CYA22 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1489
•9 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYA22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1489
File number(s): SYG 1246 of 2022 Judgment of: JUDGE MARQUARD Date of judgment: 9 September 2025 Catchwords: PRACTICE AND PROCEDURE- personal costs award against solicitor – r 32.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2025 – referral to legal regulators Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Migration Regulations 1994 (Cth) reg 4.31
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2025 (Cth) rr 1.05, 32.05
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) rr 9.02, 9.03, 13.01, 22.06
Legal Profession Uniform Law Application Act 2014 (NSW) ss 296, 297
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 3
Cases cited: CVDQ v Minister for Immigration and Multicultural Affairs (Adjournment Application) [2025] FCA 936
CYA22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1083
Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 241
Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submissions: 22 August 2025 Date of hearing: 9 September 2025 Place: Sydney Applicants: No appearance by or on behalf of the Applicants Mr E Wong: No appearance by or on behalf of Mr E Wong of A Quantum Leap Legal Solicitor for the First Respondent: Mr S Knuckey of HWLE Lawyers appeared for the first respondent Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 1246 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYA22
First Applicant
CYB22
Second Applicant
CYC22
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MARQUARD
DATE OF ORDER:
9 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.Pursuant to rule 32.05 of the Federal Circuit and Family Court of Australia
(Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules), Mr Ernest
Wong of A Quantum Leap Legal pay the Minister’s costs and disbursements, of
and incidental to the application filed on 18 August 2022, fixed in the sum of
$3,500.
2.A copy of the Reasons for Judgment be provided to a Registrar of this Court for
referral to the New South Wales Law Society and the Office of the NSW Legal
Services Commissioner by 4pm on 30 September 2025.
3.The First and Second Applicants pay the First Respondent’s costs and disbursements of and incidental to the application fixed in the amount of $3,500.
THE COURT NOTES THAT:
A. The Third Applicant is a minor at the time of this judgment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.)
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)
Judge Marquard
BACKGROUND
By application filed on 18 August 2022 the applicants, who are from China, sought judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) the second respondent in this matter, dated 21 July 2022. The Tribunal had found that it did not have jurisdiction to review a decision made by a delegate of the first respondent, the Department, dated 3 June 2021. The no jurisdiction finding was made on the basis that the applicants lodged the application for review outside the 28-day time limit specified in reg 4.31 of the Migration Regulations 1994 (Cth) (Regulations).
PROCEEDINGS IN THIS COURT
When the application for judicial review was lodged on 18 August 2022, the applicants were represented by Mr Wong from A Quantum Leap Legal. Mr Wong’s details were set out in the application for judicial review including an address for service.
On 8 November 2022, Registrar Carney of this Court made procedural orders in the matter. Those orders included that the applicants must file and serve written submissions, any amended application with proper particulars and any additional evidence at least 28 days before the hearing. The Court emailed the orders to Mr Wong on 8 November 2022.
On 24 July 2024, Registrar Downing of this Court made orders that previous orders in relation to the timetable regarding filing and service of documents be vacated. Registrar Downing further ordered that the applicants file and serve any amended application with proper particulars, written submissions and additional evidence on or before 31 July 2024. The Court emailed the orders to Mr Wong on 24 July 2024, the same day that the orders were made by the Registrar.
The matter was docketed to me in June 2025.
By orders of this Court on 6 June 2025, I ordered that the matter be listed for final hearing at 10:15am on 18 August 2025. I further ordered that the applicants file and serve any amended application properly particularising each ground of review relied upon, any affidavit evidence to be relied upon, a written outline of submissions and a bundle of authorities by 18 July 2025.
No documents were filed by the applicants pursuant to these various orders of the Court and no correspondence was received from Mr Wong regarding the filing and service of documents or in respect of any other matter.
On 11 June 2025, the Court sent an email to the applicant at Mr Wong’s address and to the first respondent which confirmed the details for the hearing.
On 11 August 2025, the Court sent an email to the applicant at Mr Wong’s address and to the first respondent confirming the details of the hearing and requesting that the parties confirm appearances by 15 August 2025. Mr Wong did not respond.
On 13 August 2025, according to the first respondent’s submissions filed 22 August 2025, the first respondent sent an email to Mr Wong’s address, reminding him of the scheduled hearing on 18 August 2025 and informing him that if there was no appearance the Minister would seek dismissal for non-appearance.
On the day of the hearing, 18 August 2025 at 6:12 am, Mr Wong of A Quantum Leap Legal wrote to this Court. He stated as follows:
We write to clarify our position in the above matter. Our firm originally acted for the applicant when the matter was filed in 2022. Shortly after filing we were no longer retained by the applicant.
In December 2022, we served a notice of intention to cease acting, however the correspondence was returned to us. We subsequently served the notice by email but did not receive any response. Unfortunately, we overlooked filing a formal notice with the Court at that time.
We have now resent the notice of intention to the Applicant by email and have successfully communicated with the Applicant by mobile phone. The Applicant advised that they have engaged another solicitor. The contact details provided are as follows:
(details provided)
…
We have now filed a Notice of Ceasing to Act via the Court’s online filing system. This has also been communicated to the solicitor for the Respondent, who is copied in to this correspondence.
In the circumstances, we respectfully seek an adjournment of today’s hearing to allow the Applicant’s new solicitor sufficient time to file a notice of appearance.
On Sunday 17 August 2025 at 5:23 pm, the day before the hearing Mr Wong attempted to file a Notice of Withdrawal.
At my direction prior to the hearing on 18 August 2025, after receipt of the 6:12am email from Mr Wong, my associate contacted Mr Wong and acknowledged receipt of his email. In her email, my associate drew his attention to r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (2021 GFL Rules) which were extracted. Pursuant to r 9.03 (1) a lawyer for a party could withdraw by filing a notice of withdrawal and serving a notice on each party. Pursuant to r 9.03(2) this notice may not be filed less than seven days before the hearing without leave of the court.
My associate advised Mr Wong that the matter would proceed for final hearing as scheduled at 10:15 am on 18 August 2025. My associate notified Mr Wong that at the hearing I would hear any application for leave to withdraw as well as hear the parties as to costs against the lawyer pursuant to r 22.06 of the 2021 GFL Rules.
As set out in the written submissions filed on 22 August 2025, the solicitors for the first respondent advised the Court that they had corresponded with Mr Wong on the morning of the hearing on 18 August 2025. The solicitors for the first respondent recommended to him that he attend the hearing so that the Court could decide how best to proceed.
The solicitors for the first respondent informed the Court that they had informed Mr Wong that they would be seeking costs thrown away as a result of the adjourned hearing and that they would seek an adjournment in relation to the issue of costs.
Mr Wong contacted the Court by email at 9.22am on 18 August 2025 and stated that he was unable to attend the hearing. He requested that the Court grant him leave to withdraw.
At 9:33am on 18 August 2025, upon my direction, my associate emailed Mr Wong and confirmed that the hearing on 18 August 2025 was proceeding and invited him to appear electronically by means of Webex should he wish to do so. The Webex link and dial in details were provided.
Mr Wong did not communicate further with the Court.
At the hearing on 18 August 2025, Mr Knuckey from HWL Ebsworth Lawyers appeared for the first respondent. Neither the applicants nor their representative, Mr Wong appeared at the hearing scheduled at 10:15am in person or via link. My associate called the matter three times outside the Court but there were no further appearances. Notwithstanding the non-appearance of the applicants and Mr Wong, I made orders adjourning the final hearing and granting leave for Mr Wong to withdraw as lawyer from the date of that order. The solicitor for the first respondent did not oppose the grant of leave for Mr Wong to withdraw from proceedings but submitted that they intended to seek costs pursuant to r 9.03 of the 2021 GFL Rules for costs thrown away.
I listed the matter for a directions hearing on 26 August 2025. On the same day of the making of the Orders, my associate emailed the parties including Mr Wong a copy of the orders dated 18 August 2025 and also noted the availability of the orders on the Commonwealth Courts Portal. In response to my associate’s email, Mr Wong, at 11:59am on 18 August 2025 responded as follows:
Thank you for your email. We acknowledge receipt and will forward the order to the applicant via the last email address we used.
….
On 20 August 2025, my associate wrote to the parties regarding the Orders made on 18 August 2025. I note that Mr Wong of A Quantum Leap Legal was copied in that correspondence which was also forwarded to the email address of the purported new lawyer for the applicants (as had been notified by Mr Wong in his 6:12am email). In my associate’s email she drew attention to Orders (3) and (4) of the Orders made 18 August 2025 and stated as follows:
To comply with the orders of the Court, please note the following:
If the applicant is presently unrepresented, please fill out the attached form Notice of Address for Service with the applicant’s details for service. The Court’s Registry can assist with filing of the Notice of Address for Service.
If the applicant is presently represented, please fill out the attached form Notice of Address for Service with the applicant’s lawyer’s details for service,
….
On 21 August 2025 at 10:23am, the applicants’ purported new lawyer responded to my associate as follows:
Please be advised that we are not representing [the applicants (identifying information redacted)] in this court case.
…
My associate provided a copy of that email to the parties on 21 August 2025 at 11:28am.
On 21 August 2025 at 3:56pm, my associate wrote to the parties providing them with a copy of my written ex-tempore reasons for judgment on 18 August 2025. Mr Wong of A Quantum Leap Legal was also copied into that correspondence. In that correspondence my associate noted that no Notice of Address for Service had been filed on behalf of the applicants. She reminded the parties that the matter remained listed for directions on 26 August 2025 at 9:30am in person before me.
On 25 August 2025, my Chambers wrote to the parties, notifying them of the listing details of the directions hearing and requesting that parties notify Chambers of the appearance information in advance of the directions before me.
On 25 August 2025 at 9:17am, Mr Ernest Wong of A Quantum Leap Legal wrote to Chambers as follows:
I confirm once again that we are not acting for the applicant. We also note that the applicant’s email address (email provided) has been copied in your email of even date.
On 25 August 2025 at 9:35am, Mr Ernest Wong of A Quantum Leap Legal further wrote to Chambers as follows:
I would like to again confirm that we are not acting for the applicant and we note that the applicant email address ‘…’ is copied in your email at even date
(Reproduced as written)
On 26 August 2025 at 9:19am, the morning of the directions hearing, the solicitor for the first respondent wrote to my Chambers, attaching a Notice of Discontinuance that had been signed by the applicants, as follows:
Yesterday, we were able to make contact with the applicants; it was apparent that the applicants are unable to communicate in English, and appeared to be unaware of today's hearing and the various issues in these proceedings more generally.
My colleague - who speaks Chinese - was able to communicate the above to the applicants, who with the assistance of their agent, completed the attached Notice of Discontinuance. It is unclear whether the document was been filed, but I suspect it has not been.
I will be in attendance at the Directions hearing this morning to discuss the next steps.
On 26 August 2025, at the directions hearing, Mr Knuckey for the first respondent appeared before me. There was no appearance by Mr Wong of A Quantum Leap Legal nor was there any appearance by or on behalf of the applicants. At the directions, I made orders that pursuant to r 13.01(2)(b) of the GFL Rules 2021 that leave be granted to the applicants to discontinue the proceedings in accordance with the Notice of Discontinuance. The matter was adjourned until 9 September 2025 for a hearing on costs.
As referred to earlier in this judgment, on 18 August 2025 leave was granted to Mr Wong and to the first respondent to file and serve submissions and affidavit material on which they wished to rely on the question of costs pursuant to r 22.06 of the 2021 GFL Rules by 22 August 2025.
Written submissions in relation to the issue of costs pursuant to r 22.06 of the 2021 GFL Rules together with an affidavit in support were filed by the solicitors for the first respondent on 22 August 2025 but no submissions were filed by Mr Wong.
In the first respondent’s written submissions filed on 22 August 2025, the first respondent noted that prior to 6 June 2025 the Court and Minister had sent ‘myriad’ correspondence to the service email address (Mr Wong’s address) but no correspondence had been received from that address.
CONSIDERATION IN RESPECT OF COSTS
In written submissions, the first respondent referred to my Ex-tempore reasons dated 18 August 2025, CYA22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1083 in which I cited the matter of Saleem v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 241 (Saleem).
In that decision, Judge Given found at [54] that failing to file or assist the applicant to file written submissions as ordered, the applicant’s former solicitor caused undue delay because the hearing was not able to proceed conveniently. Judge Given found that the court may make any order for costs against another lawyer if that lawyer caused costs to be incurred by another party or thrown away because, of amongst other things, default. Default is defined in the rules to include the hearing not proceeding conveniently because the lawyer has unreasonably failed to attend or to send another person in his or her place, failed to file a document or do any necessary thing for the hearing to proceed.
Judge Given noted in Saleem at [44] that even if the respondent had not filed a motion seeking costs against the lawyer, she would have considered an order of her own motion.
It was submitted by the solicitors for the first respondent that Mr Wong failed to file written submissions as ordered and failed to attend the hearing on 18 August 2025. It was submitted that Mr Wong caused undue delay because the hearing was not able to proceed and that this was aggravated by the following factors:
(a)the Court and the Minister reminded Mr Wong of the hearing on various occasions;
(b)the Court and the Minister informed Mr Wong of the function of r 9.03 of the Court’s 2021 GFL Rules;
(c)Mr Wong confirmed he was aware of the hearing; and
(d)the Court provided Mr Wong with an opportunity to appear remotely at the hearing.
The first respondent has not sought an order that all the costs incurred in the matter be paid by Mr Wong. It was submitted by the first respondent that as a consequence of the adjournment the costs thrown away that were reasonably and properly incurred amounted to $3,500 and included but were not limited to:
(a)preparation for the final hearing;
(b)correspondence with Mr Wong and the Court on 17 August 2025 and 18 August 2025;
(c)attendance at the final hearing;
(d)report of the final hearing sent to the client by email;
(e)preparation of written submissions in relation to costs pursuant to r 22.06 of the Rules; and
(f)the preparation of two affidavits of Henry Chapman of HWL Ebsworth Lawyers dated 22 August 2025.
New rules of this Court, the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2025 (Cth) (2025 GFL Rules), commenced on 1 September 2025 and are now in force.
Pursuant to r 32.05(5) of the 2025 GFL Rules, the Court must give a lawyer a reasonable opportunity to be heard on the issue of costs. Mr Wong has been provided with a reasonable opportunity to be heard on the issue of whether a personal costs order should be made against him. He was invited to attend Court on 18 August 2025 and on 9 September 2025 and was provided with an opportunity to provide written submissions on the issue, which he did not do. He has not availed himself of these opportunities.
Section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Section 191(1) requires parties to conduct the proceedings in a way that is consistent with the overarching purpose.
Section 191(2) requires that a lawyer must take account of the duty imposed in s 191(1) and assist the party to comply with the duty. Section 191(4) provides that in exercising a discretion to award costs the Court must take account of any failure to comply with the duty. Section 191(5) provides that the Court may order a party’s lawyer to bear costs personally.
The 2025 GFL Rules now apply to this matter. Rule 1.05 provides that the overarching purpose of the 2025 GFL Rules, as provided in s 190 of the FCFCOA Act is to facilitate the just resolution of disputes according to law and as quickly, and inexpensively as possible.
Rule 32.05(1) of the 2025 GFL Rules provides that the Court may make an order for costs against a lawyer if the lawyer or an employee has caused costs to be incurred by a party or to be thrown away because of undue delay, negligence, improper conduct or other misconduct or default.
Rule 32.05(3) of the 2025 GFL Rules provides that an order for costs against a lawyer may be made on the initiative of the Court or application by a party. I note that the first respondent has made an application, but had they not done so, I would have ordered costs against the lawyer of my own initiative.
Rule 32.05(2) of the 2025 GFL Rules provides that a lawyer may be in default if a hearing cannot proceed conveniently because the lawyer has unreasonably failed:
(a)to attend, or arrange for a proper representative to attend the hearing; or
(b)to file, lodge or deliver a document as required; or
(c)to prepare any proper evidence of information; or
(d)to comply with these Rules or an order of the Court; or
(e)to do any other act necessary for the hearing to proceed.
In this matter, Mr Wong has notified the Court in an email dated 18 August 2025 that he ceased acting for the applicant in 2022 but overlooked filing a discontinuance with the Court. He has not explained why he has not communicated the discontinuance to the Court between 2022 to 2025, despite receiving numerous communications from the Court and the solicitors for the first respondent. In Saleem at [11] the court observed that a solicitor in similar circumstances to this matter remained the solicitor on record and had ongoing obligations.
Mr Wong has not provided any explanation to the Court. He was asked to attend the hearing on 18 August 2025 and provision was made for him to attend online, but he did not attend. He was ordered to make submissions on costs against the lawyer, by 22 August 2025 but no submissions were received.
The first respondent appeared at a hearing of the matter on 18 August 2025 and otherwise has incurred the costs claimed. Mr Wong has failed to attend or arrange for a proper representative to attend the hearing, to file documents as required, to provide information about discontinuance with the court and to comply with Rules of the Court. He is under default as the hearing could not proceed conveniently pursuant to r 32.05(2) of the GFL Rules 2025.
It is appropriate in the circumstances for Mr Wong to pay the first respondent’s costs thrown away in the sum of $3,500 pursuant to r 32.05(1) of the GFL Rules 2025.
The first respondent sought costs from the applicant of $3500 in addition to the costs awarded against the lawyer. I am satisfied that costs should be awarded and that the amount sought is reasonable, based on the quantification of costs incurred provided by the first respondent and consideration of the scale amount for discontinuance less than 15 days before a final hearing as set out in Schedule 2 of the GFL Rules 2025.
CONDUCT OF THE SOLICITOR
In Mr Wong’s email to this court on 18 August 2025, Mr Wong said that in December 2022 his firm had served a notice of intention to cease acting, however the correspondence was returned to them. No evidence of a return to sender notification has been provided to the Court. Mr Wong said further in his email of 18 August 2025, that unfortunately they overlooked filing a formal notice with the court.
While the Court is sympathetic to occasional human error and it is possible, although careless, that the firm overlooked filing a notice of withdrawal with the Court, it is simply inexplicable that the firm continued to receive notifications and correspondence from the Court over a period of three years without then filing a notice of withdrawal with the court, or at the very least informing the Court that they were no longer acting for the applicants.
Furthermore, Mr Wong would have been aware that under r 9.03(1) of the 2021 GFL Rules, a lawyer may withdraw by filing a notice of withdrawal and serving it on the other party. He would also have been aware of r 9.02(3) of the 2021 GFL Rules, the party’s formal lawyer remains the lawyer on record until the newly appointed lawyer has complied with r 9.03(2), filing and serving a notice of appointment. It is not known to the Court whether the applicants received the correspondence and listing information sent to them by the Court and the first respondent.
I am concerned that Mr Wong showed disregard for this Court by failing to notify the Court of withdrawal for a period of three years despite receiving correspondence from this Court, including orders and despite receiving correspondence from the solicitors for the first respondent during this period of time.
Mr Wong also failed to appear at the hearing on 18 August 2025 even though arrangements were made for him to appear via Webex. Mr Wong attempted to withdraw on the morning of the hearing, although he had three years to do so. Furthermore, Mr Wong did not apply for leave to withdraw, although r 9.03(2) of the 2021 GFL Rules provided that a lawyer could not file or serve a notice of withdrawal without leave of the Court unless the lawyer has not less than seven days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting. Mr Wong appeared to assume that the Court would simply accept his withdrawal without leave although the Court was only notified at 6:12am on the morning of the hearing before me.
As Lee J aptly said in CVDQ v Minister for Immigration and Multicultural Affairs (Adjournment Application) [2025] FCA 936 at [1] “there seems to be a deeply entrenched misconception among some practitioners of this Court that migration litigation is some form of Galapagos Island where the ordinary rules do not apply”. Mr Wong’s conduct evinces a disregard for the need to assist the applicants in complying with the duty to act consistently with the overarching purpose of the Court’s civil practice and procedure provisions to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 190(1) of the FCFCOA Act.
For these reasons, I have decided to refer the conduct of Mr Wong to the legal services regulators. It is not the role of this Court to make findings upon whether Mr Wong may have failed to fulfil his professional duties and responsibilities, including his paramount duty to the court and the administration of justice: see r 3 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW); Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138 per Judge Laing at [74].
It is also not the Court’s role to determine whether Mr Wong has engaged in conduct capable of constituting unsatisfactory professional conduct or professional misconduct: see Legal Profession Uniform Law Application Act 2014 (NSW) Sch 1 ss 296 and 297. These are matters for the Law Society of New South Wales and The Office of the NSW Legal Services Commissioner.
Having considered the first respondent’s submissions, the material before this Court and the findings I have made in relation to Mr Wong’s defaults and conduct in these proceedings, I will make an order referring a copy of my Reasons for Judgment in this matter to the Law Society of New South Wales and The Office of the NSW Legal Services Commissioner.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Marquard. Associate:
Dated: 9 September 2025
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