Goldsmith v Minister for Immigration and Multicultural Affairs

Case [2006] FCAFC 130

FEDERAL COURT OF AUSTRALIA

Goldsmith v Minister for Immigration & Multicultural Affairs [2006] FCAFC 130

PRACTICE & PROCEDURE –– personal costs order against solicitor arising from costs thrown away due to adjournment of hearing – whether solicitor afforded a fair hearing on issue of whether should pay the costs thrown away – where reasons for adjournment known only by Federal Magistrate and not disclosed until publication of reasons – whether rehearing in Federal Magistrates Court necessary

Evidence Act 1995 (Cth) s 16
Federal Court of Australia Act 1976 (Cth) s 28
Federal Magistrates Act 1999 (Cth) s 79

Federal Magistrates Court Rules r 9 and r 21

BARRIE GOLDSMITH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NSD 638 OF 2006

BRANSON, FINN AND BENNETT JJ
28 AUGUST 2006
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 638 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BARRIE GOLDSMITH
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent

JUDGES:

BRANSON, FINN AND BENNETT JJ

DATE OF ORDER:

28 AUGUST 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Orders (1) and (2) made by the Federal Magistrates Court on 15 March 2006 be set aside except to the extent that order (2) requires the appellant to pay the costs of SZEKQ of the costs hearing.

3.The matter be remitted to the Federal Magistrates Court for further hearing and determination.

4.The respondent pay the appellant’s costs of the appeal.

5.The application for costs made by counsel for SZEKQ be dismissed.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 638 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BARRIE GOLDSMITH
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL  AFFAIRS
Respondent

JUDGES:

BRANSON, FINN AND BENNETT JJ

DATE:

28 AUGUST 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

  1. The appellant, Mr Goldsmith is a solicitor.  Between January and June 2005 he was the solicitor on the record of the Federal Magistrates Court for SZEKQ, an applicant for judicial review of a decision of the Refugee Review Tribunal.  Mr Goldsmith was not present in court when SZEKQ’s application was called for hearing at 2:15 pm on 17 June 2005.  The hearing did not proceed on that day.  The Minister applied for an order that Mr Goldsmith personally pay her costs thrown away on 17 June 2005.

  2. On 15 March 2006 the Federal Magistrates Court ordered Mr Goldsmith to pay to the Minister for Immigration & Multicultural & Indigenous Affairs:

    (a)$2500 for her costs thrown away by reason of the adjournment on 17 June 2005 of a hearing fixed for that day; and

    (b)her costs of the application for Mr Goldsmith to pay her costs thrown away by reason of the adjournment.

  3. Mr Goldsmith has appealed from each of the above orders.  The principal grounds on which the appeal is brought are that Mr Goldsmith’s conduct did not cause the adjournment of the hearing scheduled for 17…

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AGLC
Goldsmith v Minister for Immigration and Multicultural Affairs [2006] FCAFC 130
Case
[2006] FCAFC 130
Decision Date

CaseChat Overview and Summary

In the case of Goldsmith v Minister for Immigration and Multicultural Affairs, the court was asked to determine whether the Federal Magistrates Court was correct in ordering Mr Goldsmith to personally pay the costs incurred by the Minister due to an adjournment of the hearing. The dispute arose out of a judicial review application filed by SZEKQ in the Federal Magistrates Court, with Mr Goldsmith appointed as legal representative. The hearing was initially set for 14 March 2005, but was later adjourned at the request of SZEKQ until 17 June 2005. Due to Mr Goldsmith's failure to attend the hearing on the rescheduled date and his failure to properly withdraw from the case, the court ordered SZEKQ to pay the Minister's costs of $1,350.

The primary legal issue before the court was whether Mr Goldsmith's non-attendance and failure to properly withdraw from the case caused the adjournment of the hearing, thereby justifying the order for him to personally pay the Minister's costs. The court considered Mr Goldsmith's arguments that the adjournment was due to the court's error in double-listing the cases and a mistaken belief that the hearing could not proceed without him. However, the court found that the double-listing was a coincidence and that there was no evidence to support the claim that the adjournment was due to the court's mistaken belief. Instead, the court concluded that Mr Goldsmith's absence and failure to properly withdraw from the case were the primary reasons for the adjournment.

The appeal was allowed, and the orders made by the Federal Magistrates Court were set aside, except for the requirement that Mr Goldsmith pay SZEKQ's costs of the costs hearing. The matter was remitted to the Federal Magistrates Court for further hearing and determination. Additionally, the Minister was ordered to pay Mr Goldsmith's costs of the appeal, and the application for costs made by counsel for SZEKQ was dismissed. This decision highlights the importance of proper case management and adherence to court procedures, particularly in relation to the timely withdrawal of legal representation.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders (1) and (2) made by the Federal Magistrates Court on 15 March 2006 be set aside except to the extent that order (2) requires the appellant to pay the costs of SZEKQ of the costs hearing.

3. The matter be remitted to the Federal Magistrates Court for further hearing and determination.

4. The respondent pay the appellant’s costs of the appeal.

5. The application for costs made by counsel for SZEKQ be dismissed.

Background

Background to the litigation

For the reasons set out below, the appeal will be allowed and the matter remitted to the Federal Magistrates Court for further hearing and determination.BACKGROUND FACTS It is appropriate to expand on the circumstances that gave rise to the Minister’s application for an order that Mr Goldsmith personally pay her costs thrown away by reason of the adjournment.The Judicial Review Application On 16 September 2004 SZEKQ filed an application in the Federal Magistrates Court seeking judicial review of a decision of the Refugee Review Tribunal. On 21 January 2005 Mr Goldsmith filed a notice of his appointment to act on behalf of SZEKQ (Rule 9.01 of the Federal Magistrates Court Rules). On the same day Goldsmiths Lawyers filed an amended application for judicial review of the decision of the Tribunal. The amended application was initially listed for hearing on 14 March 2005. On 14 March 2005, at the request of SZEKQ, the hearing of the application was adjourned until 17 June 2005. SZEKQ was ordered to pay the Minister’s costs thrown away by reason of the adjournment fixed in the sum of $1350. Orders were additionally made concerning the future conduct of the matter including orders that SZEKQ file and serve submissions and list of authorities by 20 May 2005 and that no further application for an adjournment by SZEKQ would be granted. It appears that Mr Goldsmith wrote to SZEKQ on 18 May 2005. That letter is not in evidence. However, SZEKQ’s letter of response dated 24 May 2005 is in evidence. By that letter SZEKQ acknowledged receiving advice that counsel ‘has not found anything to go on’ but he requested that Mr Goldsmith and the barrister nonetheless represent him at the hearing to challenge the decision of the Tribunal. By letter dated 30 May 2005 Mr Goldsmith wrote to SZEKQ’s brother (who, unlike SZEKQ, is apparently fluent in English) advising that he was not prepared to attend the hearing and that he expected that the barrister would also be unwilling to attend. By a letter dated 14 June 2005 addressed to SZEKQ Mr Goldsmith confirmed that neither he, nor the barrister, would attend the hearing on 17 June 2005 for fear that they might be ordered to pay the Minister’s legal costs if the application were dismissed. On 16 June 2005 Mr Goldsmith advised the Minister’s solicitors by letter that his firm no longer acted for SZEKQ and that no member of the firm would appear for SZEKQ at the Federal Magistrates Court the next day. He requested the Minister’s solicitors to provide the court with a copy of the letter and ‘request that our attendance be dispensed with.’ By a letter of the same date the Minister’s solicitors advised Mr Goldsmith that it was not their role to pass on Mr Goldsmith’s correspondence to the court or to request that his attendance be dispensed with. They drew Mr Goldsmith’s attention to the terms of Rule 9.03 of the Federal Magistrates Court Rules which relevantly provide:‘(1)A lawyer for a party may withdraw from the record in a proceeding by filing a notice of withdrawal and serving the notice on each other party.(2)However, a lawyer may not file or serve a notice of withdrawal without leave of the Court unless the lawyer has, not less than 7 days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting.’The Hearing on 17 June 2005

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BRANSON, FINN AND BENNETT JJ
The hearing of the Minister’s application under rule 21.07 unfortunately took two and a half days and was not completed until 14 March 2006. On the following day the Federal Magistrate made orders, including the orders identified in [2] above, and delivered ex tempore reasons for judgment which have subsequently been revised and edited.REASONS FOR JUDGMENT ON APPLICATION UNDER RULE 21.07 The reasons for judgment of the Federal Magistrate (SZEKQ v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FMCA 390) commence with a review of the factual background to the Minister’s application and of the authorities touching on the circumstances in which a solicitor will be ordered personally to pay legal costs. His Honour accepted that the critical issue for his determination was, as Mr Goldsmith had contended, whether Mr Goldsmith’s failure to attend the hearing listed for 17 June 2005 and his failure to file and serve a notice of withdrawal in a timely fashion, caused the adjournment of the hearing. His Honour’s reasons for judgment note that Mr Goldsmith contended that there was no evidence that his conduct caused the adjournment; he had argued that the evidence showed that the court’s ‘blunder’ in listing two matters at the same time, together with the court’s ‘mistaken belief’ that the hearing could not proceed in the absence of the solicitor on the record, caused the adjournment. The Federal Magistrate deals with Mr Goldsmith’s contentions on the issue of causation in [37]-[43] of the reasons for judgment. The following passage is extracted from those paragraphs:‘Double listingTwo matters were listed for hearing before me at 2.15 p.m. on 17 June 2005. This was contrary to my normal practice at that time, although it is something which is very common in this Court. This double listing was because of an error in my chambers. As is clear from the transcript the current case was called first. The other matter was ready to proceed although for various reasons it did not go ahead that afternoon. Mr Goldsmith has extracted from the transcript of 17 June 2005 certain comments I made in support of his submission. … Mr Goldsmith's submission is just wrong. The transcript of 17 June 2005 should not be read akin to a legislative instrument. Mr Goldsmith is focusing on selective extracts. The transcript must be read in context. It should also be remembered that the transcript does not purport to be, nor should it be read as a statement of my reasons for adjourning on that day. I did not give my reasons at the time for adjourning. Mr Goldsmith is not in a position to say why I adjourned as he was not present and he has not since sought my reasons. The adjournment had nothing to do with the double listing. If the current applicant's case had been able to go ahead the other matter may have been heard later in the day, a common practice. Alternatively the other matter could have been put over to a later date. It was a mere coincidence that the double listing occurred on this particular day. Who could be heardMr Goldsmith's assertion that I was under a mistaken belief that as he was the solicitor on the record and he was not present the matter could not lawfully go ahead is also wrong. I did express concern about how we could proceed given that he was absent. This was because the applicant appeared at least to have expected him to be present. The applicant spoke very little English. He was assisted by his brother and a friend. The brother spoke good English. The practice in this Court if a party is represented by a lawyer and that party does not speak English is that no interpreter is provided by the Court. If the party is not represented by a lawyer and requires an interpreter the Court provides an interpreter. There was no interpreter present on this day because the applicant was to be represented by a lawyer. In my view, as the record clearly shows, I was concerned about prejudice to the applicant (see pages 7 and 8 of the transcript). Any “mistaken belief” I held had nothing to do with the adjournment.’ (emphases added)

Ratio Decidendi

Legal Principle Established

Established by: BRANSON, FINN AND BENNETT JJ

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