DZAAB and DZAAC v Minister for Immigration and Anor (No.2)
[2011] FMCA 896
•25 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAB & DZAAC v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2011] FMCA 896 |
| PRACTICE & PROCEDURE – Where court of its own motion requires solicitors for applicants to show cause why an order or indemnity costs should not be made under Federal Magistrates Court Rules Part 21 Rule 21.07 for costs thrown away by an adjournment. |
| Federal Magistrates Court Rules 2001 |
| Applicants: | DZAAB & DZAAC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | 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: | 25 October 2011 |
| Date of Last Submission: | 25 October 2011 |
| Delivered at: | Darwin |
| Delivered on: | 25 October 2011 |
REPRESENTATION
| For the Applicant: | Ward Keller |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicants’ solicitors Ward Keller pay the respondent’s costs on an indemnity basis thrown away by vacation of the hearing date and of the application of 21 October 2011 and of today. Such costs to be taxed if not agreed.
| 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
On 21 October there came before me an application in these two cases to vacate the hearing date which was set down for today, 25 October 2011. In my reasons for judgment in respect of that application, I explained the history of the matter and the events that led up to the application for an adjournment. I was critical of the solicitors acting on behalf of the applicants, in particular for their failure to make the application considerably earlier than it was made, especially after the court had made it clear on 6 October than an application was required. I was also critical of the fact that no real explanation had been provided up to that time of what had occurred between the time the firm was instructed on 29 April 2011 and the application for the vacation of the hearing date. I made some other comments concerning the failure of the firm to provide the court and the respondent with an amended application which gave some particulars of the grounds upon which it was said that the Independent Merits Reviewer (“IMR”) fell into jurisdictional error in the manner in which he came to his decision.
I agreed to vacate the hearing date on the basis that the applicants would otherwise not be properly represented and they would have no redress against their lawyers if they were unsuccessful, given the nature of the case, in particular, the fact that they could be refouled to a dangerous country. At the conclusion of my judgment I required the lawyers involved to attend before me today to show cause under Part 21, Rule 21.07 of the Federal Magistrate Court Rules 2001 (the “Rules”) why an order for costs thrown away on an indemnity basis should not be paid by them to the respondent.
Mr Spazzapan appeared before me today. Although he is not directly responsible for Mr Phelps, the solicitor with the conduct of the matter, he had taken on some responsibility for what had occurred or, perhaps more accurately, for the aftermath of what had occurred. Mr Phelps himself has sworn an affidavit and in that affidavit he gives a far more detailed explanation of the history of the matter within the firm than he gave in his original affidavit that was before me on 21 October.
It appears from that affidavit that the case was being funded by the Northern Territory Legal Aid Commission and that those in that organisation took upon themselves some responsibility for obtaining counsel. It seems in the end that did not occur and Mr Phelps was required to make his own arrangements. As Mr Spazzapan indicated in his helpful submissions time appeared to have run away from Mr Phelps.
I have already indicated that I propose to send the papers in this matter to the Law Society of the Northern Territory following conclusion of the case. I do this because I have concerns for the manner in which this matter was supervised within the firm. It appears from the papers that I have before me that Mr Phelps was given responsibility for it, although Mr Spazzapan tells me he is only a very recently qualified lawyer. It is not clear whether there was any partner involved and from the emails that were sent to my chambers it would appear that Mr Phelps himself delegated much of the procedural matters to a law clerk.
Of course, investigations by the Law Society may show that this is not the case and that is why I am not passing any judgment upon the firm in relation to these matters. I would add a note of sympathy. Given the rather small amount of money allowed by the Legal Aid Commission to the firm for acting, one can easily see why partners might not feel a necessity to be involved.
An order Rule 21.07 is not an order made as a punishment, it is an order made to properly recompense the party that has been disadvantaged as a result of the actions of the lawyer for the other party, be this a failure to comply with orders, undue delay, negligence or improper conduct or, as the Rule has it, “other misconduct or default”. The applicants for whom Messrs Ward Keller are acting would appear to be indigent and any order for costs made against them would be unlikely to be paid. In any event the fault if not theirs.
It seems clear to me that the Commonwealth, on behalf of the first and second respondents, would have suffered a loss as a result of the vacation of the hearing date and that loss should be covered in the public interest. Ms Hawkings, who appears for the first and second respondents, has made no submissions to me, save that the respondents wish to hold over the question of seeking costs until the hearing of the case. This would involve the Court making not an order but some sort of declaration. So I do not believe this was envisaged by the Rule.
I do not propose to accede to her request. I think it is important that this incident be finalised and that all parties, including myself, move on to hear the substantive case. It does not matter to the Court what final arrangements are made between the parties in relation to costs. If the Commonwealth does not wish to seek them against Messrs Ward Keller that is up to it. If they wish to agree a figure that is payable in the event that I should make an order, it is also up to the respondents. If the first and second respondents should lose the case, or after due consideration come to agreed terms with the applicants, then any costs order made by me today can be taken into account.
For the reasons which I gave in my 21 October decision I am of the view that the vacation of the hearing date was not justified and that the failure to make the application in what the Court would consider a good time was due to the default of the applicants’ solicitors. Mr Phelps’ affidavit sworn on 24 October 2011 does provide some insight into how and why the default occurred. But nothing really excuses the firm’s failure to bring the application earlier when it was clear that there were going to be problems and nothing excuses the firm from not understanding the email sent by my associate on 6 October indicating that an application was required and was expected urgently.
In those circumstances I propose to make an order under Part 21, Rule 21.07(3) that the applicants’ solicitors, Messrs Ward Keller, pay the respondents’ costs thrown away as a result of the vacation of the hearing date on 21 October 2011 on an indemnity basis, such costs to be taxed, if not agreed, in accordance with the Rules. This order applies to both cases DZAAB and DZAAC but I would note that as both cases are treated together the taxing officer should be alert to any duplication of costs.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 17 November 2011
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