Kancharla v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 383
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kancharla v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 383
File number(s): MLG 3525 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 10 May 2023 Catchwords: MIGRATION LAW – Partnership Visa – Application for judicial review of Administrative Appeals Tribunal decision – Decision to dismiss the application because of non-appearance before the Tribunal – Tribunal satisfied that Applicant was given sufficient notice – Applicant’s solicitor lodged Notice to Withdraw as Lawyer two days before hearing before this Court – Applicant alleges he was not given notice pursuant to r. 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) 2021 (Cth) – Applicant’s solicitor maintains that she complied with r. 9.03 – Applicant’s solicitor requested by Court to provide Notice of Intention to Withdraw as Lawyer seven days prior to final hearing – Matter adjourned. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 190(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 9.03(2), 22.06(2)
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of last submissions: 10 May 2023 Date of hearing: 10 May 2023 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 3525 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VENKATESWARA RAO KANCHARLA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
10 MAY 2023
THE COURT ORDERS THAT:
1.The Applicant be granted leave to file an amended application and any materials in support of his application on or before 4:00 pm on 24 May 2023.
2.The First Respondent file any written submissions in response to any submissions filed by the Applicant on or before 4:00pm on 1 June 2023.
3.The matter be otherwise adjourned until 10:00 am on 7 June 2023.
4.The First Respondent’s costs of today thrown away by reason of the adjournment be reserved.
5.The First Respondent’s name be amended to “Minister for Immigration, Citizenship and Multicultural Affairs.”
AND THE COURT NOTES THAT:
A.A copy of these orders will be provided to Ms Noeline Smart of Sky Legal.
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 TranscriptJUDGE CHAMPION:
In this matter, when this matter for judicial review came on before me this morning, 10 May 2023, Mr Kancharla, the applicant, made an application for an adjournment. He did so for two reasons. First, he said that he had made an application for an employer-sponsored visa which was under consideration of the Department. Second, he made submissions to the court that he was not ready to proceed because he was without legal representation. The Minister opposed the application.
The first matter relied upon by Mr Kancharla as to his new visa application has no merit. It does not – whether or not the department grants that application for an employer sponsored visa – affect his judicial review application as to what happened in the tribunal in October 2018. As to the second reason, I am concerned about the fact that Mr Kancharla is not ready to proceed in the absence of legal representation.
It was correctly pointed out that Mr Kancharla had legal representation from 24 August 2020. Further, that his matter was listed for hearing on 24 February 2023.
Further, he continued to be represented on 12 April 2023 when the first respondent filed its submissions. The first the court knew that Mr Kancharla would not be represented today was when it received a notice of ceasing to act signed by his previous lawyer, Ms Noeline Smart of Sky Legal. The notice of ceasing to act was signed on 27 April 2023. It was lodged with the court on 8 May 2023 and accepted for filing on 9 May 2023. That is yesterday. Because the court was concerned at receiving a notice of ceasing to act just two days before the scheduled hearing, I caused my chambers to write to Sky Legal acknowledging receipt of the notice of ceasing to Act lodged on 8 May 2023.
The email from my chambers was sent on 9 May 2023. The email from my chambers referred Sky Legal to rule 9.03(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), which provides as follows:
9.03 Withdraw As Lawyer
[…]
(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 seven days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting.
The email then continues to request Ms Smart of Sky Legal to confirm the following:
Please confirm that you have served not less than seven days the filing of a notice of intention to withdraw on the applicant in accordance with rule 9.03(2) of the Rules.
My chambers sent that email to Sky Legal. Sky Legal responded promptly at 9:20 am on 9 May 2023. Ms Smart wrote, and I quote:
I confirm that I have complied with r. 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Mr Kancharla says that he found out that his previous lawyers wished to cease to act only on or about 8 May 2023. He provided to me in the course of this morning’s application for an adjournment documents from Ms Smart at Sky Legal. The first was dated 27 February 2023, which appears to be an email from Ms Smart to him attaching the court’s notice of listing. Ms Smart wrote to Mr Kancharla:
Dear Venkat, please advise whether you are proceeding with this?
I note that the court only has screenshots from Mr Kancharla’s phone. The next email from Ms Smart to Mr Kancharla, of which he provided a screenshot, was dated 28 April 2023. The subject line records the email as being an invoice reminder. Mr Kancharla has told the court that he did not receive from Sky Legal a notice that they were ceasing to act before the date Sky Legal filed its notice with the court.
In those circumstances, I need to balance various matters in my consideration of what the dictates of justice require as to the application for an adjournment. Section 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) states that:
The overarching purpose that the civil practice and procedure provisions is to facilitate the just resolutions of dispute:
(a) according to law; and
(b) as quickly, inexpensively, and efficiently as possible.
I must balance that important object against any prejudice to Mr Kancharla, who is plainly not ready to proceed today. On the information provided to me, I am unsure as to what responsibility rests with Mr Kancharla as to him not being prepared to proceed today, and what responsibility rests with his lawyers. Rule 22.06(2) of the Rules provides that:
A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed to do any other act necessarily for the hearing to proceed.
It would be of concern to me if the first notice provided to Mr Kancharla, of Sky Legal’s withdrawal, was 8 May 2023 (two days before the hearing). I am aware, however, that the communication from Ms Smart to my chambers indicated that an earlier notice of intention to withdraw had been provided to Mr Kancharla, and that I have not heard from Sky Legal as to that issue. Whatever may have passed between Mr Kancharla and Sky Legal, it is clear that the applicant is not prepared to proceed today.
I have decided to grant a brief adjournment, so that the can either obtain alternative legal representation, or at least prepare his case, with me being satisfied that he is now properly on notice that this matter will next proceed on 7 June 2023, and that he must take steps so that the matter can proceed on the next occasion.
He may wish to obtain alternative legal representation on the next occasion. Any inability to do so will not, in and of itself, cause the matter to be adjourned again, noting that there is no right to legal representation in migration proceedings. If the applicant is unable to obtain legal representation before the next date, he will be able to represent himself, and the Court will afford to him the same procedural fairness as is accorded to other unrepresented applicants.
There are costs beyond just the costs associated with an adjournment, including as to the general administration of justice, and the use of time and resources of the Court and other parties, in a matter of this kind.
In granting the adjournment, the Minister seeks costs thrown away. I will reserve the question of costs with the view that Ms Smart, of Sky Legal, be put on notice by provision of these reasons, for the purposes of r. 22.06 of the Rules, that she may attend on the next occasion, regardless of whether or not the applicant obtains alternative legal representation, in order to be heard on the question of order – of any order for costs thrown away, occasioned by today’s adjournment. And as to whether those costs ought to be borne personally by her.
In the circumstances, I propose to make the following orders:
1.The Applicant be granted leave to file an amended application and any materials in support of his application on or before 4:00 pm on 24 May 2023.
2.The First Respondent file any written submissions in response to any submissions filed by the Applicant on or before 4:00pm on 1 June 2023.
3.The matter be otherwise adjourned until 10:00 am on 7 June 2023.
4.The First Respondent’s costs of today thrown away by reason of the adjournment be reserved.
5.The First Respondent’s name be amended to “Minister for Immigration, Citizenship and Multicultural Affairs.”
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Champion. Associate:
Dated: 10 May 2023
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