MZXAP v Minister for Immigration - [2006] FMCA 774

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXAP v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 774

PRACTICE & PROCEDURE – Migration – costs – order pursuant to Rule 21.07 of the Federal Magistrates Court Rules 2001 against solicitor.

Federal Magistrates Court Rules 2001, rr.13.03A(c), 16.05, 21.07

Applicant:

MZXAP

First Respondent:

MINISTER FOR IMMIGRATION & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 714 of 2005

Orders of:

McInnis FM

Hearing date:

8 May 2006

Delivered at:

Melbourne

Delivered on:

8 May 2006

REPRESENTATION

Solicitor for the Applicant:

Mr D Lucas (Duty Lawyer)

Counsel for the Respondent:

Mr S Hay

Solicitors for the Respondent:

Clayton Utz

ORDERS

The First Respondent’s name be changed by deleting the words “and Indigenous”.
Order 2 of the Orders of the court made on 14 February 2006 be varied by a further Order that pursuant to Rule 21.07 of the Federal Magistrates Court Rules 2001, the sum of $5,000.00 of the amount of $5,800.00 be paid by the lawyer Mr. Joseph Belbruno.
Mr Joseph Belbruno pursuant to Rule 21.07 of the Federal Magistrates Court Rules 2001 pay the further sum of $1,445.00 to the First Respondent as the First Respondent's costs of and incidental to the hearing of 7 April 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 714 of 2005

MZXAP

Applicant

And

MINISTER FOR IMMIGRATION & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application the court had made an order on 14 February 2006 dismissing the substantive application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (the Rules) and further making an order, there being no appearance on that day for the Applicant, that the Applicant shall pay the First Respondent's costs fixed in the sum of $5,800.00.
After that order was made the Applicant subsequently filed what is described as an application for review which I take to be an application to set aside the order made in his absence on 14 February 2006. The application to set aside that order is made pursuant to Rule 16.05 of the Rules. In support of that application the Applicant relied upon an affidavit sworn by him on 7 February 2006.
It is perhaps relevant at this stage, before considering the content of that affidavit, to note that the court on 7 April 2006, upon then hearing Mr Lucas on behalf of the Applicant, decided that the application to set aside the order it made on 14 February 2006 should be adjourned until this day. The court on that day also made an order that the respondent should file and serve upon the Applicant, and a solicitor Mr Belbruno, an affidavit setting out particulars of costs orders sought in relation to the application and further ordered the Applicant to file and serve any further affidavit in support of the application to set aside the orders made on 14 February 2006, annexing any draft amended application and/or contentions of fact and law on or before 28 April 2006. Costs of 7 April 2006 were reserved.
The court directed on that occasion that a sealed copy of the order be forwarded to Mr Belbruno and that in the event that he did not attend the hearing scheduled for today, then the court may proceed to make an order for costs against Mr Belbruno in his absence. Further, it was directed that in the event the application to set aside the order of 14 February 2006 succeeds, then the court shall on this day forthwith hear and determine the substantive application.
To understand the context in which that order was made it is appropriate to note in general terms that the claimed failure of the Applicant to attend court on 14 February 2006, with, in part, the consequence that a costs order was made against him in the sum of $5,800.00, was the subject of the affidavit in support of the Applicant filed 3 March 2006 and which was then the subject of an affidavit by Joseph Belbruno filed on 5 April 2006, setting out Mr Belbruno's apparent response to the allegations made by the Applicant.
Hence when the matter came before the court on 7 April 2006, it then had before it the Belbruno affidavit filed 5 April 2006 and the Applicant's affidavit filed in support of his application to set aside the February order on 3 March 2006. When the matter was called this day, the court called for any attendances and appearances, and specifically Mr Joseph Belbruno was called. There was no appearance. The court file reveals that a notice in relation to this matter dated 7 April 2006 was forwarded by the court to the Applicant and to the solicitors for the First Respondent and also to Mr Joseph Belbruno. That document contained a sealed copy of the orders made 7 April 2006.
In the circumstances, where the court is confronted with conflicting affidavit evidence from the Applicant and the lawyer Mr Belbruno, and where Mr Belbruno has not attended today, despite what I am satisfied to be the receipt of the sealed copy of the orders made by this court on 7 April 2006, then in the absence of any request to cross-examine the Applicant in relation to his affidavit filed 3 March 2006, I am prepared to find that those matters raised by the Applicant in his affidavit, where there is a conflict in relation to the facts with those matters set out in the affidavit of Mr Belbruno, should be resolved in favour of the Applicant.
In his affidavit filed 3 March 2006, the Applicant states the following:
“3. I did not attend Court on 14 February 2006, although I was aware that my matter was proceedings on that day. My reason for non attendance was that I had engaged a lawyer, one Joseph Belbruno, to represent me in my matter. Mr Belbruno had been my paid representative throughout my application, both at Primary (DIMA) stage, at the Refugee Review Tribunal and for this application to the Federal Magistrates Court.
4. Since my RRT decision handed down on 28 April 2005, I have paid Mr Belbruno $2,500 to represent me in my application in the Court, by five separate payments of $500 on 25/5/05, 3/6/05, 14/6/05, 5/8/05 and finally on 12/9/05. Now produced and shown to me and marked ‘LC1’ to ‘LC5’ are true copies of these respective receipts. I had also paid Belbruno for his services as a Migration Agent at DIMA RRT stages and have receipts for this as well. I have only now discovered that Mr Belbruno has been disqualified as a Migration Agent when he provided me with those services.”
A number of observations should be made about those statements in the Applicant's affidavit. The first observation which the court makes from the court file is that the application seeking review of the Refugee Review Tribunal decision of 28 April 2005 filed in this court on 17 October 2005 is an application which does not, as far as I can tell, readily reveal that it has been prepared by a lawyer. I should indicate that the application I then referred to was the Amended Application and that the original application filed 14 June 2005 likewise does not, as far as I can tell, refer to or indicate that a lawyer was then acting for and on behalf of the Applicant.
The other observation I make concerning the affidavit is that the exhibits referred to as “LC1” through to “LC5” appear to be handwritten notations of a kind which one would not reasonably expect from a qualified lawyer receiving payment for fees. Nevertheless, as indicated, in the absence of the lawyer concerned, I accept the facts asserted by the Applicant in the two paragraphs set out earlier in this decision.
When the matter came before this court today, Mr Lucas, appearing as a duty lawyer, indicated appropriately that his role was limited to making submissions as to the issue of whether or not the Applicant had a reasonable excuse for non-attendance on 14 February 2006 and otherwise to seek to persuade the court that there should be an order either in part or whole made in relation to the costs of 14 February 2006 that those costs either be paid in whole or in part by the lawyer, Mr Belbruno. As I understand, however, the submissions made by Mr Lucas, he does not advance precise submissions as to the liability of Mr Belbruno but rather seeks to persuade the court that the Applicant should not be liable for those costs.
Regrettably, it has been indicated to the court that in this instance the legal assistance to the Applicant does not extend to the second limb of the argument in support of an application to set aside the order made on 14 February 2006, namely, that there is in any event an arguable case. It is appropriate in my view, given the limited role of the legal aid now provided to the Applicant, that I should determine the question of the costs order made on 14 February 2006, noting that in the circumstances I accept for the present purposes that the Applicant has at least established that he had a reasonable excuse for his non-attendance on that date.
Noting his assertions, and accepting them, that he had retained the services of a lawyer who did not appear to have placed himself on the record or attend as expected by the Applicant, it is my concluded view that it is reasonable in those circumstances that a substantial portion of the costs should be met by the lawyer concerned.
In considering the question of a costs order against a lawyer, the court is required to exercise its powers pursuant to Rule 21.07 of the Rules. Those rules provide that the court may make an order for costs against a lawyer if the lawyer or an employee or agent of the lawyer has caused costs to be incurred by a party or another person or to be thrown away because of undue delay, negligence, improper conduct or other misconduct or default.
The meaning of that rule, whilst superficially appearing to be very broad, does not necessarily encompass, in my view, what might be described as causes of action in tort that may or may not be evident as against a lawyer; nor, however, does the rule confine itself to a lawyer on the record. I am satisfied the rule can apply to a lawyer in the position of Mr Belbruno referred to in the affidavit material of the Applicant. I am further satisfied that to a large extent, the non‑appearance of the Applicant before the court on 14 February 2006, consistent with what the Applicant set out in his affidavit filed 3 March 2006, provides at least a proper basis for a court concluding that in this instance the costs have been incurred at the very least by the improper conduct or misconduct or default of Mr Belbruno.
It is appropriate to make an order pursuant to Rule 21.07 against Mr Belbruno personally, having given him the opportunity to attend court in circumstances where the direction made accompanying the orders of 7 April 2006 clearly indicates the court had contemplated proceeding to make an order for costs against him in his absence. I accept, as submitted by the First Respondent, that perhaps part of the costs order of $5,800.00 could be attributed to the conduct of Mr Belbruno, found by the court to be sufficient to provide a basis upon which an order should be made under r.21.07, save for an amount of $800.00. The remaining part of $5,000.00 in the circumstances in my view, for the reasons stated should be visited upon Mr Belbruno personally.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 8 May 2006