LU v AO-ZHONG International Mineral Resources Pty Ltd
[2014] FCCA 2841
•4 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LU v AO-ZHONG INTERNATIONAL MINERAL RESOURCES PTY LTD | [2014] FCCA 2841 |
| Catchwords: PRACTICE AND PROCEDURE – Notice of Intention to withdraw as lawyers – lawyers required to appear – non-appearance of lawyers. COSTS – Whether costs payable – whether indemnity costs payable – whether lawyers liable to pay costs. LAWYERS – Duties to the Court – professional conduct. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.9.03, 13.03C(1)(c) |
| Dain v Mark Group Australia Pty Ltd (No.3) [2013] FCCA 78 Runge v Dentakos [2007] FMCA 997 SZBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 628 |
| Applicant: | SHASHA LU |
| Respondent: | AO-ZHONG INTERNATIONAL MINERAL RESOURCES PTY LTD |
| File Number: | PEG 183 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 4 December 2014 |
| Date of Last Submission: | 4 December 2014 |
| Delivered at: | Perth |
| Delivered on: | 4 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Barsby |
| Solicitors for the Applicant: | MDC Legal |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | Wang & Associates Solicitors |
ORDERS
The respondent’s interim application for the transfer of proceedings to the Darwin Registry be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The matter be referred for mediation before a Registrar of this Court at a date to be fixed by that Registrar.
If the matter does not resolve at mediation, the matter be listed for further directions at a time to be fixed by the Court.
The applicant, respondent and respondent’s lawyers (both the firm and the lawyer with conduct of the matter), file and serve submissions as to;
(a)costs;
(b)whether costs ought to be awarded on an indemnity basis;
(c)whether the respondent’s lawyers (both the firm and the lawyer with conduct of the matter) should be liable for those costs; and
(d)whether the Court should refer the conduct of the respondent’s lawyers (both the firm and the lawyer with conduct of the matter) in this matter to the appropriate professional disciplinary body,
by 18 December 2014.
The matter be listed for a hearing on the costs and conduct issues at 11.30am on 22 December 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 183 of 2014
| SHASHA LU |
Applicant
And
| AO-ZHONG INTERNATIONAL MINERAL RESOURCES PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Edit ex tempore reasons)
Before the court today is an application for transfer of these Fair Work proceedings from the Perth registry of the Court to the Darwin registry of the Court. By order made on 4 August 2014, the Court ordered that:
(2) The respondent file and serve:
(a) any affidavits; and
(b) an outline of submissions in support of the interim application for transfer of the proceedings to the Darwin registry of this Court,
by 19 September 2014.
(3) The applicant file and serve:
(a) any affidavits; and
(b) an outline of submissions in opposition to the interim application for transfer of the proceedings to the Darwin registry of this Court,
by 3 October 2014.
(4) The interim application with respect to the transfer of proceedings be listed for hearing at 10.15 am on 4 December 2014.
Orders 2 and 3 were either complied with, or complied with substantially, by both parties.
At 4.56pm (WST) yesterday, the respondent’s lawyers sent an email to the presiding Judge’s Associate email box in the following terms:
Dear Associate,
We refer to the above matter and enclose our notice of intention to cease to act served to our client today.
Due to the unpaid legal fees to us, we will not appear for our client for the hearing on 4 December 2014.
The email was signed by Stella Song, Solicitor, Wang & Associates, Sydney.
A document styled “Notice of intention to cease to act” addressed to the Federal Court of Australia was enclosed. The Deputy Associate to the presiding Judge responded to the respondent’s lawyer’s email at 5.29pm (WST) yesterday as follows:
Dear Ms Song
Chambers notes the contents of your email to the Chambers of Judge Lucev of 3 December 2014.
Please note that emailing documents to Chambers does not constitute them being filed, the notice of intention to cease to act must be filed with the Perth Registry in accordance with the relevant Federal Circuit Rules 2001.
Further, the notice of intention to cease to act does not remove your firm from the Court record as the respondent’s legal representative, and therefore the Court expects you to appear as the respondent’s legal representative at the hearing on 4 December 2014. In this regard, the Court draws your attention to your professional responsibility to your clients, and your duty as an officer of the court.
However, you may make an oral application to withdraw as lawyers for the respondent forthwith at tomorrow’s interlocutory hearing. You should advise your client of this fact immediately. (Emphasis added.)
A “Notice of intention to cease to act”, or, as should have been completed and filed in this Court, a “Notice of Intention to Withdraw as Lawyer” is not a withdrawal of a lawyer from the record. The lawyers on the record in this Court do not cease to be lawyers on the record until such time as a “Notice of Withdrawal as Lawyer” is able to be filed in accordance with the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”): see r.9.03. The Court notes that the “Notice of intention to cease to act” sent to Chambers last night has not yet been filed.
The purpose of the “Notice of Intention to Withdraw as Lawyer” is to ensure that the litigant receives at least seven days’ notice, and that appropriate evidence appears on the Court file in the event that the litigant appears in person claiming to have received no notice of the lawyer’s intention to cease acting. If r.9.03 of the FCC Rules is not complied with, the lawyer is obliged to attend and seek leave to withdraw from acting. An oral application for withdrawal will not be accepted without proper notice and evidence: Moon v JLG Industries (Australia) (2011) 249 FLR 348; [2011] FMCA 343.
In Runge v Dentakos [2007] FMCA 997 at para.11 per Riethmuller FM (“Runge”), the then Federal Magistrates Court described the purpose of r.9.03 of the now FCC Rules in the context of a bankruptcy case where the client failed to appear, as follows:
I note that the effect of rule 9.03 is to ensure that a litigant has not less than seven days' notice that their lawyer may cease to act for them. This ensures that they have a proper opportunity to either appear personally, or engage another lawyer, should they wish to do so, so as to ensure that the court's business can proceed in the usual fashion, and that the litigant does have actual notice of the fact that the lawyer does not intend to continue to act. The formal notice of intention to withdraw and notice of withdrawal provide notice to the client, lest there be any doubt of the forthcoming court date. This ensures that a solicitor ceasing to act on behalf of a client does not become a cause of a client being unaware of the date that a matter is proceeding, or being unaware that there would be no appearance before the court on behalf of the client, and thus ensures that procedural fairness is effected in an appropriate manner for the business of the court in this country.
A solicitor who fails to comply with r.9.03 of the FCC Rules, and fails to appear, will also be committing an ethical breach, which may be referred to the appropriate professional body: Dain v Mark Group Australia Pty Ltd (No.3) [2013] FCCA 78. The failure to comply may result in a personal costs order against the solicitor if the matter has to be adjourned, as occurred in SZBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 628; M231 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 206, and Runge.
As a consequence of the non-appearance of the respondent’s lawyers today, despite the Court’s request of last evening, the respondent’s interim application for transfer of the proceedings to the Darwin registry has been dismissed for non-appearance under r.13.03C(1)(c) of the FCC Rules.
Notwithstanding the email from the court last night requesting that the respondent’s lawyers appear, and the terms of r.9.03 of the FCC Rules, which, as the authorities demonstrate, require a lawyer to appear in the present circumstances, the respondent’s lawyers have not appeared.
Two questions therefore arise: one with respect to costs, the other with respect to the professional conduct of both the firm of lawyers and the lawyer acting within that firm. The Court notes that endeavours were made by the Deputy Associate this morning to contact the firm concerned. The Court is informed that contact was made with administrative personnel of the firm concerned, who advised the Deputy Associate that the lawyer with conduct for the matter was at lunch, and that when further contact was made with the firm, the Deputy Associate was advised that all of the solicitors for the firm were at lunch. Notwithstanding the marvels of modern technology, the lawyer with conduct of the matter did not answer her mobile phone when rung by the Deputy Associate, and it would appear that no other contact was able to be made with any of the other lawyers for the firm by the administrative personnel who were contacted by the Deputy Associate.
The question therefore arises as to whether the costs of today ought to be paid by the respondent or the respondent’s lawyers, and whether those costs should be on an indemnity basis. A question also arises as to whether the conduct of the lawyers concerned ought to be referred to the appropriate New South Wales professional body. In order to afford all concerned appropriate procedural fairness, the Court will list this matter for a further hearing with respect to those issues at 11.30am (WST) on 22 December 2014, with orders that the applicant, and the respondent, and the respondent’s lawyers, both the firm and the lawyer acting in the matter, file and serve submissions as to costs and professional conduct, including whether costs ought to be awarded on an indemnity basis, and whether the respondent’s lawyers – either the firm or lawyer acting – should bear any costs, and whether the lawyer’s conduct ought to be referred to the appropriate professional body. Those submissions are to be filed and served by 18 December 2014.
As already indicated, the Court intends in the circumstances to also make an order that the respondent’s interim application for transfer of the proceedings to the Darwin registry be dismissed, pursuant to rule 13.03C(1)(c) of the FCC Rules.
The Court notes that an order made on that basis may be the subject of an application to set aside by a respondent, pursuant to r.16.05 of the FCC Rules. The Court makes that observation being unsure as to the precise circumstances in which the respondent has not appeared today, other than the fact that it appears it was because the respondent did not pay the lawyers’ fees, and as otherwise appears in the circumstances which the Court has endeavoured to outline in these Reasons for Judgment.
There will otherwise be orders which seek to progress the matter by way of orders for referral to a Registrar for mediation, and referral back to the Court if the matter does not settle at mediation.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 5 December 2014
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