine Mr White.
The applications were filed on 16 June 2003 before Mr Ngo was acting for the applicants. The unparticularised grounds in each of the applications were that the Tribunal exceeded jurisdiction in making the decision and erred in law in arriving at the decision to affirm the respondent’s decision.
At the directions hearing held on 31 July 2003 (which was attended by Mr Wan, then Counsel for the applicants) the Court ordered by consent that the respondent file and serve a bundle of relevant documents in relation to each applicant on or before 21 August 2003 and that the applicants file and serve amended applications and any evidence upon which they proposed to rely on or before 30 September 2003. At the time of the directions hearing the present solicitors for the applicants had not filed a notice of address for service. On 1 August 2003 the solicitors for the respondent sent a letter to the applicants requesting contact details for ‘Mr Wang’ who had, according to the letter from the respondents, identified himself as being from Goh Lawyers, appearing on behalf of the applicants. The respondents had been unable to obtain contact details for Mr Wang and sought confirmation from the applicants that he was their legal representative and that a notice of appearance was to be filed.
On 5 August 2003 Mr Ngo filed notices of appearance giving the office of his firm, Goh Lawyers, as the address for service. A copy of the notice of appearance in relation to Mr Baik was served on the respondents by letter dated 8 August 2003. The notice of appearance was received after two reminder telephone calls were made to Mr Ngo by the solicitors for the respondent.
The solicitors for the respondent did not file and serve bundles of relevant documents (Court Books) in either matter by 21 August 2003 as ordered. In his affidavit Mr Ngo attested as follows:
On 22 August 2003, I left a message for Mr Rohan White of Sparke Helmore in order to inquire about the whereabouts of the Court Books and have not received a reply to that inquiry to date.
In cross-examination Mr Ngo conceded that he had not kept any file note of this telephone conversation and had no recollection of the name of the person to whom he spoke. Importantly he agreed that he had not contacted Sparke Helmore (the respondent’s solicitors) on any subsequent occasion to ascertain the whereabouts of a Court Book. While Mr Ngo's affidavit is silent in relation to receipt of the Court Books, in cross‑examination he agreed that he had received a letter from the respondent’s solicitor enclosing the Court Book in relation to Kyung Soo Baik v MIMIA. According to the respondent’s solicitor this Court Book was sent to Goh Lawyers on 10 September 2003. Mr Ngo agreed that he had received that Court Book in September 2003 but he could not recall the exact date. He did not contact the respondent’s solicitor about the other Court Book. Mr Ngo stated that he did not receive the letter from the respondents dated 22 September 2003 which enclosed the Court Book in relation to Hankuk Grocery Pty Ltd (a copy of which was annexed to Mr White’s affidavit and which Mr White attested was sent to the applicants’ solicitor). I accept that the letter and Court Book in relation to Hankuk Grocery were posted to Mr Ngo but not actually received by him.
Mr Ngo also agreed that he had received two subsequent letters from the respondent, each dated 13 October 2003, noting that the applicants in each matter had not filed and served any amended application or any evidence upon which they proposed to rely despite the orders to that effect made at the directions hearing. These letters acknowledged that there had been a delay in providing the Court Books (as had the letters of September 2003) and stated that copies were served on 10 and 22 September 2003 respectively. The applicants’ solicitor was requested to give these matters his urgent attention. Despite receiving such letters, which put him on notice that both the Court Books had been sent to him, Mr Ngo took no action to contact the respondent's solicitors thereafter to obtain the court book in relation to the matter of Hankuk. He provided no explanation for this inaction. Nor did he file any amended application and no written submissions were filed by either applicant prior to the hearing date of 5 July 2004.

The delay by the respondent in providing the Court Books meant that no fault could be attributed to Mr Ngo for his inaction prior to receipt of the letters of 13 October 2003. However, once he received the letters of 13 October 2003 he was on notice of service of the Court Books. His clients had consented to orders for the filing of amended applications and written submissions. The written submissions were to be filed five working days prior to the hearing on Monday 5 July 2004. He took no steps to comply. He did not thereafter inform the respondent’s solicitors that he had not received one Court Book. This meant that the respondent’s written submissions had to address the grounds in the original applications.
On 2 July 2004 the solicitors for the respondent sent a facsimile letter to the applicants' solicitor enclosing by way of service a copy of the respondent's submissions in both matters and confirming that the matters were listed for hearing on Monday 5 July 2004. Mr Ngo confirmed that he received the respondent's submissions sent on 2 July 2004 and that he read them, probably a day or so after 2 July 2004. Annexed to Mr White's affidavit is a telephone message record which states that on Friday 2 July 2004 at 4.20pm a telephone message for Mr White was received at the offices of the solicitors for the respondent from ‘Mark’ from GOH Lawyers in relation to the matter of Baik as follows:
Not prepared to contest case due in Federal Court on Monday. Will seek adjournment. Possibly amend application pending instructions from client.
As set out above, Counsel for the applicants advised at the start of the hearing on 5 July 2004 that he had only been instructed recently and was not familiar with the contents of the file. He then told the court that the solicitors for the applicant had not received the court book in relation to Hankuk Grocery.
In all the circumstances of this case I am satisfied that Mr Ngo was in default and that the hearing on 5 July 2004 could not conveniently proceed because he had unreasonably failed to file an amended application or written submissions prior to the hearing. I am satisfied that his failure to file an amended application in either matter prior to the hearing was an unreasonable failure in all the circumstances, despite the initial late compliance with the consent orders by the respondent's solicitors and despite the fact that he did not receive the Court Book in Hankuk Grocery. Apart from a claim that he left one telephone message on 22 August 2003 for which he kept no file note, he made no effort whatsoever prior to the hearing date to obtain the Court Book or to comply with the consent orders despite follow up letters from the respondent’s solicitor dated 13 October 2004. He took no action at all to obtain the Court Book in nearly 9 months. There was ample time for Mr Ngo to take the necessary action. No amended application was filed on or before 5 July 2004.
Moreover, even the one telephone message that was left with the respondent's solicitors late on Friday 2 July 2004 merely indicated a lack of readiness to proceed and foreshadowed a possible amended application. It did not refer to the ‘missing’ Court Book. This telephone message did advise that the applicants would seek an adjournment, but the short notice of the adjournment sought was not sufficient to avoid the necessity for a Court attendance on Monday 5 July 2004. Mr Ngo took no proper steps to obtain the Court Book after the advice from the respondent’s solicitor in October 2003 that both Court books had been served. Indeed Mr Wan was not briefed until just before the hearing.
Mr Ngo’s failure to take any action to obtain the Court Book after receiving notification of service or to notify the respondent’s solicitor that he had not received it meant that the hearing could not proceed conveniently because the applicants were not ready to proceed. Hence he failed to do the act necessary for the hearing to proceed. He has provided no explanation for his failure to file documents or obtain the Court Book or to take any other action to ensure that the hearing could proceed. His failure was, in all the circumstances, unreasonable. It constitutes default within Rule 21.07(2). It was a serious dereliction of duty which was a substantial departure from proper professional standards.
Such conduct does not constitute the conduct of litigation with due propriety. Mr Ngo’s default in failing to file any amended application and written submissions or to obtain the Court Book meant that the hearing on 5 July 2004 could not, in fairness to his clients, proceed. Had the hearing proceeded that day on the basis of the unparticularised grounds raised in the original applications his clients would not have succeeded. Mr Ngo failed to conduct the litigation of behalf of his clients with due propriety and this default caused the respondent to incur useless costs. Mr Ngo’s failure was not a mere mistake or error of judgment. He failed to comply with court orders and there is no evidence that he took any action at all to prepare for the hearing between October 2003 and 2 July 2004.
Counsel for Mr Ngo submitted that the adjournment from 5 to 21 July 2004 was because incomplete information had been given to Mr Ngo by the respondent's solicitor and because those solicitors had failed to comply with the direction of the Court to file and serve both the Court Books by the due date of 21 August 2003: “thereby causing inconvenience to the applicants' solicitor, while request [sic] for telephone contact in an attempt to resolve the matter was unheeded by the respondent's solicitor.” He submitted further that the time taken for the matter to be heard (after the directions hearing) reflected the Court's scheduling of matters “during which little, if any, work of cost in work on the file could have arisen” and that, on the other hand, it could be said that the length of the period could have afforded the respondent's solicitors “ample time to review the file and identify what may be perceived as apparent reviewable errors and thus avoided further costs being incurred”.
However the respondent’s solicitors served both Court Books on the applicants’ solicitor. The Court Books were served late – but the Hankuk Grocery Court Book was served by letter sent on 22 September 2003. Any inconvenience caused to Mr Ngo was addressed in the respondent’s solicitors letters of 13 October 2003. The failure to file any amended application prior to receipt of those reminder letters is excusable. The subsequent nearly 9 months of inaction is not. The contention by Counsel for Mr Ngo that little work of cost could have arisen between the directions hearing and the hearing is untenable. The respondent’s solicitor had to incur all the usual costs associated with preparation for a hearing. The suggestion that the length of time before the hearing afforded the respondent’s solicitor ample time to identify apparent reviewable errors and thus avoid future costs does not overcome Mr Ngo’s default. It is for an applicant to make out his or her case. An amended application was required – it was in that way that any ‘reviewable error’ could be identified.
It was also submitted on behalf of Mr Ngo that any costs claimed against him were offset by the costs incurred by the applicants in respect of matters occurring after 5 July 2004 and that his responsibility was somehow ‘neutralised’ by what occurred after 5 July 2004. In particular, Mr Ngo claimed that he did not receive written submissions from the respondent by 20 July 2004 as ordered, and that the respondent was in breach of the orders made on 5 July 2004 (although it is also the case that the applicants’ amended application and written submissions were filed later than ordered), that the adjournment of the hearing on 21 July 2004 had occurred without his consent or knowledge (contrary to what the respondent’s solicitors had indicated) and that he had attended to the matters raised in the respondent’s solicitor’s letters of 28 July 2004 promptly after returning from a vacation from 29 July to 9 August 2004. This last claim is a reference to a letter of 28 July 2004 from the respondent’s solicitors to Mr Ngo confirming, further to a telephone conversation of that date, that they had been instructed by the respondent to withdraw from both matters and enclosing draft proposed consent orders remitting the matters which also included an order that the parties bear their own costs. The letter set out a number of reasons why this order was considered to be appropriate and sought that the applicant’s solicitor give his urgent attention to such matters to avoid any further unnecessary costs being incurred. No response was received.
The respondent's solicitor sent a further letter to Mr Ngo by facsimile on 2 August 2004 seeking a response to their letter of 28 July 2004 and indicating that if a further court appearance was required, the respondent would seek an appropriate costs order against the applicants or a costs order under Rule 21.07 Federal Magistrate Court Rules for costs thrown away by the first adjourned hearing and the further appearance.
Mr White made a further telephone call to Mr Ngo on 9 August 2004 asking about the delay in response. His affidavit records that Mr Ngo responded that he was still waiting to discuss the matter with Counsel, still needed to get instructions from his client and would try to get back to him. Mr White indicated that if Mr Ngo did not get back to him that day, he would need to file an affidavit relevant to the issue of costs and would seek to recover those further costs from the applicant or from Mr Ngo personally. Mr Ngo’s affidavit merely states that he received a telephone call from Mr White enquiring about the letter of 28 July 2004. I accept Mr White’s detailed account of this call.
Mr Ngo attests he made unsuccessful attempts to telephone his client, Mr Baik, on 10 and 11 August 2004 and also that on 11 August 2004 Counsel for the applicant advised him that it would be preferable to include the reason for setting aside the decision in an appropriate form. He did not inform the respondent’s solicitor of this at this time.
Mr White telephoned Mr Ngo again on 12 August 2004. I accept that, as Mr Ngo attests, Mr Ngo advised him, among other things, that he had not been able to get in contact with Mr Baik to get instructions, but I also accept, as attested to by Mr White, that Mr Ngo told him he was waiting to get instructions from his barrister [sic], and that when asked if the matter could be resolved or if a court attendance was necessary, Mr Ngo indicated that he hoped he could resolve it. Mr White advised that he reminded Mr Ngo that he had not responded for two weeks and also that if the matter went to a hearing the respondent’s solicitor would seek an order against Mr Ngo personally as to costs. To this point it cannot be said that Mr Ngo was taking prompt action to resolve the matter.
I also accept that Mr White made two further but unsuccessful attempts to contact Mr Ngo on 12 August 2004. Mr Ngo then telephoned Mr White on that day and told him that he needed a declaration that there was an error of law and that was why they needed to have another court appearance. Mr White proposed that this be addressed by letter. Mr Ngo stated that he would get back to him. This did not occur. The solicitors for the respondents sent a further faxed letter to the applicants’ solicitor that afternoon including a statement that they were willing to provide a letter to the court identifying the legal error in the Tribunal decision and that providing the explanation to the court removed the only impediment that had been raised to remitting the matters by consent. The letter requested that the solicitor for the applicants act promptly to avoid further unnecessary costs being incurred by requiring a further appearance. No agreement was reached.
In court on 13 August 2004 Mr Ngo tendered a response to the letter of 12 August 2004 proposing additional consent orders that the Court note that it took into account any submissions by both the parties and declaring the decision invalid on the basis that the Tribunal had erred in failing to consider the submitted alternative that the duties of the nominated position were within the occupation of retail buyer. Also handed up in court was a copy of a letter from the respondent's solicitors to my associate providing an explanation for the basis upon which it was agreed that the matter should be remitted to the Tribunal.
It is apparent from a consideration of all of the circumstances that the respondent incurred costs in relation to the preparation for and appearance at court on 5 July 2004 because of the failure of the solicitor for the applicant to take the necessary steps to prepare for the hearing at the proper time. I am not persuaded that this failure is excused or explained by the conduct of the respondent’s solicitor either before or after 5 July 2004. The late provision of the Court Books is discussed above. Nor does Mr Ngo’s overall ‘diligence’ mean that he did not unreasonably default under Rule 21.07 as contended or that a costs order against him should not be made. Without determining the propriety and promptness of all that occurred after 5 July 2004 (and it must be said that there was further delay). I am not persuaded that the application that the solicitor for the applicants pay the costs thrown away is somehow “neutralised” by what occurred after 5 July 2004 as was contended by Counsel for the applicant’s solicitor. Even if the applicants' solicitor’s subsequent conduct had been a model of diligence and appropriate behaviour in representation of his client, that would not overcome the fact that the respondent’s costs were thrown away in connection with the preparation for and attendance at the hearing on 5 July 2004 because of the unreasonable default of Mr Ngo. In the circumstances of this case the costs incurred by the applicants after 5 July 2004 do not ‘offset’ Mr Ngo’s responsibility. In all the circumstances of this case I am not persuaded that the events after 5 July 2004 are such that Mr Ngo should not bear the costs so thrown away.
Moreover, while the applicants' solicitor contends that the respondent's solicitors were in some way at fault in their conduct after 5 July 2004. I am not satisfied on the material before me that this has been established. Even if this had occurred it would not ‘neutralise’ any earlier default on the part of the applicants' solicitor. The relevant time was the period prior to 5 July 2004. Moreover if there had been default by the respondent's solicitors after 5 July 2004 this could itself have given rise to a separate application that the respondent's solicitors meet any costs incurred or thrown away as a result of default. Tellingly, there is no such application before the Court.
Mr Ngo failed to file an amended application in either matter prior to the date set for hearing of this matter, being 5 July 2004. This was despite the fact that the original application (prepared by a different solicitor) was manifestly inadequate, claiming generally that the Tribunal exceeded jurisdiction and erred in law without particularisation. At the directions hearing consent orders were made for filing and serving an amended application in each matter by 30 September 2003. This was expressed in mandatory terms – it was not facultative. It is the case that the respondent served the Court Books in these matters later than the ordered date of 21 August 2003 but it is also the case that despite receiving the other Court Book and two reminders and confirmation from the respondent’s solicitors that both Court Books had been served, the applicants' solicitor did nothing to obtain the Court Book for Hankuk Grocery which he said he did not receive in September 2003. Nor, despite being reminded of his obligations in correspondence from the respondent’s solicitor, did he make any effort to comply with the requirement that an amended application be filed in each matter prior to the hearing date. Nor did the applicant’s solicitor file and serve written submissions prior to 5 July 2004. The jurisdictional error which led to the consent remittal was not identified by the applicants’ solicitor until 19 July 2004. Had Mr Ngo prepared for the hearing of 5 July 2004 with due propriety the jurisdictional error which led to the ultimate consent remittal could have been identified before the respondent incurred the costs of instructing Counsel, preparation of written submissions addressing the original application and attendance at the scheduled hearing on 5 July 2004. This is apparent from the amended application that was eventually filed on 19 July 2004.
Such default meant that the respondent incurred the costs of instructing Counsel and the preparation of written submissions addressing the original application as well as the attendance on 5 July 2004. On that day Counsel for the applicant indicated that he had been instructed only recently (again, a responsibility of the solicitor for the applicant) and also advised the Court (and the respondent’s solicitor for the first time) that the applicant had not received the Court Book in Hankuk Grocery Pty Ltd. It was in those circumstances that an adjournment was granted. It is not contended that the respondent failed to serve the applicants' solicitors with copies of the Court Book, rather it is submitted that the applicants' solicitor did not actually receive the Court book in Hankuk. Had the applicants' solicitor taken any steps to comply with the consent orders made on 31 July 2003 or to contact the respondent’s solicitors (having not received the Court Book for Hankuk Grocery) particularly after the other Court Book arrived and he received the reminder letters of 13 October 2003, the situation might have been otherwise. It is also notable that the applicants’ solicitor kept no file note of the one telephone call that he says that he made in August 2003 in relation to the Court Books and no record of the person to whom he spoke at Sparke Helmore on that one occasion. One such telephone call did not amount to conducting the litigation with due propriety. While the respondent’s solicitors also failed to comply with the consent orders made on 31 July 2003 (in that the Court books were not served until September 2003 instead of by 22 August 2003) this left the applicants’ solicitor ample time to obtain the Court book which was not received and to file an amended application and written submissions before 5 July 2004. Mr Ngo did not inform the respondent’s solicitors that the Court Book had not been received. They had acted appropriately in sending reminder letters to Mr Ngo on 13 October 2004. He took no action thereafter until he received the respondent’s written submissions. At the very least he should have taken some action to prepare and file the applicant’s written submissions.
The respondent seeks that the applicants' solicitor pay costs in the sum of $2,000. This amount does not include any costs relating to the period after 5 July 2004. Counsel for Mr Ngo did not address the court on the specific amount sought. The solicitor for the respondent explained that the amount sought was less than incurred prior to 5 July 2004 being, in effect, discounted for the amount that the applicants’ solicitors reasonably incurred in relation to the amended application and submissions upon which the matters were ultimately remitted by consent.
I am satisfied that Mr Ngo was in default under Rule 21.07(2) and that such default caused costs to be incurred and thrown away because of Mr Ngo’s default. The hearing on 5 July 2004 could not proceed conveniently because he failed to file any amended applications or written submissions (in either matter) or to take steps to obtain the Court Book he had not received after receiving confirmation in October 2003 that it had been sent. Such default caused preparation costs to be incurred by the respondent (in relation to the original application) and the costs of the hearing on 5 July 2004 to be thrown away. Under Rule 21.07(1)Mr Ngo should meet the costs of the respondent attributable to his default. The court has power under Rule 21.02(2) to set the amount of the costs. In all the circumstances of this case the amount of $2,000 is appropriate and should be met by Mr Ngo personally – not his clients.

At the hearing in relation to the application that Mr Ngo pay these costs it was contended by Mr Ngo on behalf of the applicants that the respondent should pay the applicants’ costs of the proceedings as the applicants had ultimately been successful. The respondent's solicitor opposed such an order and submitted that if the applicants sought that the respondent pay the applicants' costs of these proceedings, then the applicants' solicitor should pay a greater proportion of the respondent's costs thrown away or incurred.
Costs do not automatically ‘follow the event’ in this court. In this case the original applications were devoid of particulars and did not properly identify any jurisdictional error. Had they done so there might be some force in the applicants’ submission that the respondent meet their costs. Instead significant costs were incurred, at least by the respondent, despite the fact that the inadequacy of the applications was bought to the attention of the applicants at the directions hearing.
The applicants have at all times been legally represented. The delay in service of the Court Books was, taking into account the length of time thereafter, minimal. The applicants’ failure to file amended applications or even written submissions before the first hearing date meant that the jurisdictional error which led to the remittal was not identified promptly. The applicants’ costs prior to 5 July 2004 must have been minimal as their solicitor did very little on their behalf. Had the applicants promptly identified the jurisdictional error in a timely fashion much of the cost finally incurred could have been avoided, including the costs of the court attendances. The matter could have been resolved prior to 5 July 2004. The amount of costs incurred and thrown away by the respondent was greater than the amount sought from Mr Ngo, in recognition that the applicants ultimately reasonably incurred costs of the amended applications and submissions. Had the respondent been informed before the hearing of the application against Mr Ngo that the applicants sought payment of their costs (contrary to the respondent’s proposal that the parties bear their own costs) I accept that the respondent would have sought payment of their actual costs thrown away – not payment by Mr Ngo of a reduced amount calculated in recognition of the legitimate costs incurred in connection with the applicants’ ultimate success.
I consider that in the special circumstances of this case having regard to the conduct of the litigation by the successful applicants, apart from the order that Mr Ngo should pay $2,000 towards the respondent’s costs, no order as to costs should otherwise be made.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 30 November 2004