DZAAB and DZAAC v Minister for Immigration
[2011] FMCA 855
•21 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAB & DZAAC v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 855 |
| PRACTICE & PROCEDURE – Application to vacate hearing date – where substantive application made in April 2011 – where applicants were represented – where no further steps were taken – where applicants’ lawyers commenced communication with the court shortly before date fixed for hearing – consideration of law and practice – consideration of applicants’ situation as detained asylum seekers – commentary upon manner in which communications should be made with the court – commentary upon Minister’s failure to advise the court of transfer of applicants from detention in Darwin – reference of papers to Northern Territory Law Society. |
| M61/2010E v Commonwealth of Australia, Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 Wilson v Department of Human Services [2010] NSWSC 1489 1951 Convention Relating to the Status of Refugees and its 1967 Protocol Federal Magistrates Court Rules 2001 |
| Applicants: | DZAAB DZAAC |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File number: | DNG 7 of 2011 DNG 8 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 October 2011 |
| Date of last submission: | 21 October 2011 |
| Delivered at: | Sydney via video to Darwin |
| Delivered on: | 21 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr JB Lawrence SC |
| Solicitors for the Applicant: | Ward Keller |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Hearing dates vacated.
Matters restored for further directions on Friday 25 November 2011 at 10.15 AEST.
In the event that the applicants’ solicitors intend to cease to act they must file the requisite notices in accordance with the Rules no less than seven days prior to the directions hearing.
Unless the applicants are represented they be brought to the court at which a videolink will be established to Sydney for the directions hearing and an interpreter shall be provided to them at the first respondent’s expense.
Within three days of the dispatch of these Reasons by email to the parties the first respondent advise the court where these Applicants are situation and provide full contact details.
The applicants be provided by the first respondent with a translated copy of these Reasons within seven days of dispatch by the court, such translation to be provided at the first respondent’s expense.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 7 of 2011
DNG 8 of 2011
| DZAAB DZAAC |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
There comes before me today two applications to vacate a hearing date set down for 25 October 2011 and to file an amended application by 7 November 2011. The applications are supported by an affidavit of Gregory Vincent Phelps, a lawyer at Ward Keller Partners. The two hearings which the applicants, through their lawyers, seek to have adjourned are proceedings for judicial review of decisions made by an Independent Merits Reviewer that each applicant does not meet the definition of a refugee set out at Art.1A of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
The decisions in both of these cases are made by the IMR on 26 March 2011. Following the decision of the High Court of Australia in M61/2010E v Commonwealth of Australia, Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 decisions of an IMR have been susceptible of judicial review. On 29 April 2011 the applicants in both matters filed an application with this court in Darwin. There is no Federal Magistrate specialising in general federal law in Darwin and matters of that type, filed in the Darwin Registry, are handled by the Perth Registry. On 27 May 2011 Federal Magistrate Lucev attended at Darwin and made orders in both cases. Those orders required the respondents to file a bundle of relevant documents by 22 July 2011 (the Green Book) and set the case down for final hearing at 14:15 on
29 September 2011. Both cases were also put over until 31 May 2011 for a hearing as to the provision of an interpreter for the applicants. The provision of an interpreter was not to assist the applicants’ to make their case in court because both were represented by Messrs Ward Keller Lawyers, who filed the initial applications. The provision of interpreters was intended to assist the applicants in understanding the case that was being made on their behalf by their lawyers. That firm represented the applicants at the hearing before Lucev FM who delivered his decision on 10 June 2011. The effect of the decision was to require the Registrar of the court in the Darwin Registry to provide interpreters but the decision has no bearing on the matter before me today.
On or around 25 July 2011 the respondent provided the applicants with the relevant documents. The applicants did not file any amended applications or any evidence by 19 August 2011.
On 9 August 2011 the associate to Federal Magistrate Lucev advised the parties that the hearing dates of 29 September 2011 would be moved to 25 October and that they would be listed before me. Special arrangements were made by this court for a series of hearings to take place in Darwin on 24, 25 and 26 October 2011. Sending a Federal Magistrate to another Registry involves considerable expense and inconvenience. As the applicants were in Darwin and their lawyers were in Darwin the court readily accepted the obligation to have the matters heard there. It was understood that the applicants were in administrative detention and had been since their arrival in Australia in late March or April 2010.
On 3 October 2011 Messrs Ward Keller wrote to the associate to Federal Magistrate Lucev referring to these matters and one other. The relevant parts of the letter stated:
“These matters are all Legal Aid funded, and we have been facing significant difficulty obtaining counsel. We have had counsel recommended to us but for various reasons, we have not been able to obtain their service. We have contacted the Australia Government Solicitor (AGS), solicitors for the Respondents who do not oppose us seeking an adjournment to mutually suitable dates in November. We expect to have secured counsel and be ready proceed [sic] with hearing 3-4 weeks from the allocated dates.
If hearing dates are available, the week 21-25 November would be suitable for us. We respectfully request the court to adjourn the three hearing dates and provide us with suitable alternative dates which we can canvass with the AGS. We look forward to hearing from you.”
That letter was then attached to an email sent to my associate on 4 October by Mr Kadirgamar of Ward Keller. That email stated:
“Dear Susan and Andrew,
Further to our phone conversation, please find attached a letter with regards to file no.s DNG7/2011; DNG8/2011; and DNG14/2011, which are listed before FM Raphael on 25 and 26 October. Please note, the letter (which was sent to the NT Registry yesterday) is addressed to FM Lucev’s Chambers (before whom it was previously listed), but it is to be directed to FM Raphael. As explained in the letter, we are seeking possible adjournment dates 3-4 weeks after the current dates. Once we have a list of available dates, we will correspond with the Respondents to seek a consent order for the adjournment to a mutually suitable date. Thank you for your assistance and we look forward to hearing from you.”
On the same day my associate responded to that letter as follows:
“Dear Kevin Kadirgamar,
As I informed [you] during the referred to phone conversation, FM Raphael is on leave and returns on 7 October (this Friday). I will bring this request to his attention at that time.
However, I thought that I'd just signal at this point in time that we currently have listings throughout November. This may well affect FM Raphael's ability to hear the matters then. I will be in contact upon his return and consideration of the request.”
On 6 October 2011 my associate wrote to Mr Kadirgamar:
“Dear Kevin Kadirgamar,
If you wish to make a request for adjournment it should be done urgently in the proper manner. A copy of such an application should be sent to the respondent.”
“Urgently and in the proper manner” meant in compliance with R.4.08 of the Federal Magistrates Court Rules 2001 which deals with application to the court. That Rule is in the following form:
Application in a case
(1) An application in a case must be made in accordance with the approved form.
(2) In addition to the requirements in rule 4.05, the application must state:
(a)the name and address of the person making the application in a case; and
(b)the names and addresses for service of all persons affected by the order which is sought; and
(c)the names and addresses of the parties in the application filed for starting proceedings, as stated in that application.
(3)The application and supporting affidavit must be served on all persons against whom the order is sought, in accordance with Part 6.”
No application was received. But on 11 October 2011 my associate had a further conversation with Mr Kadirgamar, following which he wrote:
“Dear Kevin Kadirgamar,
I write following this afternoon's telephone conversation and the below correspondence (including my earlier reply of 6 October 2011).
The court wishes to inform that the reason that an application is required is because if an adjournment were to be granted there would be no dates available until late March 2012.”Although this email was sent on 11 October 2011 there was no response to it and no application was filed; instead, on 17 October a further email was received from Mr Kadirgamar sent originally to the Darwin Registry. This email read as follows:
“Good afternoon
Please find attached a letter and consent orders in our application to vacate the hearing date of 25 October 2011 for the above-mentioned matters listed before FM Raphael.”
The letter was dated 12 October 2011 but clearly not dispatched on that day. It stated as follows:
“Dear Sir/Madam
DNG7/2011;DNG9/2011;DNG14/2011
APPLICATION FOR ADJOURNMENT BY CONSENT
We refer to the above-mentioned judicial review matters listed before FM Raphael on 25 and 26 October 2011.
As noted in our letter dated 3 October 2011, these are legally aided matters.
After the directions hearing, we were guided by NT Legal Aid to engage interstate counsel recommended by them. We had significant difficulties engaging these counsel due to their availability. Their unavailability only came to our attention last week. We are now pleased to have obtained Senior Councel fro Darwin to act for our clients. However, due to the delay we find that we found it necessary to apply for an adjournment. After consulting with counsel and the Respondent, we identified November 22 and 23 would suit all parties. A letter requesting adjournment to a latter date was sent to the NT Registry and Chambers on 3 October 2011. However, we were informed by the Associate to FM Raphael on [sic] an email dated 11 October 2011 that if an adjournment were to be granted, there would be no dates until late March 2012.
Such a delay would cause significant difficulties for our clients who are in immigration detention. We have now decided to retain the 26 October hearing date for DZAAI (file no. DNG14/2011), who has been in immigration detention for nearly 24 months. We are requesting that the current hearing dates for the other two matters (DZAAB – file no. DNG7/2011; and DZAAC – file no. DNG 8/2011) be vacated and adjourned to the earliest available date.
We have liaised with Mary Hawkins of the Australian Government Solicitor who consents for the hearing dates to be vacated. Postponing the current hearing dates would give us sufficient time to prepare and act in the best interests of our clients.
Please give our application the due consideration. We look forward to receiving His Honour’s response.”
In response to the email from Mr Kadirgamar, my associate wrote on 18 October 2011:
“Dear Kevin Kadirgamar,
Applications in the Federal Magistrates Court, including [an] application to vacate a hearing date less than one week before the scheduled hearing (and where that hearing was set down some 5 months prior), are to be made in accordance with the rules of the court. In this case R.4.08 Federal Magistrates Court Rules.
You were advised of this requirement on 6 October 2011 and the court notes that you have not yet complied.”
On 19 October 2011 an application was received by this court together with an affidavit. The affidavit reads as follows:
"Name of Deponent: Gregory Vincent Phelps
Date Sworn/affirmed: 18/10/2011
I, Gregory Vincent Phelps of level 7 NT House 22 Mitchell Street Darwin, make oath and say:
1.I am a lawyer at Ward Keller Lawyers;
2.I have carriage of the matter of DZAAB (Applicant R R) (file no. DNG 7/2011), which is set for hearing before FM Raphael on 25 October 2011;
3.This matter is legally aided by the Northern Territory Legal Aid Commission. Following the initial directions hearing, we were guided by Legal Aid to engage their recommended Counsel from interstate to act on this matter. Whilst I made reasonable attempts to engage the recommended Counsel, we were not able to do so.
4.On 3 October 2011, we received a final confirmation that the Counsel recommended by Legal Aid were not available to act for our client. After communicating this to the Respondent, we obtained in principle support to seek an adjournment and it was agreed that we would request a list of suitable alternatives from the court;
5.On 4 October 2011, we sent a letter to the Court via the NT Registry and the Associate indicating our intention to apply for adjournment and requesting a list of suitable dates to canvass with the Respondent and Counsel.
6.On 11 October 2011, we successfully engaged Senior Counsel (John Lawrence SC) from Darwin who advised he would not be in a position to proceed on the set hearing date. On 11 October 2011, it was mutually agreed between us, Counsel and the Respondent that an alternative date in the week of 21 to 25 November 2011 would be suitable.
7.Despite enquiry from my office, the Associate to FM Raphael was not able to indicate as to whether the dates in November would be suitable for the Court and later suggested the only court dates available would be in March of 2012.
8.On 17 October 2011, after consultation with the Respondent’s lawyer, we completed and filed consent orders with a letter by email to the NT Registry.
9.On 18 October 2011, we were advised by the Associate to FM Raphael that an application in the appropriate form was needed with reference to R.4.08 of the Federal Magistrates Court Rules.
10.We file with this Affidavit an ‘Application in a case’ seeking for the hearing scheduled for 25 October 2011 to be vacated. We would be content for the orders subject of the ‘Consent Orders’ of 17 October 2011 to be made or alternatively to attend a directions hearing before the Court.
I know the fact deposed to herein of my own knowledge except where otherwise appears.”
Each application to vacate a hearing date should be considered upon its individual merits with due regard to the current law binding upon the decision maker. The relevant law has changed in recent years and the starting point is now the decision of the High Court in Aon Risk Services Australia v Australian National University (2009) 239 CLR 175. At [103] the majority Gummow, Hayne, Crennan, Kiefel and Bell JJ said:
“The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.”
The affidavit provided by Mr Phelps does not, to my mind, constitute satisfactory explanation for the application. It does not explain in any way what work was done to represent the applicant between the date upon which application was made, 29 April 2011, and the date upon which the adjournment was sought. It does not explain when counsel was first approached or give any details concerning the declining of a brief. One would have expected at the very least to see a paragraph detailing, if not the names of the barristers, the fact of an approach to a barrister on a particular date and the fact of that barrister declining the brief on another date. Another concern that I have is that there is no explanation of why an amended application was never filed when the grounds of the instant application are:
“1.The Independent Reviewer took irrelevant consideration into account in the exercise of power.
2.The Independent Reviewer failed to take in account relevant considerations in the exercise of power.”
This is no more than a recitation and abbreviation of the dicta in Craig v South Australia (1995) 184 CLR 163 and provides no particulars whatsoever in relation to these applications. If a firm of solicitors agrees to take on a matter as important as these matters are to the applicants, then one expects that the legal practitioner handling the matter will have at least some expertise. Even without the aid of counsel the expertise should be such that the nature of the case being brought can be explained.
The judgment in Aon laid stress on the importance to the judicial system of efficient case management and made it clear that it was not just the interests of the parties to a particular piece of litigation that should be considered.
“[24] Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation.” [per French CJ]
At [26] His Honour approved of the decision of the High Court in Sali v SPC Ltd (1993) 67 ALJR 841, stating:
“By majority, this Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider "the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties"91. Brennan, Deane and McHugh JJ went on to say92:
"What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources."”
At [30] His Honour said:
“It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.”
The majority were also concerned about the effect of granting adjournments on other litigants (see [95] and [113]).
Since the decision in Aon it has been considered in other courts. In Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261, [2010] FCAFC 101 the Full Bench, Keane CJ, Gilmour and Logan JJ, said at [51]:
“Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case.”
In Shirreff v Beck Legal Pty Ltd (No 2) [2011] FCA 603, Bromberg J was considering an adjournment of an appeal from a Federal Magistrate’s decision. He stated at [12]:
“Further, if I was to accede to the adjournment application, a further day of court time would be lost. That would be in addition to the day lost on the day that the appeal was first listed for hearing. The dates that have been allocated for the hearing of this appeal have precluded those dates being available to other litigants. That involves inefficiencies and a waste of Court resources. The High Court's decision in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 makes it clear that case management considerations, including the proper use of court resources, and the interests of other litigants before the court, are germane to the exercise of my discretion on an application such as this. I refer to and rely in particular upon the reasons for judgment of French CJ at paragraphs [5], [6], [30] and [35] and the reasons for judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ at paragraphs [92] to [103], and also at [111] to [113]. The case management considerations that I have referred to weigh against the vacation of the hearing.”
In Vasiljkovic v The Honourable Brendan O’Connor [2011] FCAFC 112, the Full Bench Keane CJ, Dowsett and Jessup JJ, dealt with an application where the unavailability of counsel was raised. Their Honours said at [8]:
“The unavailability of Counsel of the party’s choice is not, of itself, a reason to grant an adjournment. It can not be said that this is a case in which the matter is so complicated that Counsel, who was previously engaged, should be afforded another opportunity to appear in order to prevent prejudice to his or her client. There is, however, the prospect of prejudice to the respondents. They have incurred expense which, by reason of the appellant’s circumstances, it appears that they would be unlikely to recover if an order for costs were made in their favour on the granting of the adjournment. More importantly, the request for extradition, which has given rise to these proceedings, was made in 2006. It is a matter of considerable concern that the request has not yet been responded to in any final and definitive way by the present time.”
And continued at [9]:
“The circumstances, which include the circumstance of an absence of explanation for the unavailability of Counsel and of evidence of the inquiries that have been made, are such as to leave one without any real confidence that an adjournment would result in the appellant being represented at a later date. I am inclined to conclude that the grant of an adjournment might not serve any useful purpose in any event. This is particularly so, when regard is had to the delays which have already occurred in these proceedings, and the strong desirability of reaching some form of conclusion in relation to the request which has been outstanding since 2006.”
I have no hesitation in saying that if this were an ordinary case brought between two litigants in dispute of a matter involving federal jurisdiction I would decline to grant the adjournment. I am not satisfied that a proper explanation has been provided to the court and I believe that the court has been very severely inconvenienced to the extent that other parties who might have had their cases heard next Tuesday will not have done so. This part of the court runs a very strict docket system. That means that when a case is set down for trial the parties are guaranteed of the hearing date. There is no running list, as occurs in some other courts, where matters listed on a particular day may well not be reached. The corollary of this is that where hearing dates are vacated at the last moment there is no opportunity to back-fill and the day is lost.
But these are not ordinary cases. The applicants are persons who claim that they have a well-founded fear of persecution in the countries from which they came. Although it is said that they have no right to Australia’s protection a system has been put in place whereby that protection is extended where the Minister, through his delegate or an IMR, makes a recommendation that the applicant is a person who falls within the Refugees Convention as amended by the 1967 Protocols.
If the court was to refuse to hear an application for judicial review an applicant could be refouled to his country of origin and thereby might suffer persecution. There is no evidence before me that would indicate that the applicants themselves have any part in what I consider to be, based upon the complete lack of an explanation, a serious failing on the part of their legal practitioners. Why was the court not informed earlier of the difficulties that the firm was having in obtaining counsel? Why were none of the orders of the court complied with or the provision for liberty to apply exercised? Why was the matter left in the hands of Mr Kadirgamar who signs as a “Law Clerk”?
Aon and the cases to which I have referred all make it clear that a decision upon a matter such as this must be taken in the interests of justice. These applicants would have no satisfactory recourse against their legal advisors should I decline to grant the adjournment and they would not be adequately represented. If the application were refused they would be the ones to suffer. In those circumstances the court is faced with little alternative but to vacate the hearing dates as requested.
But I do not believe that the actions of the applicants’ lawyers should go unnoticed. I propose to refer the papers in this matter to the Law Society of the Northern Territory to investigate the conduct of the applicants’ lawyers up to this time. I will also order that the legal advisors to the parties attend before me at 10:15 on 25 October 2011 in Darwin and that those representing the applicants show cause why I should not make an order under Part 21 Rule 21.07(1) of the Rules for the payment by those lawyers of the costs of the respondents thrown away by the adjournment, such costs to include the costs of this application.
It will be clear from the above reasons that one item of concern that I have is the manner in which communication was carried out between the applicants’ solicitors and the court. There appeared to be an assumption on the part of those solicitors that all that needed to be done in order to obtain the vacation of a hearing date, fixed many months in advance and requiring a Federal Magistrate to travel several thousand kilometres, was to obtain the consent of the respondents. There would also appear to be an assumption that these things could be dealt with by way of informal communication with my chambers. Informal communications between practitioners and the court have been the subject of judicial concern for some time; Wilson v Department of Human Services [2010] NSWSC 1489 at [102 et seq].
It may well be that had a more formal attitude to the litigation been taken, the lawyers would have considered their obligations under the orders of Federal Magistrate Lucev, brought the matter back to the court under the liberty to apply as soon as they began encountering difficulties and bringing a formal application, in good time, in accordance with the Rules. It is difficult to know where the belief that all difficulties can be solved through the Federal Magistrates (or judges) associate came from but it is well to remind practitioners it is not a substitute for compliance and that a better understanding of the rules of court would avoid much unnecessary communication. It used to be that the rules of court were an important part of an undergraduate’s/articled clerk’s legal education. If it is no longer the case then those who effected the change are remiss.
Since preparing and handing down these Reasons I have been told that the applicants have been removed from detention in Darwin to some other state. It is not clear to me when this happened or where they are, I believe Canberra. The Minister, through his Department, has not had the courtesy to inform the court where his detainees are now residing. It is not clear whether they will continue to have the advantage of legal aid from the Northern Territory or representation by Messrs Ward Keller. What is the court expected to do? It shall order that within 3 days of the dispatch of these reasons by email to the parties that the Minister advise the court where these applicants are situated and provide contact details. It shall order that the applicants be provided with a translated copy of these reasons within seven days of dispatch by the court at the Minister’s expense. It shall order that the matter be restored for further directions on 25 November 2011 at 10.15a.m. AEST and that if their solicitors intend to cease to act they file the requisite notices in accordance with the Rules. It shall order that unless the applicants are represented they be brought to the court at which a video link will be established to Sydney for the directions hearing and interpreters provided at the Minister’s expense.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 4 November 2011
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