DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) - [2022] FedCFamC2G 905

Federal Circuit and Family Court of Australia
(DIVISION 2)
DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FedCFamC2G 905

File number(s): SYG 2780 of 2017

Judgment of: JUDGE GIVEN

Date of judgment: 4 November 2022

Catchwords:
MIGRATION – liability between applicant and her lawyers for costs in the Court’s “scale” amount and additional costs incurred – requirement to address factors relevant to an application for extension of time in order for hearing to conveniently proceed – usual method for calculating party/party costs in Migration proceedings

PRACTICE AND PROCEDURE – personal costs orders against lawyers – whether barrister can avoid liability for costs by reason of solicitor’s conduct – whether Counsel “blindly” relied on solicitor – whether an unrepresented barrister is precluded from filing documents on their own behalf – whether barristers are prohibited from drafting Affidavits – whether hearing able to conveniently proceed – undesirability of altering Court forms – unreasonable defaults – duty of frankness to Court – unwillingness of barrister to take responsibility for conduct – changing versions of events – referral of lawyers to the New South Wales Bar Association and the Law Society of New South Wales

Legislation:
Evidence Act 1995 (Cth) ss 119, 131

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 214

Federal Court Act 1976 (Cth) s 43

Migration Act 1958 (Cth) ss 476, 477

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.04, 22.06, 29.13

Federal Circuit Court Rules 2001 (Cth) r 44.15

Federal Court Rules 2011 (Cth) r 2.16

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)

Cases cited:
AYF15 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 10

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333

BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508

CPJ17v Minister for Immigration and Border Protection (2018) 258 FCR 495

Davy-Chiesman v Davy-Chiesman & Anor [1984] 1 All ER 321

De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475

DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564

Edwards v Edwards [1958] P 235

Ex Christmas Islanders Association Inc v Attorney-General (Cth) (No 2)

Knight v FP Special Assets Ltd (1992) 174 CLR 178

Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300

Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155

Locke v Camberwell Health Authority [1991] 2 Med LR 249

Medcalf v Mardell & Ors [2003] 1 AC 120 146

Mitry Lawyers v Barnden [2014] FCA 918

Myers v Elman [1940] AC 282

Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455

Orchard v South Eastern Electricity Board [1987] QB 565

Oshlack v Richmond River Council (1998) 193 CLR 72

Pitts v Adney [1961] NSWR 535

Ridehalgh v Horsefield [1994] Ch 205

SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456

Tolstoy-Miloslavsky (Count) v Lord Aldington [1996] 2 All ER 556

White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169

Division: Division 2 General Federal Law

Number of paragraphs: 163

Date of hearing: 23 September 2022

Place: Sydney

The Applicant: No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Australian Government Solicitor

Counsel for the Interested Party: Mr M McHugh SC

Solicitors for the Interested Party: Colin Biggers & Paisley

Table of Corrections

Paragraph 55, line 3 Delete “Counsel”, insert “a barrister”

Paragraph 60, line 1 Delete “Full Federal”
ORDERS

SYG 2780 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DZW17

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

COUNSEL
Interested Party

MR V
Interested Party

order made by:

JUDGE GIVEN

DATE OF ORDER:

4 November 2022

THE COURT ORDERS THAT:
1.Pursuant to r 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) the first respondent’s additional costs occasioned by the adjournment of the hearing on 5 May 2022 are to be paid:
(a)by Counsel for the applicant in the sum of $1,544.37; and
(b)by the solicitor anonymised as “Mr V” in DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564 and DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FedCFamC2G 905 (costs judgment), in the sum of $1,106.88;

within 28 days of the date of this order.
2.Pursuant to r 29.13 and Item 3, Division 1, Part 2 of Schedule 2 of the Rules, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the proceedings, other than the costs the subject of Order 1 above, fixed in the sum of $7,328.
3.Pursuant to order 5 of the Court made on 25 July 2022, a copy of the costs judgment, together with additional relevant documents filed in relation to the costs hearing, are referred to:
(a)the NSW Bar Association in respect of Counsel; and
(b)the Law Society of New South Wales in respect of the solicitor who in the reasons for judgment is anonymised as “Mr V”.

4.In the event of any non-compliance with Order 1 above, the first respondent has liberty to apply on 2 days’ notice.

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
(As Corrected)
JUDGE GIVEN:

On 25 July 2022, this Court delivered reasons for judgment and made orders extending the time for and, thereafter dismissing, an application for judicial review: see DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564 (DZW17). At that judgment delivery, the first respondent was represented by a solicitor who had not previously had carriage of the matter. There was no attendance for the applicant, her solicitor having asked (that afternoon) to be excused from attending because he felt unwell. Accordingly, the published reasons for judgment were also sent to the parties by email from the Court later that day. Accordingly, and by reason of matters raised by DZW17 about the conduct of the applicant’s lawyers, I indicated at the delivery of DZW17 that the question of costs would be determined at a separate costs hearing, which ultimately took place on 23 September 2022 (costs hearing). These reasons for judgment are the result of that costs hearing.
Throughout these reasons, the same anonymisation employed in DZW17 will apply, namely:
(a)the barrister who appeared for the applicant will be referred to as “Counsel”; and
(b)the solicitor who acted for the applicant in her visa application and before the Tribunal, and later retained Counsel in these proceedings, will be referred to as “Mr V”.
Additionally, a number of defined terms from DZW17 will be re-utilised in these reasons for judgment.
Background
The lengthy and somewhat complicated background is best derived, to a point, from DZW17. After the delivery of DZW17 referred to at [1] above, the following events relevantly occurred.
The orders made at the time of judgment provided that, within seven days, the Minister’s solicitors must serve the applicant, Counsel and Mr V with a copy of the reasons for judgment and sealed orders of the Court, so that the Court could be satisfied that those documents, and the matters arising from them, had been properly brought to the attention of each of all interested persons.
On 1 August 2022, being the seventh day after DZW17 was delivered, I made orders in chambers (August orders) for a detailed regime for evidence and submissions from the parties, Counsel and Mr V, together with the following notation:
The parties, together with each of the persons referred to in orders 2(a) and 2(b), are hereby on notice that at the costs hearing referred to in order 1 the question of all costs of these proceedings, including pursuant to rule 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), will be heard for determination.
The Minister filed written submissions in accordance with the August orders. No documents were filed in compliance with the August Orders, or at all, by/for either of the applicant or Mr V.
Pursuant to order 7 of the August Orders, in the event Counsel wished to be heard on the issue of costs, she was required to file and serve any written submissions and evidence on or by 9 September 2022. She did not do so. Instead, at 4:01pm on 9 September 2022 (being one minute after the Registry closed on the last date for the filing of her submissions and any evidence), Counsel emailed my chambers in the following terms (emphasis added):
Dear Associate,
Pursuant to the Court Orders made on 1 August 2022, Counsel for the Applicant is required to file affidavit evidence and written submissions by 9 September 2022.
I am in the course of finalising my written submissions and affidavit and it has become apparent that I would not finish by close of business, today.
I would like to approach the court to seek an extension of time to file affidavit evidence and written submissions by 12 September 2022.
The Minister's Representative has consented to me sending this email to the court. However, I didn't receive a response from the Applicant's solicitor.
Ultimately, I granted Counsel a further opportunity to file her documents, despite the fact that:
(a)Counsel had provided absolutely no reason for why she could not comply with the August orders (being a period of 14 days since receiving the Minister’s written submissions and 39 days since the Court fixed the time for the costs hearing and made the August Orders);
(b)Counsel had waited until after the time to comply had passed, such that she was already in breach of the August orders; and
(c)Counsel’s failure to comply with Court timetables was discussed in DZW17, and specifically formed part of the referral to the Bar Association.[1]
[1] DZW17 at [202] to [208] and [217(f)]
Despite the fact that Counsel requested that the extension be granted saying she would file the documents by 12 September 2022 (which would generally be understood as meaning on 11 September 2022), the Court granted the extension on the basis that any documents must be filed before 4:00pm on 12 September 2022.
At 3:59pm on 12 September 2022, my chambers received an email from Counsel in the following terms (errors in original):
Dear Associate,
I acknowledge receipt of your email.
Please find attached Counsel's Affidavit, Annexures and Written Submissions.
I have sent the documents attached to this email to the Legal representatives of all the participants in the cost proceeding.
Also, they are al copied on this email.
I note that Counsel is presently self-represented and as such is precluded by the Barristers Rules from filing and serving the attached documents.
In the event that Counsel obtains legal representation prior to the hearing on 23 September 2022, the documents would be filed in the court registry.
That email duly attached the following documents prepared by Counsel:
(a)written submissions totalling 23 pages (Counsel’s written submissions); and
(b)a 174 page Affidavit affirmed by Counsel on 12 September 2022 (Counsel’s Affidavit).
Counsel’s understanding that she was exempted from filing those documents because, while she was a “self-represented” litigant, she happened also to be a barrister by profession, was erroneous and also not even in keeping with her own extension request (see [8] above). Although an unrepresented lawyer who is party to an action is often described as “self-represented”, like any other unrepresented litigant, they do not “represent” themselves because their role as an agent for another is absent: see Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 per Edelman J at [92]. In addition to having been specifically ordered to do so by the Court, Counsel was not precluded by the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) from filing or serving documents in relation to the costs hearing in circumstances where she was an interested party and had no independent legal representation. Ultimately Counsel’s written submissions and Affidavit remained unfiled until after the costs hearing, when her newly retained solicitors filed them for her.
Much could be said about Counsel’s written submissions and Affidavit. It is sufficient for now to record the following.
Counsel’s Affidavit is in large part inadmissible, being replete with Counsel’s opinions and conclusions. It is otherwise poorly drafted, difficult to navigate and the approach taken to Annexures is confusing. Within the body of Counsel’s Affidavit, and annexed to it, are statements and documents respectively which, at first blush, gave rise to questions of legal professional privilege, and which potentially ought not to have been disclosed (at least without having consulted the applicant which I infer (from [35] and [36] below) had not occurred).
Annexure “BG” to Counsel’s Affidavit is an unusual document which appears to have been created by her. It is entitled “Factual Inaccuracies, erroneous assumptions, unfair inferences and unsubstantiated allegations” and, by it, Counsel cavils with various findings in DZW17 and makes allegations in respect of the Court, including that statements by the Court are untrue.
While Counsel was not cross-examined in respect of her Affidavit,[2] I have given greater weight to contemporaneous documents which are annexed to it, rather than to a number of self-serving statements and alleged conversations deposed to within it, because:
(a)of the concession made by Senior Counsel (see [34] below); and
(b)that much of the content of Counsel’s Affidavit, even where not opinion, is not in proper form and vague or silent as to chronology.
[2] See [20(b)(iii)] below
Counsel’s written submissions are subjective and wide-ranging. They make a number of allegations and allusions about the Court and seem to proceed on a mistaken understanding that a costs hearing is a form of appeal against the primary judgment. It must be emphasised that there is nothing before me to indicate that Counsel’s recently retained solicitors, or the Senior Counsel who appeared for her at the costs hearing, had any part in the drafting of either Counsel’s Affidavit or written submissions. It is difficult to imagine that, had Counsel been represented at the time of their drafting, such content would have been advanced by objective legal practitioners.
By [7] of Counsel’s written submissions she relied upon Annexure “BG” to Counsel’s Affidavit and said on the basis, inter alia, of Annexure “BG” that she:
…would like the Learned Judge to recuse herself from hearing the cost proceeding against Counsel on the basis of apprehended bias.
(recusal application).
In the 48 hours leading to the costs hearing on 23 September 2022 (noting that 22 September 2022 had been declared the National Day of Mourning for Her Majesty The Queen), the following happened:
(a)at 4:25pm on 21 September 2022, the Court received an email from the solicitors who now act for Counsel, to notify their involvement in the proceedings, and that Counsel would be represented at the costs hearing by Mr McHugh SC;
(b)at 6:26pm on 21 September 2022, the solicitors for the Minister wrote to the Court by email to say that the Minister:
(i)did not wish to be heard on the recusal application;
(ii)did not have any objections to Counsel’s Affidavit; and
(iii)did not wish to cross examine Counsel;
(c)at 6:50pm on 21 September 2022, the solicitor for the applicant wrote to the Court by email stating (error in original):
I refer to the above matter, and the costs proceeding listed on 23 September 2022. I am writing to advise the court that I do not have instruction to appear on that day.
(d)at 10:09am on 22 September 2022, the solicitors for Counsel wrote to the Court by email to indicate that the recusal application would not be pressed; and
(e)at 6:41pm on 22 September 2022, the solicitors for Counsel wrote to the Court by email attaching a chronology prepared by Mr McHugh SC with the intention that it be relied upon as an aide memoire at the costs hearing (Counsel’s chronology).
The emails referred to in the preceding paragraph were copied to all relevant stakeholders including the solicitors for the applicant (who remain on the record despite the content of the email referred to at [20(c)] above), and to Mr V at his Yahoo address.
Given the content of the email referred to at [20(c)] it is relevant to note that the applicant also did not appear in person at the costs hearing. There was also no appearance by or for Mr V. Mr McHugh SC appeared, pro bono, for Counsel instructed by solicitors retained for her. The Minister was represented by two solicitors.
I am satisfied that all parties, lawyers and relevant persons who may be affected by the costs hearing and this judgment were given a reasonable opportunity to be heard, including for the purposes of r 22.06(5) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules): see Mitry Lawyers v Barnden [2014] FCA 918 per Wigney J at [43] citing Myers v Elman [1940] AC 282 per Viscount Maugham, Atkin, Russell, Wright and Porter LLJ at 318; Orchard v South Eastern Electricity Board [1987] QB 565 at 572; Ridehalgh v Horsefield [1994] Ch 205 per Bingham M.R., Rose and Waite L.JJ at 229; Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 per Hodgson, Ipp and McColl JJA at [92(e)], [143] to [149].
The level of satisfaction referred to in the preceding paragraph is by reason of:
(a)orders 3, 4 and the notation thereto made by the Court on 25 July 2022;
(b)the August orders; and
(c)the email from the applicant’s solicitor (see [20(c)] above); and
(d)an email from the Minister’s solicitor sent to the Court and the applicant’s solicitor on 9 August 2022, confirming service of all relevant documents as at that date having been effected on both Counsel and Mr V.
In respect of the applicant and Mr V, I am satisfied that they were each on notice of the costs hearing and, for whatever reason, elected not to attend or to be represented.
Minister’s costs application
The Minister says that he has incurred costs in this matter some part of which, as the successful party, should be his in accordance with the general principle that costs follow the event: see Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J at [67].
The Minister’s costs of the proceedings are said to total $9,979.25 on a party/party basis[3] and to be comprised of the following two components:
(a)pursuant to r 29.13 the Rules,[4] the Court may order in proceedings under the Migration Act 1958 (Cth) (Migration Act) that an unsuccessful party to the proceedings pay costs of a successful party in accordance with Division 1 of Part 2 of Schedule 2 to the Rules (hearing scale). The hearing scale is a table which provides for a set amount of costs in a ‘standard’ judicial review application under the Migration Act, depending on at what stage/type of hearing the matter concludes. There is a separate (but relative) scale for matters which discontinue (see Division 2 of Part 2 of Schedule 2 to the Rules). In the instant case, the Minister seeks the hearing scale amount be limited to that which applied under the Former Rules[5] for a Migration proceeding which concluded at a final hearing, as at the date these proceedings were commenced.[6] In the present case, the Minister says the relevant hearing scale amount is $7,328 (scale amount)[7]; and
(b)the balance of the Minister’s costs, being $2,651.25 on a party/party basis are said to be additional costs (incurred/thrown away) occasioned by the adjournment of the hearing on 5 May 2022 (May hearing) in this matter (additional costs). At the conclusion of the May hearing, the question of the additional costs was reserved by me, upon application by the Minister’s solicitor.[8]
[3] Minister’s written submissions on costs filed 26 August 2022 at [16] to [17]
[4] The antecedent being r 44.15 of the Federal Circuit Court Rules 2001 (Cth) (Former Rules)
[5] See footnote 4
[6] 6 September 2017
[7] Being the relevant item in the hearing scale as it applied on 6 September 2017, being the date on which the proceedings commenced. While not required by the Rules, it is often the practice of the Minister to only seek to apply the hearing scale which applied as at the commencement date of the proceedings.
[8] Transcript 5 May 2022 T11.16

Accordingly, the Minister:
(a)seeks an order that the applicant pay the Minister’s costs in the scale amount; and
(b)in respect of the additional costs, contends that:
(i)those costs should be borne by Counsel and/or Mr V personally, but not by the applicant;
(ii)the adjournment of the May hearing was precipitated by the conduct of the Counsel and/or Mr V;
(iii)it is a matter for the Court to determine by whom, and/or in what proportions, the additional costs should be paid; and
(iv)the Minister is so committed to the proposition that the applicant ought not pay the additional costs, that he is prepared to forego an order in his favour for the additional costs in the event that they are not ordered to be paid by Counsel and/or Mr V.
The applicant, somewhat surprisingly, advances no position. Mr V also advances no position.
Accordingly, each of the applicant and Mr V are taken to neither consent, nor to oppose, orders being made in the form sought by the Minister.
Counsel opposes any costs order being made in respect of her. Counsel says (as will be detailed below) that she is absolutely not responsible for the adjournment of the May hearing and that if there is any conduct which falls within r 22.06 of the Rules, liability for it rests entirely with Mr V whom Counsel says is liable for 100 percent of the Minister’s additional costs.[9]
[9] Transcript 23 September 2022 T46.21
Documents before the Court
For the purposes of the costs hearing, I have considered the following:
(a)for the Minister:
(i)written submissions filed on 26 August 2022; and
(ii)an Affidavit of Rian Caley Terrell affirmed 25 August 2022 (Terrell Affidavit).
(b)for Counsel:
(i)Counsel’s written submissions;
(ii)Counsel’s Affidavit; and
(iii)Counsel’s chronology.[10]
[10] See [20(e)] above
The Terrell Affidavit was read without objection.
Counsel’s Affidavit was read by Mr McHugh SC save for “the matters of opinion and conclusions”, which were not pressed.[11] As noted at [20(b)(ii)] above, the Minister made no objections to Counsel’s Affidavit which, given the obvious inadmissibility of much of its content, and that even Senior Counsel who appeared for Counsel clearly and properly regarded that to be so, is a remarkable position for the Minister to have taken.
[11] Transcript 23 September 2022 T3.3
Upon Mr McHugh SC seeking to read Counsel’s Affidavit, I asked him whether Counsel had instructions from the applicant to waive privilege in respect of the variety of statements and documents advanced by it, to which legal professional privilege might apply. Senior Counsel acknowledged that this was a proper concern to which he had not turned his mind, nor had he been provided with instructions.
Following discussions with his client, Mr McHugh SC submitted that the documents to which the Court would be taken would not normally fall under the definition of communications attracting legal professional privilege because of the assertion that Mr V was not acting as a solicitor but was acting as a “community representative”. The Court was directed to s 131(2)(g) of the Evidence Act 1995 (Cth) (Evidence Act), which relates to evidence of a settlement negotiation and to Pitts v Adney [1961] NSWR 535 at 539 for the proposition that the evidence should be considered where failure to do so would otherwise mislead the Court. Each of these references appears inapposite.
Any potential issue can be resolved by reference to s 119 of the Evidence Act. In advance of the costs hearing, each of the applicant and Mr V was provided (although not formally served[12]) with Counsel’s Affidavit.[13] It appears that at no time did the applicant (whose privilege it more arguably was, and who was represented by a solicitor) or Mr V, make a claim of privilege over material advanced by Counsel’s Affidavit. In those circumstances and by reference to s 119 of the Evidence Act, I am satisfied that even if a claim for privilege may exist, none has been asserted and regard was able to be had to the material.
[12] See [13] above and also email from Counsel to the Court set out at [11] above
[13] Email from Counsel to the Court at [11] above
However, this question of privilege again highlights the anomalies and mischief caused by the hybrid which was created by Counsel having purportedly entered into a direct access retainer with Mr V, as well as Counsel’s oscillating positions in relation to so many facets of information before the Court (see [143] and [150] below). It is less than satisfactory that, depending on the issue, Counsel seeks to bestow or divest Mr V’s professional obligations. In the context of justifying the purported “direct access” arrangement she had with Mr V as not involving a solicitor, Counsel says that Mr V had jettisoned his role as a solicitor and was simply the applicant’s migration agent.[14] However, when seeking to legitimise what is said to be Counsel’s “optimistic”[15] assumptions that the drafting of evidence and filing of documents had been done by Mr V, or for the purposes of shifting liability onto him for r 22.06 (which applies only to lawyers), Mr V is cast as a legal practitioner upon whom Counsel relied (see [128] below).[16] Counsel’s versions of how, and when, she knew Mr V was a solicitor have also varied.[17]
[14] Counsel’s Affidavit at [29] and Transcript 23 September 2022 T9.4 and T44.31 to T44.34
[15] Transcript 23 September 2022 T33.13, T33.43, T37.24, T37.33, T38.11, T45.41 and [128] below
[16] Transcript 23 September 2022 T24.20
[17] Transcript 5 May 2022 T6.35 and T12.1 to T12.9, Counsel’s Affidavit at [13], [23] to [25] and Transcript 23 September 2022 T8.41 to T8.46
However, and as will be implicit from DZW17, I do not accept that Mr V had divested himself of his obligations as a lawyer and an officer of the Court for the purposes of his involvement in these proceedings. I also do not accept that Counsel considered that Mr V had divested himself of the role, simply by declining to formally enter an appearance in the matter. That is reflected in an email from Counsel to Mr V dated 26 April 2022[18] in which Counsel asked Mr V to file documents and arrange a conference with the applicant, and then stated (error in original, emphasis added):
I would also need her to sign the attached agreement. We are required to have an agreement directly with the Client of there is no solicitor in the matter.
[18] Counsel’s Affidavit at Annexure “AP”
In my view, Counsel took the view at all times that Mr V was undertaking the role of a solicitor, but had simply not entered an appearance.[19]
[19] See also Counsel’s Affidavit at [56]
Legislation and authorities
The power to award costs against a lawyer is not an unfettered discretion, and must be exercised judicially and in accordance with general legal principles pertaining to the law of costs: see Knight v FP Special Assets Ltd (1992) 174 CLR 178 per Mason CJ and Deane J (Gaudron J agreeing) citing Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455 per Lambert J at 462.
As a Court without inherent jurisdiction, my power to award costs is statutory, arising from the general grant of judicial power regarding costs found in s 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) together with the specific provisions of r 22.06 of the Rules: see Ex Christmas Islanders Association Inc v Attorney-General (Cth) (No 2) (2006) 91 ALD 313 at [11] per French J (as his Honour then was).
Unlike s 43(3)(f) of the Federal Court Act 1976 (Cth), there is no express power in s 214 of the Court Act to award costs against a lawyer. Rather, r 22.06 of the Rules authorises a costs order to be made against lawyers as a specific application of the discretion to award costs conferred by the Court Act.
Section 214 of the Court Act provides:
214 Costs
(1)       This section does not apply to:
(a)       family law or child support proceedings; or
(b)       proceedings in relation to a matter arising under:
(i) the Fair Work Act 2009; or
(ii) section 14, 15 or 16 of the Public Interest Disclosure Act 2013.
Note 1: Paragraph (a)—see section 117 of the Family Law Act 1975 in relation to family law or child support proceedings.
Note 2: Subparagraph (b)(i)—see section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act.
Note 3: Subparagraph (b)(ii)—see section 18 of the Public Interest Disclosure Act 2013 for proceedings in relation to matters arising under section 14, 15 or 16 of that Act.
(2)The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.
Note:        For further provision about the award of costs, see Division 4 of Part 6 and paragraphs 192(4)(d) and (e).
Rule 22.06 of the Rules provides as follows:
22.06 Order for costs against lawyer
(1)The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a)       to be incurred by a party or another person; or
(b)      to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
(2) A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a)       to attend, or send another person to attend, the hearing; or
(b)      to file, lodge or deliver a document as required; or
(c)      to prepare any proper evidence or information; or
(d)      to do any other act necessary for the hearing to proceed.
(3)      An order for costs against a lawyer may be made:
(a)      on the initiative of the Court or Registrar; or
(b)      on application by a party to the proceeding; or
(c)      by another person who has incurred the costs or costs thrown away.
(4)      The order may provide:
(a) that the costs, or part of the costs, as between the lawyer and party be disallowed; or
(b) that the lawyer pay the costs, or part of the costs, incurred by the other person; or
(c) that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.
(5)      Before making an order for costs, the Court or Registrar:
(a) must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and
(b) may order that notice of the order, or of any proceeding against the lawyer, be given to a party for whom the lawyer may be acting or any other person.
By Counsel’s written submissions she takes issue with the ability of the Court to have examined her conduct in this matter at all, and said as follows[20] (errors in original):
Counsel submits that the Learned Judge’s significant concern on whether Counsel had lied to the court and failed in her duty of candour to the court was not an issue which was up for determination in the matter of DZW17.
In substance, the Learned Judge’s concerns bordered on professional conduct. The regulation of Counsel’s conduct is governed by the Legal Profession Uniform Law and complaints about barristers are in the first instance referred to the NSW Bar Association. The FCFCOA has no jurisdiction to make findings of professional misconduct on legal practitioners. Consequently, in the interest of proper administration of justice, it cannot be said that any of the concerns pertaining to Counsel’s professional conduct operated so as to make it impossible for the hearing of 5 May 2022 to proceed conveniently.
[20] Counsel’s written submissions at [55] to [56]
Given that this Court has not made “findings of professional misconduct” then if, by the assertions above, Counsel seeks to suggest that because this Court does not have an inherent jurisdiction to regulate or discipline the legal profession, it therefore has no interest in ensuring that practitioners conduct themselves properly and in accordance with their duties to the Court, the administration of justice and to their clients, she is mistaken. So much is clear from r 1.04 of the Rules and ss 190 and 191 of the Court Act.
This Court’s costs jurisdiction is to be distinguished from the disciplinary powers of superior courts to strike lawyers from the rolls on the grounds of professional misconduct: see De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 per French J (as his Honour then was) at 546 to 547, citing Myers v Elman [1940] AC 282 per Viscount Maugham at 289. The effect of s 191(4) of the Court Act, is that I am mandated to consider any failure by a party, or their lawyer, to comply with their ss 191(1) and (2) duties (which should be read together with r 1.04 of the Rules).
Rule 1.04 of the Rules provides:
1.04 Overarching purpose
(1)The overarching purpose of these Rules, as provided in section 190 of the Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Note 1: The parties to a proceeding must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose (see section 191 of the Act).
Note 2:       These Rules must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose (see subsection 190(3) of the Act).
Note 3: The Court may dispense with compliance with these Rules or make orders inconsistent with these Rules (see rule 1.07).
(2)      To assist the Court, the parties must:
(a)       avoid undue delay, expense and technicality; and
(b)      consider options for primary dispute resolution as early as possible.
(3)      If appropriate, the Court will help to implement primary dispute resolution.
Sections 190 and 191 of the Court Act provide as follows:
190 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a)       according to law; and
(b)      as quickly, inexpensively and efficiently as possible.
Note 1:       See also paragraphs 5(a) and (b).
Note 2:       The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)      the efficient disposal of the Court’s overall caseload;
(d)      the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
191 Parties to act consistently with the overarching purpose
(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2) A party’s lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party’s behalf:
(a)      take account of the duty imposed on the party by subsection (1); and
(b)      assist the party to comply with the duty.
(3) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a)      the likely duration of the proceeding or part of the proceeding; and
(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i)       the costs that the lawyer will charge to the party; and
(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
Note: Paragraph (b)—in relation to a family law or child support proceeding, the Federal Circuit and Family Court of Australia (Division 2) may make an order as to costs under section 149 of the Family Law Act 1975 if the Court is of the opinion that there are circumstances that justify it in doing so.
(4) In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5) Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party’s lawyer to bear costs personally.
(6) If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.
The power to order costs against a lawyer is to be exercised with care, and only in cases in which there has been clear conduct on the part of a lawyer which amounts to a serious dereliction of duty: De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 per French J (as his Honour there was) at 548. Unreasonable conduct in connection with the litigation may be sufficient to justify such an order: see r 22.06(2) of the Rules and Ex Christmas Islanders (supra) per French J at [11] citing De Sousa (supra) and White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 per Goldberg J at 236.
What will constitute unreasonable conduct is contingent upon the circumstances of the case. No comprehensive definition is possible: Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155 per Wilcox, Burchett and Tamberlin JJ at [44].
The nature of a lawyer’s duty
There is an understandable overlap between rr 1.04 and 22.06 of the Rules and ss 190 and 191 of the Court Act. The essence of that common ground is that there is a duty on parties and their lawyers to ensure that proceedings in this Court are resolved according to law, efficiently and inexpensively. Lawyers have not only unique professional obligations to the Court, but a duty to assist their clients in discharging the client’s own duty to comply with the Court’s overarching purpose.

By reason of the arguments advanced by, and for, Counsel at the costs hearing (see [31] above), it is necessary to observe that barristers and solicitors are required to exercise their own, independent, judgment in complying with their duties to the Court.
There is a body of authority in respect of personal costs orders directed to whether solicitors can be excused from a failure which might otherwise give rise to such an order, on the basis that they relied on the expertise and actions of a barrister. That such a “defence” has arisen not infrequently reflects the nature of the traditional solicitor-barrister relationship in which barristers are retained by solicitors to bring an additional level of expertise to the conduct of proceedings, reflecting the specialised nature of the work of a barrister from that of a solicitor: see Edwards v Edwards [1958] P 235 per Sachs J at 237 and see Davy-Chiesman v Davy-Chiesman & Anor [1984] 1 All ER 321 per Dillon LJ at 335.
The following principles can be gleaned from those cases which consider whether solicitors are entitled to rely upon the retention and/or advice of a barrister to absolve them from responsibility for costs which arises from their commencement and/or conduct of proceedings:
(a)while a solicitor is generally entitled to rely on the advice of a barrister whom they have “properly instructed”, this does not operate so as to give a solicitor immunity in every case: see Davy-Chiesman (supra) per May LJ at 332.
(b)a solicitor is highly-trained and expected to be experienced in their particular legal field. They are under a duty, at all times, to exercise a degree of care to both client and Court: see Davy-Chiesman (supra) per May LJ at 332.
(c)the role of a barrister does not exonerate a solicitor from the obligation to exercise their own independent judgment: Tolstoy-Miloslavsky (Count) v Lord Aldington [1996] 2 All ER 556 at 556 per Rose LJ at 747.
(d)a solicitor is not entitled to follow the advice of a barrister “blindly”: see Davy‑Chiesman (supra) per May LJ at 332; Ridehalgh v Horsefield [1994] Ch 205 at 216; Locke v Camberwell Health Authority [1991] 2 Med LR 249 and Tolstoy-Miloslavsky (Count) v Lord Aldington [1996] 1 WLR 736 per Rose LJ at 747.
Use of the term “blindly” is a matter of moment. In terms of the abrogation of professional responsibility, the alternative to proceeding blindly is to inform, or see for, oneself.
While the above cases look at professional responsibility through the prism of what protections solicitors may have where they properly retain and instruct barristers, there does not appear to be a similar collection of cases where barristers have sought to shield themselves from personal costs liability by claiming reliance upon their solicitors. However, in De Sousa (supra) at 547 to 548 per French J (as his Honour then was) found that while not necessary to decide in that case, the question of whether the traditional common law immunity of barristers (in negligence to their clients or opponents) would extend to being an immunity in respect of costs was debatable, but that one answer was that the power to award costs against a barrister arose as an element of statutory power in relation to a breach of a duty to the Court. By reference to the language of r 22.06 of the Rules and s 191(2) of the Court Act this view expressed by his Honour in obiter is, with respect, correct.
Further, and by reference to the aforementioned relationship between barristers and solicitors (see [55] above) it may accepted, as a matter of logic, that excusing solicitors who rely on Counsel is a fortiori to the opposite scenario. Nevertheless, each situation will turn on its own facts: see Medcalf v Mardell & Ors [2003] 1 AC 120 146 at [63].
In Ridehalgh v Horsefield [1994] Ch 205 at 237 the Court found that the more specialist nature of the advice, the more reasonable it is for a solicitor to accept it. The obverse is also true. The tasks for which a barrister relies on their instructor will usually, although not always, be more practical tasks which are quantitative and verifiable (such as the filing and service of documents by a certain deadline, or timely correspondence) which are ascertainable by the barrister obtaining a full set of instructions and documents relevant to the case. This is in contrast to qualitative matters such as the relative merit of pleadings or legal arguments. When the matters upon which a barrister relies as being failures attributable to their solicitor would have been readily ascertainable by the barrister themselves, and where the verification of those tasks would be expected of the barrister as part of an ordinary, basic and timely preparation of the matter for hearing, the less reasonable it becomes to point to inadequacies in the preparation of the matter by the solicitor. That is moreso in the present case, where the involvement of the solicitor was, to all intents and purposes, obscured from the view of the Court and the other parties to the proceedings, and Counsel was aware of (and responsible for) that concealment.
Rule 22.06(1) of the Rules (see [45] above) provides that the Court can order costs against a lawyer if they have caused costs to be incurred by a party or another person, or to be thrown away, because of undue delay, negligence, improper conduct or other misconduct or default.
In the instant case, the Court has already referred Counsel and Mr V to the professional bodies who regulate their respective branches of the legal profession.[21] In the absence of either of those lawyers conceding that they have conducted themselves negligently, improperly or otherwise misconducted themselves, findings of such a nature are best left to those organisations to address. I would also observe at this juncture that, at all times in assessing the conduct of the lawyers in this case for the purpose of the costs hearing, the Court has borne in mind the opening statement in Oshlack (supra)[22] where at [1] Brennan CJ stated:
Costs are awarded to indemnify a successful party in litigation, not by way of punishment of an unsuccessful party.
[21] See DZW17 at [212] to [218]
[22] See also Myers v Elman [1940] AC 282 per Viscount Maugham at 289
By extension, any costs order made in respect of Counsel and/or Mr V is to be guided by r 22.06 and is not a form of sanction.
The relevant consideration in the circumstances of the instant case is whether there was a relevant default for the purposes of r 22.06(1) (as understood by reference to r 22.06(2) of the Rules) on the part of Counsel and/or Mr V which caused costs to be incurred or thrown away by the Minister.
To the extent that any conduct which may give rise to a default pursuant to r 22.06(2) could be construed as undue delay (see r 22.06(1)), this will be addressed within the gambit of r 22.06(2).
By reference to the duty of a lawyer to avoid undue delay and to act with reasonable competence, care, and propriety, r 22.06(2) of the Rules provides the circumstances in which[23] a lawyer is taken to be in default. Specifically, the aforementioned duties include ensuring that a hearing can proceed conveniently by the lawyer conducting themselves, and their work, with a general level of competence which includes:
(a)attending a hearing or ensuring someone else does in their stead;
(b)filing, lodging or delivering a document as required;
(c)preparing any proper “evidence or information”; and
(d)the doing of any other act which is necessary for the hearing to proceed.
[23] For the purposes of r 22.06(1)
It was not in dispute between the parties that r 22.06(a) did not arise in the context of the current case.
Accordingly, the questions which arise for the Court in determining the Minister’s costs application are:
(a)whether the applicant should be ordered to pay the Minister’s scale costs and, if not, whether and by whom they should otherwise be paid;
(b)whether the May hearing was able to proceed conveniently;
(c)if the answer to question (b) above is “no”, whether the applicant is responsible for that inability;
(d)if the answers to each of question (b) and (c) above are “no”, whether the reason for the inability of the May hearing to conveniently proceed was because of an unreasonable failure on the part of Counsel and/or Mr V which constituted a default for the purposes of r 22.06(2) of the Rules, and which caused the Minister to incur or waste the additional costs;
(e)whether as a result of any default the Court should, in the exercise of its discretion, order Counsel and/or Mr V to pay the Minister’s additional costs; and
(f)if so, in what amount/s or proportion/s.
Costs sought in the scale amount
As noted above at [26], at common law the ordinary rule is that costs follow the event: see Oshlack (supra) per McHugh J at [67].
In this Court that principle is specifically reflected in r 29.13 of the Rules (see [27(a)] above). The Minister seeks an order that the applicant pay costs in the scale amount, representing a part of the proceedings which could be regarded as the standard “event” which costs would follow in judicial review proceedings brought under the Migration Act.
As found in DZW17, the applicant was unaware that she had been unsuccessful in her Tribunal proceedings at the relevant time by which she was required to seek judicial review in this Court, and also at the time that Counsel was retained to, inter alia, draft the originating process for the commencement of the proceedings.[24] The applicant first became aware on 27 August 2017 that in order to challenge the unsuccessful outcome of the Tribunal proceedings, she must commence proceedings in this Court,[25] by which date any application to this Court was already 31 days past due.[26]
[24] DZW17 at [115] to [117] and [122]
[25] Ibid
[26] DZW17 at [20], [115] and [117]
The Court has accepted that the applicant was unaware at the commencement of the proceedings that she required (and was seeking) an extension of time,[27] but it is not in dispute that the applicant was desirous of pursuing judicial review of the Tribunal’s decision as at the date the proceedings commenced. The applicant’s evidence under cross-examination at hearing on 20 June 2022 was that she paid $8,000 to Mr V when she attended his offices on 29 August 2017 to sign the originating application and her Affidavit, which was within two days of being requested to do so.[28] Some part of that amount was paid to Counsel.
[27] DZW17 at [124]
[28] DZW17 at [125]
It does not seem in doubt that, once informed that she had been unsuccessful before the Tribunal, the applicant wished to commence, and pursue, these proceedings. While many of the events which led to that commencement were done without her knowledge, the applicant was unquestionably “on-board” 48 hours prior to these proceedings being commenced.
The applicant then abrogated responsibility for the carriage of the proceedings to Counsel and Mr V.[29]
[29] DZW17 at [115]
The extent to which those lawyers then contributed to the increase of costs in this matter, above and beyond the applicant, is dealt with below. However, the fact that there may have been an increase in costs by reason of the conduct of her lawyers does not mean that the applicant is not liable to pay any costs of the proceedings.
Had the application been brought in time, the scale amount for which the applicant would ordinarily have been liable if she was unsuccessful was that provided by Item 3, Division 1 of Part 2 of Schedule 2 to the Rules. Had the application for an extension of time which was filed been unsuccessful, then the scale amount for which the applicant would ordinarily have been liable from the commencement of the proceedings would have been a lesser amount, which is prescribed by Item 2(b), Division 1 of Part 2 of Schedule 2 to the Rules. This is because the hearing of an application for extension of time is regarded in this Court as an interlocutory hearing. When an application for extension of time brought in Migration Act proceedings is granted, such that the effect is to convert the hearing of the matter to a final hearing, the scale amount for which the applicant becomes liable also shifts to that which is prescribed by Item 3, Division 1 of Part 2 of Schedule 2 to the Rules.
The increase in amount upon the granting of an application for extension of time which converts the hearing to a final hearing, reflects the fact that the hearing and determination of a judicial review application (in which the question for the Court is whether the decision under review is affected by jurisdictional error) ordinarily involves the consideration of the merit, and resolution, of the grounds of review on a final basis. That is in addition to the Court already having had to hear, consider and make a determination about relevant factors which led to the orders extending time.
Those factors ordinarily are:
(a)the length of delay;
(b)the explanation for such delay;
(c)a balance of the interests of the parties, namely the relative prejudice to the respondent and public interest matters as well as the consequences for the applicant if time were not extended; and
(d)whether the proposed substantive grounds have a reasonable prospect of success, with that assessment to be taken at a reasonably impressionistic level, such that they warrant time being extended in order that they can be determined on a final basis.[30]
[30] See DZW17 at [80]
It is well established that that the above considerations are not mandatory and that, in fact, there are no considerations (prescribed by s 477(2) of the Migration Act or otherwise) which a Judge of this Court is required to take into account when determining whether to extend time, other than whether it is in the interests of the administration of justice to do so.
In SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456, Bromwich J said the following at [11] to [12] (Allsop CJ and Flick J agreeing):
I turn now to the … assertion that lack of prejudice to the Minister in granting the application was a mandatory relevant consideration. In order to show that any consideration is relevant in the sense of a decision-maker being obliged to take it into account in making a decision under a statute, that must either be express or it must be implied from the “subject-matter, scope and purpose” of the legislation: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd(1986) 162 CLR 24 at 39-40. I am unable to see that any conclusion can properly be reached that the terms of s 477(2) make any consideration mandatory other than the express test of whether the grant of the extension of time sought is “in the interests of the administration of justice”.
It seems to me that Parliament has deliberately set a test for granting or refusing an application for an extension of time that accommodates a myriad of facts and circumstances by which an application for review came to be lodged outside the 35-day statutory time limit. I can see no warrant for putting any additional gloss or qualification on the words used by Parliament.
In BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 per Mortimer J at [63], her Honour referred to the foregoing paragraphs of SZUWX in finding that a failure of the primary judge to take into account any explanation for delay was an error, albeit not one which went to jurisdiction, stating at [64] that:
…there may well be circumstances where, if the Federal Circuit Court completely omits to consider an explanation for delay in considering an extension of time application under s 477(2), the Court will be found to have misunderstood the content of the s 477(2)(b).
While accepting that there are no mandatory relevant considerations for extending time, and having regard to the principles in SZUWX and BVW17, it remains uncontroversial to say that it would rarely, if ever, be the case that this Court would have no contextual need in extending time (which is an indulgence to a party) to understand the circumstances in which such an exemption had become necessary. Further, and as was acknowledged in DZW17 and occurred in these proceedings, once such an explanation is given, the person proffering it can be required for cross-examination to test the veracity of their explanation.[31]
[31] DZW17 at [71]
In DZW17 it was ultimately necessary to consider each and all of the matters set out in [78] above. Only once consideration of those matters had taken place, and the Court was satisfied that time should be extended, was it then possible to consider on a final basis for the purposes of s 476 of the Migration Act, whether the grounds raised in the Amended Application demonstrated jurisdictional error. The power exercised pursuant to s 476 of the Act in disposing of the application on a final basis is both conceptually, and functionally, different from that under s 477 of the Migration Act: see DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 per Collier, Rangiah and Derrington JJ at [97].
As a result of the Court being satisfied that time should be extended in this matter, the applicant had the benefit of:
(a)a full hearing, consideration and determination in her favour of an application for extension of time pursuant to s 477(2) of the Migration Act; and
(b)thereafter prosecuting a judicial review application before this Court pursuant to s 476 of the Migration Act.
In my view, and having regard to the premises set out at [25], [29], [30] and [84] above, there is nothing before the Court to suggest that there is any reason why, in respect of the scale costs sought by the Minister, those costs ought not follow the event.
That being so, in all of the circumstances of this case, I am satisfied that it is the applicant who should be ordered to pay costs in the scale amount of $7,328 which is said to reflect the Minister’s costs of the proceedings on a party/party basis, if they had taken a standard course. I will so order.
Additional costs
As to the additional costs incurred/thrown away by the Minister, they are detailed in the Terrell Affidavit. Irrespective of whether they are described as having been additionally incurred, or thrown away, they are properly caught by r 22.06 of the Rules.
The amount of additional costs sought reflects the costs of preparing for the May hearing, of the May hearing itself together with actions which followed. Those actions include consideration of the 30 May Submissions and Counsel’s Personal Submissions, together with the need for the Minister to draft supplementary written submissions consequent upon provision of the applicant’s explanation for delay and the 30 May Submissions, which addressed the relevant factors in an extension of time application. At the costs hearing, while not taking issue with the hourly rates charged by the Minister’s solicitors, there was a submission made on behalf of Counsel that much of the aforementioned work would have been required of the Minister’s solicitors in any event, even if the matter had been properly prepared by the May hearing.
For the purposes of the Court’s scale (see [27(a)] and [70] above) a “standard” proceeding under the Migration Act in this Court for a matter commenced in 2017[32] ordinarily involved a first court date attendance, leave granted to the applicant to file an amended application and any consequential need to consider that document, the filing of one set of written submissions for each of the applicant and the Minister, and a hearing usually of a half-day duration.
[32] Noting that certain practices changed as a result to the COVID-19 pandemic which resulted in initial timetabling orders being made in chambers and therefore there being no first Court date directions hearing

In contrast, by the time these proceedings were heard on 20 June 2022, the Minister had been required to consider three sets of written submissions, an originating application with two subsequent Amended Applications and five Affidavits from the applicant. On the Minister’s part, he had advanced written submissions and supplementary written submissions, the latter being necessary[33] to meet the 30 May Submissions which addressed the extension of time factors, and Counsel’s Personal Submissions (filed without leave). Accordingly, I do not accept the contention advanced for Counsel that there were no additional costs incurred by the Minister beyond a standard Migration Act proceeding in this Court.
[33] Also having been ordered by the Court
The Minister’s additional costs are said to be $2,651.25 on a party/party basis. This figure is reached by adding the Minister’s additional costs on a solicitor/client basis ($3,535) and applying to that figure a 25 percent discount, which is the usual and appropriate method for calculating party/party costs in Migration Act matters in this Court.
Was the matter able to proceed conveniently?
It was not.
The first order made by a Registrar on 3 March 2022 when this matter was brought into my docket (March Order) was in the following terms (emphasis added):
The matter be listed for hearing of the application for an extension of time and, if granted, final hearing before Judge Given at 10.15am on Thursday, 5 May 2022.
The nature of the May hearing event was not in doubt.[34] As the March Orders made clear, the application for an extension of time and, if so extended, a substantive hearing of the judicial review application were sequential, as in fact they must be.
[34] Despite an assertion in Counsel’s Affidavit at [125] that there was “no communication from the Court” as regards how the application/s would proceed
In DZW17 at [210] I found:
The unfitness for purpose of a number of the applicant’s documents, but in particular the late-filed 3 May Submissions, was in part a reason why the matter could not proceed on that day. The other reason I adjourned it was to enable Counsel and Mr V to reflect upon their professional duties and whether they should continue in the matter. None of those factors appears, on the material before the Court, to have been caused by the applicant.
While some of the additional material relied on by Counsel in relation to the costs hearing,[35] and which is set out below as necessary, has augmented the Court’s understanding of the background to this matter, there is no material before me which dislodges the finding in DZW17 at [210] that the applicant did not, herself, contribute to the inability of the matter to proceed conveniently at the May hearing, including by specific reference to the matters set out at [98] below.
[35] See [32(b)] above
Accordingly, I agree with the Minister that the applicant should not be required to pay the Minister’s additional costs.
Responsibility of the lawyers for the inability to proceed
As was expressed in DZW17 (see [95] above) there were three main reasons for why the May hearing was not able to proceed conveniently, each of which were ventilated at the May hearing and detailed in DZW17. They were:
(a)the late proffering of documents (whether by filing, service or otherwise), which failure corresponds to r 22.06(2)(b) of the Rules;
(b)the substantive unfitness for purpose of many of those documents but in particular the written submissions and evidence advanced for the applicant as at the May hearing, which failure corresponds to rr 22.06(2)(c) and/or (d) of the Rules; and
(c)the opportunity afforded to Counsel (in particular) and to Mr V to consider their professional obligations.
As to the timing and quality of documents, it is necessary to have regard to additional information proffered by the materials listed at [32(b)] above. The general tenor of that additional information grounds Counsel’s central submission that any, and all, failures in this case are wholly attributable to Mr V.
From the material advanced by Counsel and the submissions made by Mr McHugh SC for her at the costs hearing, the Court was provided with explanations which sought to highlight the inaction and non-responsiveness of Mr V. This was, in essence, an expansion upon submissions made by Counsel which were detailed in DZW17.[36]
[36] DZW17 at [193] to [195]
Defaults by Mr V
I accept that Mr V was both inactive and non-responsive in a number of ways including:
(a)failing to include the applicant’s explanation as to why the application to the Court was out of time, in the body of the applicant’s August 2017 Affidavit.[37] A request that he do so was conveyed in an email from Counsel to Mr V (in which she erroneously[38] informed him that, as a barrister, she was precluded from drafting Affidavits[39] (an alleged prohibition which she was apparently content to cast aside for a fee[40] and in fact did so when she came to prepare the 5 May Affidavit[41])). It can be accepted that Counsel prescribed a number of matters that ought to be included by Mr V in the applicant’s August 2017 Affidavit. Mr V seemingly ignored all of those matters and instead filed the Affidavit in the deficient form set out in DZW17.[42] I find this to be an unreasonable failure on the part of Mr V pursuant to rr 22.06(2)(c) of the Rules. The omission by Mr V of the explanation for why the application was out of time takes on a darker hue when regard is had to the explanation itself. At all relevant times, Mr V was the person in possession of the fullest understanding of the background to this matter. It is open to infer, and I do, that the failure of Mr V to proffer the explanation was not just a careless omission in the preparation of documents, but served to conceal his responsibility for the matter being out time. In this sense Mr V had a conflict of interest in advancing the true basis for why the application to this Court being made out of time;
(b)failing to include the true explanation[43] as to why the application to the Court was out of time in the “Grounds of application for extension of time” section of the originating application. Counsel newly alleges that Mr V was tasked with including the explanation for delay in the originating application. While this is at odds with Counsel telling the Court at the May hearing that she had drafted the originating application[44] (with no carve out expressed that Mr V had been asked to include the grounds for the extension of time), based on the documentary evidence I am prepared to accept that there was a direction in Counsel’s email to Mr V on 27 August 2017 to the effect that those grounds should be included.[45] Accordingly, I find Mr V’s failure to do so to be unreasonable for the purposes of rr 22.06(2)(c) of the Rules. I repeat the matters in the preceding subparagraph in relation to Mr V’s conflict of interest with the applicant in an explanation being given;
(c)not providing Counsel with sealed copies of documents which were filed for the applicant, or documents filed and served by the Minister. The material before me indicates that Mr V filed the applicant’s originating process in this matter, replete with his Yahoo address as the email address for service, such that he was the only contact method for the applicant. As a result, Mr V ought to have been a fastidious intermediary in this regard, between all relevant stakeholders. However, it seems from the material before the Court that Mr V provided Counsel with no documents in the matter. In the particular circumstances of this case, I find Mr V’s failure to be a diligent conduit to be unreasonable for the purposes of r 22.06(2)(c) of the Rules, insofar as it constitutes a failure to deliver documents. If that be inapposite, then I find it to also comes within the broader ambit of r 22.06(2)(d) of the Rules; and
(d)failing to inform Counsel of the adjournment of the matter in August 2018 and its subsequent listing for the May hearing, in a timely fashion. The information about each of those hearing events was notified (to the applicant) by email to Mr V’s Yahoo address. While not obviously impacting the May hearing, these failures certainly contributed to the general confusion of matters which required clarification at the May hearing. Significantly, the failure to keep Counsel apprised of hearing dates appear to have resulted in additional submissions being prepared for the applicant. Already by the May hearing the Minister’s lawyers had had to consider two sets of written submissions, neither of which were the submissions upon which the matter ultimately proceeded. To the extent that, by failing to keep Counsel properly informed about matters which were being exclusively notified to him at his Yahoo address this contributed to the additional submissions being prepared, then for the same reasons given in [101(c)] above in relation to fastidiousness, I find Mr V’s failure to diligently keep Counsel apprised of matters is an unreasonable failure for the purposes of r 22.06(2)(d) of the Rules.
[37] DZW17 at [22] to [23]
[38] A proposition which was embraced by Senior Counsel at the costs hearing: see Transcript 23 September 2022 T18.45
[39] Counsel’s Affidavit at [62] and Annexure “G”
[40] Counsel’s Affidavit at Annexure “AI”
[41] Counsel offers an even further explanation when she states in her written submissions that she was not engaged to draft Affidavits in the proceedings: see Counsel’s written submissions at [44] and [88]
[42] DZW17 at [23]
[43] DZW17 at [21]
[44] DZW17 at [69]
[45] Counsel’s Affidavit at Annexure “G”
It is true that Mr V failed to file the written submissions and proposed further amended application sent to the Court by Counsel in August 2019. However, while these were unreasonable failures on the part of Mr V, I cannot see that they specifically caused the May hearing to not proceed conveniently for the purpose of pursuant to r 22.06(2)(b) of the Rules.
In my view, Mr V caused part of the Minister’s additional costs to be incurred (for the purpose for r 22.06(1) of the Rules) by each of the defaults referred to at [101] above within the scope of r 22.06(2) of the Rules. Having regard to all the circumstances of this case and in the exercise of my discretion, I am of the view that Mr V ought be ordered to pay some part of the Minister’s additional costs.
Defaults by Counsel
Before turning to the specific matters which might be considered defaults by Counsel for the purpose of r 22.06 of the Rules, it is necessary to address Counsel’s broad answer to the Minister’s costs application, namely that she is entirely without blame.
Firstly, that the matters referred to in [101] have been found to be failures of Mr V, does not exclude or absolve Counsel from responsibility for them in the sense discussed at [60] above, in particular because she assumed the risks involved by having failed to disclose Mr V’s involvement, and to a certain degree her own, in the proceedings.
As was observed in DZW17,[46] Counsel knew that the presence of Mr V in these proceedings was not something apparent to the Court, or to the Minister’s solicitors.
[46] DZW17 at [195]
Counsel also knew that the only email address which had been provided to the Court and to the Minister’s solicitors by its inclusion in the footer of the originating application, was Mr V’s Yahoo address. She knew that because it was she who inserted that email address into the originating application. In so doing, and with the consequence that Counsel would be solely reliant on Mr V to convey information and documents in a timely fashion, she assumed a considerable risk given her understanding which I have found at [40] above. That risk included that Counsel would not be made aware of Court events other than by Mr V, and that this could impact the preparation time she may have.
I accept with the benefit of Counsel’s Affidavit[47] that one of the matters Counsel told Mr V he should include in the applicant’s August 2017 Affidavit was that Counsel had been briefed in the matter. However, Counsel thereafter did not check the content of that Affidavit until the day of the May hearing, to verify, inter alia, that this request had been carried out. Having otherwise taken deliberate steps herself to omit her details from Court forms,[48] Counsel left open the very real possibility that her request may not have been complied with. Accordingly, Annexure “G” to Counsel’s Affidavit does not alter my view that Counsel was ultimately responsible for the documents which were placed before the Court in this matter, and for the consequences which may flow from their content, or lack thereof.
[47] Counsel’s Affidavit at [62] and Annexure “G”
[48] DZW17 at [195] to [196]
It is also a position which Counsel (fleetingly) accepted when, early in the course of the May hearing, she said the following (in context of the failure to utilise the non-English speaking jurat in the applicant’s May Affidavit):[49]
I understand that when I appear in a direct access capacity I am responsible for all the documents before the court.
[49] Transcript 5 May 2022 T3.40
Unfortunately, no statement by Counsel to the Court in relation to her duties, at any time since the aforementioned acknowledgement, demonstrated a similar level of frankness or accountability. It will also be recalled that at the May hearing Counsel explained that in each case in which she purportedly acted on a directed access basis she had:[50]
…always had a community representative. Someone between me and the client.
[50] DZW17 at [65]
Accordingly, the statement at [109] above that Counsel understands she is responsible for all documents before the Court when she appears in “a direct access capacity” can only be understood as an acknowledgement that Counsel knew that irrespective of the presence of an intermediary, the ultimate responsibility was hers. This is at odds with the positions she has since advanced.
Next, as part of eschewing responsibility, Counsel also says that she was unaware of the nature of the arrangement between Mr V and the applicant. However, given that she had employed an abnormal model for her own engagement as Counsel in this matter (namely a purportedly direct access retainer with a solicitor), she ought to have made far better enquiries as to the basis and nature of Mr V’s instructions. That is moreso given that Counsel says she understood Mr V to not be acting as a solicitor, which would have taken matters beyond the presumptions of regularity which that particular, traditional, professional dynamic would otherwise yield. Furthermore, Mr V’s reasons for remaining in the matter, but in an invisible way ought to have given Counsel pause, particularly in light of Counsel not knowing why the application was already out of time.
Having regard to the principles discussed above at [56] to [60], the matters to which Counsel points as demonstrating that Mr V is responsible for all failures, are matters for which Counsel ought reasonably to have not acted blindly, but instead seen for herself. The explanations offered by Counsel ignore that, as part of basic preparation for the May hearing, she should have independently informed herself as to each of the following:
(a)knowing the applicant’s explanation for delay so that she could advance this before the Court, including by written submissions prior to the May hearing.[51] On Counsel’s own version of events, while she asserts she was going to address this in oral submissions, she could not have done so because she did not know even during the course of the May hearing, what that explanation was;
(b)that all relevant evidence had been filed, and the content of it;
(c)the fixture of the hearing date and the orders made in advance of it; and
(d)that all tasks which were reasonably necessary for the matter to proceed conveniently had been undertaken.
[51] See [118] below and Counsel’s Affidavit at [117]
Specifically in relation to why the May hearing was not able to proceed conveniently, I find the following to be defaults on the part of Counsel.
The unsatisfactory quality and timeliness of documentation prepared by Counsel has been detailed in DZW17.[52] The Minister and the Court were not furnished with any material which went towards the factors for consideration in an application for extension of time until when, during[53] the May hearing, Counsel emailed the 5 May Affidavit to my Associate. Much has been advanced as to the myriad ways in which this was not Counsel’s responsibility having, she says, been horribly let down by Mr V.
[52] DZW17 in particular at [202] to [210]
[53] DZW17 at [59]
At various junctures Counsel has relied on (what she says) is her considerable experience in this jurisdiction and her consequent familiarity with the factors to be considered in an application for extension of time[54] as a basis upon which she ought to have been able, or even entitled,[55] to address the Court orally at the May hearing as to those matters.[56] As was noted in DZW17, and maintained by the Minister in the costs application, this course was not viable.[57] To the contrary, Counsel’s asserted experience means that while knowing what the relevant factors were,[58] her failure to then ensure salient material was before the Court by way of evidence (and properly addressed in her written submissions), was unreasonable.
[54] Counsel’s Affidavit at [124], [128] and Counsel’s written submissions at [67]
[55] See [119] below
[56] DZW17 at [70]
[57] DZW17 at [71] and Minister’s written submissions on costs at [10] and [13]
[58] Counsel’s written submissions at [67]
The narrative now advanced by Counsel implies that the omission by her of the relevant extension of time factors was anomalous to her usual practice in such applications, and done in such haste that it was impossible to include the explanation in time. However, in August 2019, Counsel also advanced written submissions to the Court which were entirely silent as to the explanation for delay. Those submissions were also sent directly by Counsel to the Court (eliminating any possibility that Mr V was responsible for pertinent content), demonstrating that Counsel was entirely content for written submissions with that particular deficiency to be advanced. Further, Counsel was aware of the May hearing fixture as at 20 April 2022 and prepared submissions within days which, she again, circulated directly to the Minister’s solicitors and the Court by email.[59] Counsel advanced those submissions without having consulted the applicant. Even when she did confer with the applicant on 4 May 2022, Counsel did not ask the applicant anything about the explanation for delay.[60]
[59] Counsel’s Affidavit at Annexure “T”
[60] Counsel’s Affidavit at [117]
Counsel has said at a number of junctures that she came to the May hearing prepared to make oral submissions[61] and that she:[62]
…expected the interests of the administration of justice and the overarching purpose of the civil practice and procedure provisions as set out in s 190(1) [of the Court Act] to swing in favour of the Learned Judge allowing Counsel to make the oral submissions as proposed and allowing the hearing to proceed as scheduled.
[61] DZW17 at [70], Counsel’s written submissions at [71] and [76]
[62] Counsel’s written submissions at [75]
While such a course apparently suited Counsel in the moment, and even if she held an “expectation” that she should be entitled to so proceed, her subjective preferences do not inform whether that was a reasonable course to take. Oral address is, of course, a valuable tool in the arsenal of barristers. However, notwithstanding that in many situations it may be the most appropriate course, there will be other situations where wholly it is not. Pursuit of the Court’s overarching purpose is not a sufficient basis to allow one party’s convenience to override considerations of procedural fairness to others.

Counsel also asserts that the 3 May Submissions:[63]
…were drafted on the assumption that the Extension of Time Application would be successful.
[63] Counsel’s written submissions at [65]
Such an assumption was not reasonably held in circumstances where Counsel had, by her own admission, absolutely no knowledge of an important factor upon which the success of such an application may turn. Most crucially, the Court could not, absent any material going towards that state of satisfaction which it must reach, grant the extension.
As part of the additional information advanced by Counsel to demonstrate the inadequacies of Mr V’s conduct in this matter, and to shift responsibility to him, Counsel placed before the Court a text message exchange between them which is said to have taken place on the morning of May hearing. Rather than exculpating Counsel, the correspondence is disconcerting in terms of what it reveals as against the multitude of reasons Counsel has since given as to why it was entirely reasonable for the hearing to proceed, absent an explanation for delay being advanced for the applicant.
At or about 7:12am on the morning of the May hearing, Counsel sent Mr V this text message:[64]
I am very unhappy with you. You
assured me these documents would
be filed yesterday.
[64] Counsel’s Affidavit at Annexure “BA”
While on its face it is undated, Counsel says that in response to the aforementioned text message she received the following message from Mr V: [65]
[65] Counsel’s Affidavit at Annexure “BB”
The reason later
The applicant’s partner is in hospital.
to which Counsel replied with the following chain of messages[66] to Mr V:[67]
This is not good enough.
Her reasons related to why she filed late in 2017.
They have to be elaborate
She’s filed on 31/8/2017
She was supposed to file by 27 July
2017.
She was around 35 days late
She needs to give you the reasons for the delay
[66] Without any intervening replies from Mr V
[67] Counsel’s Affidavit at Annexure “BB”
As noted, this is advanced as being exculpatory, to show how reasonable Counsel was being and that she was herself a hapless victim of Mr V. I do not accept that. Rather, the text messages demonstrate that Counsel knew she did not have the relevant information which was required to prosecute the extension of time application. Counsel was also apparently unhappy about that state of affairs. Yet, despite this, Counsel has on a number of occasions implied that the omission was trivial and that the Court’s own dissatisfaction with the absence of such material, was unreasonable.
Ignoring for a moment the disturbing suggestion that any explanation for delay needed to be “elaborate”,[68] by her text message to Mr V, Counsel evinced knowing how important it was to advance the explanation, despite what she asserted subsequently to the Court. I find it was unreasonable in those circumstances for Counsel to represent to the Court that the matter could proceed absent an explanation having being proffered. To the extent that Counsel says that she assumed the explanation was already before the Court and only realised at the last moment that it was not, this was also an unreasonable failure on her part for the reasons detailed at [108] to [113] above.
[68] See [124] above
To the extent Counsel says that the failure of Mr V to do certain things led to the absence of crucial information being before the Court, I have accepted he played a part and that he failed to undertake tasks that Counsel says she left to him. However, in the circumstances of this case, where Counsel was the only ostensible representative of the applicant, it was incumbent upon her to have objectively informed herself of all of those matters well in advance of the May hearing, in order to ensure she complied with her own professional duties and the overarching purpose of the Court’s practice and procedure.
For the purpose of the costs hearing, it was submitted for Counsel that the most she could be criticised for was “misplaced optimism”.[69] However, Counsel’s duties in this matter to the Court (and her client) were ones requiring due skill, diligence and competence, not a blindly cheerful disposition. Whether Counsel’s conduct was reasonable in the circumstances is not assisted, let alone answered, by saying she was optimistic that things would turn out well. Counsel was not entitled to blindly assume that the explanation for delay had been proffered to the Court, simply because she requested many years before that this be done.
[69] Transcript 23 September 2022 T33.13, T33.43, T37.24, T37.33, T38.11, T45.41
It was also not reasonable to have blindly trusted Mr V’s assurances given that, by late April 2022, Counsel knew that Mr V had twice failed to inform her of hearing fixtures and had provided Counsel with no documents in the matter over the course of almost five years.[70] To the extent that Counsel seeks to insulate herself from responsibility by saying that she trusted Mr V, such trust at that juncture was patently misplaced and blind trust is never appropriate (see [38] and [56] above). As the May hearing approached, Counsel ought to have made better enquiries to equip herself with all the materials required, which she could have obtained much earlier than the day of the May hearing by requesting them from Court or the Minister’s solicitors.
[70] See [101(c)] above
In my view, the failure of Counsel to advance crucial material (being the explanation for delay and also address all other salient factors which might warrant time being extended in the applicant’s case) was an unreasonable failure to prepare proper evidence or information pursuant to r 22.06(2)(c) of the Rules in relation to the evidence and submissions and, in the case of submissions, a failure to lodge or deliver a document as required pursuant to r 22.06(2)(b) of the Rules. Counsel resisted the latter proposition by saying that she assumed the material had been advanced/filed, that her assumption was reasonable, and therefore it is no failure on her part. My findings from the preceding paragraph above apply to this submission also.
While it can be accepted that Mr V was told by Counsel that he should include the explanation for delay, the fact that Counsel thereafter did not verify for herself:
(a)that this had actually been done; and
(b)what the explanation actually was
such that nothing was before the Court, was an unreasonable failure on her part for the purposes of r 22.06(2)(d) of the Rules.
In circumstances where the May hearing was of her client’s[71] application for extension of time, ensuring that the factors which informed that application were before the Court was an act fundamental for the hearing being able to conveniently proceed. In addition to the findings of default in respect of rr 22.06(2)(b) and (c), I am of the view that Counsel was generally and unreasonably unprepared for the hearing in a way that was necessary for it to proceed, and that this was a relevant failure for the purposes of r 22.06(2)(d) of the Rules.
[71] Albeit by the costs disclosure entered into with Mr V he was described as the client: see DZW17 at [112(d)]
At [98(c)] I referred to the third factor for the adjournment being the opportunity afforded to Counsel and Mr V to reflect on their professional obligations. This was a personal indulgence to them. To that factor I would add that because the information before the Court at the May hearing and explanations given by Counsel on that day raised more questions than they answered, the adjournment also served the purpose of enabling the Court and the Minister to obtain a more fulsome account to the background to the matter. Given the nature of the ultimate explanation for the applicant’s delay, and the conflict/s of interest between the applicant and the lawyers to which it gave rise, this is not insignificant. That is more so because, by Counsel’s written submissions, she asserts that it was the Court who adjourned, of its own motion. This contention is glib given that parties are not able to unilaterally adjourn proceedings. All proceedings are adjourned by the Court.
However, to the extent that by this submission Counsel emphasises that the applicant did not seek to adjourn the May hearing, this also does Counsel no credit. Counsel was the sole medium for communication between the applicant and the Court at the May hearing. Given what is now known of the full background to the matter, it is unsurprising that no such adjournment was made for the applicant. Further, the fact that Counsel and/or Mr V did not appreciate or utilise the opportunity given to them does not mean that the adjournment was unwarranted, or not in their own personal interests.
In my view Counsel caused the additional costs to be incurred (for the purpose for r 22.06(1) of the Rules) by each of the aforementioned defaults in [130] to [132] above (inclusive), within the scope of r 22.06(2) of the Rules.
Having regard to all the circumstances of this case, and in the exercise of my discretion, I am of the view that Counsel ought to be ordered to pay some part of the Minister’s additional costs.
Apportionment
Of the defaults found in respect of Counsel and Mr V, many are inextricably linked. However, having regard to the principles discussed earlier, that every lawyer has independent professional duties including to their client/s and the Court, and that neither of Counsel or Mr V was entitled to blindly follow the other, I am of the view that they should share the responsibility for the additional costs equally, save for one matter.
Part of the Minister’s additional solicitor/client costs includes an entry on 2 June 2022[72] for time spent considering Counsel’s Personal Submissions. Those Personal Submissions were unsolicited, filed without leave and in Counsel’s interests only. To the extent that the Minister’s solicitors incurred costs considering those Personal Submissions, that is an additional cost caused by Counsel alone.
[72] Terrell Affidavit at [3]
When asked at the costs hearing, the Minister’s solicitors were not able to pinpoint precisely how much of the $875 spent on 2 June 2022 pertained to considering Counsel’s Personal Submissions. Having regard to the length of those Personal Submissions (47 pages) and to the balance of the 2 June 2022 entry which also includes attendance at the directions hearing before me, I consider a reasonable amount to attribute to that review of Counsel’s Personal Submissions to be one third of the time spent that day, namely $291.66.
Accordingly, I am of the view that prior to applying the usual discount (see [91] above) to the Minister’s solicitor/client costs, the equal apportionment between Counsel and Mr V ought be adjusted to reflect the addition of $291.66 to the half of the Minister’s costs for which Counsel is liable, and a correlative reduction of that amount to the half for which Mr V is liable. As a result those amounts on a solicitor/client basis are $2,059.16 for which Counsel is liable and $1,475.84 for which Mr V is liable, which combined reflect the sum of $3,535.[73] With the requisite discount to reflect party/party costs, those amounts are then $1,544.37 to be paid by Counsel and $1,106.88 to be paid by Mr V, which accords with the total amount sought by the Minister of $2,651.25.[74] I will so order, and require those amounts to be paid to the Minister within 28 days.
[73] Terrell Affidavit at [4], noting that there is a typographic error in that paragraph inverting two figures in the amount
[74] Terrell Affidavit at [5]
Additional observations
By orders made on 25 July 2022, I referred each of Counsel and Mr V to the respective professional bodies which regulate their branches of the legal profession. As part of those referrals I pre-emptively indicated that this costs judgment would also be provided in due course. That will occur, together with provision of the additional relevant documents filed for the Minister and Counsel in advance of the costs hearing.
Prior to concluding, the material which has been advanced by Counsel in this matter throws up further matters of concern which should be noted.
Counsel’s versions in relation to certain events have evolved throughout these proceedings and in particular by the materials filed in advance of the costs hearing. This does not appear to accord with Counsel’s duty of frankness before the Court. Rather it seems to reflect a refusal on Counsel’s part to accept even the most basic responsibility for her conduct. At the May hearing when the Court raised initial concerns, Counsel immediately embarked upon the provision of explanations without reflection. The Court indicated that while Counsel would be heard if she wished, given the professional significance of the concerns, that it may be better for her to instead reflect or even to take advice. The Court went so far as to say (anonymisation added):[75]
…I’m not your lawyer, [COUNSEL], but I don’t necessarily think it’s prudent to continue to give explanations on transcript…
[75] Transcript 5 May 2022 T12.28 to T12.29
Nevertheless, Counsel persisted.
There are four main areas in which Counsel’s versions of events can be seen to have evolved and/or varied.
Firstly, the reasons for Counsel’s failure to disclose her involvement in the footer of the originating process. It will be recalled that at the May hearing Counsel said the reason for this was that, as a barrister, she was not permitted to receive documents by way of service and that the decision of CPJ17v Minister for Immigration and Border Protection (2018) 258 FCR 495 had the effect that she was not required to indicate her involvement in the drafting of documents.
In DZW17 I observed that the footer on a number of the Court forms advanced for the application had been altered to change a template section of the Court form from “Prepared by” to read “Prepared for” (emphasis added). I also observed that altering the Court forms in this way could have served no legitimate purpose.[76] I made no findings in DZW17 as to by whom the Court’s form had been altered. By Counsel’s Affidavit[77] she now admits that it was she who altered the Court form and says (errors in original):
On the footer of the Filed Originating Application, I stated that the Application was “Prepared For” instead of “Prepared By: because I could not mislead the court by stating both “Prepared By” and the Applicant’s name.
It was important to me to advise the court that the Applicant was assisted in the preparation of the application even though no solicitor had filed a notice of appearance in the matter.
[76] DZW17 at [29(a)]
[77] Counsel’s Affidavit at [55] to [56]
It was suggested by Mr McHugh SC that this explanation is not inconsistent with Counsel’s earlier version. I disagree. Counsel was adamant at all times until the proffering of this new explanation, that her drafting of documents and assistance to the application should not be disclosed and that by notifying that she had prepared the document/s would somehow lead to Counsel being improperly taken to accept service for the applicant. I find that at odds with an explanation that Counsel was in fact so concerned with ensuring that the Court knew the applicant had been assisted by a lawyer in the preparation of the application, that rather than by simply adding her name, she deliberately doctored the Court’s prescribed forms in order to leave a tiny clue. That clue would have required the Court to first notice the change (it being an amendment to the form which was unmarked) and then to apparently follow it to discover her involvement.
Aside from the fact Counsel’s explanations about this issue have changed, it should also be noted that the prescribed parts of the Court’s forms should not be altered, much less in material ways. The change Counsel made to the form was small, but highly significant, especially when regard is had to the effect of r 2.16 of the Federal Court Rules 2011 (Cth) which is treated as applying in this Court: see DZW17 at [187], citing AYF15 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 10 and CPJ17 (supra). The Court is entitled to approach documents filed with a presumption of regulatory, and the very origin of that regularity is the form itself. The Court ought not be expected to scour filed documents for sneaky tweaks made to pro forma sections, the consequence of which is to materially change the effect of the information proffered by them.
The second area in which Counsel’s versions have varied is her oscillating accounts of when, whether, and how Mr V ought to be considered to be acting a solicitor, and her knowledge of his status in that regard (see [38] above).
The third area of variation is in relation to the misstatements made to Judge Manousaridis’ Chambers in the August 2019 Email.[78]
[78] DZW17 at [38]
Counsel’s explanation to the Court at the May hearing was that:[79]
…if I had communicated to the judge’s — to Judge Manousaridis’ Associate to indicate it was 2019, it would have been an error, and there would have been no need for me to state at that time that it was — it was August 2019 if it was indeed 2017.
[79] DZW17 at [65] extracting Transcript 5 May 2022 T6.13 to T7.13
Counsel has since advanced a version of events whereby this is statement was not in error, but rather intentional, to reflect that her retainer in this matter was initially limited, and that she was newly retained on a number of occasions throughout the proceedings such that her statement to Judge Manousaridis that she had been retained on 1 August 2019 was accurate. While there is material which shows that on some occasions Counsel asked Mr V whether she should proceed to draft certain documents, a version of events whereby she was newly retained on a number of occasions[80] is not borne out by the costs disclosure she had with Mr V, for which she was retained for all steps until the completion of these proceedings at hearing.
[80] Transcript 23 September 2022 T36.43
A review of the Costs Agreement[81] between Counsel and Mr V records that the Costs Agreement provided for Counsel being retained to provide legal services from the drafting of an advice on merits and the originating process, preparation of written submissions and attendance at that hearing, including if that event were to extend to multiple days.[82] There is no evidence that Counsel was ever asked to return the brief at any interim juncture.
[81] DZW17 at [112]
[82] Counsel’s Affidavit at Annexure “C2”
Lastly, by Counsel’s Affidavit she asserts that the first time she became aware that Mr V may not have advised the applicant of the Tribunal’s decision by the time he retained Counsel was:
…when the Applicant gave evidence in court to that effect, on 20 June 2022.[83]
[83] Counsel’s Affidavit at [44]
This affirmed statement is directly at odds with:
(a)paragraph [4] of the second June Affidavit which Counsel herself read for the applicant at hearing[84] and which says:
On the 27 August 2017, [Mr V] advised me over the phone that a decision has been made and I should attend his office on the 29 August 2018 with payment to lodge a review application.
(b)paragraph [9] of the 30 May Submissions which Counsel herself drafted[85] which states:
In substance, she claims that she had engaged a solicitor to represent her at the Tribunal and lodge an application for judicial review. Her solicitor advised her on 27 August 2017 (66 days after the decision was made) that a decision had been made in her case. Her solicitor did not disclose to her that her application was lodged late and as such required an extension of time…[86]
[84] DZW17 at [83]
[85] DZW17 at [88] and [120]
[86] DZW17 at [120]
That Counsel’s explanations have continued to change appears to reflect an inability to take responsibility. The general tenor of unaccountability which emerged from Counsel’s Affidavit and written submissions initially seemed to indicate that Counsel had failed to reflect upon the circumstances of this case. However, the position is somewhat more grim.

Counsel apparently having so reflected, has drawn the conclusion that there was nothing else she could have done in this matter.[87] It is a position which was also advanced a number of times at the costs hearing by Mr McHugh SC,[88] no doubt upon instructions to that effect. However, Mr McHugh SC also conceded in multiple regards that (hypothetically) he would not have conducted himself in the way Counsel did, albeit taking care not to case this as saying that Counsel was unreasonable to have done so.
[87] Counsel’s written submissions at [49]
[88] Transcript 23 September 2022 at T8.39, T34.34 and T36.43
Counsel’s lack of accountability is further reflected by the contortions in her account of events set out at [146] to [156] above, which come from what appears to be a steadfast refusal to accept even the prospect of fallibility. Considering the many and serious matters raised by DZW17, such an absolute position of self‑righteousness seems misplaced. However, that is a matter for the NSW Bar Association to address, and Counsel’s intransigence has not weighed in the exercise of my discretion as to whether (or in what proportion) she ought meet some part of the Minister’s additional costs, again have regard to the principle from Oshlack (supra) referred to at [62] above.
Finally, on a number of occasions Mr McHugh SC sought to characterise Counsel as a good Samaritan by reference to her having taken the brief in this matter on a “direct access” basis and suggested that this, and other of Counsel’s actions, were “in the finest traditions of the Bar”.
As I observed in DZW17,[89] the nature of a retainer does not excuse poor conduct by a lawyer. Counsel was paid in this matter[90] and, in fact, paid handsomely when regard is had to the hearing scale. Further, in the Migration jurisdiction it is not always the case than any lawyer is better than no lawyer, especially within a jurisdiction involving a contravener with model litigant obligations and a Court with long-standing experience and procedures to assist unrepresented litigants.
[89] DZW17 at [203] to [205], citing the Full Federal Court in ALA15 v Minister for Immigration & Border Protection [2016] FCAFC 30 at [68]
[90] DZW17 at [204]
Valiant though his submission was, the only fine traditions of the Bar demonstrated in this case have been those of Mr McHugh SC himself, appearing pro bono to the personal benefit of another barrister for a full day’s hearing, at extremely short notice (because of Counsel’s late retention of solicitors) and spanning a public holiday, so that Counsel could seek to avoid a maximum costs order of $2,651.25.
Conclusion
In all of the foregoing circumstances, the following is the appropriate and just outcome in respect of the issue of costs in this matter:
(a)the applicant should be ordered to pay the Minister’s scale costs;
(b)the May hearing was not able to proceed conveniently (inability);
(c)the applicant was not responsible for the inability;
(d)Mr V was in part responsible for the inability by reference to unreasonable failures on his part for the purposes of r 22.06 of the Rules as set out at [101] above, which caused the Minister to incur the additional costs;
(e)Counsel was in part responsible for the inability by reference to unreasonable failures on her part for the purposes of r 22.06 of the Rules as set out at [130] to [132] above, which caused the Minister to incur the additional costs; and
(f)by reason of each of their respective, unreasonable failures, which caused the inability each of Mr V and Counsel ought pay some part of the Minister’s additional costs in the following proportions as set out at [140] above:
(i)$1,106.88 to be paid by Mr V; and
(ii)$1,544.37 to be paid by Counsel;
with those amounts to be paid within 28 days.

I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.
Associate:
Dated: 9 November 2022

File number(s):	SYG 2780 of 2017
Judgment of:	JUDGE GIVEN
Date of judgment:	4 November 2022
Catchwords:	MIGRATION – liability between applicant and her lawyers for costs in the Court’s “scale” amount and additional costs incurred – requirement to address factors relevant to an application for extension of time in order for hearing to conveniently proceed – usual method for calculating party/party costs in Migration proceedings PRACTICE AND PROCEDURE – personal costs orders against lawyers – whether barrister can avoid liability for costs by reason of solicitor’s conduct – whether Counsel “blindly” relied on solicitor – whether an unrepresented barrister is precluded from filing documents on their own behalf – whether barristers are prohibited from drafting Affidavits – whether hearing able to conveniently proceed – undesirability of altering Court forms – unreasonable defaults – duty of frankness to Court – unwillingness of barrister to take responsibility for conduct – changing versions of events – referral of lawyers to the New South Wales Bar Association and the Law Society of New South Wales
Legislation:	Evidence Act 1995 (Cth) ss 119, 131 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 214 Federal Court Act 1976 (Cth) s 43 Migration Act 1958 (Cth) ss 476, 477 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.04, 22.06, 29.13 Federal Circuit Court Rules 2001 (Cth) r 44.15 Federal Court Rules 2011 (Cth) r 2.16 Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Cases cited:	AYF15 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 10 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 CPJ17v Minister for Immigration and Border Protection (2018) 258 FCR 495 Davy-Chiesman v Davy-Chiesman & Anor [1984] 1 All ER 321 De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 DZW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 564 Edwards v Edwards [1958] P 235 Ex Christmas Islanders Association Inc v Attorney-General (Cth) (No 2) Knight v FP Special Assets Ltd (1992) 174 CLR 178 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155 Locke v Camberwell Health Authority [1991] 2 Med LR 249 Medcalf v Mardell & Ors [2003] 1 AC 120 146 Mitry Lawyers v Barnden [2014] FCA 918 Myers v Elman [1940] AC 282 Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455 Orchard v South Eastern Electricity Board [1987] QB 565 Oshlack v Richmond River Council (1998) 193 CLR 72 Pitts v Adney [1961] NSWR 535 Ridehalgh v Horsefield [1994] Ch 205 SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 Tolstoy-Miloslavsky (Count) v Lord Aldington [1996] 2 All ER 556 White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169
Division:	Division 2 General Federal Law
Number of paragraphs:	163
Date of hearing:	23 September 2022
Place:	Sydney
The Applicant:	No appearance by or on behalf of the Applicant
Solicitors for the Respondents:	Australian Government Solicitor
Counsel for the Interested Party:	Mr M McHugh SC
Solicitors for the Interested Party:	Colin Biggers & Paisley

Table of Corrections
Paragraph 55, line 3	Delete “Counsel”, insert “a barrister”
Paragraph 60, line 1	Delete “Full Federal”

SYG 2780 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DZW17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
COUNSEL Interested Party MR V Interested Party

order made by:	JUDGE GIVEN
DATE OF ORDER:	4 November 2022