SZEKQ v Minister for Immigration
[2006] FMCA 390
•15 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEKQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 390 |
| PRACTICE & PROCEDURE – COSTS – MIGRATION – Application for costs thrown away to be paid personally by solicitor – default – failure to attend hearing – failure to file, lodge or deliver documents – reasonableness – causation – personal costs order made. |
| Federal Magistrates Act1999 (Cth), s.79 Federal Court of Australia Act1976 (Cth), s.43 Federal Magistrates Court Rules, rr.9.03, 21.07 Federal Court Rules, Order 62 r.9 |
| Myers v Elman [1939] 4 All ER 484 Riv-Oland Marble Co (Vic) Pty Ltd v Settef S P A (1989) 63 ALJR 519 De Sousa v Minister for Immigration & Local Government & Ethnic Affairs (1993) 41 FCR 544 Re Bendeich (1994) 126 ALR 643 Leicester v Walton (New South Wales Court of Appeal, 22 November 1995, unreported) Wentworth v Rogers [1999] NSWCA 403 SZABF v Minister for Immigration & Multicultural & Indigenous Affairs No 2 [2003] FMCA 178 Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCA 18 Baik & Hankuk Grocery Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 543 MZWOR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 845 Tran v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 199 |
| Applicant: | SZEKQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2853 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 4 August & 20 September 2005 14 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2006 |
REPRESENTATION
| Advocate for the Applicant: | Ms V Thadson (4 August 2005, 20 September 2005) In person (14 March 2006) |
| Counsel for the First Respondent: | Ms R Pepper (4 August 2005, 20 September 2005) Mr T Reilly (14 March 2006) |
| Solicitors for the First Respondent: | Sparke Helmore |
| Advocate for Mr Goldsmith: | In person |
ORDERS
Mr Goldsmith pay the respondent Minister $2,500 for costs thrown away due to the adjournment on 17 June 2005.
Mr Goldsmith pay costs of the applicant and respondent Minister for this costs hearing, as agreed or taxed.
The applicant pay the respondent Minister’s costs and disbursements fixed in the sum of $2,000 for the substantive hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG2853 of 2004
| SZEKQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. The respondent Minister seeks a costs order against the applicant's former solicitors (Goldsmiths Lawyers) for costs thrown away due to the failure to proceed with the hearing on 17 June 2005 at 2.15 p.m.
I refer in these reasons to SZEKQ (the applicant in the principal proceedings) as the applicant, to the Minister (the first respondent in the principal proceedings) as the respondent, and to Mr Goldsmith (the principal of the respondent to the Minister's application) by his name.
Background
On 16 September 2004 the applicant filed a judicial review application in this Court relating to a decision of the Refugee Review Tribunal handed down on 1 February 2000. On 21 January 2005 Mr Goldsmith filed a notice of acting and at the same time an amended application was filed in this Court.
The matter was listed for final hearing on 14 March 2005. On that day the matter was adjourned on the request of the applicant and the following orders were made:
1 The matter be adjourned to 17 June 2005.
2The applicant is to file and serve any amended application and affidavit of evidence by 29 April 2005.
3 The applicant is to file and serve submissions and list of authorities by 20 May 2005.
4 The respondent is to file and serve any further submissions and list of authorities by 3 June 2005.
5 No further application for an adjournment by the applicant will be granted.
6 The applicant is to pay the respondent's costs which were thrown away at the hearing fixed in the sum of $1,350.00, payable by 15 April 2005.
The proceedings were then listed for 2.15 p.m. on 17 June 2005.
The applicant did not file and serve any amended application or affidavit of evidence. I note that there was no obligation on him to do so. However, the applicant also did not file and serve submissions and a list of authorities by 20 May 2005 as required by order 3.
On 16 June 2005, the day before the hearing, Mr Goldsmith faxed the respondent's solicitors:
As you will be aware, this matter has been listed for final hearing tomorrow.
Will you please note that we no longer continue to act for the applicant.
For that reason, we will not be appearing at Court tomorrow.
We would be obliged if you would please provide a copy of this letter to the Court and request that our attendance be dispensed with. We obviously do not intend any discourtesy to the Court in our not attending.
So far as we are aware, the applicant will not be appearing in person, although we do not know that for a fact.
The solicitors for the respondent replied on the same day:
We refer to this matter which is listed for hearing tomorrow
17 June 2005 at 2.15pm and confirm receipt of your facsimile dated 16 June 2005.
Please note that it is not our role to pass on your correspondence to the Court or request that your attendance be dispensed with.
The letter after drawing Mr Goldsmith's attention to rule 9.03 of the Federal Magistrates Court Rules continued:
Unless you are granted leave from the Court to file and serve a notice of withdrawal, your attendance is required.
Please confirm that you have notified the applicant of the hearing tomorrow.
At 2.15 p.m. on Friday 17 June 2005 the applicant, his brother Mr Hamid and a friend Mr Akhtar were present in Court. Ms Pepper appeared as counsel for the respondent Minister, instructed by Ms Nesbitt. Mr Goldsmith was not present. At approximately 2.45 p.m. the matter was stood down and reconvened a little later after my associate contacted Mr Goldsmith. At that time Ms Pepper foreshadowed that the Minister might seek a costs order against Mr Goldsmith personally. The matter was set down for 4.30 p.m. that day for directions.
Mr Goldsmith then wrote to the Court advising that his instructions had been terminated on 14 June 2005, a claim that he repeated in Court on 17 June 2005 (Exhibit M4: Transcript for 17 June 2005 at 2). There was no evidence before the Court that Mr Goldsmith's instructions had been terminated.
At 4.37 p.m. on 17 June 2005 the matter resumed with Mr Goldsmith present. By oral motion the respondent sought a costs order against Mr Goldsmith for the costs thrown away for the day. I made a number of orders including:
1The applicant’s solicitor file and serve and send to the applicant a notice of withdrawal no later than 20 June 2005 and be granted leave to do that without having served a notice of intention to withdraw.
3 The respondent file and serve on Mr Goldsmith its application made orally today [that is, the application for costs] no later than 30 June 2005.
On 20 June 2005 a notice of withdrawal as solicitor was filed by Mr Goldsmith. The respondent filed and served the application currently before the Court on 30 June 2005 with a supporting affidavit from Ms Nesbitt.
The applicable law
Rule 9.03 of the Federal Magistrates Court Rules deals with the withdrawal of lawyers:
(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 seven 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 proceedings.
Rule 21.07 provides for costs orders against lawyers:
(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 the 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.
Guidance on the Court’s powers to make such orders can be gleaned from the following authorities to which I have had regard: Myers v Elman [1939] 4 All ER 484; Riv-Oland Marble Co (Vic) Pty Ltd v Settef S P A (1989) 63 ALJR 519; De Sousa v Minister for Immigration & Local Government & Ethnic Affairs (1993) 41 FCR 544; Re Bendeich (1994) 126 ALR 643; Leicester v Walton (New South Wales Court of Appeal, 22 November 1995, unreported); Wentworth v Rogers [1999] NSWCA 403; SZABF v Minister for Immigration & Multicultural & Indigenous Affairs No 2 [2003] FMCA 178; Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCA 18; Baik & Hankuk Grocery Pty Ltd v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 543; MZWOR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 845; Tran v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2006] FCA 199.
The power to make a costs order directly against a solicitor is an inherent power of the Court. It is not necessary to rely upon the Court's discretion on costs under s.79 of the Federal Magistrates Act1999: MZWOR at [25].
Misconduct, default or negligence in the course of proceedings is in some cases sufficient to justify a personal costs order. The primary object of the Court is not to punish the solicitor but to protect the client who has suffered and to indemnify the party who has been injured: Viscount Maugham in Myers v Elman at 488.
Lord Wright in Myers v Elman said at 509:
The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice.
…
It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term “professional misconduct” has often been used to describe the ground on which the court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the court and to realise his duty in promoting, in his own sphere, the cause of justice.
…
The jurisdiction is not merely punitive, but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.
In De Sousa, when applying section 43 of the Federal Court of Australia Act1976 and Order 62 rule 9 of the Federal Court Rules, the terms of which are different from those in rule 21.07, French J stated at 547-548:
I accept the proposition that the jurisdiction is to be exercised with care and discretion and only in clear cases. The mere fact that litigation fails is plainly no ground for its exercise. There has to be something which amounts to a serious dereliction of duty.
Applying the same Federal Court legislation Drummond J in Re Bendeich at 648 adopted a three fold test:
…first, that Mr Hewlett has committed a breach of his duty to the court to conduct the litigation on behalf of his client, Mr Bendeich, with due propriety; secondly, that that breach involves conduct more than mere negligence and amounts, at the very least, to gross negligence; and, finally, I must also be satisfied that the result of any such dereliction of duty by Mr Hewlett has been to occasion useless costs to the objectors…
But as Riethmuller FM pointed out in MZWOR at [26] rule 21.07 of the Federal Magistrates Court Rules provides an independent source of power to make costs orders against solicitors. This power is independent and in addition to the Court’s inherent power. Furthermore, the statutory test in the Federal Magistrates Court Rules is different from that in the Federal Court Rules and from that laid down by judicial authority under the Court's inherent powers.
Most of the authorities to which I have been referred relate to maintaining proceedings which have no real prospects of success. This is not the issue here, nor is it one of Mr Goldsmith's negligence. Nevertheless, I have borne these authorities in mind, particularly conscious of the need to proceed with caution and discretion. The power to award costs against a solicitor should be utilised only in clear cases: De Sousa.
The issues
The issues are:
·whether Mr Goldsmith failed to attend the hearing on 17 June 2005
·whether Mr Goldsmith failed to file, lodge or deliver a document as required
·whether any such failure was unreasonable
·whether any such conduct resulted in the hearing on 17 June 2005 being unable to proceed conveniently
·whether this caused costs incurred by the respondent to be thrown away
·if so, what is the quantum of the costs
·whether Mr Goldsmith should pay those costs.
Failure to attend the hearing
There is no dispute that Mr Goldsmith did not attend the hearing on
17 June 2005 at 2.15 p.m. He concedes this.
Failure to file, lodge or deliver any document
Again Mr Goldsmith concedes that he failed to serve a notice of intention to withdraw on the applicant as required by rule 9.03(2). He also accepts he failed to file a notice of withdrawal as required by rule 9.03(1) or to seek leave of the Court to file such notice without serving a notice of intention to withdraw.
Were these failures unreasonable
The Macquarie Dictionary defines "unreasonable" as follows:
1. not reasonable; not endowed with reason. 2. not guided by reason or good sense. 3. not agreeable to or willing to listen to reason. 4. not based on or in accordance with reason or sound judgment. 5. exceeding the bounds of reason; immoderate; exorbitant.
In my view both the defaults identified amount to unreasonable conduct by Mr Goldsmith.
The failure to attend was unreasonable. Mr Goldsmith knew the hearing was listed for 17 June 2005 at 2.15 p.m as he had been present when the orders were made. He knew the Court had indicated there would be no further adjournment. He knew he was still the solicitor on the record. Mr Goldsmith therefore had an obligation both to the Court and to his client to attend. Notwithstanding his letters to the applicant of 30 May 2005 and 14 June 2005 about his unwillingness to appear, the latest instructions he had received from the applicant on 24 May 2005 requested he attend Court.
Mr Goldsmith failed to return calls made by the respondent's solicitors on 1, 2, 7 and 16 June 2005.
As an experienced practitioner he ought to have been aware of the requirements of rule 9.03 on withdrawal as a lawyer. Until then he remained on the record. Instead he wrote to the applicant's solicitors the letter of 16 June 2005 reproduced at [6] above. The solicitors for the respondent replied drawing his attention to rule 9.03 and noting that he should attend on the day at the hearing.
It is clear from this correspondence that Mr Goldsmith made a deliberate choice not to appear in Court on 17 June 2005. I note that Mr Goldsmith chose not to give evidence on these events during this costs hearing.
The failure to file and serve a notice of withdrawal in a timely fashion was equally unreasonable. As I have already noted as an experienced practitioner Mr Goldsmith should have been aware of the requirements of rule 9.03. A timely withdrawal would have put the respondent and the Court on notice that the hearing may need to be postponed.
Both defaults on Mr Goldsmith's behalf amounted to conduct "not based on or in accordance with reason or sound judgment" or guided "by good sense".
Adjournment of hearing
Were the two defaults which I have identified the cause of the adjournment of the hearing and the vacation of the hearing date of
17 June 2005?
Mr Goldsmith has correctly identified this as the critical issue. He submits that there is no evidence of causation on his part. He gives two alternative reasons why the hearing was vacated. First he states in his written submissions that the hearing was vacated:
…because the Court had made a blunder and arranged a double listing for that afternoon.
Second he says that the Court was under a mistaken belief that as the solicitor on the record was not present, legal authority prevented me from proceeding that afternoon or from hearing from the applicant in person.
In addition he contends the matter could have proceeded as the applicant says he was one hundred per cent ready and that no one requested that the matter be adjourned.
Double listing
Two matters were listed for hearing before me at 2.15 p.m. on 17 June 2005. This was contrary to my normal practice at that time, although it is something which is very common in this Court. This double listing was because of an error in my chambers. As is clear from the transcript the current case was called first. The other matter was ready to proceed although for various reasons it did not go ahead that afternoon.
Mr Goldsmith has extracted from the transcript of 17 June 2005 certain comments I made in support of his submission. These comments he says speak for themselves. I do not propose to incorporate these comments but to provide reference to them. They can be found at page 5, lines 41 to 43; page 6, line 45; page 7, lines 1 to 2; page 7, lines 20 to 21; and page 7, lines 29 to 32.
Mr Goldsmith's submission is just wrong. The transcript of 17 June 2005 should not be read akin to a legislative instrument. Mr Goldsmith is focusing on selective extracts. The transcript must be read in context. It should also be remembered that the transcript does not purport to be, nor should it be read as a statement of my reasons for adjourning on that day. I did not give my reasons at the time for adjourning. Mr Goldsmith is not in a position to say why I adjourned as he was not present and he has not since sought my reasons. The adjournment had nothing to do with the double listing.
If the current applicant's case had been able to go ahead the other matter may have been heard later in the day, a common practice. Alternatively the other matter could have been put over to a later date. It was a mere coincidence that the double listing occurred on this particular day.
Who could be heard
Mr Goldsmith's assertion that I was under a mistaken belief that as he was the solicitor on the record and he was not present the matter could not lawfully go ahead is also wrong. I did express concern about how we could proceed given that he was absent. This was because the applicant appeared at least to have expected him to be present. The applicant spoke very little English. He was assisted by his brother and a friend. The brother spoke good English.
The practice in this Court if a party is represented by a lawyer and that party does not speak English is that no interpreter is provided by the Court. If the party is not represented by a lawyer and requires an interpreter the Court provides an interpreter. There was no interpreter present on this day because the applicant was to be represented by a lawyer.
In my view, as the record clearly shows, I was concerned about prejudice to the applicant (see pages 7 and 8 of the transcript). Any “mistaken belief” I held had nothing to do with the adjournment.
The reasons for the adjournment
The evidence clearly shows that Mr Goldsmith made a deliberate choice not to attend the hearing. He had notified the applicant about
31 May 2005 by letter dated 30 May 2005 that he would not "be willing to appear on your behalf". This followed a request by the applicant on 24 May 2005 that he attend Court. On 14 June 2005, three days before the hearing, Mr Goldsmith confirmed to the applicant that he would not attend.
It was not until the day before the hearing that Mr Goldsmith informed the respondent's solicitor by faxed letter that he would not attend. He did not send a copy of this faxed letter to the Court. On the same day the respondent's solicitors advised Mr Goldsmith of rule 9.03 regarding withdrawal and indicated that he should attend. Mr Goldsmith did not file a notice of withdrawal until three days after the date set for the hearing.
Continuing with the hearing in these circumstances could seriously have prejudiced the applicant. The solicitor to whom he had entrusted his case was not present. He had a period of only approximately two weeks to arrange and brief alternative lawyers. He spoke little English and there was no interpreter present. The fact that the applicant's English speaking brother and a friend were present was no satisfactory alternative. It was incumbent on the Court not to proceed in the circumstances. It is fanciful in the extreme for Mr Goldsmith to suggest otherwise.
This adjournment was directly the consequence of the defaults of Mr Goldsmith - his failure to attend and his failure to file and serve a timely notice of withdrawal. I note that had he filed and served such a withdrawal with reasonable notice the hearing could have been vacated.
The applicant’s readiness and request for adjournment
The applicant gave evidence that he was one hundred per cent ready to go ahead on 17 June 2005. I do not accept Mr Goldsmith's inference from this evidence, however, that the applicant was happy to proceed without representation.
Mr Goldsmith said there was no request for an adjournment. In my view no such request was necessary. It was for the Court to exercise its judgment in the circumstances.
I note that in response to my question directed to the applicant's brother (Transcript 17 June 2005 pages 4-5):
Mr Hamid, what would you like me to do?
Mr Hamid replied:
It comes back to our lawyers, we haven't got a lawyer to represent ourselves once again.
Mr Goldsmith's submission that the matter could have proceeded in the circumstances I have already outlined is quite unreal.
Costs
It follows from my findings on the causes for the adjournment that the respondent’s costs for 17 June 2005 were thrown away because of the identified defaults on Mr Goldsmith’s part.
Ms Nesbitt calculates these thrown away costs plus the costs for this costs application as $3,445 on a party and party basis. Mr Goldsmith challenges this fixed sum. It is not itemised or broken down in any way or supported by evidence.
In light of the figures in Schedule 1 of the Rules, $3,445 is too high a figure for the costs thrown away on that day. I note that the respondent was represented by counsel and a solicitor. It was a half day matter and only some of the preparation for the hearing would have been wasted.
Having regard to the amounts in Schedule 1 which applied in June 2005 I set the figure for costs thrown away at $2,500.
An order against Mr Goldsmith
Should Mr Goldsmith personally pay the wasted costs in the amount of $2,500?
In Riv-Oland Marble Co (Vic) Pty Ltd v Settef S P A (1989) 63 ALJR 519 Brennan J, as he then was, said at 519:
It is the duty of a solicitor who undertakes to conduct an appeal to this Court to be or become familiar with the applicable rules which apply to the proceedings and to observe them. The rules are designed to promote efficiency in litigation and to avoid the useless incurring of costs. … Where costs are uselessly incurred by the solicitor's failure to observe the rules, the costs thrown away are properly to be paid by the solicitor.
In the current case Mr Goldsmith not only failed to observe the Rules, he failed in his duty to his client and to the Court. As a result the respondent's costs have been wasted and there is no reason why Mr Goldsmith should not pay those costs personally. They should be paid directly to the respondent.
Allegations against the respondent’s counsel and solicitor
In his submissions Mr Goldsmith has made serious allegations against both the respondent's counsel and solicitor. He contends that the respondent's counsel has acted with mala fides and that the solicitor had significant failings. I wish to say no more than that these allegations are completely without foundation, particularly the very serious allegation of mala fides against Ms Pepper, the respondent’s counsel.
Conclusions
On the evidence before me I am satisfied that as a result of Mr Goldsmith's failure to attend Court on 17 June 2005 at 2.15 p.m. and failure to file and serve a notice of withdrawal in accordance with the Rules, costs incurred by the respondent have been thrown away.
In accordance with rule 21.07 these costs fixed in the sum of $2,500 shall be paid directly to the respondent Minister by Mr Goldsmith.
Mr Goldsmith shall also pay the applicant and the respondent Minister their costs for this costs hearing, as agreed or taxed.
I will order accordingly.
I certify that the preceding sixty-two paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 27 April 2006
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