Obeid v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCCA 1355

FEDERAL CIRCUIT COURT OF AUSTRALIA

Obeid v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1355

File number(s):

SYG 3450 of 2016

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

18 June 2021

Catchwords:

COSTS – whether personal costs order should be made against a solicitor for costs thrown away by reason of the adjournment of hearing – application for personal costs order based on asserted facts not made on oath – the question whether personal costs order should be made listed for hearing

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr 9.02, 9.03, 21.07

Migration Act 1958 (Cth) s 476

Cases cited:

Ex parte Browne (1913) 13 SR (NSW) 593

QGC Pty Limited v Bygrave [2010] FCA 659

Number of paragraphs:

13

Date of hearing:

8 June 2021

Place:

Sydney

The Applicant:

Appeared in person, assisted by an interpreter

Counsel for the First Respondent:

Mr J Kay Hoyle

Solicitor for the First Respondent:

Mills Oakley Lawyers

ORDERS

SYG 3450 of 2016

BETWEEN:

MAAROUF HAJ OBEID

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	18 JUNE 2021

THE COURT ORDERS THAT:

1.The matter is listed before Judge Manousaridis at 4:00 pm on 23 July 2021 at Court 8.1, 80 Williams Street, Woolloomooloo for the purpose of hearing submissions and evidence on whether, in the circumstances set out in the reasons for judgment on the basis of which these orders are made (Reasons), an order should be made against Leonard Jacob under r 21.07 of the Federal Circuit Court Rules 2001 (Cth) that he pay to the first respondent $2,000, or such other amount as may be determined, on account of the fist respondent’s costs thrown away by reason of the adjournment of the hearing of 7 May 2021.

2.By 25 June 2021 the first respondent serve on Leonard Jacob a sealed copy of these Orders and the Reasons, such service to be effected by posting the Orders and Reasons to the addresses to which the first respondent posted the letter dated 18 May 2021 referred to in the Reasons.

3.By 16 July 2021 the first respondent file an affidavit verifying service of these Orders and the Reasons in the manner provided for by order 2.

REASONS FOR JUDGMENT

INTRODUCTION

1. In these reasons for judgment I consider an application made by the first respondent (Minister) for an order pursuant to r 21.07 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that Mr Leonard Jacob pay the Minister’s costs thrown away by reason of the adjournment of the hearing on 7 May 2021.

   BACKGROUND

2. The application for costs arises in a proceeding the applicant brought for remedies under s 476 of the Migration Act 1958 (Cth) (Act). The applicant commenced the proceeding on 6 December 2016 by filing an application in the approved form. The applicant himself signed the application.

3. On 14 November 2017 the applicant filed an amended application. The amended application was apparently signed by Mr Jacob under the words “Signature of applicant/s or lawyer”, and a cross is contained in the box that appears to the left of the words “lawyer for the applicant”. Further, at the bottom of the front page of the amended application, the words “The Applicant” appear next to the words “Filed on behalf of”, and the name “Leonard Jacob” appears next to the words “Prepared by”. There has also been filed, on behalf of the applicant, an affidavit apparently made by Mr Jacob on 16 November 2017 in which he deposes he is “the solicitor on record for the applicant”. On 1 February 2018 Mr Jacob additionally filed a notice of address for service updating the address for service.

4. From these documents it is open to infer, and I do infer, that at the time the amended application was filed Mr Jacob was a lawyer, the applicant had retained Mr Jacob to act as his lawyer in the proceeding, and Mr Jacob prepared and filed the amended application on behalf of the applicant. Further, by filing with the Court the amended application that represented he was the applicant’s lawyer, Mr Jacob had given notice of his appointment for the purposes of r 9.02 of the FCC Rules. That, in turn, means that Mr Jacob had become the solicitor on the record for the applicant; and Mr Jacob was liable to remain the solicitor on the record until such time as the applicant filed and served a notice that he decided to act in person, or until such time as Mr Jacob himself would withdraw as solicitor on the record by following the procedure provided for in r 9.03 of the FCC Rules.

5. Having become the solicitor on the record for the applicant Mr Jacob assumed a set of related obligations; and these have been identified in a number of authorities. In Ex parte Browne Pring J, sitting in the Full Court of the Supreme Court of New South Wales, stated:[1]

   [T]he solicitor on the record is the only person whom the court will recognize as the solicitor acting in the case, and the reason, I think, is that he is the only person who is responsible to the court, responsible to his client and responsible to the other party to the litigation. … I repeat he is the only person whom the court can possibly recognise as the solicitor acting in the case.

   [1] Ex parte Browne (1913) 13 SR (NSW) 593, at page 597 (Gordon and Ferguson JJ agreeing)

6. And in QGC Pty Limited v Bygrave Reeves J said:[2]

   [2] QGC Pty Limited v Bygrave [2010] FCA 659, at [52]-[57]

   A solicitor on the record in any litigation has duties to both the Court and his or her client.  However, it is significant in this context, that a solicitor’s duty to the Court is “paramount” or “overriding”:  see Giannarelli v Wraith (1988) 165 CLR 543 at 555 to 556 per Mason CJ and 572 per Wilson J.

   Both sets of duties serve very important purposes in the administration of justice.  The main purpose of the former is to have an officer of the Court who is responsible to the Court for the proper conduct of the litigation before the Court and who is answerable to the Court should anything untoward occur in the litigation:  see Myers v Elman [1940] AC 282 (“Myers”).  The solicitor on the record therefore represents an essential component of the Court’s ability to maintain control over the litigation before it.

   As Lord Atkin observed in Myers (at 302):

   If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible and will be admonished or visited with such pecuniary penalty as the Court thinks necessary in the circumstances of the case.

   . . . .

   Of course, the fact that the Federal Court of Australia does not maintain a Roll of Practitioners and does not have the same disciplinary powers as the State Supreme Courts, does not mean that the solicitors and barristers who practice in this Court do not owe it the same duties:  see Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 233 to 234.

   All these observations underscore the fact that the role of the solicitor on the record is critical to the Court’s ability to ensure that the cases before it are managed efficiently, promptly and inexpensively. This is particularly so in native title litigation where the costs sanction against the parties has been significantly reduced by the provisions of s 85A of the Act requiring costs orders to be the exception in such litigation. This necessarily means that the Court has to rely even more heavily upon the diligence and integrity of the solicitor on the record, among others, in the case management of native title litigation. These observations also go to demonstrate how important it is that the solicitor on the record is properly identified by name and address and all the required contact information is provided in accordance with the Rules.

7. These observations were made in relation to a solicitor on the record in a proceeding before the Federal Court of Australia, but they apply equally to a solicitor who is on the record in a proceeding before the Federal Circuit Court of Australia.

8. Mr Jacob was the solicitor for the applicant when the proceedings came before this Court for hearing on 7 May 2021. Mr Jacob, however, did not appear at the hearing; the applicant appeared in person. The applicant informed me he had paid to Mr Jacob $17,000 by monthly instalments of $1,500, a claim the applicant substantiated by producing a document evidencing receipt. The applicant also stated that Mr Jacob had not provided any documents to the applicant in relation to the proceeding. In those circumstances I decided that it would be appropriate to order that the hearing be adjourned; and I adjourned the hearing to 2 pm on 8 June 2021.  

   GROUNDS FOR PERSONAL COSTS ORDER

9. At the resumed hearing on 8 June 2021 the Minister applied for an order that Mr Jacob pay the Minister’s costs thrown away. The Minister relied on an affidavit made by Ms Wright which annexed a letter dated 18 May 2021 from the Minister’s lawyers to Mr Jacob. That letter was sent to the email address Mr Jacob nominated in the address for service he filed with the Court, and it was posted to the address Mr Jacob last notified to the Law Society. The letter sets out events that occurred at the hearing on 7 May 2021. They include the applicant stating that he had not received the Court Book, he had paid Mr Jacob $1,500 per month; that after the applicant paid Mr Jacob amounts totalling $17,000 the applicant was unable to contact Mr Jacob by phone, and the applicant as unaware Mr Jacob had filed an amended application and an affidavit on his behalf. The letter concluded as follows:

   We put you on notice that at the adjourned hearing at 2:00 pm on 8 June 2021 at Court 8.1 Level 8, 80 William Street Sydney NSW 2000, we are instructed to make an application for an order in the following terms:

   Pursuant to r 21.07 of the Federal Circuit Court Rules 2001 (Cth), the applicant’s lawyer, Leonard Jacob, personally pay the first respondent’s costs thrown (sic) by reason of the adjournment of the final hearing on 7 May 2021 fixed in the amount of $2,000.

10. Near the end of the hearing on 8 June 2021 counsel for the Minister moved for an order that Mr Jacob pay the Minister’s costs thrown away by reason of the adjournment. Counsel for the Minister submitted that Mr Jacob has been given proper notice of the application; and counsel submitted that, although the statements the applicant made at the hearing of 7 May 2021 were not made on oath, I should treat those statements as evidence.

    SHOULD COSTS ORDER BE MADE?

11. The Minister relies on r 21.07 of the FCC Rules, which provides as follows:

    (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. 

12. I am not prepared to make an order under r 21.07 of the FCC Rules on the grounds on which the Minister relies; and that is because the Minister relies on statements the applicant made at the hearing on 7 May 2021 that were not made under oath. That, however, does not mean no order for costs should be made against Mr Jacob. There may be a reasonably arguable case that my deciding to adjourn the hearing of 7 May 2021 arose from Mr Jacob’s failure, being the lawyer on the record, to do all that was reasonably necessary to ensure that the matter was heard at the appointed time and date, and that the Minister’s costs that were thrown away because of the adjournment was therefore due to Mr Jacob’s failure to do all that was reasonably necessary to ensure that the matter was heard at the appointed time and date.

13. I therefore propose to order that the matter be listed before me at 4:00 pm on 23 July 2021 for the purpose of determining whether an order should be made under r 21.07 of the FCC Rules that Mr Jacob pay to the Minister $2,000, or such other amount, on account of the Minister’s costs thrown away by reason of the hearing of 7 May 2021 being adjourned. I will also order that by 25 June 2021 the Minister serve on Mr Jacob the orders I will pronounce on the basis of these reasons (Orders), together with these reasons for judgment, and that by 16 July 2021 the Minister file an affidavit verifying service of the Orders and these reasons for judgment. The Minister may appear at the hearing; but the Minister need not do so if the Minister files with the Court an affidavit of service of the Orders and these reasons for judgment.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       18 June 2021