Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 570
•28 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 570
File number: MLG 2999 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 28 June 2024 Catchwords: MIGRATION – Application to review decision of Registrar – where application filed out of time – where Court not addressed by applicant’s lawyer as to why time for filing should be extended – where applicant’s lawyer relied on previous submissions made – where applicant’s lawyer had not filed submissions previously and did not produce transcript of the hearing before the Registrar – nature of Court’s powers and the balance between powers exercised by the Court and powers exercised by Registrars – where a de novo hearing before a Judge following the exercise of a power by the Registrar does not mean an applicant cannot meaningfully engage with the proceeding – where application for review a waste of time – where conduct of solicitor reaches threshold for costs order against the solicitor and potentially falls short of what is required by the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 – Application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) Ch 4, Pt 2, ss 137, 143(2), 190, 253, 254, 256(1), 256(2).
Migration Act 1958 (Cth) ss 326B(1A)(b), 326B(1C)(a), 362B(1D).
Migration Regulations 1994 (Cth) cl 186.223, 186.223(3).
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 21.2, Pt 21, rr 13.13(a), 21.02(1), 21.03(2), 21.04(1), 22.06, Sch 2, Pt 1, Sch 2, Pt 2.
Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 rr 4, 4.1.3.
Cases cited: Bandari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1224
Dorji v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 686
Harris v Caladine (1991) 99 ALR 193
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Rajbhandari v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 569
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Spencer v the Commonwealth (2010) 241 CLR 118
Vavilala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 768
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 14 May 2024 Place: Melbourne Advocate for the Applicant: Mr Warraich Solicitor for the Applicant: Huk Legal Advocate for the Respondents: Mr Gardner Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2999 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANJIL GHIMIRE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.Permission to extend the time for filing of the Application for Review filed on 9 May 2024 be refused and the Application for Review otherwise be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $1,400.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application to review a decision of a Registrar of this Court. On 9 April 2024, the Registrar made an order summarily dismissing the Applicant’s application for judicial review under rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘Rules’). The application for review is opposed by the Minister.
For the reasons that follow, I have decided to refuse to extend the time for filing of the application for review and otherwise dismiss the application for review.
BACKGROUND
The Applicant applied for an Employer Nomination (Permanent) (Class EN) visa (‘visa’).
The background to the matter, prior to it arriving in this Court, was conveniently summarised in the judgment of the Registrar at paragraphs [4]-[9]. What follows is taken directly from paragraphs [4]-[9] of the Registrar’s decision:
4.The primary criteria for the subclass of visa for which the applicant applied relevantly included cl 186.223 in Sch 2 of the Migration Regulations 1994 (Cth). Clause 186.223 relevantly provides as follows (emphasis added):
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
…
(2) The Minister has approved the nomination.
(3) The nomination has not subsequently been withdrawn.
5.M.P.Z. Nominees Pty Ltd (the sponsor) lodged a nomination application in respect of the applicant (CB 89). The application was approved on 20 June 2017 (CB 89). However, on 18 September 2017, the sponsor “withdrew its support for the sponsorship and asked that it be cancelled” (CB 89). It was on this basis that the delegate concluded that the applicant did not meet cl 186.223(2) (CB 89).
6.The applicant then applied to the Tribunal for review of the delegate’s decision (CB 91).
7. On 7 August 2018, the Tribunal dismissed the review application under s 362B(1A)(b) of the Migration Act 1958 (Cth) (the Act) in circumstances where the applicant failed to appear at a hearing to which he had been invited by the Tribunal (CB 123). However, on 22 August 2018, the Tribunal reinstated the review application pursuant to s 362B(1C)(a) of the Act (CB 138). By force of s 362B(1D) of the Act, the effect of the reinstatement of the application was that the application was taken never to have been dismissed, and the Tribunal was obliged to continue to conduct the review accordingly.
8.On 11 September 2018, the Tribunal again convened a hearing in respect of the application, and this time the applicant appeared (CB 151). The Tribunal’s decision gives this summary of that hearing in its decision record (CB 163-164, [17]-[19]):
During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to him. As recorded in the primary decision, a copy of which he provided to the Tribunal, this position nomination is no longer available to him as the employer M.P.Z. NOMINEES PTY LTD advised the department on 18 September 2017 that it had withdrawn its support for the sponsorship and asked that it be cancelled.
Invited to make any submissions the applicant said he knows it was withdrawn but does not know why. He questioned if the employer should notify a nominee that it was going to withdraw a nomination. He worked for this company (a café called ‘School of 7 Bells’) for a year and they were really happy with him. He stopped working there in July 2016 and has not worked since. This impact has been hard on him and he has been jobless for a long time. He is still looking for another nominator. He has a knee injury and that is why he could not appear in person at the Tribunal hearing.
Asked if he agreed that the nomination for the occupation of ‘Chef’ with M.P.Z. NOMINEES PTY LTD is no longer available to him, the applicant said yes, he is aware of this. Asked if he understood that therefore the Tribunal could not make a decision in his favour the applicant said yes. He declined the opportunity to give any additional evidence.
9.The Tribunal made its decision in the review on the day of the hearing. The Tribunal affirmed the delegate’s decision on this basis (CB 164, [20]):
Based on the information before it in the primary decision and confirmed by the applicant’s evidence, the Tribunal finds that the applicant is not the subject of an approved nomination. Therefore, cl.186.2331[1] is not met.
[1] This appears to be a typographical error. The correct reference is cl 186.223.
The Applicant filed his Application for Judicial Review in this Court on 8 October 2018 (‘Initiating Application’). The Initiating Application was accompanied by an affidavit of the Applicant of the same date.
The Minister filed an Amended Response, dated 12 February 2024, seeking orders that the Application be summarily dismissed.
On 9 April 2024, the Initiating Application was summarily dismissed by a Registrar pursuant to rule 13.13(a) of the Rules.
On 3 May 2024, the Applicant lodged the Application for Review that is now before me (‘Review Application’), however, for reasons that are not clear, the Review Application was not accepted for filing until 9 May 2024.
Before me, the Applicant was represented by Mr Warraich, solicitor, from HUK Legal Services. The Minister was represented by Mr Gardner, solicitor, from Mills Oakley.
LEGAL PRINCIPLES
Review of Registrar’s powers are dealt with under Division 21.2 of the Rules. In particular:
(a)an application for review of a Registrar’s decision must be made within seven days of the decision (rule 21.02 (1));
(b)the time prescribed by rule 21.02(1) may be extended in a proceeding by the Court or a Registrar on any terms the Court or Registrar thinks fit, or with the consent of the parties to the proceeding (rule 21.02(2));
(c)an application for review must be listed for hearing as soon as possible and, unless it is impractical to do so, within 14 days after the date of filing (rule 21.03 (2)); and
(d)a review of an exercise of power by a Registrar must proceed by way of hearing de novo (rule 21.04 (1)).
The Registrar was dealing with an application for summary dismissal. It is well-settled that in considering an application for summary dismissal either under rule 13.13(a) of the Rules or an application for summary judgment under section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’), it is necessary to establish that an applicant has no reasonable prospects of successfully prosecuting the proceeding or claim: see Spencer v the Commonwealth (2010) 241 CLR 118; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473. Any application for summary dismissal must be exercised with caution given that it is an order made at the preliminary stage of proceedings. The onus is on the party seeking the proceeding be summarily dismissed to persuade the Court that an applicant has no reasonable prospect of success.
THE APPLICATION FOR AN ADJOURNMENT
Mr Warraich sought that the hearing before me be adjourned in order for him to properly prepare for the matter.
I refused the adjournment application for the following reasons.
The Rules make clear that I am to conduct the hearing as a hearing de novo. Mr Warraich appeared for the Applicant when the matter was heard before the Registrar. He put arguments then. He is more than able to put the arguments again before me given this is an original hearing.
The Rules require that any application of this type must be listed as soon as possible, and in any event, within 14 days from the date of filing. Rule 21.03(2) is clear in its terms and Mr Warraich would have been aware of it when he made the Review Application. It was incumbent on him to be prepared.
This is a case in which the decision of the Registrar was made over two months ago. The Court record discloses Mr Warraich was engaged by the Applicant more than a month prior to the hearing before the Registrar. He had all of the time prior to the hearing before the Registrar, and the period since the decision of the Registrar, to be prepared.
It is well known that wait times in this Court for a hearing are long and that the Court is seriously overburdened, particularly in relation to the number of applications for judicial review of migration decisions awaiting a hearing date. This case is a prime example of this problem, having been first filed in this Court on 8 October 2018, more than 5.5 years ago. The Court must weigh in the balance the appropriate use of scarce Court time and resources. This matter was allocated a hearing date consistent with the requirement in the Rules. Simply adjourning the matter to a later date deprives other waiting litigants of Court time and further adds to the listing burden on the Court. In this respect, I refer also, and have had regard to, the overarching purpose in section 190 of the FCFCOA Act.
Finally, as will become apparent, the Initiating Application has no reasonable prospect of success.
For all of the above reasons, I refused the adjournment application.
THE GROUNDS IN THE REVIEW APPLICATION
In the Review Application, the Applicant seeks to review all of the orders made by the Registrar. He asks the Court to make the following orders:
1.That the Orders of the Honourable Judicial Registrar be reviewed, and the matter be remitted to the Administrative Appeals Tribunal for de novo proceedings in accordance with law.
2.The First Respondent be ordered to pay the Applicant's cost of the review as agreed or assessed and be ordered to pay the Applicant's filing fee.
In the affidavit filed by the Applicant in support of the Review Application, the Applicant states that:
2.That I am the main applicant in the Application for Review.
3.That the information provided is true and correct.
4.Administrative Appeals Tribunal handed down written decision on 11 September 2018.
5.The decision is attached to this affidavit.
6.Administrative Appeals Tribunal erred in law.
7.That the Honourable Judicial Registrar [omitted] handed down decision on 09th April 2024 and attached with the review application.
8.That the Honourable Judicial Registrar [omitted] handed down decision on 09 APRIL 2024 be remitted to Administrative Appeals Tribunal.
The Grounds of Review in the Initiating Application are as follows:
1.The decision by a delegate of the Minister for Immigration to refuse my visa was made stating that regulation 186.223 is not satisfied, to grant the visa. The major issue was whether the delegate properly exercise his power under s 499 of the Act.
2.Following section 5 of the Administrative Decisions (Judicial Review) ACT 1997, (ADJR), the tribunal should take into account relevant consideration in the exercise of his power.
3.As I was going through the medical conditions, I was not able to attend the previous hearing. AAT didn't allowed me additional time based on my medical condition and called hearing via telephone. On 11 Sep 2018, I was invited to attend the hearing via telephone and even though I attended the hearing over the phone I was not able to explain myself properly due to my medical condition and hearing being over the phone.
4.The tribunal affirmed my application on 11/09/2018.
5.Any decisions of the delegates should be fair and reasonable. I am not satisfied with the decision of the tribunal as it didn’t consider the compelling reason for not being present at the hearing personally and explain my situation. I have been going through a medical condition due to which I was not able to explain myself. I could have explained more clearly if I could have attended the hearing in person and after completion of my medical treatment.
6.Therefore, the tribunal failed to take into account all relevant circumstances and there is an error of law in the delegate's decision.
Mr Warraich, for the Applicant, was given an opportunity to make oral submissions in support of these Grounds (and the Review Application generally) before me. He was unable to do so in any meaningful way. He indicated simply that he would rely on submissions he had already made in the matter and said little else. There is a real problem with that submission. Mr Warraich never filed a written outline of submissions prior to the hearing before the Registrar. He certainly did not do so prior to the hearing before me. He did not produce the transcript of the hearing before the Registrar so that I could read what he had submitted.
In an effort to properly understand what Mr Warraich may be trying to put, I reviewed the decision of the Registrar. It seems from the Registrar’s decision that little was put by Mr Warraich to the Registrar that was of assistance. The Registrar records at paragraph [20] that the Applicant ‘says he was not able to explain himself properly at the Tribunal hearing on 11 September 2018 due to his “medical condition”.’ Moreover, and significantly, at paragraph [23], the Registrar has recorded Mr Warraich as acknowledging the principal difficulty with his client’s case. Paragraph [23] of the Registrar’s Decision is as follows:
In any event, neither the applicant’s complaint about his medical condition and its effect on his ability to represent himself at the Tribunal hearing nor his complaint about the method of the Tribunal hearing are capable of going anywhere. The unfortunate but unavoidable reality of the situation is that there is nothing the applicant could have said at a hearing that could have led the Tribunal to reach a different conclusion in respect of the applicant’s satisfaction of the mandatory visa criterion provided for by cl 186.223. The applicant’s solicitor acknowledged as much at the summary dismissal hearing. In the result, any procedural unfairness the applicant suffered by reason of the Tribunal hearing process did not inflict any practical injustice upon him, and it therefore did not constitute a jurisdictional error (MZAPC v Minister for Immigration and Border Protection [2021] HCA 17D at [32]; (2021) 95 ALJR 441 at 453 per Kiefel CJ, Gageler, Keane and Gleeson JJ).
THE APPLICATION TO PROCEED OUT OF TIME
Rule 21.02(1) requires that any application for review of the exercise of a power by a Registrar must be made within seven days. The Registrar made his decision on 9 April 2024. Accepting for present purposes, and for the benefit of the Applicant, that the Review Application was filed on 3 May 2024, the Review Application was filed approximately 16 days out of time.
Rule 21.02(2) provides that the time in which any application for review is to be filed may be extended in a proceeding by the Court on any terms the Court thinks fit, or otherwise with the consent of the parties to the proceeding.
The Applicant failed to make any application to extend the time for filing the Review Application. On one view, that provides a basis to dismiss the Review Application. I have proceeded, however, as if an application to extend time has been made, given the manner in which the matter proceeded.
The Rules do not prescribe matters that the Court must take into account in considering whether to extend the time for an applicant to seek review of a decision of a Registrar. The types of matters that the Court will ordinarily take into account in situations where an extension of time is needed, however, are well established: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; Dorji v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 686; Vavilala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 768.
The Applicant’s affidavit does not address why the Review Application was filed outside the time limit prescribed by the Rules. Mr Warraich for the Applicant provided no explanation for the failure to file the Review Application in time, and did not address any of the matters the Court looks to in deciding whether to extend time.
The extent of delay in this matter is around 16 days. It is not a long period. It weighs towards the extension being granted.
The Applicant proffered no explanation for the delay whatsoever. This weighs against the extension being granted in circumstances where the Rules set out a specific time limit.
The Minister did not point toward any prejudice. That is an appropriate course to take. It is difficult to see there would be any prejudice to the Minister that could not be cured by an order for costs. This factor weighs in favour of a grant of the extension of time.
Finally, the Court is to consider whether the matter is sufficiently arguable and whether if I grant the Review Application, the Initiating Application has any reasonable prospect of success.
There is a real problem that confronts the Applicant’s Initiating Application. It is clause 186.223 of the Migration Regulations 1994 (Cth) (‘Regulations’). That clause relevantly provides as follows:
186.223
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
…
(2)The Minister has approved the nomination.
(3)The nomination has not subsequently been withdrawn.
It can be seen from clause 186.223(3) that it is a requirement for the visa that the nomination has not been subsequently withdrawn. In this matter, it is an undisputed fact that the nomination was withdrawn by the sponsor. So much was acknowledged by the Applicant before the Tribunal. It was also seemingly acknowledged by Mr Warraich before the Registrar. While no submission was advanced to this effect, it is also important to acknowledge that the requirements of clause 186.223 cannot be met by securing a new sponsor: see Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 at [141] (with which Charlesworth and O’Sullivan JJ concurred at [62] and [65]; and also Bandari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1224 at [29] (Beach J).
When these matters are considered, the Application is a futile one. Even if the Tribunal’s decision was quashed and the Tribunal was obliged to reconsider the matter, the outcome would be the same. The decision of the delegate would be affirmed because the Applicant is not able to satisfy clause 186.223 of the Regulations.
In light of the foregoing, the Application does not have any reasonable prospect of success. The Application is not sufficiently arguable.
For all of the above reasons, the application to extend the time in which to file the Review Application is refused. The Review Application must be dismissed.
COSTS AND THE CONDUCT OF THIS APPLICATION
It is unfortunately necessary to say something about the conduct of this application by the Applicant’s solicitor, Mr Warraich.
Applications to review the exercise of a power by a Registrar are applications of some importance. To understand why, it is necessary to set out briefly some of the background.
Provisions contained within Chapter 4, Part 2 of the FCFCOA Act vest the Court with jurisdiction. Under section 137 of the FCFCOA Act, the jurisdiction of the Court is to be exercised by the Court constituted by a single Judge.
Section 253 of the FCFCOA Act provides for the appointment of Senior Registrars and Registrars to the Court. The Court is to have such Senior Registrars and Registrars as are necessary.
Section 254 of the Act permits the Judges of this Court, or a majority of them, to make rules delegating any of the powers of the Court to a delegate or a prescribed class of delegate. Under Part 21 of the Rules, the Court has in fact delegated various powers to Registrars.
None of the above is remarkable. It may be readily seen that without the ability to delegate certain functions or powers to Registrars, the Court would struggle even more than it does to deal with applications and disputes before it. The delegation of powers to Registrars by Judges is therefore necessary to ensure that the Court does what it can to get through its workload.
The work of Registrars exercising delegated powers is not, however, free from review or oversight. An exercise of power by a Registrar may be reviewed by a Judge on application by a party or by the Court on its own initiative (section 256(1) and (2) of the FCFCOA Act). The Rules relating to applications for review (some of which I have summarised earlier in these reasons) then set out the manner in which such a review is to be conducted by a Judge. Significantly, the Court must conduct any review as a de novo hearing. Leave of the Court is not necessary to bring an application to review the exercise of the power of a Registrar. An applicant need not demonstrate any error in the decision of a Registrar, as an appellant must do in appeal proceedings.
It is apparent from the provisions of the FCFCOA Act and the Rules that a compromise has been struck to ensure the efficient administration of justice. Judges may delegate powers to Registrars to exercise. A party unhappy with that outcome, however, faces no real obstacle to having the matter heard afresh before a Judge. That is as it should be, and is consistent with the High Court authority concerning the delegation of powers to Registrars: see Harris v Caladine (1991) 99 ALR 193 at 249 (McHugh J).
While it is right and proper that a party be able to seek a review of a Registrar’s decision, that does not mean an application for review can be filed but then not actively argued at hearing. The Rules make clear that a Judge will conduct the matter as a hearing de novo, and an applicant seeking review must be prepared to argue the matter again. Unfortunately, that did not occur here.
Mr Warraich is a legal practitioner. He was engaged by the Applicant prior to the hearing before the Registrar. A cursory look at the material ought to have shown him that the Initiating Application as filed (which was filed at the time the Applicant was unrepresented) had no prospect of success. I am prepared to accept that having taken on the case, Mr Warraich felt some obligation to his client to at least argue the matter before the Registrar. He ultimately did so. That is where the matter should have rested. Unfortunately, it did not. Mr Warraich saw fit to file the Review Application for his client.
It is a matter of record that the Review Application was filed late. It is a matter of record that Mr Warraich failed to provide any explanation for the late filing of the Review Application, or to properly address the Court on the factors that it should consider in deciding whether to extend time. It is a matter of record that Mr Warraich failed to advance any substantive submission in support of his client’s position during the Review Hearing. It is a matter of record that Mr Warraich sought simply to rely on submissions he made before the Registrar, without providing any transcript of what he said and in circumstances where he did not file any written submissions before the Registrar. In all the circumstances, I draw the conclusion that Mr Warraich brought the Review Application on behalf of his client without having given any thought to how he might persuade the Court to arrive at a different conclusion in a de novo hearing. To use a cricketing analogy, he was prepared ‘to roll his arm over’ in the same fashion he had previously and simply hope for a different result, without engaging properly with the issues.
I note that this is not the only occasion Mr Warraich has conducted himself in this way. On the morning I heard this application, I also heard an application to review the powers of a Registrar in the matter of Rajbhandari v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 569. Mr Warraich adopted the same cavalier attitude in that matter as he did in this one.
Conduct of the type seen in this matter from Mr Warraich is not to be encouraged. A party bringing an application to review an exercise of power by a Registrar needs to come properly armed and prepared to argue that matter. Such a party needs to come prepared to engage with the issues. It is not enough that a party, or his or her legal practitioner, simply approach the Court in the hope of a different result and do nothing to meaningfully advance his or her case.
If parties do not take review applications seriously, then the consequences are significant. The system of delegation between Judges and Registrars, which is designed to efficiently manage the Court’s caseload, will break down. Parties unhappy with an outcome before a Registrar will be encouraged to simply bring the matter before a Judge and do no more than hope for a different result. Judges will have less time to hear other matters, and the Court’s efficient disposal of its workload will be compromised.
In my view, Mr Warraich’s conduct in this proceeding would reach the threshold of warranting a personal costs order being made against him under rule 22.06 of the Rules. The only reason I will not make that order is that it was not sought, and that Mr Warraich has not been given any opportunity to address the Court on such a course. Mr Warraich can, however, regard himself as being on notice that conduct of the type described in these reasons will not be tolerated by this Court and could result in a costs order against him in the future.
Mr Warraich should regard himself as being on notice that the Court is also far from satisfied that he has complied with rule 4 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, in particular, rule 4.1.3, which provides that a solicitor must ‘deliver legal services competently, diligently and as promptly as reasonably possible’. The Court will consider providing a copy of these reasons to the relevant regulatory body.
Turning to the question of costs more specifically, the Minister sought costs less than scale in the amount of $1,400. This was an interlocutory hearing. Part 2 of Schedule 2 to the Rules does not apply neatly to the circumstances that confront me. I accept it is appropriate to apply the scale in Schedule 2, Part 1 of the Rules to this matter. Items 3 and 9(a) of the scale set out in Schedule 2, Part 1 of the Rules which I would apply to a matter such as this would produce a costs order in excess of that claimed by the Minister. In all the circumstances, including that the Review Application has been entirely unsuccessful, I will award costs in the amount sought.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 28 June 2024
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