Du v Minister for Immigration and Anor (No.2)
[2011] FMCA 806
•23 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DU v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2011] FMCA 806 |
| MIGRATION – Migration Review Tribunal – judicial review application – other family carer visa - application to set aside dismissal order. |
| PRACTICE AND PROCEDURE – Application to set aside dismissal order – factors. |
| WORDS AND PHRASES – “able”. |
| Federal Court of Australia Act 1976 (Cth), s.31A Federal Magistrates Court Rules 2001 (Cth), r.13.03C(1), Schedule 1, Part 2, cll.1(b) and (c) Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.15AA(1)(f) |
| Collins Book Depot Pty Ltd v Bretherton [1938] VLR 40 Crimson SRL & Anor v Claudia Shoes Pty Ltd & Ors (No.6) [2008] FMCA 108 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Du v Minister for Immigration & Anor [2011] FMCA 753 Ibrahim v Highline & Ibrahim v Worken Pty Ltd [2008] FMCA 1146 Kankanamage v Minister for Immigration and Multicultural Affairs & Anor (2006) 151 FCR 186; [2006] FCA 484 Kostokanellis v Allen [1974] VR 596 Minister for Immigration & Multicultural & Indigenous Affairs v Hettiarchchige [2005] FCA 37 Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521 TWU v School Bus Contractors Pty Ltd (2011) 201 IR 327; [2011] FMCA 28 Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 Xiang v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 301; [2004] FCAFC 64 |
| The Concise Oxford Dictionary (7th Edn) (Oxford: Clarendon Press, 1982) The Shorter Oxford English Dictionary on Historical Principles, Volume I (Oxford: Clarendon Press, 1973) |
| 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: | 18 October 2011 |
| Date of Last Submission: | 18 October 2011 |
| Delivered at: | Perth |
| Delivered on: | 23 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Cameron |
| Solicitors for the Applicant: | iLaw Barristers and Solicitors |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The following orders made by the Court on 5 September 2011 be set aside:
1. The application be dismissed pursuant to Rule 13.03C(1) of the Federal Magistrates Court Rules 2001 (Cth).
2. The applicant pay the respondent’s costs in the sum of $6,240 within 14 days.
That the first respondent’s costs be paid by Mr Chelvathurai personally in the sum of $12,486 by 2 December 2011.
The matter be adjourned to a directions hearing at 3.15pm on 2 December 2011.
| 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
Introduction
This matter involves an amended application in a case filed by the applicant on 13 October 2011. The original application in a case was filed on 12 September 2011. The amended application in a case seeks to set aside the orders made by this Court on 5 September 2011, which orders were in the following terms:
1. The application be dismissed pursuant to Rule 13.03C(1) of the Federal Magistrates Court Rules 2001 (Cth).
2. The applicant pay the respondent’s costs in the sum of $6,240 within 14 days.[1]
[1] “5 September 2011 Dismissal Orders”.
The applicant also seeks an order that the applicant’s solicitors pay all costs occasioned by the amended application in a case and the costs thrown away by the adjournment of the hearing of the application in a case on 25 September 2011.
The application which was dismissed by the 5 September 2011 Dismissal Orders was an application for judicial review by this Court[2] of a Migration Review Tribunal[3] decision[4] which affirmed a decision by a delegate of the first respondent to refuse to grant the applicant’s grandson an Other Family (Migrant) (Class BO) Subclass 116 (Carer) visa.
[2] Migration Act1958 (Cth), s.476 (“Migration Act”).
[3] “Tribunal”.
[4] “Tribunal Decision”.
The 5 September 2011 Dismissal Orders were made in the absence of the applicant, whose solicitors attended Court following the making of the 5 September 2011 Dismissal Orders. The Court subsequently made orders for the filing and service of any application to set aside the 5 September 2011 Dismissal Orders, and related matters.[5]
[5] “5 September 2011 Further Orders”.
On 29 September 2011 this Court delivered Reasons for Judgment[6] in relation to an application made by the applicant on 29 September 2011 to adjourn the hearing of the application in a case, which had been listed for hearing on that day in the 5 September 2011 Further Orders. The following orders were made on 29 September 2011:
1.That the application in a case be adjourned to 10.15am on 18 October 2011.
2.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.
[6] Du v Minister for Immigration & Anor [2011] FMCA 753 (“Du (No 1)”).
In Du (No 1) the Court set out the litigation history of the matter to 29 September 2011.[7] That history is to be taken to be incorporated as part of these Reasons for Judgment.
[7] Du (No 1) at paras.4 -23 per Lucev FM.
On 14 October 2011 the applicant filed proposed amended grounds of application for review.[8]
[8] “Proposed Amended Grounds”.
The Proposed Amended Grounds are as follows:
The Tribunal fell into jurisdictional error when:
1.it held that the visa applicant was not “a person who is suitable or fit” to provide the assistance required by the Applicant.
Particulars
1.1The Tribunal was required under r.1.15AA(1)(f) of the Migration Regulations 1994 (Cth) to determine whether in order to qualify as a “carer” the visa applicant was “willing and able” to provide the substantial and continuing assistance of a kind required by the review applicant in attending to the practical aspects of her daily life.
1.2The Tribunal found that the visa applicant was “willing” to provide the assistance.
1.3It was then required to determine whether he was “able” to provide the assistance.
1.4In substituting in its reasons the words “suitable or fit” for the word “able” in the regulation the Tribunal placed an impermissible gloss on the test provided by the statute, and imposed a different test from that which the statute required.
2.It held that the visa applicant’s limited English would have the consequence that he would not be able to communicate sufficiently in English to provide the assistance required by the review applicant.
Particulars
2.1The Tribunal was required to determine whether the visa applicant as carer was willing and able to provide to the review applicant the substantial and continuing assistance she required in attending to the practical aspects of daily life.
2.2The visa applicant was not required to satisfy the Tribunal that he would be able unassisted to provide such assistance notwithstanding difficulties in expressing himself in English in hypothetical emergencies, and other circumstances not occurring in daily life.
3.It “formed the view” that the visa applicant’s wife would more than likely take on a major part of the caring responsibilities with the consequence that the visa applicant was not “able” to provide assistance.
Particulars
3.1Even if the evidence were to support such a finding, the division of daily tasks between the visa applicant as carer, and his wife, who is willing to assist, is a consideration irrelevant to the test of whether the visa applicant is “able” to provide the daily assistance needed by the review applicant with the practical aspects of daily life.
3.2In determining whether the visa applicant was “able” to provide the assistance required by the Tribunal was required, and failed to have regard to the relevant consideration being the assistance available to him as carer from other family members, including his wife.
4.It held that the informal arrangement under which the review applicant’s adult children would provide financial assistance to the visa applicant was not sustainable taking into consideration Mr Gordon Du’s “being in debt to the extent of over one million dollars”, and so took into account an irrelevant consideration.
Particulars
4.1Mr Gordon Du’s evidence in relation to debt was in the context of his not being in a position to walk away from his profession as an accountant in order to take care of his mother. It was limited to his ability and willingness himself to assume the responsibility of carer.
4.2It was not put to him by the Tribunal that indebtedness also affected his ability to contribute to the care of his mother, the review applicant, by providing financial assistance to the visa applicant.
4.3His willingness, and that of other family members, including his brother, to provide financial assistance to the visa applicant rendering him “able” to assist the review applicant was not put to Mr Gordon Du by the Tribunal.
4.4It was not put to the review applicant, and those assisting her, that the ability and willingness of family members to provide financial assistance to her through her the visa applicant as her carer was a matter of concern to the Tribunal, and might form the basis, or part of a reason for affirming the delegate’s decision. This was not raised as an issue in the hearing.
5.In forming an “impression” that the applicant would seek employment, either by preference or by necessity, in the circumstances of the case, when it was not put to the visa applicant that he would prefer employment to looking after his elderly grandmother, the review applicant, or would be required to seek employment out of financial necessity.
Particulars
5.1Even if the evidence were sufficient to support such an “impression”, this would not have the consequence that the visa applicant would not be “able” to provide the assistance required by the review applicant when aided by his wife.
5.2In determining whether the visa applicant was “able” to provide the assistance required under the Regulation the Tribunal was obliged to take into consideration the aid provided by his immediate family, who would be living with the review applicant, as well as other family members.
5.3It was not put to the visa applicant that he might prefer outside employment to caring for his grandmother and that this was an issue which might form part of the part of the reason for affirming the decision under review. This was not raised as an issue by the Tribunal.
Submissions
The first respondent neither consents to nor opposes the amended application in a case, but submits that the bases on which this Court might set aside orders previously made, where the orders were made in the absence of a party, are set out in Singh v Official Trustee in Bankruptcy & Anor.[9] They are:
a)that there is an adequate reason for the non-appearance;
b)that there is no delay in making the application to set aside;
c)whether the party in whose favour orders have been made would be prejudiced by a new hearing in respect of which it could not be adequately compensated by a suitable award of costs or the giving of security; and
d)that there is an arguable case on the merits of the substantive application.[10]
[9] [2008] FMCA 521 (“Singh”).
[10] Singh at para.19 per Lucev FM.
The first respondent, notwithstanding its “neutral” position, nevertheless made submissions on factual matters relevant to each of the above factors. The applicant did not demur from the first respondent’s submissions as to the bases for setting aside the orders previously made by this Court, and addressed in turn each of those factors in her submissions.
Reasons for non-appearance
The applicant submits that:
a)Mr Chelvathurai, the partner in the firm[11] with responsibility for the conduct of this matter on behalf of the applicant, accepted that his firm “is at fault on the delay and the administrative tardiness in the conduct of the matter”;[12]
b)the applicant’s solicitors accept responsibility for the failure to appear at the hearing in timely fashion on 5 September 2011, and for the failure to comply with the provisions of the consent order signed off by them on behalf of the applicant on 9 June 2011[13] which identified the hearing date and time as “10.30am on 5 September 2011”, and which also provided for the filing of any amended application, any further affidavits and an outline of submissions;[14]
c)there is no evidence to support any suggestion that the applicant (an elderly Vietnamese lady, with limited English and in poor health) was or could have been aware of the deficiencies of her solicitors upon whom she relied;
d)a party labouring under considerable disabilities should not be disadvantaged by deficiencies in the conduct of their legal representative of which they have no knowledge;[15] and
e)even where a solicitor’s non-appearance may be a deliberate and misguided tactic, responsibility should not necessarily be sheeted home to the solicitor’s client.[16]
[11] “iLaw”.
[12] Affidavit of Mr Chelvathurai, sworn 12 September 2011, para. 13 (“Mr Chelvathurai’s Affidavit”).
[13] “9 June 2011 Orders”.
[14] Mr Chelvathurai’s Affidavit, para.13.
[15] Citing Singh at para.20 per Lucev FM.
[16] Citing Crimson SRL & Anor v Claudia Shoes Pty Ltd & Ors (No 6) [2008] FMCA 108 at para.22 per Riley FM (“Crimson SRL”).
The first respondent submits that:
a)in Ibrahim v Highline & Ibrahim v Worken Pty Ltd[17] this Court held that a reason need only be “adequate”, that is, “sufficient” or “suitable”;[18]
[17] [2008] FMCA 1146 (“Ibrahim”).
[18] Ibrahim at para.13 per Lucev FM.
b)Mr Chelvathurai attests that iLaw had scheduled the substantive hearing to be on the 5 December 2011 due to an “administrative oversight”, but Mr Chelvathurai also attests that he received a telephone call from the Court on the morning of the hearing reminding him of the hearing;[19]
[19] Mr Chelvathurai’s Affidavit, paras.9 and 11.
c)it has considerable reservations that in circumstances where an applicant is represented at all material times by:
i)a migration agent;
ii)a solicitor; and
iii)Counsel experienced in migration cases,[20]
[20] Mr Lindsay, a Counsel experienced in migration cases, was originally briefed to conduct the matter for the applicant at hearing: Mr Chelvathurai’s Affidavit, para.3. Mr Lindsay was apparently being briefed “directly” by a migration agent who was involved in the matter: Mr Chelvathurai’s Affidavit, paras.3, 7 and 8. The Court suggested in Du (No 1) that it would not be appropriate for Mr Lindsay to appear on the adjourned hearing of the applicant’s application in a case: Du (No 1) at para.33 per Lucev FM.
that the applicant was unaware of the hearing date of 5 September 2011, particularly as the applicant had:
iv)received a copy of the 9 June 2011 Orders identifying the date of hearing as 5 September 2011;
v)received a separate Notice of Listing of the hearing date of 5 September 2011; and
vi)received an outline of submissions from the first respondent.
d)there is no attempt to explain the failure to comply with the requirement in the 9 June 2011 Orders to file any amended application, any further affidavits and an outline of submissions;
e)the evidence contained in Mr Chelvathurai’s Affidavit indicates, at the very least, a cavalier attitude to this litigation on the part of the applicant’s migration agent and legal representatives, but it is nevertheless the case that ordinarily a party ought not be disadvantaged by the negligent or careless conduct of their legal representatives;[21] and
f)notwithstanding the above reservations, the first respondent did not express a view as to whether or not the applicant has presented an adequate reason for the non-appearance.
[21] Citing Singh at para.20 per Lucev FM.
The Court accepts that the applicant herself did not know of the 5 September 2011 hearing date, and that this is a relevant consideration because she is a relatively elderly Vietnamese-speaking person with little or no written or spoken English. In those circumstances, she might not necessarily have been aware, or been made aware, of the import of any documents forwarded to her, and, in any event, should not be prejudiced by the negligent or incompetent acts of her solicitors.
The applicant has attempted to characterise the solicitors’ default in these proceedings as an administrative error by the solicitors. There is no doubt that it was certainly an administrative error, and a very serious one. Having regard to the observations by the Court in Du (No 1)[22] it is however arguably more than just a serious administrative error. There was a failure by the solicitors on the record to conduct the matter professionally, and it was seemingly left to be dealt with by a migration agent.[23] It is unnecessary to set out the detail of the contact between the applicant’s solicitor, Counsel who was briefed on behalf of the applicant, seemingly directly by the migration agent, and the migration agent. It suffices to observe that the applicant’s solicitors did not act in accordance with their professional responsibilities as the solicitors on the record in this Court. Furthermore, it is arguable their conduct was negligent, and the Court notes that whilst the hearing date may have been recorded incorrectly from the 9 June 2011 Orders, there has been no explanation forthcoming as to the failure to file any amended application, any further affidavits or an outline of submissions in accordance with the timetable scheduled in the 9 June 2011 Orders. The applicant’s solicitors’ conduct may also have been dishonest.[24] It is, however, unnecessary to make any findings with respect to those issues, and sufficient to proceed on the basis that there was a very serious administrative error by the applicant’s solicitors. That is because it is clear that the prejudice suffered by the applicant, namely the dismissal of the application with an order as to costs, is solely the responsibility of the applicant’s solicitors, and in particular Mr Chelvathurai. So much is candidly admitted, and quite properly so, by newly retained Counsel for the applicant.[25]
[22] And particularly at Du (No 1) at paras.12-13 per Lucev FM.
[23] Du (No 1) at para.12 per Lucev FM; Mr Chelvathurai’s Affidavit, paras.2-3, 5-8, and 10.
[24] Du (No 1) at para.13 per Lucev FM.
[25] Transcript, 18 October 2011, page 5.
The principles applicable where there is a failure to appear at hearing by reason of a solicitor’s default, resulting in orders for dismissal issuing which are subsequently sought to be set aside, are generally that the party whose solicitor’s conduct has caused the default is not penalised to the extent of being shut out from litigating their claim.[26]
[26] Kostokanellis v Allen [1974] VR 596 at 607 per Gowans, Crockett and Harris JJ, citing with approval Collins Book Depot Pty Ltd v Bretherton [1938] VLR 40 at 44 per Martin J and Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243 per Jordan CJ. See also Crimson SRL at paras.19-22 per Riley FM. See also the discussion in TWU v School Bus Contractors Pty Ltd (2011) 201 IR 327 at 343-344 per Lucev FM; [2011] FMCA 28 at paras.58-67 per Lucev FM where similar principles were applied in respect of a default related to an application to extend time (and cases there cited).
Therefore, in this case, where the evidence does not disclose that the applicant was aware of any of the errors or incompetence by her solicitors, and bearing in mind her personal circumstances and the, at least, very serious administrative error by her solicitors, the Court is of the view that the reason for non-appearance resulting in the making of the 5 September 2011 Dismissal Orders is an adequate one, namely, the default of the applicant’s solicitors.
Delay in making an application to set aside
The applicant submits that:
a)her solicitors promptly filed an application to set aside the 5 September 2011 Dismissal Orders by filing the application in a case and supporting affidavit on 12 September 2011; and
b)the period of seven days between the making of the 5 September 2011 Dismissal Orders and the filing of the application in a case and supporting affidavit was not excessive in the circumstances.
The first respondent submits that the applicant has complied, in part, with the 5 September 2011 Further Orders insofar as an application has been made and is supported by an affidavit. The first respondent notes, however, that the applicant has not filed and served an outline of contentions of fact and law as required by the 5 September 2011 Further Orders, but concedes that failing to do so is more relevant to a consideration of the merits of the case, rather than indicative of delay.
In the Court’s view there has been no delay in filing and serving the application to set aside, as it was filed and served:
a)within 7 days; and
b)in accordance with the 5 September 2011 Further Orders.
The failure to file and serve an outline of contentions of fact and law is not relevant to this factor which has, as its essence, the making of the application to set aside, and not compliance with ancillary orders.
Prejudice to the first respondent
The first respondent concedes there is no prejudice to it which could not be compensated by a suitable award of costs.
The applicant agrees that those costs are payable by her solicitors.
In the circumstances, it cannot be said that there is any relevant prejudice to the first respondent.
Arguable case on the merits of the application
The applicant submits that:
a)she must satisfy the Court that her application prima facie shows merit if her application is to succeed;[27] and
b)the Proposed Amended Grounds identify a prima facie case of jurisdictional error on the part of the Tribunal.
[27] Crimson SRL at paras.29-39 per Riley FM; Singh at para.19(d) per Lucev FM.
The first respondent submits that:
a)it has been previously held by this Court that justice is the paramount consideration in determining whether a party should be shut out from litigating an issue if that issue is fairly arguable;[28]
b)the fundamental problem with the application was that the applicant failed to identify the merits of her application with any degree of particularity;
c)there are no merits to the grounds of review identified in the application for the reasons set out in the first respondent’s outline of submissions dated 31 August 2011 which, by reason of the applicant’s failure to file an outline of contentions of fact and law or an outline of submissions, remain unchallenged; and
d)the first respondent concedes that the applicant has now filed particulars in relation to the Proposed Amended Grounds, which overcome its objection to a lack of particularisation.[29]
[28] Ibrahim at para. 33 per Lucev FM.
[29] Transcript, 18 October 2011, pages 5-6.
An assessment of whether a case is arguable for present purposes requires a broad, rather than a narrow or pedantic approach.[30]
[30] Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at para.6 per Gilmour J (“Dandaven”). Although Dandaven was a matter concerning a summary dismissal application under s.31A of the Federal Court of Australia Act 1976 (Cth) the principle applies here where the effect of a refusal to set aside is the same, namely that the applicant might be shut out from proceeding in the litigation.
In the context of a regulation which provides that the applicant is to be “willing and able to provide to the resident substantial and continuing assistance of the kind needed”,[31] the Court considers that there is an arguable case that the Tribunal committed a jurisdictional error by using the words “suitable or fit” as a substitute for the word “able” in reg.1.15AA(1)(f) of the Migration Regulations. Whilst “able” can mean “suitable” or “fit”[32] it also has meanings capable of broader application, namely:
a)“[h]aving the qualification for, and means of, doing anything”;[33] and
b)“having the means or power (to)”,[34]
which give a broader reach to the concept of the ability of a person to do a thing than mere suitability or fitness. Those meanings of broader reach have not been the subject of judicial consideration in any relevant context.
[31] Migration Regulations 1994 (Cth), reg.1.15AA(1)(f) (“Migration Regulations”).
[32] The Shorter Oxford English Dictionary on Historical Principles, Volume I (Oxford: Clarendon Press, 1973), page 5; Kankanamage v Minister for Immigration and Multicultural Affairs & Anor (2006) 151 FCR 186 at 191 per Collier J; [2006] FCA 484 at para.23 per Collier J; Minister for Immigration & Multicultural & Indigenous Affairs v Hettiarchchige [2005] FCA 37 at para.50 per Kenny J; Xiang v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 301 at 303 per Goldberg, Finkelstein and Weinberg JJ; [2004] FCAFC 64 at para.7 per Goldberg, Finkelstein and Weinberg JJ.
[33] The Shorter Oxford English Dictionary on Historical Principles, Volume I (Oxford: Clarendon Press, 1973), page 5.
[34] The Concise Oxford Dictionary (7th Edn) (Oxford: Clarendon Press, 1982), page 2.
For similar reasons in relation to the other Proposed Amended Grounds and their particulars it may be arguable that the Tribunal focused on the ability of the visa applicant personally – that is alone and unaided – to provide the required assistance, rather than whether he had the means or power to provide the required assistance, which may, arguably, be a broader inquiry.
For present purposes the above considerations are sufficient to conclude that each of the Proposed Amended Grounds is at least arguable.
Costs
The applicant submits that:
a)if the order dismissing the substantive application is set aside the costs of that application should be reserved; and
b)the applicant’s solicitors accept that they should be ordered to pay the costs thrown away by the adjournment and the costs of the present application in a case.
The first respondent submits that:
a)as a consequence of the filing of the Proposed Amended Grounds the first respondent will be required to meet an entirely new case, and virtually all costs incurred to date are costs thrown away; and
b)even if the Court is minded to set aside the order dismissing the application, the first respondent contends that the costs order should not be set aside, but rather may be varied to provide for the first respondent’s costs to be paid by the applicant’s solicitor.
Consideration
Two issues arise with respect to costs:
a)which costs the applicant should be responsible for; and
b)who should be responsible for the costs, whether it is to be the applicant, the applicant’s solicitors generally, or Mr Chelvathurai personally.
In relation to the hearing on 5 September 2011, and the 5 September 2011 Dismissal Orders, there is no reason to change the applicant’s liability for the costs of that hearing, subject to the second issue of who specifically ought to pay those costs. The first respondent’s costs of the 5 September 2011 hearing, now thrown away by reason of the
5 September 2011 Dismissal Orders being set aside, were all the costs associated with a hearing which was scheduled to proceed, and which did proceed, to the making of an order of dismissal. The costs of that hearing ought not be reserved, as the costs were incurred by the first respondent who was prepared to argue the matter, and it is the default of the applicant’s solicitors which have caused those costs to be incurred, and which are now thrown away by reason of the
5 September 2011 Dismissal Orders being set aside. The applicant should, therefore, continue to bear liability for the 5 September 2011 hearing in the sum of $6,240, that being the sum provided for a migration proceeding concluded at final hearing under the FMC Rules.[35]
[35] FMC Rules, Schedule 1, Part 2, cl.1(c).
In relation to the hearing on 29 September 2011 there is no contest that the applicant ought to be liable for the costs of that hearing. The applicable sum for the costs of an interlocutory hearing after the first court date in migration proceedings is $3,123.[36]
[36] FMC Rules, Schedule 1, Part 2, cl.1(b).
The Court is also of the view that the applicant ought to be responsible for the costs of the 18 October 2011 hearing which has given rise to these Reasons for Judgment, and again there appears to be no dispute about that. It is the default of the applicant’s solicitors which has given rise to the necessity for the hearing of the application in a case to set aside, and the usual order would be for the applicant to pay those costs. In this case the liability of the applicant to pay those costs is reinforced by the filing of the particularised Proposed Amended Grounds just four days before the hearing of the application in a case. Again, the failure to deal with this matter more promptly lays at the feet of the applicant’s solicitors, for it was conceded that Counsel who prepared the Proposed Amended Grounds of appeal was briefed by the applicant’s solicitors very late. In those circumstances the applicant must bear liability for the costs of the interlocutory hearing on 18 October 2011 in the sum of $3,123.[37]
[37] FMC Rules, Schedule 1, Part 2, cl.1(b).
It is apparent from the Reasons for Judgment in Du (No 1),[38] and these Reasons for Judgment, that the applicant’s solicitors are at fault in relation to all of the matters which have given rise to the necessity for an application to set aside the 5 September 2011 Dismissal Orders, and for all of the events which led to the making of the 5 September 2011 Dismissal Orders. More particularly, Mr Chelvathurai was solely responsible, for he had the sole conduct of the matter, at least until shortly before 5 September 2011. Thereafter, it appears that Mr Shuli has had conduct of the matter, and subject to what is said above concerning the late briefing of Counsel in relation to the interlocutory hearing on 18 October 2011, it would appear that Mr Shuli has acted properly in relation to the matter, but that the costs incurred result from the initial failure of the applicant’s solicitors, for which Mr Chelvathurai bears sole responsibility.
[38] See paras.1-23 per Lucev FM.
The applicant personally bears no responsibility for the default by her solicitors in this manner.
In the circumstances, it is appropriate that the costs for which the applicant is liable in this matter be borne by Mr Chelvathurai personally, and there will therefore be an order that the first respondent’s costs in the sum of $12,486 be paid by Mr Chelvathurai personally.
Conclusion and orders
The Court has concluded that:
a)the 5 September 2011 Dismissal Orders ought to be set aside; and
b)the first respondent’s costs be paid by Mr Chelvathurai personally in the sum of $12,486 by 2 December 2011.
There will be orders accordingly, and the matter is otherwise adjourned to a directions hearing on 2 December 2011 at 3.15pm. In the interim the parties should confer as to appropriate directions to facilitate a hearing of the matter on 6 or 10 February 2012.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 23 November 2011
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