Du v Minister for Immigration
[2011] FMCA 753
•29 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 753 |
| MIGRATION – Judicial review – Migration Review Tribunal – Other Family Carer Visa – application in a case to set aside dismissal order. |
| PRACTICE AND PROCEDURE – Adjournment – whether adjournment of application in a case to set aside dismissal order to be granted – principles – where conduct of lawyer cause of application for adjournment – where lawyer appearing has no expertise in or knowledge of migration law. |
| Migration Act 1958 (Cth) Federal Magistrates Act 1999 (Cth), ss.3, 42 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 13.03C(1) |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Morien v Johnston [2006] FMCA 1918 Singh v Official Trustee in Bankruptcy [2008] FMCA 521 |
| Justice DA Ipp “Lawyers’ Duties to the Court” (1998) 114 LQR 63 |
| Applicant: | THI EN DU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 115 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 29 September 2011 |
| Date of Last Submission: | 29 September 2011 |
| Delivered at: | Perth |
| Delivered on: | 29 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Shuli |
| Solicitors for the Applicant: | iLaw Barristers and Solicitors |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application in a case be adjourned to 10:15am on 18 October 2011.
That the question of costs be reserved for further argument as to quantum and who ought to pay the costs of the first respondent in respect of the adjournment application, and the costs thrown away of the application in a case.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 115 of 2011
| THI EN DU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
Introduction
The applicant seeks review of a Migration Review Tribunal[1] decision[2] which affirmed the decision of a delegate of the Minister[3] to refuse to grant an Other Family (Migrant) (Class BO) Sub-class 116 (Carer) Visa[4] to the applicant’s grandson.
[1] “Tribunal”.
[2] “Tribunal Decision”.
[3] “Delegate”.
[4] “Visa”.
When the matter came on for hearing on 5 September 2011 there was no appearance on behalf of the applicant and orders issued dismissing the application pursuant to r.13.03C(1) of the Federal Magistrates Court Rules 2001 (Cth),[5] with the applicant to pay the first respondent’s costs in the sum of $6,240. After that order had been made the lawyers for the applicant appeared, the Court was re-convened, and orders were made so as to allow an application to set aside the dismissal orders to be made. Appropriate programming orders with respect to the application in a case were also made.
[5] “FMC Rules”.
When the application to set aside the dismissal orders was called on this morning, the applicant applied to adjourn the hearing. These reasons for judgment concern that adjournment application.
Litigation history
It is necessary to set out in more detail the litigation history of this matter.
The application, and an affidavit of the applicant, Mrs Du, were filed on 17 May 2011.
The application seeks final orders for prerogative relief. The final orders sought include:
An order that the decision of the tribunal or Minister be quashed.
A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
As to the grounds of the application the application refers to an attached annexure A, which is in fact attached to the affidavit of Mrs Du, and which contains two grounds which do relate to the Tribunal Decision and to the relevant regulations in regard to the Visa application.
On 9 June 2011 orders were made by consent, in the following terms:
1. The first respondent shall file two copies and serve one copy of the Court Book on the applicant on or before 10 July 2011.
2. The applicant shall file and serve on or before 10 August 2011:
(a) any amended application; and
(b) any further affidavits upon which she intends to rely at the hearing of this matter.
3. A hearing under rule 44.12 be dispensed with and the application be listed for final hearing at 10:30am on 5 September 2011.
4. The applicant file and serve an outline of submissions not less than 14 days before the hearing.
5. The first respondent file and serve an outline of submissions not less than 7 days before the hearing.
6. There be liberty to apply.
7. Costs be reserved.
The applicant did not file any amended application, any further affidavits, or an outline of submissions under the 9 June 2011 orders.
When the matter was called for hearing on 5 September 2011 no lawyer, or any other representative, of the applicant was present. The Court made an order dismissing the application and ordering that the applicant pay the first respondent’s costs as set out above.
Shortly after judgment had been delivered and orders made, lawyers for the applicant attended Court. The Court was reconvened, and the Court made further orders in the following terms:
1. The applicant file and serve:
(a) any application to set aside the Orders made by the Court in this matter on 5 September 2011;
(b) any affidavits in support of the application under Order 1(a); and
(c) an outline of contentions of law and fact,
by 12 September 2011.
2. The respondent file and serve:
(a) any response to the application under Order 1(a);
(b) any affidavit in support of the response; and
(c) an outline of contentions of fact and law,
by 19 September 2011.
3. Any application to set aside made in accordance with Order 1 be listed for hearing at 10:15am on 29 September 2011.
4. Costs be reserved.
As is apparent from the transcript of the 5 September 2011 hearing the Court was not prepared to immediately set aside the orders that it had just made as it had serious concerns about the matters raised by the lawyer, Mr Chelvathurai, who appeared for the applicant. Some of those concerns are evident from the following extract from the transcript:
MR CHELVATHURAI: Well, sir, I am – the party who is in charge of this file is in New South Wales, sir. He is a migration agent, and I can get an affidavit from ---
HIS HONOUR: Mr Chelvathurai, you are the solicitor on the record, and have been since day 1.
MR CHELVATHURAI: Yes, sir.
HIS HONOUR: Let’s not try and blame anybody else.
MR CHELVATHURAI: No, sir. Counsel, Robert Lindsay is actually going to litigate this matter, sir, not me.
HIS HONOUR: Well, why wasn’t Mr Lindsay instructed to appear today at 10.30?
MR CHELVATHURAI: Sir, Mr Lindsay – that’s why, sir, like – last week what happened was there was an application to adjourn, which was sent to the New South Wales registry, sir. I do not know why it went to the New South Wales registry, I don’t have a copy here, but the file, the office advises me that there was an application which was sent to the New South Wales registry, and Mr Lindsay was under the impression that this matter was settled, and even I was under the impression that yes, the application had gone through. Then I saw an email ---
HIS HONOUR: Sorry, the application had gone through where?
MR CHELVATHURAI: Yes, sir, I was under the impression that the application was made appropriately and properly in this forum.
HIS HONOUR: Did you receive a notice of listing for the application to adjourn?
MR CHELVATHURAI: No, sir.
HIS HONOUR: Well, why did you assume anything?
MR CHELVATHURAI: I saw an email last week, sir, Thursday, from Mr Aaron, counsel for the AGS, sir. Sir, I really apologise for this.
HIS HONOUR: To say what, Mr Chelvathurai?
MR CHELVATHURAI: No, sir, I just saw the email and I was under the impression that documents were received by the parties. I really apologise for this, sir, I think this is a terrible error on our part. On the part of the firm, not the applicant, sir, we have ---
HIS HONOUR: Well, perhaps the appropriate course, Mr Chelvathurai, is this, simply to grant you leave to make a proper application, properly supported, to set aside the orders which have just been made and to file any affidavits in support of that, and as I indicated earlier to Mr Gerrard, an application to set aside will, I think, entail some consideration of the merits in any event, and you can argue why the court ought to set aside the orders that it has just made.[6]
[6] Transcript, 5 September 2011, pages 5-6.
Inquiries made through Chambers of the Court’s Sydney Registry indicate that no application in relation to this matter was filed in the Sydney Registry of the Court, and that if it had been it would have been forwarded to the Perth Registry. The Court also notes that at an earlier stage in the 5 September 2011 hearing,[7] Mr Chelvathurai claimed that he was late attending Court because he had gone to the wrong court because Court 4 (which is on level 4) was listed for this matter on the noticeboard in the foyer of the Commonwealth Law Courts Building in Perth. Again, subsequent inquiries by Chambers through the Perth Registry of the Court on 5 September 2011 indicate that there was on that day no matter in the lists posted in the foyer listed to be heard by this Court (or the Federal Court for that matter) in Court 4 as claimed by Mr Chelvathurai.
[7] Transcript, 5 September 2011, page 4.
On 12 September 2011 an application in a case was filed seeking:
a)to set aside the dismissal orders made on 5 September 2011; and
b)an order that the costs thrown away be borne by the solicitors for the applicant.
That application was supported by an affidavit of Mr Chelvathurai in support of the application to set aside. The applicant did not file an outline of contentions of law and fact which was also due to be filed on 12 September 2011, and has not done so since. The first respondent filed an outline of contentions of fact and law, on 20 September 2011, a day later than specified in the Court’s order of 5 September 2011.
The applicant has subsequently filed affidavits from Gordon Du, Kim Du, and two further affidavits of Mrs Du, the applicant. All of those affidavits were filed yesterday (28 September 2011). The first three affidavits of Gordon Du, Kim Du and the first of the two further affidavits of Mrs Du, go to factual matters the subject of the controversy upon which the Tribunal has made a decision. They are arguably not relevant to an application for judicial review as they simply seek to challenge factual matters found by the Tribunal, but that is a matter for another day, if the applicant’s application to set aside the Court’s orders of 5 September 2011 is successful. The final affidavit, that is the second of the two further affidavits of Mrs Du, is said to be in support of the application to set aside the orders made by this Court on 5 September 2011, and is therefore not relevant to the adjournment application.
There have been no affidavits filed, and no evidence was led, in relation to the application for adjournment.
Mr Shuli, who is a partner in the firm which acts for the applicant, appeared today. Mr Shuli applied for an adjournment on the basis that Mr Chelvathurai and Mr Lindsay, the latter having been briefed as Counsel for the matter, were both currently overseas. Mr Shuli conceded that at the time of the 5 September 2011 hearing, Mr Chelvathurai would have been aware that both:
a)he would be overseas; and
b)Mr Lindsay would be overseas,
at the time at which this hearing of the application in a case was then listed, namely 29 September 2011. In that regard it is relevant to note that on 5 September 2011, Mr Chelvathurai adverted to the fact that Counsel might not be available on 29 September 2011, but was told by the Court to find other Counsel.[8]
[8] Transcript, 5 September 2011, page 7.
Mr Shuli indicated that Mr Chelvathurai had gone overseas last Tuesday, that is 27 September 2011, and had left the file, which Mr Shuli had not previously had any conduct of, or association with, on Mr Shuli’s desk with a handwritten note to the effect that:
a)there were affidavits which had not been filed (being the affidavits which were filed yesterday); and
b)to call Mr Chelvathurai if anything arises.
Mr Shuli personally filed those affidavits yesterday in the Registry, and subsequently sent copies of them by facsimile to the first respondent’s solicitors. From advice provided by Mr Gerrard, Counsel for the first respondent, it appears that the final line of the covering facsimile for the affidavits indicated that an adjournment of the matter would be sought today, but no more. The facsimile was received at about 3.00pm yesterday.
Mr Shuli informed the Court that Mr Chelvathurai would be returning from overseas, and would be available for any further hearing in relation to the application in a case, on and from 17 October 2011.
Mr Shuli advised the Court that since he had taken over conduct of the matter yesterday, and in the circumstances described above, he had, in addition to the steps outlined above, prepared as best he could to argue the application in a case and was in a position to argue it, save for any submissions as to the merits of the substantive application. Mr Shuli advised the Court that he was not a migration lawyer and had never previously conducted a migration matter, and was therefore not in a position to argue the merits (so far as is required for a set aside application).[9]
[9] As to the necessity to argue the merits of the substantive application on a set aside application, see Crimson SRL & Anor v Claudia Shoes Pty Ltd & Ors (No 6) [2008] FMCA 108 at paras.13-17 per Riley FM (“Crimson SRL”); Singh v Official Trustee in Bankruptcy [2008] FMCA 521 at para.19(d) per Lucev FM.
Mr Gerrard, on behalf of the first respondent, made submissions that:
a)little (and very late) notice of the adjournment application had been given;
b)there was no affidavit or other evidence in support of the adjournment application;
c)the application as to the substantive merits was seriously flawed for reasons outlined in the first respondent’s outline of submissions on the application, and submissions in respect of the application in a case; and
d)the affidavits that had been filed yesterday were “hopeless” and dealt, impermissibly, with matters of merit and are irrelevant to the judicial review application.
He therefore opposed the adjournment.
Before leaving the history of the litigation of this matter, the Court records the fact that it is grateful to Mr Shuli for his professionalism and frankness, and the proper concession of factual matters relating to errors made by the firm of which he is a partner, but, which on the face of it, he personally is not responsible for, but which he has endeavoured to deal with under very difficult circumstances not of his own making.
Adjournment principles
Any application for adjournment must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Magistrates Act 1999 (Cth)[10] and the FMC Rules, as prescribed by the objects of the FM Act[11] and the objects of the FMC Rules,[12] provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
[10] “FM Act”.
[11] FM Act, ss.3 and 42.
[12] FMC Rules, r.1.03.
The Court must also take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.[13]
[13] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and paras.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
Consideration
In relation to the current application for adjournment the Court observes that:
a)the application was made orally, in Court, when the application in a case to set aside the orders of 5 September 2011 was called;
b)there is no written application in a case, no affidavits tendered in support, or any outline of submissions, in relation to the adjournment application;
c)it would appear, because it is not disputed, that the first respondent was given notice sometime yesterday that an application for adjournment was to be made today, but with no indication given as to why;
d)the applicant has not completed all steps which were ordered to be completed by 12 September 2011, in that she has failed to file an outline of contentions of fact and law in relation to the application in a case to set aside the orders of 5 September 2011, and that failure is not explained;
e)in the circumstances set out above the fact that Mr Chelvathurai and Mr Lindsay are overseas affords, of itself, no reason to adjourn the application in a case;
f)there is continued prejudice to the first respondent by reason of continual delays, and although in part that prejudice can be overcome by a further order for costs, there is also prejudice to the proper administration of the visa scheme established under the Migration Act1958 (Cth). That prejudice needs to be balanced against the right of the applicant to apply for judicial review in relation to a decision of the Tribunal, and the right to have that matter heard and determined by this Court;
g)for a relatively straightforward matter, which was listed for hearing and subsequently delayed by an application having to be made to set aside, to now have further delay by adjourning the application to set aside is arguably contrary to the objects for which the Court was established, in that these proceedings are becoming protracted and are not being resolved justly, efficiently or economically; and
h)it flows from the above that this matter is involving a wastage of public resources, undue delay, and, in this Court and for this type of matter, is not in accordance with proper principles of case management.
Ultimately, however, the doing of justice between the parties, having regard to the legislative purpose or object, must be considered. Further, informality in the exercise of judicial power, is no warrant for a failure to exercise judicial power where it ought to be exercised.
The interests of justice, and the administration of justice, are not advanced by the maintenance of unmeritorious cases in this Court’s lists. It is apparent that in this case there is a serious question as to whether the applicant can establish jurisdictional error by the Tribunal in relation to the Visa application, essentially for reasons set out in the applicant’s submissions on the application and the application in a case. The Court notes that there are no countervailing submissions on behalf of the applicant to suggest that there is merit in the substantive application. The Court also notes that the failure to file submissions has made it more difficult for any lawyer who has not been involved in the matter, or who has no particular migration law expertise, to take the matter on at short notice.
The interests of justice and the administration of justice require consideration of two further matters in this case, namely:
a)that the applicant’s present position is as a consequence of the conduct of the proceedings by her lawyer; and
b)if the application in a case is to be argued today, it will be argued by a lawyer without any expertise in the subject matter to which the merits of the substantive application relate, namely migration law and judicial review of Tribunal decisions.
There is a long line of authority that suggests, other than in the most egregious circumstances, that a litigant ought not be disadvantaged by the conduct of her lawyer.[14] This case can be said to fall very close to fitting within the description of egregious circumstances. However, in this case, the applicant is a foreign national, non-English speaking, elderly and infirm, who is assisted by relatives who also appear to be, largely, non-English speaking and who, at least according to the Tribunal Decision, are not in a position to offer her significant personal caring assistance. Those are particular matters which must be weighed in favour of the applicant in relation to the application for adjournment of the application in a case, where the necessity for the adjournment arises from the fault of the applicant’s lawyer.
[14] See, for example, Crimson SRL at paras.19-21 per Riley FM, citing Collins Book Depot Pty Ltd v Bretherton [1938] VLR 40 at 44 per Martin J, and Kostokanellis v Allen [1974] VR 596 at 607 per Gowans, Crockett and Harris JJ (the latter relating to non-appearance of a solicitor as a consequence of which judgment was entered); and the extensive discussion in Transport Workers Union v School Bus Contractors Pty Ltd (2011) 201 IR 327 at 343-344 per Lucev FM; [2011] FMCA 28 at paras.55-67 per Lucev FM (and the cases there cited).
The Court ought be very reluctant, and indeed has come to the view that it would be improper to force Mr Shuli to argue a matter in respect of which he admits, and quite properly so, that he has no knowledge or expertise, and in which he has never practised. Unlike Counsel at the bar who do it for a living, a lawyer practising in a small firm as a solicitor, cannot be expected (particularly in the absence of the submissions which were ordered to be filed), to suddenly pick up and traverse a specialist area of law, especially before a Court, and an opponent, familiar with and experienced in the mores of migration law and judicial review as it applies to the Tribunal Decision. Forcing a lawyer who does not have competency in this area to argue the matter is not in the interests of justice.
Very reluctantly, and after anxious consideration following the adjournment earlier this morning, the Court has determined, having regard to all of the above factors, but in particular the two matters outlined immediately above, that it is in the interests of justice to adjourn this matter to 10.15am on 18 October 2011. The Court would not expect any application for adjournment to be made by the applicant at that time. At least some of the prejudice to the first respondent caused by the adjournment of the application in a case can be made up for in costs.
The Court adds that in its preliminary view it would be inappropriate, in the circumstances, if either Mr Lindsay or Mr Chelvathurai appeared to argue the matter on 18 October 2011. It is their conduct, and especially that of Mr Chelvathurai, which will be the subject of argument in relation to both the application in a case and costs.[15]
[15] See, for example, the whole of Mr Chelvathurai’s affidavit filed 12 September 2011, which includes emails from Mr Lindsay to the migration agent: see Attachments AC2 and AC3. As to Counsel and solicitors not appearing as a witness in proceedings in which they are engaged in those roles, see Richardson v Leonard Cohen & Co [2007] FMCA 78 at footnote 19 per Lucev FM where the Court said “The practice of solicitor also appearing as counsel in circumstances where the solicitor/counsel has sworn an affidavit, or is likely to have to give evidence, is not one to be encouraged. The difficulties that may arise are many, and ought to be manifest”. See also Sheahan & Le Poidevin Industries Pty Ltd v Northern Australian Land and Agency Co Ltd & Ors (unreported, Supreme Court of South Australia, Perry J, 4 February 1993) at paras.3-18 (“Sheahan No.1”); Pittorino v Meynert & Ors [2001] WASC 245 at paras.7-10 per Bredmeyer M; Justice DA Ipp “Lawyers’ Duties to the Court” (1998) 114 LQR 63 at 92; Morien v Johnston [2006] FMCA 1918 at para.54 per Lucev FM; and Sheahan & Le Poidevin Industries Pty Ltd (in Liquidation) v Northern Australian Land and Agency Co Ltd & Ors (unreported, Full Court of Supreme Court of South Australia, 6 April 1994) at paras.36-43 per Olsson J, in which case the Full Court dismissed an appeal against the judgment in Sheahan No. 1.
Conclusion
Consideration of the above factors has led the Court to the view that it is appropriate, in the interests of justice, that there be an adjournment of the application in a case to 10.15am on 18 October 2011.
In the circumstances, the Court considers that the first respondent’s costs of the adjournment application, and the costs thrown away in relation to the application in a case ought to be paid, subject to two questions:
a)whether the costs ought be more than the prescribed schedule of costs for a migration matter,[16] and if so, how much those costs ought to be, and whether indemnity costs ought be awarded;[17] and
b)who ought pay the costs, and in particular, whether the costs ought to be paid by Mr Chelvathurai personally.
The questions as to costs ought be adjourned to the hearing of the application in a case, to be heard in conjunction with the application in a case.
[16] Bunnag v Minister for Immigration & Anor (No 2) [2008] FMCA 430 at paras.5-19 and 46-54 per Lucev FM provides an example of where costs in a migration matter were increased from the then prescribed fee of $5,000 to $10,000.
[17] Genovese v BGC Construction Pty Ltd (No 2) [2007] FMCA 601 at paras.47-48 per Lucev FM sets out the law and principles to be applied in respect of indemnity costs.
There will be orders in the following terms:
a)the application in a case be adjourned to 10:15am on 18 October 2011; and
b)the question of costs be reserved for further argument as to quantum and who ought to pay the costs of the first respondent in respect of the adjournment application, and the costs thrown away of the application in a case.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 4 October 2011
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