M231 of 2002 v Minister for Immigration
[2005] FMCA 206
•1 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M231 of 2002 v MINISTER FOR IMMIGRATION | [2005] FMCA 206 |
| PRACTICE AND PROCEDURE – Migration application – costs against lawyer where failure to file notice of withdrawal – failure to appear at final hearing – discourtesy to Court – failure of solicitor’s duty as officer of the Court – duty to inform Court in timely manner of non-appearance. |
| Applicant: | APPLICANT M231 of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1461 of 2003 |
| Delivered on: | 1 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 1 March 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Mr Wee |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The solicitor on record for the Applicant namely Chandra Weerakoon of 48 Victoria Knox Avenue Rowville shall pay to the Respondent the sum of $2,000.00 being part of the costs payable in this matter by the Applicant to the Respondent pursuant to Order 2 of the orders made on 23 February 2005.
Upon payment of the sum of $2,000.00 pursuant to Order 1 hereof the sum payable by the Applicant to the Respondent shall be reduced accordingly.
IT IS DIRECTED:
A copy of this judgment be forwarded to the President of the Law Institute of Victoria for further action as deemed appropriate by the Law Institute.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1461 of 2003
| APPLICANT M231 of 2002 |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the court made orders on 23 February 2005 which included orders dismissing the application pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001. The court further made orders that the applicant shall pay the respondent's costs fixed in the sum of $9000. A further specific order was made in the following terms:
“3.The Application be otherwise adjourned to 10 am on 1st March 2005 solely for the purpose of dealing with the issue of whether leave should be granted to the Applicant's solicitor to withdraw as solicitor for the Applicant and whether any further order should be made against the Applicant's solicitor in relation to payment of all or any part of the costs in order (2) hereof. A sealed copy of this order be forwarded to the Applicant's solicitor within 48 hours.”
By notice dated 24 February 2005 the applicant's solicitor was advised of this hearing date in a sealed copy of the order which I am satisfied was forwarded to the solicitor. The solicitor, Mr Chandra Weerakoon of 48 Victoria Knox Avenue, Rowville, Victoria has been and remains solicitor on record for the applicant. The respondent was excused from further attendance this day, though invited to make any submissions that might otherwise be relevant to the further consideration of the costs issue.
By facsimile correspondence dated 28 February 2005, which I note has been forwarded to the solicitor on record for the applicant, the solicitors for the respondent state as follows:-
“4.The applicant had not complied with Orders of Justice Marshall and the respondent filed a Notice of Motion dated 22 July 2003 in the Federal Court seeking summary dismissal. The applicant's solicitor continually advised us that he would file and serve submissions, but did not serve submissions on us. We deposed as to the circumstances surrounding the non-compliance in affidavits of Brian Choon Jinn Wee sworn on 22 July 2003 and 1 August 2003.
5.At the first mention of the Notice of Motion, where there was no appearance for the applicant, it transpired that the applicant's solicitor had earlier filed submissions with the Court but had not served the same on us. The applicant's solicitor had advised us he had not drawn submissions, when in fact he filed them a while earlier on 5 July 2003. The Court adjourned the motion to a later date to discuss the events with the applicant's solicitor. What transpired on the two return dates of that Notice of Motion should be contained in the Court's record of those mentions. We note the Court ordered the applicant pay the respondent's costs of the Motion to be taxed in default of agreement.
6.Between the listing of the matter in April 2004 up to the morning of the hearing, the respondent was not contacted by the applicant's solicitor about any difficulty the applicant's solicitor experienced contacting the applicant.”
When the matter came before the Court orders were made on 23 February 2005 there was no appearance for the applicant. Counsel appeared for and on behalf of the respondent. According to a file note at ‘9.35 am’ on 23 February 2005 it would appear that the solicitor on record for the applicant contacted an Associate and stated he had not been able to contact the applicant, cannot come to court and he has another engagement in Ringwood Magistrates Court. The note says the solicitor is faxing through a letter regarding the above.
A facsimile letter, dated 23 February 2005 from Chandra Weerakoon addressed to the associate states the following:
“Further to my telephone conversation with you this morning
I confirm that I have no instructions from the applicant whom
I endeavoured to contact by all means within my control. I have been desperately attempting to communicate with him using the postal address and the mobile telephone number he has given me but without any success.
I am unable to say with any certainty whether or not he is in Australia at this moment of time. However, I seek the indulgence of Justice McKinnon to consider the circumstances in which I am placed and to proceed with the matter ex parte as I am unable to represent him in this matter due to above reason. Further
I request His Worship to excuse my absence at today's hearing.
I have already intimated to Mr Bryan Wee of the AGS that I will not attend today's hearing for want of instructions from the client who is not contactable despite all reasonable attempts to contact him (sic).”
It should be noted that in matters of this kind where a solicitor is on record the court has a procedure for the solicitor on record to cease to act as a solicitor for and on behalf of the applicant. Rule 9.03 provides for the withdrawal of a lawyer:
“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 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:
(a) state the lawyer's intention to withdraw; and
(b) state that, if the client does not appoint another lawyer or file and serve a notice of address for service within 7 days, the party may not be served with documents in the proceeding.
(4) A lawyer may serve a party with a notice of intention to withdraw by posting it to the residential or business 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.
Note If a party's address for service changes for any reason during a proceeding, the party must file a notice of address for service: see rule 6.02.”
It is also clear to me that over and above the duty of solicitors referred to in the rules there is a duty upon solicitors as officers of the court to properly inform the court in a timely manner of their non‑appearance. The faxed letter and the telephone communication on the day of the hearing in my view represents a gross discourtesy to the court and furthermore is a failure on the part of the solicitor to properly discharge his duty as an officer of the court and as a solicitor in this state. It is unacceptable for the court in the management of matters of this kind to simply receive either a telephone message or correspondence in the form to which I have just referred. There is no adequate explanation as to the attempts to contact the applicant, no adequate explanation as to why a notice of withdrawal of practitioner has not been filed and served and it is clear that the respondent in the circumstances and the court have been significantly inconvenienced. Ultimately an order was made which may well be detrimental to the applicant, both in terms of the application being dismissed and what I regard as a significant order being made for costs fixed in the sum of $9000.
When I made the order on 23 February 2005 I specifically alerted the solicitor on record for the applicant to the prospect that this day
I would consider the issue of whether there should be any further costs made in relation to two issues: (1) whether leave be granted to the applicant's solicitor to withdraw; and (2) whether there should be any costs order made and specifically whether that order should be made against the applicant's solicitor personally. The power to award costs against a lawyer is found in Rule 21.07 of the Federal Magistrates Court Rules 2001 as follows:-
“21.07 Order for costs against lawyer
(1) The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a) to be incurred by a party or another person; or
(b) to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
(2) 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.
(3) An order for costs against a lawyer may be made on the motion of the Court or Registrar, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.
(4) The order may provide:
(a) that the costs, or part of the costs, as between the lawyer and party be disallowed; or
(b) that the lawyer pay the costs, or part of the costs incurred by the other person; or
(c) that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.
(5) Before making an order for costs, the Court or Registrar:
(a) must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and
(b) may order that notice of the order, or of any proceeding against the lawyer be given to a party for whom the lawyer may be acting or any other person.”
In my view this is a clear example where there has been a great deal of inconvenience and cost expended by the respondent in relation to this proceeding. It is clear that at least a significant part of those costs could and should have been avoided by, at the very least, some notification being given to the respondent that the applicant's solicitor had withdrawn from the proceedings. I do not regard the attempts revealed to this court to contact either the applicant via the applicant's solicitor or indeed the contact made by the applicant's solicitor with the respondent as being an adequate explanation for the non‑appearance before this court on the day of the hearing. The duty of a solicitor is to arrange representation or at least arrange for someone to attend the court to further explain the non‑appearance of the solicitor on record and, as a matter of respect and courtesy to the court, to make application for leave to withdraw as the solicitor on record and attend Court.
In my view, having regard to those circumstances and having regard to what I find to be a gross discourtesy to the court it is appropriate that
I make an order that the solicitor pay part of the legal costs personally.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 1 March 2005
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