Kaur v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 893
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 893
File number: MLG 325 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 27 October 2022 Catchwords: PRACTICE AND PROCEDURE – late adjournment request – where a legal representative is appointed late in the proceeding – where the applicant would benefit from assistance – adjournment granted – hearing re-listed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), Division 6 of Part 6 in Chapter 4
Migration Act 1958 (Cth), s 476
Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 26 October 2022 Place: Perth Counsel for the Applicant: Mr R Dalal Solicitor for the Applicant: ASKY International Lawyers Counsel for the First Respondent: Ms C Oppel Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 325 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ROOPKAMAL KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
26 OCTOBER 2022
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The applicant file an amended application by 19 November 2022.
4.The applicant file and serve written submissions in support of the amended application no later than 28 days prior to the hearing.
5.The first respondent file and serve written submissions in response to the amended application no later than 14 days prior to the hearing.
6.The matter be adjourned for a final hearing on 24 January 2023 at 2.00pm (AEDT) / 11.00m (AWST) via video link before Judge Ladhams in the Perth Registry.
7.Costs be reserved.
8.Written reasons for the grant of the adjournment to be provided from chambers at a later date.
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 KENDALL:
Introduction
This matter was listed for a final hearing before this Court at 1.30pm (AEDT) / 10.30am (AWST) on 26 October 2022.
At the hearing, the applicant’s legal representative requested an adjournment. The legal representative for the first respondent (the “Minister”) opposed that request. Having heard from the parties, the Court ultimately granted the requested adjournment.
The Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3. The applicant file an amended application by 19 November 2022.
4.The applicant file and serve written submissions in support of the amended application no later than 28 days prior to the hearing.
5.The first respondent file and serve written submissions in response to the amended application no later than 14 days prior to the hearing.
6.The matter be adjourned for a final hearing on 24 January 2023 at 2.00pm (AEDT) / 11.00m (AWST) via video link before Judge Ladhams in the Perth Registry.
7. Costs be reserved.
8.Written reasons for the grant of the adjournment to be provided from chambers at a later date.
These reasons are those referred to in order 8 above. They explain why the Court granted the applicant’s adjournment.
Background
Before this Court is an application for judicial review filed in the Melbourne Registry of the Court on 9 February 2018 (the “application”). That application was accompanied by an affidavit which was affirmed and filed by the applicant on 9 February 2018.
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth) and seeks review of a decision made by the Administrative Appeals Tribunal on 19 January 2018.
The matter was initially listed for a final hearing before this Court on 8 August 2022.
On Friday, 5 August 2022, the applicant (who was self-represented at that time) contacted my chambers requesting that the hearing be adjourned for at least eight weeks. In support of that request, the applicant provided a copy of a letter dated 2 August 2022 from a solicitor, Mr Dalal, of ASKY International Lawyers. In that letter, Mr Dalal advised the applicant to request an adjournment from the Court for a period of eight weeks to allow for “filing an amended application and standard timetabling orders”.
Ms Oppel, on behalf of the Minister, opposed the applicant’s request for an adjournment.
Despite that opposition, and noting (in particular) that an otherwise unrepresented applicant would now obtain and benefit from legal representation, my chambers notified the parties on 5 August 2022 that I had agreed to adjourn the hearing to 4 October 2022 (being a period of time just over the eight weeks requested by the applicant).
On 9 September 2022, my chambers notified the parties that the matter had again been adjourned (this time due to judicial availability). The matter was re-listed to 26 October 2022 (being a period of time just over 11 weeks from the original listing date).
On 4 October 2022, Mr Dalal filed a notice of appearance in this Court, indicating that he was now “formally representing the applicant”.
On 20 October 2022, the parties were reminded of the date and time of the hearing. The parties were also provided with instructions on how they could attend that hearing via video link.
At 9.17am (AWST), a little over an hour prior to the scheduled hearing, Mr Dalal contacted my chambers to advise that he would be appearing at the hearing on behalf of the applicant but he would be seeking to:
(i)amend the grounds of the application by 19 November 2022; and
(ii)adjourn the final hearing of the matter to “any time in March 2023”.
Hearing
At the hearing (on 26 October 2022), Mr Dalal appeared for the applicant. Ms Oppel appeared on behalf of the Minister.
Both parties took the Court through correspondence exchanged prior to the hearing (which the Court had not been privy to). No copies of any correspondence was provided to the Court by either party.
Based on the information detailed verbally in court by Mr Dalal and Ms Oppel, the Court understands the following timeline reflects the events that took place after the Court first agreed to adjourn the hearing in August 2022.
On or about 5 September 2022, the applicant again contacted Mr Dalal (who, at that point, had not been instructed to act for the applicant and had only had an “initial consultation with her”) to “seek his assistance”. Mr Dalal then contacted Ms Oppel (again, on or about 5 September 2022) to seek an adjournment of approximately six weeks.
The Minister did not consent to any further adjournment request.
Mr Dalal was “officially engaged” to act in the matter on behalf of the applicant on 4 October 2022. He filed a notice of appearance in this Court on behalf of the applicant on that date.
Mr Dalal then contacted Ms Oppel on a further two occasions (on 19 October 2022 and 25 October 2022) seeking consent for the matter to be adjourned.
The Minister did not consent to either request for an adjournment.
On the morning of 26 October 2022, Mr Dalal sent an email to my chambers which read as follows (without alteration):
We refer to the above matter and confirm Mr Dalal will be appearing on behalf of the applicant in today’s hearing.
In today’s hearing applicant will be requesting to amend the grounds of her application by 19 November 2022.
The applicant will also request to adjurn the final hearing to be listed any time in March 2023.
Should you have any questions please do not hesitate to contact me directly at [mobile number omitted].
The reasons for the adjournment requests are based on counsel availability. Mr Dalal indicated that counsel was only available in late March 2023 to appear at a hearing but stressed that an amended application could be filed by 19 November 2022.
Consideration
While the Court understands that parties are not always able to come to an agreement about whether an adjournment should be granted, the Court does expect, as a courtesy, that the parties notify the Court of any discussions that occur. Had that happened in this instance, the matter could have been brought on for a directions hearing to attempt to resolve the issue earlier. The allocated hearing date could then have been allocated to another matter – something that is useful in a busy court.
In relation to adjournment requests generally, the Court needs to be satisfied that it is in the interests of the administration of justice for an adjournment to be granted. If the Court is satisfied that an adjournment is necessary to ensure that there is a just resolution of the proceeding then the Court may exercise its discretion to grant an adjournment.
When determining whether or not an adjournment should be granted the Court will assesses the following factors:
(a)the evidence in support of the adjournment request and the explanation for the adjournment;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
(See: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
I note that the judicial review application in this matter was filed by the applicant in February 2018. The matter has been on foot for quite some time.
I would normally be reluctant to grant a further adjournment to allow an applicant to attempt to find a legal representative. In the circumstances of this matter, however, it is appropriate to adjourn the matter for the following reasons:
(a)the applicant has now obtained legal representation (and did so late in the proceeding) and a solicitor is now on the record;
(b)the solicitor on record appeared before me and had, on multiple occasions, sought the Minister’s agreement to a further adjournment to allow for the filing of an amended application;
(c)the applicant would greatly benefit from the assistance of a lawyer; and
(d)any prejudice to the Minister can be mitigated by costs (noting that the Court has reserved costs in this matter regard so that the issue can be dealt with at the conclusion of the matter).
On the basis of the above, I made orders allowing an amended application to be filed on behalf of the applicant. I also made orders for the filing of submissions by both the applicant and the Minister.
I was not, however, willing to adjourn the matter until the end of March 2023. In this regard, I note that the applicant sought an initial adjournment in this case on 5 August 2022. Correspondence from Mr Dalal to the applicant indicated that he would require 8 weeks to prepare such an amended application and to prepare for hearing.
At the time of the hearing (on 26 October 2022), more than 11 weeks had passed since the initial hearing date and no amended documents had been filed on behalf of the applicant.
In the circumstances, I adjourned the matter to 24 January 2023 (being the Court’s first available date in January). I note that this is almost 13 weeks after the hearing on 26 October 2022 and just over 24 weeks (nearly six months) since the original listing date of 8 August 2022.
I am satisfied that an adjournment to 24 January 2023 will allow the applicant’s legal team sufficient time to prepare the matter for hearing.
Conclusion
In the circumstances, I made orders programming the matter to hearing on 24 January 2023 as outlined at [3] above.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 27 October 2022
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