DJG17 v Minister for Immigration and Anor(No.2)

[2020] FCCA 1606

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJG17 v MINISTER FOR IMMIGRATION & ANOR(No.2) [2020] FCCA 1606

Catchwords:
MIGRATION – Immigration Assessment Authority – Costs – personal costs order against legal practitioner arising from costs thrown away due to adjournment of hearing – whether order should be made against Barrister under r 21.07 of the Federal Circuit Court Rules (2011) (Cth).

Legislation:

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

Cases cited:

Bartram v Ogden [2018] FCCA 3195

BSU15 v Minister for Immigration and Anor [2020] FCCA 859

BYM16 v Minister for Immigration and Border Protection [2017] FCCA 2445

CBN18 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCA 2190

Martin v Harris [2010] FamCA 236

Mitri Lawyers v Barnden [2014] FCA 918

SZENJ v Minister for Immigration and Citizenship [2007] FCA 734

Applicant: DJG17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2368 of 2017

Judgment of: Judge Humphreys

Hearing date: 17 June 2020

Date of Last Submission: 17 June 2020

Delivered at: Parramatta

Delivered on: 25 June 2020

REPRESENTATION

Counsel for Mr Bodisco: Mr Phillips SC

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Mills Oakley

ORDERS

1. Pursuant to r 21.07 of the Federal Circuit Court Rules 2001 (Cth), Mr Bodisco, personally pay the first respondent’s costs thrown, away fixed in the amount of $2,000.00.

2. Mr Bodisco has 180 days for the payment of costs thrown away.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2368 of 2017

DJG17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgement concerns an application for costs thrown away, as a result of an adjournment in this matter, to be paid personally by Counsel who appeared for the applicant, Mr Paul Bodisco, pursuant to r 21.07 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2. A separate judgement has been published in respect of the substantive application. Both judgements should be read together.

Factual Background

1. This matter has had a somewhat difficult history.

2. The applicant in DJG17 applied to the Court on 26 July 2017, for judicial review of a decision of the Immigration Assessment Authority (“the Authority”), to affirm a decision of a delegate of the then Minister for Immigration and Border Protection (“the delegate”), to refuse him a Safe Haven Enterprise (SHEV) or Protection visa.

3. A Registrar of the Federal Circuit Court, made the usual orders for the filing of any amended application and evidence by the applicant by 21 December 2017.

4. An amended application was filed by the applicant on 9 November 2017. This contained an additional third ground.

5. On 1 March 2018, Judge Smith made orders, setting the matter down for hearing on 10 December 2018. This was later varied to 20 February 2019.

6. By an order made in Chambers on 14 January 2019, the hearing date of 20 February 2019 was vacated, due to Judge Smith retiring from the Federal Circuit Court.

7. On 29 January 2019, the Court was advised that Mr Paul Bodisco of Counsel, was appearing for the applicant on a direct access basis. On the same day, an outline of submissions was filed with the Court.

8. Those submissions made reference to a draft amended application that was apparently to be filed and a new ground of appeal, that the Cocos (Keeling) Islands were not a ‘port’, for the purposes of the Migration Act 1958 (Cth) (“the Act”) and as a result, the applicant was not a ‘fast track applicant’ liable to review by the Authority.

9. The submissions did not contain any reference to the grounds of application, contained within an Amended Application filed on 9 November 2017.

10. On 13 November 2019, the Court made orders that the matter be listed for hearing on 16 March 2020. This was varied to a telephone final hearing on 2 June 2020 at the request of Mr Bodisco, who was unable to appear on the March date.

11. On 20 May 2020, an email was sent from Chambers, to Mr Bodisco, with a copy to the solicitors for the first respondent, in the following terms:

    Dear Mr Bodisco,

    The Court has been reviewing this matter, which is listed for hearing 10:00am Tuesday 2 June via AAPT Link.

    The Court notes the applicant’s submissions were filed on 29 January 2019 and references made to a Draft Amended Application.

    Are you able to confirm to the Court whether or not you wish to continue to run with this ground and the grounds contained within the amended application, filed 9 November 2017 are being abandoned?

    Thank you

12. No response to that email was or has since, been received.

13. As a result, the first respondent’s submissions, filed on 26 May 2020, were required to address the additional ground referred to in the submissions filed by the applicant, as well as the grounds contained within the amended application filed 9 November 2017.

14. At approximately 9:15am on 2 June 2020, the day of the hearing, supplementary submissions were emailed to Chambers, along with a copy to the solicitors for the first respondent.

15. The submissions apologised for the late presentation of the supplementary submissions and advanced a proposed additional ground, alleging legal unreasonableness on the Authorities decision.

16. The supplementary submissions stated as follows:

    Over the weekend, I became aware of a recent binding authority of His Honour Stewart J in the matter of CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 (“CBN18”) – an authority whose principles are directly engaged in the instant matter.

    Leave will be sought to file an Amended Application pleading the additional ground of review.

17. When the matter came on for hearing at 10:00am 2 June 2020, Counsel for the first respondent indicated that he was taken by surprise by the new ground and was not in a position to make submissions that day, in respect of the proposed additional ground.

18. Mr Bodisco confirmed that the grounds contained within the amended application filed 9 November 2017 were abandoned. Mr Bodisco confirmed that no further amended application containing the ground, the subject of his submissions filed 29 January 2019, had been filed, nor had any further further amended application, containing the proposed new ground, been filed with the Court.

19. Orders were made that the matter be adjourned for a further hearing on 17 June 2020.

20. An Amended Application containing all grounds to be relied upon by the applicant, was ordered to be filed forthwith.

21. Costs thrown away, as a result of the adjournment, were reserved. Mr Bodisco was put on notice that the Court would be considering an order under r 21.07 of the Rules. It was confirmed that Mr Bodisco was entitled to be represented in any costs hearing. Further, orders were made that Mr Bodisco was to file any evidence upon which he wished to rely on, in relation to the costs issue.

22. On 17 June 2020, the substantive hearing commenced. An extempore decision was given dismissing the application. A further discrete hearing then took place, in relation to the costs issue.

23. Mr Phillips SC, appeared for Mr Bodisco, in relation to the costs argument only.

24. Counsel for the first respondent sought an amount of $2,000.00 as costs thrown away. This included work done on submissions in relation to the grounds that were abandoned at the commencement of the hearing on 2 June 2020, as well as additional work contained in supplemental submissions, filed on 5 June 2020, in relation to the new ground of application, contained in the supplemental submissions received on the morning of the first hearing.

25. In an affidavit sworn 16 June 2020, Mr Bodisco set out the following matters in his support;

    3.I commenced representing the applicant on a direct access basis on about 24 January 2019.

    4.On that date, the applicant filed submissions drafted by me in the Federal Circuit Court.

    5.By its own motion, the Court then vacated the listing and relisted the matter for 2 June 2020.

    6.In or about May 2020, I believe the Court emailed me requesting that I file any amended application pleading earlier grounds anticipated in earlier submissions I had filed.

    7.I did not see this email until I started preparing the matter for hearing at about midday 30 May 2020.

    8.I apologise for any inconvenience my omission may have caused the Court.

    9.In the course of preparing the matter on 30 May 2020, I became concerned about various credit findings made against the applicant by the Immigration Assessment Authority in the primary decision.

    10.I took the time to review recent authorities on the issue of credit findings made by the Immigration Assessment Authority on authority of CBN18 v Minister for Home Affairs [2019] FCCA 1265 came to my attention. I took the view it was a recent authority of the Federal Circuit Court of Australia which may assist this Court by providing a principled basis for disturbing adverse credit findings in fast track (Part 7AA) matters.

    12.On 1 June 2020, I commenced drafting amended pleadings and supplementary submissions taking account of the authority of CBN18 v Minister for Home Affairs. I also contacted Ms Siddique, a solicitor with experience in these matters, and he agreed to go on the record as the solicitor in the matter.

    13.On 1 June 2020, after I started work on the amended pleadings and submissions and had called Mr Siddique, my computer broke down. I borrowed my partner’s computer but I had difficulty migrating my email and documents onto this computer. I effectively lost the day.

    14.At approximately 9:00am on 2 June 2020, I was able to email the completed amended pleadings and submissions to my clerk using my hotmail account on my partner’s computer. I understand she then forwarded the documents to Mr Siddique.

    15.I further understand that Mr Siddique then file these documents with the court at about 9:30am.

    16.I again apologise to the court for any inconvenience. As I now have an instructing solicitor in the matter, it is much less likely there will be further breaches of the court timetable.

26. The reference in paragraph 11 above, to CBN18 v Minister for Home Affairs [2019] FCCA 1265 (“CBN18”), appears to be incorrect, in that the submissions filed on the morning of 2 June 2020, referred to CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2190 per Stewart J., which was an appeal from the Federal Circuit Court decision involving the same applicant.

Relevant Legislation and Case law

1. Rule 21.07 of the Federal Circuit Court Rules 2001 (Cth) is in the following terms:

Order for costs against lawyer

(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 of the order, or of any proceeding against the lawyer be given to a party for whom the lawyer may be acting or any other person.

1. The power to order costs against a legal practitioner has been considered in a number of cases. The lead case in the discussion of those principles is Mitri Lawyers v Barnden [2014] FCA 918 at [39], [42] and [43] (“Mitri Lawyers”) per Wigney J. The following was stated:

   [39] The power to order costs against a lawyer is a power that must be exercised with care and discretion and only in clear cases: Ridehalgh v Horsefield [1994] Ch 205 (Ridehalgh) at 229; Re Bendeich (1994) 53 FCR 422; Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383 per Hill J at [11]; Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155 (Levick) at [44]; Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 416 at [8] per White J (with whom Davies and Williams JJA agreed); De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544; Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No 3)[2000] SASC 286.

   [42] The relevant principles emerge from three decisions of this Court: the judgement of Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806; and two full Court decisions: Levick and Macteldir v Roskov [2007] FCAFC 49. The principles may be summarised as follows:

   1. Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against lawyer.

   2. Something which involves “unreasonable conduct” is required.

   3. What constitutes unreasonable conduct will depend on the circumstances of the particular case.

   4. The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with the disregard of any proper consideration of the prospects of success.

   5. The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice.

   6. An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless.

   7. The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning their clients, or particular issues or arguments, for fear of personal costs orders being made against them.

   [43] An additional procedural consideration, which has particular relevance to this matter, is that a lawyer against whom a claim for costs is made must have full and sufficient notice of the complaint and full and sufficient opportunity of answering it: Myers v Elman [1940] AC 282 at 318; Orchard v South Eastern Electricity Board [1987] QB 565 at 572; Ridehalgh at 229;Lemoto v Able Technical Pty Ltd (2005) 63NSWLR 300 (Lemoto) at [92(e)], [143]-[149]. This is also required by the terms of r 21.07(5)(a).

2. In SZENJ v Minister for Immigration and Citizenship [2007] FCA 734 at [12], Downes J stated :

   I accept that such orders should only be made in the rarest of circumstances where serious l    apses of proper conduct have occurred for such an order to be justified.

3. In Bartram v Ogden [2018] FCCA 3195, Lapthorn J made cost orders personally, against solicitors for a party in a family law proceeding. It was held that the solicitor’s conduct fell well short of the standard, required of legal representatives in family law proceedings and, as a consequence, the Independent Children’s Lawyer and father, were put to unnecessary expense in preparing for trial. At [29] the following was stated:

   It is not open for the court to make an order for costs by way of punishment for inappropriate professional behaviour but to compensate a party if they have incurred unnecessary costs as a consequence of the solicitor’s behaviour. Any order for costs must be limited to that compensation: see Martin v Harris [2010] FamCA 239 at [36] – [37].

4. The issue of the late filing of amended applications in migration matters, containing new grounds of appeal, has been the subject of judicial comment as well. In BSU15 v Minister for Immigration and Anor [2020] FCCA 859, the following appears at [33] – [34]:

   [33] In BYM16 v Minister for Immigration and Border Protection [2017] FCCA 2445 at [6] – [9] Smith J commented, as summarised, that:

   It seems within the Immigration Jurisdiction within this Court, that compliance with the Court’s orders by some members of the profession who appear for applicants is considered optional rather than mandatory. Non-compliance with orders without seeking leave of the Court, is not only discourteous both to the Court and to the respondent’s legal representatives but impacts on the timely preparation of matters by both the Court and the respondents. It is a practice which must cease. The use of costs being awarded to reflect work thrown away by non-compliance with orders for the filing of amended applications by applicants is clearly not effective. The Court understands that in many cases, where an applicant is ultimately unsuccessful, they will depart Australia with any legal costs owing to the Commonwealth unpaid.

   [34] Provision exists within the Court’s rules for costs to be awarded against a party’s lawyer, where the lawyer has unreasonably failed to file, lodge, or deliver a document as required, or do any other act necessary for the hearing to proceed (see r 21.07(2) of the Rules). It may well be that the time has come where the Court needs to resort to this provision, in appropriate cases, in order to make it clear to practitioners that the orders of the Court are to be complied with, or if they cannot be complied with, for any reason, that the Court is to be approached with an explanation and a request to vary the order that was made. Where this latter procedure is adopted, it is a very rare circumstance that orders will not be made, to reflect the request.

The First Respondent’s Submissions

1. Counsel for the first respondent noted that r 21.07 of the Rules includes specifically, costs thrown away to either undue delay or default. In this case, no amended application was ever filed on behalf of the applicant until directed to by the Court on 2 June 2020.

2. No response to the Court’s email of 20 May 2020 was received and as a result, the first respondent had no choice but to respond to the grounds of appeal, which were formally abandoned at the commencement of the hearing of 2 June 2020. It was submitted that it was both unreasonable for Mr Bodisco not to have responded to the email of 20 May 2020 and clarify what grounds were being relied upon.

3. It was submitted by Counsel for the first respondent that the hearing of 2 June 2020 could not proceed conveniently, because Mr Bodisco had unreasonably failed to file, lodge or deliver a document, as required.

4. Counsel for the first respondent stated that the first he knew about the proposed additional ground was at about 9:15am, on the morning of the hearing. Counsel for the first respondent noted, that at that point, there was still no amended application seeking to rely upon the proposed new ground, or indeed the ground outlined in the previously filed submissions.

1. Accordingly, Counsel for the first respondent had no option but to seek an adjournment of the hearing, so that he could consider the merits of the proposed new ground. If Counsel for the first respondent had received the proposed new ground even the day before, he may have been able to deal with it on the day of the hearing of 2 June 2020, given that the proposed new ground relied upon, was simply a variation of legal unreasonableness, as applied to the particular facts in CBN18.

2. Contrary to the applicant’s assertion, CBN18 did not involve any new or novel principle of law and as such, any ground of appeal as it related to legal unreasonableness, should have been readily apparent from an initial reading of the decision of the Authority.

3. It was not reasonable, on behalf of Mr Bodisco, to file supplementary submissions on the morning of the hearing and no amended application and expect that the matter would proceed that day.

4. Accordingly, the first respondent was entitled not only to costs thrown away, but for them to be paid by Mr Bodisco.

Submissions on behalf of Mr Bodisco

1. Mr Phillips SC, who appeared on behalf of Mr Bodisco, took the Court to the decision of Wigney J in Mitri Laywers. Mr Phillips SC submitted that the requirements of the r 21.07 of the Rules, were that costs should only be ordered in the rarest of circumstances. The Court should only make an order where the unreasonable conduct relied upon involved a ‘conscious or deliberate action’ on the practitioner’s behalf and mere negligence was insufficient to justify the making of a cost order.

2. Following the close of the hearing, the Court received supplemental submissions from Mr Phillips SC, along with a further affidavit from Mr Bodisco. In that affidavit, Mr Bodisco claims he telephoned the solicitors for the first respondent at around 12 noon on 1 June 2020 and advised them that he was proposing to file an amended application and additional submissions. Mr Bodisco claims that he was told that the solicitors for the first respondent would wait their arrival.

Consideration

1. In an affidavit filed in response to the supplemental submissions filed on behalf of Mr Bodisco, Mr Merrigan, Solicitor, for the first respondent disputes that he received a telephone call from Mr Bodisco at about noon on 1 June 2020, rather it was about 3.00 pm. Mr Merrigan states that Mr Bodisco indicated that he would send a copy of an amended application and supplementary submissions that afternoon to Mr Merrigan. It was not until 9.12 am on 2 June 2020, that a copy of the supplementary submissions were received. No amended application was received. At about 9.15 am Mr Bodisco spoke again to Mr Merrigan. It was confirmed that the submissions had been received. Mr Bodisco also requested that Mr Merrigan send him (Mr Bodisco) a copy of the applicant’s submissions dated 29 June 2019.

2. The Court is, firstly, reasonably satisfied, that Mr Bodisco has been given sufficient notice of the likelihood that a costs order would be made against him, when the matter was adjourned on 2 June 2020.

3. The Court is reasonably satisfied, that Mr Bodisco has had sufficient opportunity to answer the claim, with the assistance of Senior Counsel appearing on his behalf.

4. The Court is also satisfied that the amount sought by the first respondent, being $2,000.00, reasonably represents the costs associated with Counsel for the first respondent and his instructing solicitor, in preparing submissions associated with the grounds of appeal, abandoned by the applicant on the morning of 2 June 2020, as well as costs associated with the hearing of 2 June 2020 being adjourned.

5. The remaining question is whether these costs should be paid by Mr Bodisco, or by the applicant.

6. Mr Bodisco had filed initial submissions on 29 January 2019. Orders were made on 13 November 2019 that written submissions by the applicant, were to be filed on or before 14 days prior to the hearing.

7. As a result, the applicant had the opportunity to file new or amended submissions by 19 May 2020. Had this been done, along with a further amended application containing the additional ground relied upon, the Court would have been open to granting leave to rely upon the new ground. Certainly the issues involved in this judgement would have been avoided.

8. Given the ambiguity as to what grounds were being relied upon, the Court took the unusual step of sending Mr Bodisco an email (as set out above) seeking clarification.

9. No adequate explanation has been given as to why Mr Bodisco did not notice the email till, on his own admission, 30 May 2020 or 10 days after it was sent. Had it been responded to, the first respondent would not have been obliged to file submissions in relation to grounds which were not proposed to be pressed. The Court is satisfied that this constitutes default, as set out in the Rules.

10. The Court is reasonably satisfied that the failure to file an amended application of the grounds relied upon, as referred to in submissions filed 29 January 2019, the failure to file written submissions 14 days prior to the hearing date of 2 June 2020, as ordered by the Court on 13 November 2019 and the failure to give notice and respond to the Court’s email of 20 May 2020, constitute delay and negligence on the part of Mr Bodisco, for the purposes of r 21.07(2) of the Rules.

11. This includes a failure to file, or lodge an amended application and submissions in accordance with Court orders, including formally abandoning grounds no longer pressed to allow the hearing to proceed conveniently.

12. The Court is satisfied that this resulted in costs being thrown away by the first respondent as a result of the necessity to adjourn the hearing on 2 June 2020. The Court is satisfied that the multiple failures by Mr Bodisco, meet the very high threshold to justify the making of a personal costs order.

13. The failure to review and prepare the matter until the weekend before the hearing, led to a new ground of application being formulated and then lodged with the Court on the morning of the hearing.

14. This by necessity, involved a deliberate or conscious decision on the part of Mr Bodisco, not to review the matter prior a prior to 19 May 2020, the date upon which submissions were ordered to be filed by the applicant, but rather wait till just before the hearing.

15. The Court does not accept that this new ground was not reasonably foreseeable on 29 January 2019. It simply claimed legal unreasonableness. This is a concept, which is far from new and is well known and understood.

16. The Court does not accept that CBN18 contained any new or novel principle of administrative law. The Court agrees with the first respondent that it simply applied existing legal principles to the facts of that case.

17. While the Court accepts that Counsel are under a duty to advance their client’s case and where necessary, advance new grounds where they become apparent, up to and including the trial date, CBN18 was published on 23 December 2019. Had Mr Bodisco undertaken timely research and review of his submissions from January 2019, the case would have been available and this new ground could have been advanced in a manner that did not result in the hearing of 2 June 2020 being adjourned.

18. The Court is also reasonably satisfied that it would have been readily apparent to Mr Bodisco that by relying upon a new ground on the day of the hearing, an adjournment was an inevitable, in order to allow procedural fairness to the first respondent. This would involve costs being thrown away.

19. The failure of Mr Bodisco to contact Chambers to advise of this development, has never been explained. This was not only highly discourteous, the Court considers it to be unreasonable conduct, on the part of Mr Bodisco. That failure of itself however would not be sufficient to justify a personal costs order.

Conclusion

1. In all the circumstances of this case, the Court considers it appropriate that a personal costs order be made against Mr Bodisco in the amount of $2,000.00 pursuant to r 21.07 of the Rules.

2. The Court is prepared to allow 90 days for the payment of this amount or such further time as might be necessary, upon application by Mr Bodisco.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 25 June 2020