Kumar v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1062
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1062
File number: MLG 489 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 22 November 2023 Catchwords: PRACTICE AND PROCEDURE – application for adjournment of final hearing – application by applicant’s lawyer to withdraw from the record – where applicant’s lawyer did not take steps in accordance with r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – where applicant, while represented, failed to comply with Court orders – adjournment granted Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.03
Cases cited: AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 195
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 6 November 2023 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Ms G Sethi Solicitor for the Applicant: Kotak Legal Applicant: The applicant appeared in person Counsel for the First Respondent: Mr M Daly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 489 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KASHINATH VIJAY KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The hearing of this application is adjourned to 20 December 2023 at 11:00am AWST/ 2:00pm AEDT.
2.By 22 November 2023 the applicant is to file and serve:
a. any amended application
b. any further affidavit evidence; and
c. written submissions in support of his application.
3.By 22 November 2023 Kotak Legal is to file and serve any affidavit evidence and submissions in relation to whether the first respondent's costs of and incidental to the hearing today should be payable by Kotak Legal.
4.The applicant has leave to file and serve any submissions in relation to the costs of and incidental to the hearing today by 29 November 2023.
5.The first respondent is to file and serve any further affidavit evidence or submissions in response to documents filed in accordance with orders 2, 3 and 4 above by 6 December 2023.
6.The costs of and incidental to the hearing today are reserved and will be considered following the filing of any documents in accordance with orders 3, 4 and 5 above.
7.The Court will publish reasons for the orders made today from Chambers at a later date.
8.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
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 LADHAMS:
INTRODUCTION
On 6 November 2023 the applicant’s application for judicial review came before the Court for hearing. On that occasion, I made the following orders:
1.The hearing of this application is adjourned to 20 December 2023 at 11:00am AWST / 2:00pm AEDT.
2. By 22 November 2023 the applicant is to file and serve:
a. any amended application
b. any further affidavit evidence; and
c. written submissions in support of his application.
3.By 22 November 2023 Kotak Legal is to file and serve any affidavit evidence and submissions in relation to whether the first respondent’s costs of and incidental to the hearing today should be payable by Kotak Legal.
4.The applicant has leave to file and serve any submissions in relation to the costs of and incidental to the hearing today by 29 November 2023.
5.The first respondent is to file and serve any further affidavit evidence or submissions in response to documents filed in accordance with orders 2, 3 and 4 above by 6 December 2023.
6.The costs of and incidental to the hearing today are reserved and will be considered following the filing of any documents in accordance with orders 3, 4 and 5 above.
7.The Court will publish reasons for the orders made today from Chambers at a later date.
8.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
These are the reasons referred to in order 7.
RELEVANT BACKGROUND
On 22 February 2019 the applicant filed an application in this Court for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 6 February 2019. The Tribunal affirmed a decision made by a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa (visa).
At the time the applicant filed his judicial review application, he was self-represented. On 16 January 2023 the applicant filed an updated notice of address for service indicating that he is now represented by Kotak Legal.
The matter was listed for hearing before the Court on 6 November 2023 and the parties were notified of this listing by an email sent by my associate on 12 July 2023.
At the time the matter was listed for hearing, there were extant orders for the filing of documents ahead of the Court hearing, pursuant to an Order made by a Registrar on 30 March 2021. One of the extant orders required the applicant to file and serve 28 days before the hearing any amended application with proper particulars of the grounds of application, any supplementary court book and written submissions. The applicant did not file any documents in accordance with this order despite being represented by a lawyer at the time the order was required to be complied with. The Minister filed written submissions 14 days before the hearing in compliance with another of the extant orders.
On 31 October 2023, just six days before the hearing, the applicant’s lawyer wrote to my Chambers advising that the applicant would be representing himself at the hearing and seeking advice on how to withdraw from the record. My associates did not provide a substantive response to this email as it is not the role of Chambers to provide legal advice to lawyers.
The applicant then filed a notice of address for service providing his own contact details on 1 November 2023.
On 3 November 2023 my associates wrote to the parties indicating that it was not apparent from the notice filed by the applicant that his lawyer had followed the process for withdrawing from the record in r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). The applicant was asked to file documents to show this had been complied with, or if they were seeking leave to withdraw, to appear at the hearing on 6 November 2023 to seek leave.
HEARING ON 6 NOVEMBER 2023
At the hearing on 6 November 2023, the applicant’s lawyer, Ms Sethi, appeared to seek leave to withdraw from the record. The applicant also appeared in person and Mr Daly appeared on behalf of the Minister.
A number of interrelated issues were raised at the hearing:
(a)Ms Sethi appeared and sought leave to withdraw from the record, explaining that the applicant was unable to pay funds into her account;
(b)Ms Sethi also advised that the applicant had now instructed her that he had funds available and there was a barrister available to represent him if the Court would grant an adjournment;
(c)the applicant confirmed what Ms Sethi said and made an oral application for an adjournment;
(d)I questioned Ms Sethi as to why the applicant had not complied with the Court orders, which required documents to be filed four weeks before the hearing; and
(e)Mr Daly opposed any adjournment, submitted that Kotak Legal was still on the record and submitted that if any adjournment is granted, Kotak Legal should pay the Minister’s costs thrown away.
There was no evidence before the Court of any of the matters raised in the oral submissions of the applicant or Ms Sethi.
Overarching purpose and parties’ obligations to the Court
Before addressing the specific issues raised by the parties at the hearing on 6 November 2023, it is worthwhile to refer to ss 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), as these provisions are relevant to the consideration of the issues in this matter.
Section 190 of the FCFCOA Act sets out the overarching purpose of the civil practice and procedure provisions. The section provides:
(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.
…
(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).
Section 191 of the FCFCOA Act requires the parties to litigation to act consistently with the overarching purpose and requires the Court to take into account any failure to do so in the exercise of its discretion in relation to costs. Section 191 provides:
(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.
…
(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.
For reasons which will become apparent from the discussion below, I have significant concerns that the applicant and his lawyer may have not complied with their duties under s 191(1) and (2) in the conduct of this proceeding.
Request for leave for lawyer to withdraw from the record
It is convenient to first address Ms Sethi’s request for leave to file a notice of address for service, even though I did not ultimately make any orders in relation to this issue.
Rule 9.03 of the GFL Rules sets out how a lawyer acting for a party may withdraw from the record in a proceeding. That rule provides:
(1)A lawyer for a party may withdraw from the record in a proceeding by filing a notice of withdrawal, in accordance with the approved form, 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.
(3)A notice of intention to withdraw must be in accordance with the approved form.
(4) A lawyer may serve a notice of intention to withdraw on a party by:
(a)posting it to the residential or business address of the party last known to the lawyer; or
(b) emailing it to the email address of the party last known to the lawyer.
(5)If a party’s lawyer withdraws from the record, the party’s last known residential or business address is the address for service until:
(a) the party appoints another lawyer; or
(b) the party files a notice of address for service.
There is no evidence before the Court to suggest that Kotak Legal ever served a notice of intention to withdraw on the applicant. Accordingly, leave is required for Kotak Legal to withdraw from the record at the hearing.
Ms Sethi submitted from the bar table, without evidence, that the applicant had been trying to arrange funds, and they were hopeful he would be able to arrange funds to pay his legal fees and they were acting in good faith.
In the absence of any evidence, I am not in a position to make any findings about any steps taken by the applicant to pay his lawyer or about whether Kotak Legal was acting in good faith towards the applicant. There was no evidence before the Court at the hearing on 6 November 2023 about any contract or retainer between the applicant and Kotak Legal in relation to when payments were required for fees for legal services, the amounts of those payments and what payments, if any, had been made.
Instead, I make some general observations.
Generally speaking, and subject to the particular terms of any retainer between a lawyer and their client and the operation of any applicable legislation, where a lawyer is providing services for a fee, the client will ordinarily have an obligation to pay the fee.
There is nothing before the Court to suggest that the applicant’s inability to pay the fee arose six days before the hearing when the Court was first notified of the issue. If the applicant failed to pay the legal fees required by Kotak Legal, and as a consequence of this Kotak Legal did not wish to represent the applicant, they should have served a notice of intention to withdraw on the applicant, in compliance with r 9.03(2) of the GFL Rules and this should have occurred well before the hearing.
At several points in the hearing, Ms Sethi emphasised that she was, or Kotak Legal were, acting in good faith. I am not in a position to make any finding as to whether Ms Sethi or Kotak Legal were acting in good faith toward their client. However, in circumstances where they disregarded Court orders without explanation (see discussion below) and failed to withdraw from the record in a timely manner, it seems that they have conducted the proceeding in a way that has caused delay and inefficiency. It appears that the applicant and his lawyer may have failed to comply with their duties under s 191(1) and (2) of the FCFCOA Act. If this is the case, any submission that Kotak Legal have acted in good faith appears somewhat disingenuous.
In the end, I decided not to make any order in relation to whether or not leave should be granted for Kotak Legal to withdraw from the Court record at this point in time. Kotak Legal, quite understandably, did not want to remain on the record while the applicant has not paid their legal fees. However, the applicant had indicated that he would able be able to pay legal fees forthwith. Ms Sethi indicated that Kotak Legal would be willing to represent the applicant once the fees were paid. In circumstances where I had adjourned the hearing for a period of approximately six weeks, there is ample time for Kotak Legal to take the steps required in accordance with r 9.03 of the GFL Rules to withdraw from the Court record well ahead of the next hearing in the event that the applicant does not pay the legal fees in a timely manner.
Failure to comply with Court orders and case management considerations
As discussed above, the applicant was required to file and serve any amended application, any supplementary court book and written submissions 28 days before the hearing. The applicant did not comply with this requirement and neither he nor Kotak Legal offered any explanation for the failure to comply with the Court’s order. This is unacceptable.
The only other observation I would make at this point about the applicant’s failure to comply with Court orders is that if the reason for the non-compliance related to the non-payment of legal fees, it is unclear why no steps were taken to file a notice of intention to withdraw at that point in time.
Again, I have no evidence as to what actually happened in this case so I do not comment on the specific circumstances. Generally speaking, however, a lawyer acting diligently would have discussed any requirements in relation to the payment of fees for legal services well ahead of the time at which documents were required to be filed to comply with the Court’s orders. If it became apparent that the applicant was unable to pay for legal services, and no alternative agreement could be reached, then it would have been appropriate for the lawyer to take the relevant steps to withdraw from the court record at that point in time.
If the applicant was afforded an opportunity time and time again to pay the legal fees until six days before the hearing, that has serious consequences for the effective case management of the proceeding. If the applicant had somehow paid the legal fees six days before the hearing, it is difficult to see any way in which the applicant’s lawyer would have been ready to present their case on the allocated hearing date. The time for them to file documents had, by that stage, lapsed 22 days earlier and the Minister had already filed his submissions addressing the application that was before the Court. Even if the applicant’s lawyer had been in a position to proceed at the hearing, it is unlikely that the Minister’s lawyer would have had an adequate opportunity to consider and respond to any amended application filed so close to the hearing date.
Request for an adjournment
Ms Sethi and the applicant both indicated that the applicant has now been able to raise the funds to pay for legal services and that Counsel was available and willing to act in the matter if the applicant had the funds. The applicant requested an adjournment of six weeks to allow Counsel to prepare for and appear at the hearing. Ms Sethi was unable to provide an indication of any arguable grounds that Counsel had identified, but appeared to suggest, at least indirectly, that Counsel would not have indicated a willingness to accept the brief if arguable grounds had not been identified.
The Minister opposed the adjournment application. Counsel for the Minister submitted that there was little explanation as to what difference there would be if an adjournment was granted and that no arguable case had been identified in the applicant’s broad grounds.
Counsel for the Minister referred to Judge Lucev’s judgment in COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145. In that case, his Honour considered at [13]-[23] a request for an adjournment in the context of the requirements of s 190 of the FCFCOA Act and his Honour’s judgment reinforced the requirement to consider s 190 in deciding whether to grant an adjournment. His Honour said at [13]-[21]:
13With the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) (“GFL Rules”) there have been changes to the legislative objects and practice and procedure requirements for the Court now prescribed by s 8(2) of the FCFCOA Act as the “Federal Circuit and Family Court of Australia (Division 2)”. Those changes alter the nature of the factors for consideration when deciding whether to adjourn proceedings, as compared to the factors formerly considered in general federal law matters by the then Federal Circuit Court of Australia: as to which see, for example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev and BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
14The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
190Overarching 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).
15The FCFCOA Act provides that the practice and procedure of Division 2 of the Court is to be in accordance with, relevantly, the Rules of Court: FCFCOA Act, s 174(1)(a). The relevant Rules of Court are the Rules of Court made under Ch 4 of the FCFCOA Act (and specifically s 217 of the FCFCOA Act): FCFCOA Act, s 7(1), and are the GFL Rules, which provide:
(a)in r 1.04(1) that the overarching purpose of the GFL Rules is “as provided in section 190 of the … [FCFCOA Act], … to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”; and
(b)in r 1.04(2) that the parties “must” (in the chapeau to the sub-rule) “avoid undue delay, expense and technicality” (in para (a)).
16As to the use of “must” in r 1.04(2) of the GFL Rules, it was recently observed in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020 at [24] per Judge Lucev that:
The chapeau to reg 5.19(2) of the Migration Regulations provides that “[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.
17Likewise in this case the use of “must” in the chapeau to r 1.04(2) of the GFL Rules imposes a mandatory requirement to fulfil the requirements in para (a) of that sub-rule, subject to any contrary legislative requirement and the Court’s power to dispense with compliance with the GFL Rules: GFL Rules, r 1.07(1).
18The word “undue” carries with it both “a quantitative connotation – in the sense of going beyond what is warranted, or excessive – or a qualitative connotation – in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [58] per Jessup J. In r 1.04(2)(a) of the GFL Rules it would appear that “undue” is used primarily in the former sense, that is, that which gives rise to unwarranted or excessive delay, expense or technicality, although in relation to technicality it might be used in both senses in an appropriate case.
19It follows from the above that the factors for consideration in relation to whether to grant an adjournment are whether an adjournment might:
(a)facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b) avoid undue delay, expense and technicality.
20It might be perceived as unfortunate from a case management perspective to further delay the listing of this matter for final hearing in circumstances where there has already been a significant delay within the Melbourne Registry in listing the matter for hearing as discussed at [3]-[4] above. That delay must, however, be balanced against a number of other factors including:
(a)that an adjournment might facilitate a resolution of the matter by way of Ministerial intervention resulting in the grant of the Protection Visa. The Court notes that it would appear from the oral submissions of the applicant that steps towards that end have already been undertaken by the applicant following recent events in Afghanistan. The Court is of the view that it would be inefficient for the Court to hear and determine the present case if the recent change of circumstances in Afghanistan might render it unnecessary to do so. The Court notes, however, that the exercise of Ministerial discretion is entirely a matter for the Minister, and not something to be determined or influenced by the Court;
(b)if Ministerial intervention were to result in the grant of a Protection Visa to the applicant, that the “dispute” would still be resolved:
(i) according to law;
(ii)likely with less delay than if the matter were to be listed for final hearing in the first half of 2022, either now or even following a short approximately two-month adjournment to a further directions hearing; and
(iii)less expensively, more efficiently and with less technicality than would be the case if the matter were to be fully argued case in this Court with both the applicant and Minister legally represented;
(c)that a delay may facilitate further development of the law with respect to the question of whether Afghanistan is a country, for the purpose of being the receiving country, which might allow that issue to be resolved, or at least dealt with at final hearing more efficiently and with less expense to the parties; and
(d)that any delay would not be undue if the directions hearing were to be adjourned for about two months, either of itself in the present circumstances relating to Afghanistan and possible Ministerial intervention, or in the broader context of the Melbourne Registry delays already experienced: see [3]-[4] above.
21In terms of the overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCOA Act, the Court also notes that it relates to the “just resolution of disputes”. The use of the plural “disputes” as opposed to the singular “dispute” is important. That is because the use of the plural “disputes” allows the Court to give consideration to the possible impact of a proposed course of action on other matters pending before the Court, and not just the “dispute” the subject of the matter immediately before it for hearing. Thus the Court may have regard, as it traditionally would have: Sali v SPC Ltd & Anor (1993) 67 ALJR 841; (1993) 116 ALR 625; ALJR at 843-844 per Brennan, Deane and McHugh JJ and 849 per Toohey and Gaudron JJ; AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, to the possible effect on other litigants who might be denied a final hearing date if this matter were to be listed for final hearing now, and which final hearing might then have to be vacated if Ministerial intervention resulted in the grant of a Protection Visa. That is a particularly cogent consideration when regard is had to the number of migration judicial review applications in the Melbourne Registry not presently allocated to a Judge of the Court for hearing: see [4] above, many of which were filed upwards of four years ago.
Counsel for the Minister also referred to Judge Lucev’s judgment in AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 195, in which his Honour considered similar issues.
In the circumstances of the matter before me, I decided to grant the applicant an adjournment so that he can pay the legal fees and be represented at the hearing. I did this with great reluctance in circumstances where the conduct of the applicant and his lawyer have put the Court in a position where it is extremely difficult, if not impossible, to proceed in a way that is fair to all persons concerned. As I suggested to the parties at the hearing:
(a)One option available to me at the hearing was to decline Kotak Legal’s request for leave to withdraw from the record and require Ms Sethi to appear on behalf of the applicant at the substantive hearing on that day. However, this course may appear unfair to Ms Sethi if she is required to act for the applicant without being paid. It may also be unfair to the applicant, in circumstances where it is unlikely that Ms Sethi would have prepared for the hearing and may not be in a position to represent the applicant with the same degree of diligence as the Court would ordinarily expect of a legal practitioner, albeit that this would be as a consequence of the applicant’s failure to pay the legal fees.
(b)Another option available to me would have been to grant leave to Kotak Legal to withdraw from the record and require the applicant to represent himself at the hearing on 6 November 2023. This may, however, appear unfair to the applicant who had apparently been given multiple opportunities to pay legal fees and who up until a few days prior to the hearing, may have believed that he would be legally represented.
(c)The third option available to me was to adjourn the hearing to allow the applicant to pay for his lawyer, have Counsel consider his application and be represented by Counsel at a hearing on a later date. While this course is plainly desirable to the applicant and Ms Sethi, it is not particularly fair to the Minister, who has complied with all relevant Court orders and whose Counsel was ready, willing and able to proceed with the hearing on 6 November 2023.
Considering all relevant circumstances, I formed the view that adjourning the hearing for a very short period is the course that was more likely to result in the just resolution of the proceedings, and by bringing the matter back to Court quickly, there is less impact on the timeliness of the resolution of the proceedings than might otherwise be the case. I acknowledge that considerations such as the efficient use of the Court’s judicial and administrative resources and the management of the overall caseload of the Court weigh against the Court taking this course, but these considerations also need to be balanced with the just resolution of the proceeding before me.
It is disappointing that, in seeking an adjournment, neither the applicant nor Ms Sethi gave any indication as to what grounds the applicant would raise if the adjournment were granted. One of the considerations that the Court takes into account in deciding whether or not to grant an adjournment is whether there is any utility in adjourning the hearing. If there are no arguable grounds, there is little utility in adjourning the hearing to another day. Given the other difficulties in proceeding with the hearing, discussed above, in the particular circumstances of this case I was prepared to adjourn the hearing notwithstanding that the applicant did not identify arguable grounds that would be advanced if given the opportunity to amend his application. Of course, if no arguable grounds are identified, it would be open to the applicant to discontinue the proceeding.
I acknowledge that the Minister has incurred legal costs in complying with the Court orders and preparing for the hearing, and in this way may suffer some prejudice as a result of my decision to adjourn the hearing. This can be addressed by an appropriate costs order.
Costs
The Minister submitted that if I granted the adjournment, as I have done, it would be appropriate to make an order for costs thrown away payable by the applicant’s lawyer.
At face value, it appears appropriate to make an order for costs thrown away and I indicated as much to the parties at the hearing. What is less obvious, however, is whether those costs should be payable by the applicant or by the applicant’s lawyer.
It is not appropriate to determine this question in the absence of evidence and, in any event, procedural fairness requires that I give both the applicant and his lawyer an opportunity to make submissions on this issue before deciding who should pay the Minister’s costs. Those submissions should be made following the filing of evidence. I therefore made the orders indicated above to give the applicant, his lawyer, and the Minister an opportunity to consider their position and put appropriate documents before the Court in relation to the question of costs.
I will determine the question of costs of and incidental to the hearing on 6 November 2023, and the adjournment of that hearing at a later date, taking into account any evidence and submissions provided by the parties and those matters to which I am required to have regard pursuant to s 191 of the FCFCOA Act.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 November 2023
0
11
2