MZWIX v Minister for Immigration

[2005] FMCA 343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWIX & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 343

MIGRATION – PRACTICE AND PROCEDURE – Orders for application to be determined on written submissions – solicitor for Applicant retained recently – adjournment allowed to provide submissions in writing – further hearing unnecessary – no notice of adjournment – costs awarded against Applicant – no explanation for delay.

Smith v Gannawarra Shire Council & Anor (2002) 4 VR 344

Applicant: MZWIX & ORS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 592 of 2004

Delivered on: 10 March 2005

Delivered at: Melbourne

Hearing Date: 10 March 2005

Judgment of: McInnis FM

REPRESENTATION

Pro bono Counsel for the Applicant: Mr F. Caldwell

Counsel for the Respondent: Mr E.J.C. Heerey

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application shall be determined on written submissions.

2. The Applicant shall file and serve any submissions in support of the application on or before 17 March 2005.

3. The Respondent shall file and serve written submissions in response on or before 24 March 2005.

4. The Applicant shall pay the Respondent’s costs of and incidental to the orders made this day, including the costs of the appearance of counsel and instructing solicitor this day as if those costs were costs of a final hearing and further shall pay two thirds of the costs of the preparation of the Respondent’s contentions of fact and law fixed in the sum of $3,865.00.

5. Liberty to apply is granted to the parties in relation to any matters arising out of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 592 of 2004

MZWIX & ORS

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the application, which I note was filed on 25 May 2004, seeking review of a decision which was made by the Refugee Review Tribunal (the RRT) on 2 April 2004 came before the court on

   
   

   20 October 2004 where orders were made by a registrar.  Those orders included the listing of this matter for hearing this day and further orders were made requiring the applicant to file and serve an amended application by 20 December 2004, together with particulars of grounds of review and any supplementary documents.  Orders were made in relation to the filing and serving of the applicant's contentions of fact and law also by 20 December 2004.  It appears that those orders were made by consent and that the applicant attended in person and was then unrepresented.

2. When the matter was called today Mr Caldwell, a solicitor, yet to be on record, claims to be acting for and on behalf of the applicant. I have accepted that he has been now retained to act for and on behalf of the applicant. He filed in court a document entitled Amended Application Pursuant to Section 39B of the Judiciary Act 1903 and dated 9 March 2005 which appears to have been prepared by counsel. He sought an adjournment of the hearing. There is no material filed or served which would explain the delay between the hearing where orders were made on 20 October 2004 and the failure on the part of the applicant to file and serve any further material, save that Mr Caldwell states from the bar table, and I accept for the present purposes, that he has only recently been retained to act for and on behalf of the applicants. Those instructions apparently were received in a way that I regard as tentative on or about 26 February 2005 and then subsequently confirmed with the result that discussions and instructions were given to counsel who at the very least was able to prepare the amended application, which as I have indicated is dated 9 March 2005.

3. In the absence of any material in support of the application for adjournment by way of at least explaining the delay the court is very reluctant to allow an adjournment.  It seems to me that it is inappropriate to simply allow an adjournment in the absence of material and it is not a practice to be condoned and nor is it a practice to be encouraged in any way at all in applications of this kind where one might presume in many instances that it is in the interests of applicants to delay the further proceedings.  I am assured by Mr Caldwell that there is no intention to delay the matter and that a short adjournment is all that is required.

4. From my reading of the material, it seems to me that this is a matter where I could properly accommodate the interests of the parties by permitting the applicant's representatives to file and serve written contentions of fact and law in support of the application and then permit the respondent to likewise respond within a short time frame.

5. Further, it is my view that in this particular case it is appropriate that I should make an order that the applicants pay the costs of the respondent of and incidental to the orders I am about to make, which effectively provide for the matter to be determined on the submissions.  It seems to me the respondent has properly retained counsel to appear on her behalf and has in fact incurred the expense of attending court today.  I cannot see any basis upon which those costs should be the subject of anything other than an order that they be paid by the applicants.  Likewise, I consider that the costs incurred by the respondent in the preparation of the respondent's contentions of fact and law should be paid to the extent as sought, that is, two‑thirds of those costs paid on the basis that clearly they are now to some extent costs thrown away having regard to the late filing of the amended application.

6. In considering the issue of whether or not to allow what effectively is an opportunity for the applicant to present a case, albeit in writing, that in my view is tantamount to providing an adjournment with the costs sanctioned to which I have referred.  I do not see any prejudice to the parties in allowing the matter to proceed on the basis of written submissions.  I am mindful of the principles to be applied when effectively vacating a trial date or adjourning as set out by the Court of Appeal in the matter of Smith  v Gannawarra Shire Council & Anor (2002) 4 VR 344 and in particular I note what Winneke P states in relation to the principles to be applied as follows:-

   “In this day and age when the courts are under pressure to deal with cases before them in an expeditious fashion and where, accordingly, case management has become a significant aspect of the curial processes, the administration of justice still requires that the courts ensure, so far as practicable, that justice be administered evenhandedly so that each party to a dispute is in a position, within the bounds of reason, to present his or her case to the court in its best light and in an orderly fashion. …”

7. An application for adjournment, in my view, ought at the very least be supported by some affidavit material from the applicants, who I note are not in attendance this day.  However, applying those principles to which I have referred set out in the judgment of Winneke P and despite my significant reservations and concerns, I am prepared to make the following orders in this matter.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  10 March 2005