Kuniyil v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1159
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kuniyil v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1159
File number(s): MLG 555 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 23 November 2023 Catchwords: PRACTICE AND PROCEDURE – Where solicitor for applicants in migration proceedings purported to withdraw as lawyer on day before final hearing – where Notice of Withdrawal as Lawyer invalid by reason of failure to comply with rule 9.03(2) of Court Rules – failure to specify in which language applicants would require interpreter – matter adjourned – parties and solicitor on notice of potential personal costs orders Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 191
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) rr 9.01, 9.03, 22.06
Cases cited: Saleem v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 98
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 23 November 2023 Place: Sydney Solicitor for the Applicants: Mr R Gordon of Gordon & Co. Lawyers Solicitor for the Respondents: Ms S Liddy of Sparke Helmore ORDERS
MLG 555 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BINU KUMARAN KUNIYIL
First ApplicantBIJU SCARIA BIJU SCARIA
Second ApplicantGAVIN BIJU ZACHARIA
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to r 9.03(2) of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), leave is granted to the solicitor for the applicants to withdraw from the proceedings effective from the time of the making of these orders.
2.The applicants must file and serve a Notice of Address for Service on or by 30 November 2023.
3.Leave is granted to the applicants to file and serve the following documents on or by 14 December 2023:
(a)an amended application giving complete particulars of each ground of review relied upon; and
(b)any Affidavit material on which they wish to rely in respect of the review and/or the question of costs.
4.The proceedings are adjourned for final hearing before Judge Given at 10.15am AEDT on 29 January 2024 by Microsoft Teams.
5.The applicants must file and serve a written outline of submissions and list of authorities 14 days before the date of final hearing referred to in order 4.
6.The first respondent has leave to file any additional written submissions 7 days before the final hearing referred to in order 4.
7.The question of costs of, and incidental to, today’s adjournment, including any question arising in respect of a costs order to be made pursuant to r 22.06 of the Rules, is reserved to the hearing referred to in order 4.
8.The solicitor for the first respondent is to serve a copy of these orders on each of the applicants and the solicitor currently on the record for them, by 5.00pm on 24 November 2023.
9.Leave is granted to the solicitor for the applicants to file and serve any Affidavit material on which he seeks to rely in respect to the question of costs on or by 11 January 2024.
10.If the applicants are not represented by a lawyer, then at least 2 days before the hearing, the first respondent must file and serve an Affidavit pursuant to r 6.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) which evidences:
(a)service of all sealed documents filed in the proceedings for the first respondent, upon the applicants; and
(b)any other correspondence in the proceedings which may be relevant to matters to be raised and/or orders which may be sought at the hearing.
11.The parties are granted liberty to apply on 2 days’ notice.
THE COURT NOTES THAT
1.For the purposes of r 22.06 of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the applicants and their solicitor on the record as at the date of these orders, are hereby on notice that the question of costs will be determined in accordance with order 7 above, irrespective of whether the applicants are unrepresented, or represented by another legal representative at the time of the final hearing.
2.A Microsoft Teams link will be circulated in advance of the hearing date referred to in order 4.
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN
By an application to show cause filed on 6 March 2018, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) which affirmed a decision of a delegate of the first respondent (delegate), refusing to grant the first applicant a Temporary Work (Skilled) (subclass 457) visa (visa).
At the time the applicants commenced these proceedings, they were unrepresented. The matter has a somewhat extended procedural history, but it suffices for the purpose of these reasons to record that the proceedings were initially in the central migration docket before being docketed to me, when they were then listed for a final hearing before me on 23 February 2023.
On 8 February 2023, I made orders at the request of the Minister that the proceedings be held in abeyance pending the determination by the Full Court of the Federal Court of Australia in the decision of Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 (Singh). On 7 August 2023, that judgment was delivered.
Following the judgment in Singh, I brought the matter back before me for directions on
31 August 2023. On that occasion, the first applicant appeared as did a solicitor for the first respondent. By orders which I made on that date (August Orders), the matter was listed for hearing before me at 2:15pm today, by Microsoft Teams, because the applicants are located in Victoria and the Court is presiding from Sydney.
By the August Orders, leave was granted to the applicants to file and serve any amended application by 12 October 2023 and the parties were required to file written submissions 14 and 7 days before the hearing respectively. At 3:46pm on 31 August 2023, after the time at which the matter came before me for directions on that day, a Notice of Address for Service was accepted by the Registry for filing. A review of the back sheet reveals that it had been lodged for filing the day before.
That Notice of Address for Service had the effect of entering the appearance of the applicants’ solicitor on the record and rendering the address for service provided in that document as being their new address for service: see r 9.01 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules).
No amended application was filed for the applicants as ordered, or at all.
By reference to the hearing date today, the applicants’ written submissions were due to be filed with the Court on or by 9 November 2023. No submission document was filed in time, or at all.
At or about 9:16am today, my Associate emailed the practitioners for the respective parties with the Microsoft Teams link for the hearing. In reply, at 9:40am, the applicant’s solicitor wrote the following:
…..
I no longer represent the Applicants.
Due to my own personal circumstances and their personal circumstances, I am not able to represent them at the hearing today.
The Applicants have been advised of this and that I will not be appearing at the hearing today.
Given both my own personal circumstances and their personal circumstances the Applicants have advised me not to represent them at the hearing today.
If the hearing is to proceed today the Applicants may be be conducting it themselves and will require an interpreter.
I did lodge both a notice of intention to withdraw as lawyer and notice of withdrawal as lawyer on the elodgment portal yesterday, but the documents are yet to be issued. Unfiled copies are attached.
Kind regards
(solicitor’s email)
Attached to the solicitor’s email were a Notice of Intention to Withdraw as Lawyer and a Notice of Withdrawal of Lawyer.
Rule 9.03 of the Rules provides as follows:
9.03 Withdrawal as lawyer
(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.
At my direction, my Associate responded to the solicitor’s email as follows (emphasis in original):
Dear Practitioners
I refer to Mr Gordon’s emails below which have been brought to Judge Given’s attention.
The Notice of Withdrawal is invalid in circumstances where the solicitor for the applicants has failed to comply with rule 9.03(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Her Honour is not presently minded to grant leave to the applicants’ solicitor to withdraw from the proceedings.
This matter remains listed at 2:15pm today. The representatives of the respective parties must attend using the Microsoft Teams link.
Sincerely
The following can be observed about the purported Notice of Intention to Withdraw:
(a)it is dated 22 November 2023, namely yesterday; and
(b)it misstates both the place and time of hearing by informing the applicants that the matter is listed for hearing at the Melbourne Registry of the Court, not by Microsoft Teams, and commencing at 2:30pm, when in fact it was listed for 2:15pm.
The following can also be observed about the purported Notice of Withdrawal:
(a)it is also dated 22 November 2023; and
(b)contrary to r 9.03(1) of the Rules, it is not made in accordance with the approved form. That is because the approved form properly assumes that r 9.03(2) will have been complied with. As such, paragraph 3(b) of the approved form states:
The notice of intention to withdraw was served on the client at least seven days before the date of filing of this notice.
whereas the form which was filed by the applicant’s solicitor states:
The notice of intention to withdraw was served on the client today, before the date of filing of this notice.
There is no evidence before me that the above statement is true. Even if it is, it fails (by a wide margin) to comply with r 9.03(2) of the Rules.
The last thing to note about the Notice of Withdrawal is that it states that the applicants require an interpreter but fails to specify in which language. A review of the Court Book revealed that the applicants did not use the services of an interpreter at the Tribunal hearing.
By reference to the date of the purported Notice of Withdrawal, the Notice of Intention to Withdraw fails to comply with r 9.03(2). As such, unless leave is granted by the Court, the Notice of Withdrawal is defective, and the applicant’s lawyer has not withdrawn from the proceedings.
The present situation is unacceptable.
As was the case in the matter of Saleem v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 98 (Saleem) at [11], but specifically [11(a)] to [11(c)], in accordance with the Rules the applicants are still presently represented by a lawyer.
In Saleem, the Court went on to observe at [12] to [15]:
[12] As such, Mr Warraich remains the solicitor on the record for the applicant. As a result, Mr Warraich has ongoing obligations to assist the applicant with the preparation of the matter. Section 190(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) states that 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 efficient as possible.
[13] Rule 22.06(2) of the Rules is as follows:
A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a) to attend, or send another person to attend, the hearing; or
(b) to file, lodge or deliver a document as required; or
(c) to prepare any proper evidence or information; or
(d) to do any other act necessary for the hearing to proceed.
[14] Section 191(1) of the Act relevantly provides that the parties to a civil proceeding before this Court must conduct the proceeding in a way that is consistent with its overarching purpose. Section 191(2) provides that a party’s lawyer must:
(a) in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia, on the party’s behalf, take account of the duty that is imposed by subsection (1), and
(b) assist the party to comply with that duty.
[15] Further, s 191(4) of the Act relevantly provides that in exercising the discretion to awards costs in a civil proceeding, I must take account of any failure to comply with the duty imposed by subsections (1) or (2). I have recently addressed the overarching purpose in relation to an adjournment request and the conduct of a solicitor not prepared for hearing in the matter of FEH18 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FedCFamC2G 293 .
It will be observed that, by the solicitor’s email, he did not mention let alone explain why the applicants had breached the August Orders for the filing of submissions, with which (and by reference to s 191(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)), he had a duty to assist the applicants in complying.
From the (virtual) Bar table today, the solicitor said that due to “circumstances beyond [his] control”, he was unable to comply.
There have been a variety of explanations given by the solicitor for the applicants from the Bar table today which initially seemed to indicate they had terminated the his services and no longer wished him to be their lawyer and that he had not had sufficient time, based on the timing of those instructions, to withdraw. As the Court explained in Saleem, and also sought to explain to the solicitor, if it were the case that the applicants wished to terminate the solicitor’s services, then the manner by which that was to be notified to the Court was by the applicants filing a new Notice of Address for Service which, pursuant to r 9.01(2), would have had the effect of replacing the solicitor instantly, with the applicants then being self-represented from that point forward. That did not occur.
I have some doubts about the chronology of events that underpin the solicitor’s purported withdrawal today, as discussed above, he presently remains on the record. It is also no small issue that the solicitor’s email was sent to the Court only in response to being sent the Microsoft Teams link. The Court was given no advance notice, other than the lodgement of documents with the Registry, that this was a course which was being considered by the solicitor and/or by the applicants. The Court has little confidence that had Chambers not written to the parties this morning with the Microsoft Teams link, any notification would have been made about the proposed non-attendance or withdrawal.
The explanations which were proffered in the email are also somewhat inconsistent. To the extent that the solicitor waited until today to notify the Court that the applicants would need an interpreter, it is unsatisfactory to do at such a late juncture, compounded by the unhelpful omission as to which language would be required.
Explanations given to me from the Bar table today as to the lack of language skills, particularly in respect of the second applicant, being such that the solicitor was unable to ascertain what language would be required, do not assist. Simply having told the Court that there was a need for an interpreter, it is absolutely unclear how the Court was supposed to then ascertain which language was to be required, any better than the solicitor had. The suggestion that this could have been explained to the Court by the second applicant seems completely inconsistent with the explanation that he had so much trouble understanding the second applicant that he was himself unable to ascertain which language interpreter the second applicant would require. There is also no explanation as to why the solicitor did not simply ask the first applicant for that information given that she is proficient in English and married to the second applicant.
The solicitor for the Minister indicated that if any language barrier was a concern or obstacle to today’s hearing proceeding conveniently, then the Minister had little choice but to consent to the matter going over to another occasion in order to facilitate the applicants being able to participate meaningfully in the proceedings. I asked the first applicant to unmute herself because I could see that she was in the Microsoft Teams forum and she did so. The first applicant agreed that she did not want the solicitor to be her lawyer, but that this was because she couldn’t afford his fees.
The Court had deduced from material available in the visa application that the second applicant may require an interpreter in the Malayalam language. The first applicant confirmed this was correct and said that she would also need the interpreter because, while she can speak English she cannot do so to a level where she can understand “the court language”, which I take to mean legal terminology. That is entirely understandable and each of the applicants is entitled to participate in these proceedings in their mother tongue (or in a language they prefer and are comfortable and confident to understand).
The Court was not able to arrange for an accredited Malayalam interpreter at such short notice. Based on the fact that the first applicant requested that the hearing proceed with an interpreter for both applicants, I therefore take that to be an application for an adjournment and I am of the view that said application should be acceded to in the interests of procedural fairness to the applicants.
Accordingly, I will make orders which give effect to a new timetable for the preparation of these proceedings. However, and as I indicated to the solicitor for the applicant, there will also be a question as to what happens to any costs of today’s adjournment, which the solicitor for the Minister has foreshadowed will likely be the subject of an application at the final hearing of this matter.
It seems to me that the matter is not able to conveniently proceed today, in part due to the manner in which the solicitor for the applicants purported to withdraw at the eleventh hour, in circumstances where there has also been default on the part of the applicants in failing to comply with the Court’s orders.
How, where and with whom the responsibility or fault ultimately lies is not something which can be determined on the material before the Court at the moment. However, in circumstances where the proceedings are not able to conveniently proceed before me today, there will be wasted costs on the part of the Minister. That is because the solicitor for the Minister has come prepared today to argue the matter, having complied with the Court’s orders in respect of the filing of written submissions and no doubt was ready and able to address the Court at hearing. This process will now need to be repeated.
The time of the Minister’s solicitor has been wasted in that regard. To the extent that there might be any amendment forthcoming, there may also be costs thrown away occasioned by any further amendment which takes place. It seems to me in the present circumstances, it would be premature to determine by whom those costs ought be borne. However, there is a significant doubt in my mind as to whether the applicants ought bear them, and it certainly seems to me that the Minister, who expends public funds in responding to applications of this kind, probably ought not bear the costs himself either.
Accordingly, I will also make orders for a regime allowing the question of costs to be dealt with at the final hearing, including an opportunity to the applicant’s solicitor to be heard on the question of whether and to what extent they should be borne by him.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 15 December 2023
2
3
2