MZWOT v Minister for Immigration
[2005] FMCA 725
•10 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWOT v MINISTER FOR IMMIGRATION | [2005] FMCA 725 |
| MIGRATION – Application for review of decision by Refugee Review Tribunal – withdrawal of solicitor – abuse of process – question of indemnity costs – costs payable by applicant’s former solicitor. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26 (16 February 2001) McKewins Hairdressing & Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27 (5 May 2000) |
| Applicant: | MZWOT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 943 of 2004 |
| Judgment of: | Connolly FM |
| Hearing dates: | 5 & 24 May 2005 |
| Date of Last Submission: | 24 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Mr S. Hay |
| Solicitors for the Respondent: | Clayton Utz |
| Mr Joseph Belbruno represented himself in respect to the Notice of Motion, the subject of this judgment. | |
ORDERS
The applicant’s former solicitor, Mr Joseph Belbruno, pay the respondent’s costs up to and inclusive of 5 May 2005, fixed in the sum of $7,050.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 943 of 2004
| MZWOT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application made by the respondent pursuant to a Notice of Motion filed 18 May 2005, that the solicitor Mr Joseph Belbruno who represented the applicant (from sometime prior to 20 July 2004 until early May 2005) pay the respondent’s costs on an indemnity basis, or alternatively in accordance with the schedule of costs contained in the Federal Magistrates Court Rules 2001 (Cth) at pp. 167-168.
I also incorporate herein my reasons for judgment delivered this day in the matter between the same parties.
The proceedings were commenced by an application filed on 20 July 2004. That document was prepared by Mr Joseph Belbruno. Essentially, the document contained two purported grounds of review:
i)the respondent failed to observe the proper procedures with regard to the applicant and to act in accordance with substantial justice; and
ii)the respondent exceeded its jurisdiction.
No further particulars were given.
On 17 November 2004, at a directions hearing, Registrar Mussett ordered inter alia that the applicant file and serve an amended application containing proper particulars of the grounds relied upon, if any, by 2 February 2005; the applicant file and serve contentions of fact and law by 2 February 2005; and, the respondent file and serve contentions of fact and law by 16 March 2005.
The applicant failed to file and serve an amended application for review that contained proper particulars of the grounds relied upon. Mr Belbruno filed a Notice of Ceasing to Act on 2 February 2005, and another such notice on 21 March 2005. When the matter came before the Court on 5 May 2005, the applicant, through a friend who interpreted for him, told the Court he found out only three days previously that Mr Belbruno no longer represented him.
As a consequence of these matters, I adjourned the further hearing of the application to 24 May 2005, to enable the respondent to subpoena Mr Belbruno and to enable the applicant to obtain representation.
On 20 May 2005, Mr Belbruno filed an affidavit explaining his involvement in this matter. In that affidavit he swears that he received instructions on or about 20 July 2004, to file this application. Although he indicated he has no note or recollection of who instructed him or the details of those instructions.
Mr Belbruno further indicated that he had no further contact with the applicant or whoever instructed him until 18 January 2005 when he forwarded a letter addressed to the applicant at 4 Victor Court, Lalor. The applicant apparently did not receive that document and was not residing at that address at the time. Mr Belbruno acknowledges in his affidavit that “it was my original oversight in not ensuring that I had the applicant’s details on file that contributed to the debacle”.
It is also clear that he instituted the proceedings on behalf of the applicant with no prospects of success. The applicant did not even attend the Tribunal hearing, which decision he now seeks to review. The application for review, drafted and filed by Mr Belbruno, lacked any basis. I am satisfied that the proceedings conducted by Mr Belbruno amounted to an abuse of process and that as a result he should pay the respondent’s costs of the same.
The respondent contends those costs should be paid on an indemnity basis, or alternatively, fixed in the sum of $7,050.00 in accordance with the schedule of costs in the Federal Magistrates Court Rules 2001 (Cth). In McKewins Hairdressing & Beauty Supplies Pty Ltd v Deputy Commissioner of Taxation [2000] HCA 27 (5 May 2000), Gummow J held:
An order for costs should be made against Mr Levick. The power to make such an order should be exercised sparingly, in particular where the order sought is one for indemnity costs. However, it is of the first importance that solicitors observe the basic professional requirement and obligation to the courts before which they appear that they not institute and conduct litigation on instructions for some third party which is a stranger to that litigation.
In Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26 (16 February 2001), Callinan J stated:
I would not order indemnity costs as the occasion for an order for these should, in my opinion, be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers.
In my view, the appropriate costs are those fixed by the schedule of costs contained in the Federal Magistrates Court Rules 2001 (Cth).
I noted that Mr Belbruno did not challenge the quantum and I am satisfied that the sum of $7,050.00 accords with Stage 1 and Stage 5 of the said schedule, together with disbursements. Accordingly, I order that the applicant’s solicitor, Mr Belbruno, pay the respondent’s costs up to and inclusive of 5 May 2005, fixed in the sum of $7,050.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Julia O’Brien
Date: 10 June 2005
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