BGA15 v Minister for Immigration and Border Protection
[2018] FCA 857
•2 May 2018
FEDERAL COURT OF AUSTRALIA
BGA15 v Minister for Immigration and Border Protection [2018] FCA 857
Appeal from: BGA15 v Minister for Immigration & Anor [2018] FCCA 78 File number: VID 96 of 2018 Judge: CHARLESWORTH J Date of judgment: 2 May 2018 Date of publication of reasons 7 June 2018 Catchwords: PRACTICE AND PROCEDURE – application for adjournment made by consent – adjournment refused notwithstanding parties’ consent – where direct access counsel may have conflicting duties if application refused – conflict of counsel’s own making – no suggestion alternative competent counsel could not be retained Legislation: Federal Court Rules 2011 (Cth) r 4.03 Date of hearing: 11 May 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: Mr J Williams Counsel for the First Respondent: Mr B Petrie Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 96 of 2018 BETWEEN: BGA15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
2 MAY 2018
THE COURT ORDERS THAT:
1.The parties’ joint application for an adjournment made by email dated 2 May 2018 be refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
These written reasons record oral reasons delivered on 11 May 2018 for refusing, on 2 May 2018, to grant an adjournment of this appeal.
This appeal was filed on 7 February 2018. The appellant was self-represented at the time that the appeal was commenced and orders for the progression of the appeal to the hearing were made by a registrar on 16 February 2018. Paragraph 4 of those orders required that the appeal book be prepared, filed and served by the Minister for Immigration and Border Protection in the circumstances that the appellant was not represented by a lawyer. The appeal book was required to be filed 15 business days before the hearing date and it was duly prepared and filed by the Minister’s legal representative at the Minister’s expense.
Paragraph 5 of the orders required the appellant to file and serve a written outline of submissions no later than 10 business days before the hearing date, and [6] required the first respondent to file and serve a written outline of submissions no later than five business days before the hearing date. On 11 April 2018 the parties were notified that the appeal had been set down for hearing commencing at 2.15 pm on 11 May 2018.
On 2 May 2018 the solicitor for the first respondent, Ms Minnett, sent an email to my associate. The email was copied to Mr J Williams, a legal practitioner. At the time of that email Mr Williams was not a practitioner on the Court’s record authorised to act for the appellant. At the time of the delivery of these reasons, it remains the case that Mr Williams has not filed a notice of acting in the matter, as I have concluded he would be required to do pursuant to r 4.03 of the Federal Court Rules 2011 (Cth), upon being engaged to act.
By the email of 2 May 2018 the parties provided the Court with minutes of order by consent. The proposed orders were to the effect that the appeal listed on 11 May 2018 at 2.15 pm be vacated, that leave be granted to the appellant to file and serve an amended notice of appeal no later than 10 business days before the hearing date and that the appeal be adjourned to the first available date during the August appeal sitting period. The body of the email stated that counsel for the appellant had requested an adjournment as he was unable to appear at the hearing then listed on 11 May 2018.
I caused my associate to respond to the parties’ email inviting them to provide information in relation to the following questions:
(1)whether the appellant’s unavailability was due to a conflicting court commitment and, if so, how such a conflict had arisen;
(2)whether the respondent had been informed of the nature of the proposed amendments to the notice of appeal; and
(3)why the amended notice of appeal could not be filed within 14 days of the date of the order and the appeal set down for hearing in June or July.
Mr Williams responded directly to those inquiries by email. He stated that he was unavailable due to a pre-existing and conflicting court commitment. He stated that the conflict had arisen because he had been “formally engaged by the appellant on Monday”, being 30 April 2018, “subject to an adjournment being consented to and granted”.
Mr Williams further stated that the first respondent had not been informed of the nature of the proposed amendments to the notice of appeal because he was in the process of reviewing the matter. He said that he sought more time to file the amended notice of appeal “given that I have been listed in seven hearings next week and giving [sic] the bulk of material in this matter”. Mr Williams stated that he could accommodate a hearing in June or July, subject to his availability.
By an email sent later on 2 May 2018, I informed the parties through my associate that the adjournment would not be granted. The email stated:
No adjournment shall be granted in circumstances where counsel has accepted a brief, albeit conditionally, for a hearing date on which he is not available.
As I have mentioned, as at 2 May 2018, no notice of acting had been filed by a legal practitioner, notwithstanding that Mr Williams had been “formally engaged” on 30 April 2018. In the circumstances, it is appropriate that reasons for refusing to grant the adjournment be given in open court and that they be made available and understood by the appellant personally. It is acknowledged that Mr Williams’ email qualified his engagement with the words “subject to an adjournment being consented to and granted”. The Court has proceeded on the assumption that Mr Williams was authorised to act on behalf of the appellant for the purpose of securing an adjournment if that could be done.
The adjournment request was not accompanied by evidence explaining why the appellant had not formally engaged a legal practitioner prior to 30 April 2018. If the phrase “formally engaged” is intended to suggest that the appellant first asked Mr Williams to act for him at an earlier date, that is not explained and no earlier date is specified. It was apparent from Mr Williams’ email that not only was Mr Williams unavailable to appear on the appeal on the date at which it had been set down for hearing, but he was also unable to attend to the necessary preparations of the appeal promptly because of his duties to attend to the preparation of several other matters in which he had been briefed. No information or evidence was provided as to why the appellant could not have been promptly referred to competent counsel who would be available to prepare for, and attend at, the hearing.
This was not a case in which counsel already engaged to act had, for reasons beyond his control, conflicting court commitments arising in his calendar. Rather, the case was one in which Mr Williams sought to avoid a conflict of duties owed to different courts that would be entirely of his own making should he accept a brief from the appellant.
This is a national court. The parties’ representatives are expected to appreciate that the case management of the appeal and the administrative arrangements that are made for such a hearing come at expense to the Court, including the expenses associated with the travel of the presiding judge and the staff of the presiding judge. The wasted expense associated with an adjournment and the proper disposition of the Court’s overall resources was a relevant factor in considering the adjournment request.
In circumstances where both parties consent to an adjournment, that consent will be afforded considerable weight, as it was in the present case, but it is not for the parties themselves to determine when an appeal will be heard. On the limited material before me, I concluded that the principal reason for the adjournment being requested was to enable Mr Williams to accept a brief that would, if unqualified, give rise to conflicting duties. He would have conflicting duties to two courts that could only be resolved by the adjournment of one or other of the matters and he would not have the capacity to fulfil his duties to the appellant to attend properly to the preparation of the matter.
As at 30 April 2018, the preparation of this appeal required Mr Williams’ urgent attention as the appellant was, as at that date, in default of the orders of the registrar made on 16 February 2018 in relation to the filing of written submissions. Mr Williams had not sought at that time alternative orders extending the time by which written submissions were to be filed and these reasons do not concern that issue. Nor should these reasons be understood by any person to say anything expressly or impliedly about whether Mr Williams’ later apparent acceptance of an unconditional brief constituted a breach of his duties to this Court, to another court or to his client.
It is for these reasons that I refused the adjournment, notwithstanding the consent of the respondent.
It should be noted that upon giving oral reasons for refusing the adjournment, Mr Williams expressed objection and “disappointment”. Mr Williams made an application that I recuse myself on grounds, inter alia, that I had unreasonably refused the adjournment and that the above reasons constituted a personal attack upon him. He further contended that the delivery of oral reasons for refusing to grant the adjournment amounted to an impermissible reopening of the question. He complained that he had not been afforded procedural fairness on the reopened question.
In the circumstances it is appropriate that an order refusing the adjournment application be formally entered on 2 May 2018, being the earlier date on which my refusal of the parties’ joint application was communicated to them.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 11 May 2018
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