FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 293

Federal Circuit and Family Court of Australia

(DIVISION 2)

FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 293

File number(s):

MLG 3008 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

17 November 2021

Catchwords:

PRACTICE & PROCEDURE – application in a case seeking reinstatement of judicial review application – applicant’s solicitor seeking adjournment – applicant’s non-compliance with procedural timetable – relevant factors in exercise of the Court’s discretion to adjourn proceedings considered – overarching purpose of civil practice and procedure provisions – observations on the conduct of the applicant’s solicitor – adjournment granted

Legislation:

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

Federal Court of Australia Act 1976 (Cth) s 37

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) rr 9.03, 17.05, 22.06

Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c)

Cases cited:

Black & Decker (Australasia) v GMCA Pty Limited [2007] FCA 1623

Camm v Linke Nominees Pty Ltd (No 4) [2013] FCA 223

Division:

Division 2 General Federal Law

Number of paragraphs:

33

Date of hearing:

17 November 2021

Solicitor for the Applicant:

Mr I Warraich of Huk Legal

Solicitor for the Respondents:

Ms S Roberts of Mills Oakley

ORDERS

MLG 3008 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FEH18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULITCULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	17 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The hearing of the application in a proceeding filed for the applicant on 21 October 2020 is adjourned to 2.15pm on 7 December 2021 before Judge Given.

3.The applicant must file written submissions in support of the application in a proceeding on or by 26 November 2021.

4.The first respondent has leave to file any additional submissions on or by 3 December 2021.

5.The parties are granted liberty to restore on 2 days’ notice.

6.Costs of today are reserved.

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).

EX TEMPORE REASONS FOR JUDGMENT

(revised from transcript)

JUDGE GIVEN:

1. By an application in a proceeding filed on 21 October 2020 the applicant seeks to set aside orders made by Judge Riethmuller (as his Honour then was) made on 7 May 2020 dismissing with costs an application to show cause filed on 5 October 2018 (current reinstatement application). That dismissal was pursuant to rule 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth) consequent upon the applicant failing to attend a hearing which had been scheduled following an earlier reinstatement application after the applicant failed to appear at a first court date. The first respondent opposes the applicant’s current reinstatement application, and also seeks order that the application in a proceeding be dismissed with costs.

2. On 19 October 2020 a Notice of Address for Service was filed appointing a Mr Imran Warraich as the solicitor for the applicant.  As I have just noted, two days later on 21 October 2020, the current reinstatement application was made and the document footer to that application indicated that it had been prepared by Mr Warraich.  The applicant was subsequently taken into immigration detention and, as at the date of this hearing before me, he is presently detained at the Yongah Hill Immigration Detention Centre.  In addition to Mr Warraich’s appearance for him the applicant also appeared at today’s hearing via video link. 

3. On 25 October 2021 a Registrar of this Court made orders listing this matter today before me and also made orders for the filing of written submissions by both the applicant and the Minister 14 and seven days respectively before the hearing date (being each of 3 November 2021 and 10 November 2021).  On that date, the Court’s Registry wrote to the solicitors for each party and to the applicant, utilising the email address for Mr Warraich which had been provided on the Notice of Address for Service filed on 19 October 2020.

4. Nothing was filed for the applicant who (at least on the face of the Court’s record) remained legally represented, by the due date, or at all.  On 5 November 2021 an outline of written submissions and Affidavit of Mr Edwin Jack Taylor (Taylor Affidavit) affirmed on that same date were duly filed for the Minister.  On 10 November 2021 the solicitors for the Minister wrote to the applicant, a copy of which email was provided to the Court, which indicates that a conversation had been held between the solicitor for the Minister and the applicant himself where the applicant indicated that he was no longer represented by Mr Warraich.

5. The Court record demonstrates that at no time did Mr Warraich file any Notice of Withdrawal under r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth) (Rules).  Subsequently, on 11 November 2021 the solicitors for the Minister wrote to my Associate copying the applicant, and this email again appears to have followed a telephone conversation between them and the applicant, which summarises that the applicant informed the solicitor that he would be representing himself as his legal representative had “passed away”.

6. Following that email to my chambers, and upon apprehending that the applicant would be detained in a location which is in a time zone three hours behind where the Court would be sitting, I made arrangements for the hearing fixture to be moved from 10.15am to 12.15pm (AEDT) time in order to accommodate an applicant who I perceived was probably now unrepresented by virtue of the death of his solicitor, and who would be required to participate in the hearing at an unfairly early hour. 

7. In addition, the Court made arrangements for a Punjabi interpreter to be present at the hearing so that the applicant could engage with the Court and represent himself.  On 16 November 2021, less than 24 hours before the adjusted hearing time, Mr Warraich, who from his appearance today appears to me to be very much alive, wrote to my Associate to indicate that he would appear today for the applicant.

8. At the commencement of this hearing I asked Mr Warraich why submissions had not been filed for the applicant in accordance with the Court’s orders.  Mr Warraich’s response was that he had only been told of the matter being listed in the last few days, and that he had been unable to prepare written submissions for the applicant because of that timeframe.  As noted earlier, Mr Warraich was in fact copied to the correspondence from the Court providing the listing notice and the Registrar’s orders.

9. I asked Mr Warraich if he wished to seek an adjournment in the matter or whether he was prepared to continue and he indicated that he was able to address the Court using oral submissions today.  Ms Roberts, who appeared for the Minister, indicated that submissions for the applicant being made orally would not cause the Minister difficulty, but reserved her right to provide a brief note afterwards if anything arose during the course of oral submissions that could not be dealt with by the first respondent today.

10. Having regard to the matters which the Court is required to take into account in relation to the exercise of the discretion to reinstate a matter under r 17.05 of the Rules, I asked Mr Warraich to address me in relation to:

    (a)the explanation for the non-appearance by the applicant on the last occasion;

    (b)any prejudice to the Minister; and

    (c)ultimately the subsequent merits of the grounds which were contained in the originating application.

11. I note that there has not been an attempt to amend the grounds in that application despite the fact that this matter has been on foot since 2018 (in various iterations).  Mr Warraich told me the grounds did not have merit but would be amended once the matter was reinstated.  When I asked whether he was conceding the lack of merit, Mr Warraich sought an adjournment.

12. I drew Mr Warraich’s attention to the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act), which came into effect on 1 September 2021. In particular I directed his attention to ss 190 and 191 respectively:

    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.

13. I also drew Mr Warraich’s attention to the fact that, in relation to the overarching purpose of the Rules, the Court is mandated to take into account under s 191(4) any failure to comply with a duty imposed by subsections (1) or (2).

14. Those subsections require that the just resolution of disputes be facilitated according to law as quickly, inexpensively and efficiently as possible and that Mr Warraich has a duty as a solicitor to ensure that the applicant actually complied with that duty.  I indicated that at a certain point the Court would require the parties to address these sections, given the mandate that I take into account any failure to comply with those duties.

15. There is no doubt that there is a broad discretion conferred on this Court to adjourn proceedings from time to time, and it has been held by the Federal Court that an extension to a timetable for the doing of an event should only be granted if the failure to meet the existing timetable is the result of “inexcusable noncompliance” (albeit in a commercial dispute context): see Black & Decker (Australasia) v GMCA Pty Limited [2007] FCA 1623 per his Honour Finkelstein J.

16. In the present situation, an adjournment is sought for the applicant so that his case can be prepared by his solicitor, notwithstanding that he has been the solicitor on the record from two days prior to filing the present interlocutory process which comes before me today.  Whether or not there is an excusable non-compliance is not something which I can ascertain today, and Ms Roberts submitted that it is also not clear to the Minister where that fault may lie in relation to the non-compliance as between the applicant and his solicitor.

17. Wherever that fault does lie between the applicant and his solicitor for the non-compliance in relation to the preparation of this matter, and with the Court’s orders of 25 October 2021, it is clear that Mr Warraich is unprepared to address the Court today but there is simply not sufficient material before me to establish the reason for that.

18. Given that I am informed from the Bar table today that Mr Warraich now does seek an adjournment in order to, as he says, “professionally present” the applicant’s reinstatement application, I am overall inclined to grant the adjournment to the applicant because I do not wish that the applicant is denied an opportunity to present his case.  I have received a number of explanations from the Bar table for this unpreparedness but none of them is the subject of proper evidence.

19. If the fault were demonstrably, clearly and exclusively that of the applicant, then my decision in relation to this adjournment application might have been different.  I have taken into account the submissions for the Minister in relation to how long this matter has been on foot since its commencement in 2018.  I also take into account the length of the procedural history and additional matters set out in the Taylor Affidavit, which was read for the Minister and specifically that this is the second reinstatement application that the applicant has made.  Ms Roberts also drew my attention to correspondence which forms Annexure “EJTS-5” to the Taylor Affidavit, which clearly shows that the applicant has been previously aware of the procedures required in order to seek reinstatement of his proceeding.  He has in fact followed them before with success.

20. Notwithstanding all of those matters, which are valid concerns and commendably go more to the administration of justice than they do to the Minister’s own inconvenience, I am still concerned that because of potential inactivity on the part of his solicitor, the applicant is rendered in a position where his case is not being presented properly.

21. I am also taking into account the fact that the applicant is in immigration detention and that when the current reinstatement application was filed, it was not given a return date by the Court until orders were made listing it before me. That being said, and as I expressed to the parties in the course of their submissions, in my view the timetable set by the Court was reasonable and it gave sufficient time to each of the parties, both of whom seem to be represented, to prepare the matter in advance of the respective deadlines which were issued to them and the timetable was in accordance with the overarching purpose of the Rules.

22. Contrary to what was first submitted to me by Mr Warraich from the Bar table, although he seemed to resile from it eventually, the cost of an adjournment today is not insignificant.  Specifically he submitted there would be “no harm” in adjourning.  It is not necessarily the case that there is no harm in adjourning interlocutory matters, even for a short period of time.  That cost is not just financial in the sense that the Minister has retained solicitors to appear today at what should have been the full hearing of this application in a proceeding, and that an interpreter was arranged, although ultimately unnecessarily, when it appeared to the Court that the applicant may need to represent himself.

23. Rather, there are other costs involved in adjournments given on the basis of unpreparedness, such as the occupation of this Court’s time with a listing which could have gone to other parties had the adjournment not been necessary and, in fact, that the solicitors for the Minister might also have been engaged elsewhere in relation to other hearings for other applicants.

24. This is compounded because adjournments due to the unpreparedness of a legal practitioner or situations where there is a last minute retention of a legal practitioner inevitably result in the expenditure of public funds in a multitude of ways, some of which are patent and some of which are less obvious and less quantifiable.

25. It will be observed in this regard that ss 190(2)(b) and (c) of the Court’s new Act reflect that concern. Those sections are relevantly identical to ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). In Camm v Linke Nominees Pty Ltd (No 4) [2013] FCA 223 Tracey J (at [54]-[55]) noted that where the efficient use of judicial and administrative resources and the efficient disposal of the Court’s overall case load is impacted by the conduct of a litigant or practitioner, this may sound in costs.

    54. When read together ss 37M and 37N provide for the making of costs orders against a party or a party’s legal practitioner even where the obligations imposed by 37N have not led another party to incur loss or damage. One element of the overarching purpose is “the efficient use of the judicial and administrative resources available for the purposes of the court.” Another is “the efficient disposal of the Court’s overall caseload.” Conduct on the part of a litigant or a practitioner which impacts adversely on the pursuit of these purposes may be taken into account when costs are awarded.

    55. It may, therefore, be that, once the issues in dispute between the parties are determined, the trustees, whether or not they are successful, will be able to renew their submissions in the context of argument relating to the costs of the proceeding. Any such arguments will require consideration having regard to a range of matters including the outcome of the proceeding, the conduct of the respondent, its solicitor and the trustees and the potentially conflicting objectives which are included within the concept of the “overarching purpose” identified in s 37M of the Act.

1. The Minister seeks costs of the adjournment.  I ultimately will be determining that issue and will be mandated to consider any failure on the part of the applicant to comply with the overarching purpose of the Court’s rules which (as noted today) may or may not have been entirely caused by him, as part of my eventual discretion to award costs in this matter.  It may be that matters which are yet to be ventilated before me and the overall outcome of the application inform where we land in terms of costs.

2. The indulgence of this adjournment and the matters underpinning it, as expressed by the Court today, should be taken very seriously by the applicant himself and also by his representative. It should also be observed by all users of this Court that with the advent of the new Court Act and Rules, they must direct themselves to a practical approach to litigation. The legal profession is particularly tasked with a genuine responsibility to assist the Court in the efficient administration of justice.

3. Specifically, in relation to migration matters applicants should not expect that last minute changes will always result in an adjournment.  Conversely, applicants are entitled to expect that the legal profession will not ultimately disadvantage them.  It would be a very sad state of affairs indeed if applicants were given the illusory idea that any adjournment is a good adjournment, only to have it ultimately result in a deleterious costs order being sheeted home to them when that may more appropriately be directed to their representative.

4. I emphasise that I do not suggest that has necessarily occurred here. 

5. However, having regard to my earlier observations regarding the overarching purpose of the Rules and the relevant provisions of the Act, these will be utilised by this Court in such a way in all cases that any practitioner who improperly delays the administration of justice will be held responsible.

6. Mr Warraich indicated to me that the applicant consents to an order for costs thrown away today, notwithstanding the fact that Mr Warraich pivoted in the middle of the presentation of the applicant’s case, having first indicated that he was ready to proceed and then indicating that he later sought an adjournment. Accordingly I am not presently satisfied that the applicant necessarily understands the full impact of that offer and, given the matters to which I have already adverted in relation to ss 190 and 191 of the Act and also to r 22.06 of the Rules, I am not presently prepared to accede to the Minister’s request that I make an order for costs thrown away in relation to today’s adjournment. However, the parties and the applicant’s legal representative should be prepared at the ultimately determination of this matter to address the Court in relation to costs, including under r 22.06 of the Rules.

7. I also asked Mr Warraich in the course of dealing with the adjournment request how it would be that the Court could be satisfied that the adjournment request would not be in vain and that he, in fact, would prepare the matter diligently and would appear on the next occasion such that we do not adjourn only to find ourselves in a position whereby when the matter comes back before the Court, the applicant is newly unrepresented.  Mr Warraich indicated to me that he undertakes to appear on the next occasion and I accept that undertaking. 

8. For the foregoing reasons, accordingly I am prepared to grant the adjournment but it will be for a brief time which will be reflected in the orders of the Court. 

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       23 November 2021