DXT17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1022
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1022
File number: MLG 1896 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 3 November 2023 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for an adjournment made by the applicant’s representative – application opposed – matter listed for hearing of an interlocutory application – application for adjournment granted. Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Division: Division 2 General Federal Law Number of paragraphs: 19 Date of hearing: 3 November 2023 Place: Perth Counsel for the Applicant: Mr A Healer Solicitor for the Applicant: Legoll Lawyers Counsel for the First Respondent: Mr A Gardner Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1896 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The hearing listed on 8 November 2023 be vacated.
2.The matter be listed for a final hearing before Judge Kendall in Perth (via video link to Melbourne) on 8 March 2024 at 3.00pm (AEDT) / 12.00pm (AWST).
3.Written reasons to be published from Chambers at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
This matter was listed before the Court for the hearing of an interlocutory application for an adjournment at 2.00pm (AEDT) / 11.00am (AWST) on 3 November 2023.
Having heard from the parties, the Court ultimately made the following orders:
1.The hearing listed on 8 November 2023 be vacated.
2.The matter be listed for a final hearing before Judge Kendall in Perth (via video link to Melbourne) on 8 March 2024 at 3.00pm (AEDT) / 12.00pm (AWST).
3.Written reasons to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 3 above. They explain why the Court granted the interlocutory application for an adjournment.
BACKGROUND
On 9 August 2023, my Chambers notified the parties that the matter had been listed for a directions hearing on 8 September 2023 to program the substantive application to hearing.
On 25 August 2023, a notice of address for service was filed by Ms Khan (from Legoll Lawyers) advising the Court that she had been appointed to represent the applicant in this matter.
On 8 September 2023, the parties appeared before this Court (by telephone) at the directions hearing (referenced at [4] above). Ms Khan appeared by telephone (on behalf of the applicant). Ms Nirmaleswaran (from Mills Oakley Lawyers) appeared by telephone (on behalf of the first respondent (the “Minister”)). After a short discussion with the parties, orders were made at that directions hearing which included listing the matter for a final hearing of the substantive application on 8 November 2023 at 3.30pm (AEDT) / 12.30pm (AWST) by video link to Melbourne.
On 25 October 2023, Ms Khan emailed my Chambers advising as follows:
I refer to the above matter in which I act for the Applicant. The matter is listed for a final hearing on 08 November 2023. The Applicant is seeking to have the hearing to be adjourned.
I confirm that I have sought the Minister’s consent to the adjournment, however such adjournment request is opposed.
On that basis, I am seeking for the matter to be listed urgently for an application for an adjournment to be made by the Applicant. I await your urgent response.
Also on 25 October 2023, Mr Gardner (for the Minister) emailed my Chambers, as follows:
In light of the applicant’s adjournment request, we respectfully seek to be excused by his Honour from compliance with order 4 of the orders made by Registrar Allaway on 2 May 2018. That order requires the Minister to file written submissions 14 days before the hearing (being today).
We are regrettably not in a position to comply with this order in circumstances where the applicant has not filed his submissions and where the parties have been engaged in discussions regarding this adjournment request and a potential variation to the timetabling orders.
Later that day (also on 25 October 2023), my Chambers advised the parties that the matter had been listed for an interlocutory hearing (via video link) to discuss the adjournment request and to address any amendments to the programming orders (if needed). The interlocutory hearing was scheduled to take place on 3 November 2023 at 2.00pm (AEDT) / 11.00am (AWST).
On 2 November 2023, an affidavit was deposed and filed by Ms Khan in support of the adjournment request (the “Khan affidavit”). That affidavit relevantly provided as follows:
1.I am the Principal Solicitor at Legoll Lawyers and I have the care and conduct of the above proceedings on behalf of the Applicant. I make this Affidavit from my own knowledge and belief, save as to where otherwise indicated.
2.On 25 August 2023, I received instructions to act for the Applicant. At the time of receiving instructions, my client had in his possession a copy of the application that was made in this proceedings together with part of the decision made by the Immigration Assessment Authority dated 15 August 2017.
3.I was instructed that my client’s complete file was in the possession of a migration agent, details of whom were provided to me. I subsequently became aware that this migration agent, whilst instructed by my client, had not filed a notice of address for service on behalf of the Applicant and was not on record as my client’s representative.
4.I received instructions from my client to obtain a copy of my client’s file from the agent. Despite several requests, the agent has failed to provide to our office the complete copy of our client’s file.
5.My client was subsequently able to procure partial copy of his full file and has since handed the same to my office.
6.In addition to obtaining my client’s full file, my client’s financial circumstances limited my client’s ability to arrange funding to our firm to enable our firm to continue to act. Given the uncertainty in whether my client would have been able to secure funding for the upcoming hearing, I was unable to brief counsel in the matter. My client has now been able to secure funding for his legal costs and on that basis, I was only able to brief counsel on or around 20 October 2023.
7.The matter has been on foot for a considerable period of time, and the Court Book is in excess of 500 pages. My client, who requires an interpreter, drafted the original application personally. Given the volume of materials required to be considered, and to properly consider and prepare for the matter, it was apparent that I and the counsel will not be in a position to properly prepare for the hearing listed for 08 November 2023. It appeared to me that my client had not had the benefit of proper legal advice during the course of his matter.
8.The issues in dispute are of utmost importance to my client. I consider that fairness requires his case be adequately prepared with the benefit of professional representation.
9.My client's capacity to read, write and speak in English is limited. He requires an Interpreter.
10.On the basis of the above, I seek that the hearing date of 08 November 2023 be vacated and the matter to be re-listed for the next available date. I also seek updated orders in relation to the filing of the relevant documents in this proceedings.
The Court needs to be satisfied that it is in the interests of the administration of justice for an adjournment to be granted. If the Court is satisfied that an adjournment is necessary to ensure that there is a just resolution of the proceeding then it may exercise its discretion to grant an adjournment.
When determining whether or not an adjournment should be granted, the following factors are considered:
(a)the evidence in support of the adjournment request and the explanation for the adjournment;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
(See: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
When the matter came before the Court (on 3 November 2023), Mr Healer of counsel appeared on behalf of the applicant. Mr Gardner (from Mills Oakley Lawyers) appeared on behalf of the Minister.
The Court confirmed with the parties that it had before it the Khan affidavit (detailed above at [10]). That affidavit was taken as read and in evidence.
Mr Healer sought to rely on the contents of the Khan affidavit and explained to the Court that, in order to properly and meaningfully prepare for and participate in a hearing, “more time was required to prepare and lodge an amended application and submissions”. Mr Healer noted that his instructing solicitor (Ms Khan) had only come on the record at the end of August and stressed the importance of the proceeding to the applicant.
Mr Gardner advised that his instructions were to oppose the adjournment request for the following reasons:
(a)the application has been on foot for over six years;
(b)the applicant’s solicitor came on the record in August; and
(c)Ms Khan appeared at the directions hearing held in early September and was therefore aware of the due dates for the filing of materials.
Having considered the oral submissions provided and the contents of the Khan affidavit, the Court ultimately determined that the hearing of the substantive application ought to be adjourned for the following reasons:
(a)the delay in this matter has not been due to any fault of the applicant;
(b)the applicant appointed a legal representative soon after being notified of the directions hearing that had been listed in this matter;
(c)the matter is complex and requires careful consideration by counsel;
(d)neither party had filed any materials to allow the matter to proceed to hearing on 8 November 2023; and
(e)there would be no prejudice to the Minister that could not be ameliorated by way of a costs order.
For the reasons outlined above, the hearing on 8 November 2023 was vacated and the matter re-listed for hearing on 8 March 2024.
CONCLUSION
In the circumstances, the Court made orders granting the application for an adjournment, as outlined at [2] above.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 November 2023
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