SZVIA v Minister for Immigration

[2018] FCCA 1292

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1292

Catchwords:
MIGRATION – COSTS – Whether an order should be made against lawyer on the record for the applicants that lawyer pay the costs thrown away by reason of the adjournment of a hearing – whether the costs thrown away due to default of lawyer – order for costs made.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.21.07

Migration Act 1958 (Cth), s.477(2)

First Applicant: SZVIA

Second Applicant: SZVIB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2992 of 2016

Judgment of: Judge Manousaridis

Hearing date: 4 May 2018

Date of Last Submission: 4 May 2018

Delivered at: Sydney

Delivered on: 4 May 2018

REPRESENTATION

No appearance by or on behalf of Ms M Youssef

Solicitors for the First Respondent: Ms C Hillary of DLA Piper Australia

ORDERS

1. Pursuant to r.21.07 of the Federal Circuit Court Rules 2001 (Cth) Ms Mona Youssef pay the first respondent’s costs thrown away by reason of the adjournment of the hearing that had been set down on 23 March 2018.

2. The costs referred to in order 1 are set in the amount of $2,187.

3. The Registrar provide a copy of these reasons for judgment together with the letter dated 06 April 2018 which includes the transcript referred to in that letter to the appropriate regulatory body or bodies.

4. Ms Mona Youssef have liberty to apply to set aside these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2992 of 2016

SZVIA

First Applicant

SZVIB

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. On 23 March 2018 there was set down for hearing an application for an extension of time under s.477(2) of the Migration Act 1958 (Cth). On that day I ordered that the hearing be adjourned. The hearing was adjourned on the application made on behalf of the applicants by an agent who represented the lawyer who was on the record for the applicants. In these reasons for judgment I will simply refer to the lawyer as “the lawyer”.

2. The ground on which the adjournment was sought was that the applicants had not received any documents in relation to the matter. For reasons it is not necessary to go into I decided to adjourn the hearing.  That occurred after I heard submissions from the agent and also after I adjourned the matter for a short while and then received submissions or, more accurately, explanations given by the lawyer by telephone. 

3. After the hearing I instructed the Registrar to send a letter dated 6 April 2018 to the lawyer as follows: 

   1.At 2.15 pm on 23 March 2018 there came on for hearing before Judge Manousaridis an application for an order under s.477(2) of the Migration Act 1958 (Cth).

   2.At the time of the hearing you were the lawyer on the record for the applicants, and had been since 16 April 2017. You did not, however, appear at the hearing, but instead instructed Ms Houhoutas to appear as your agent for the purpose of applying for an adjournment on behalf of the applicants.

   3.The ground on which Ms Houhoutas applied for the adjournment was that the applicants had not been provided with the court book or with any other documents. That application was not supported by any evidence. Ms Houhoutas stated that the only basis on which she submitted the applicants had not been provided with the court book or any other documents are instructions she received from you.

   4.After a short adjournment you appeared by telephone. You informed the Court that although you remained on the record you had received no documents in the matter. In the course of his Honour asking you questions you said:

   Your Honour, I'm not going to - I'm not going to entertain this anymore. You can do whatever you like. Thanks. Bye.

   and you then discontinued the telephone connection

   5.The hearing continued and, in the event, his Honour adjourned the hearing and ordered that the applicants pay the first respondent's costs thrown away by reason of the adjournment. After the conclusion of the hearing the applicant completed and signed a notice of address for service.

   6.I attach a copy of the transcript of the hearing before Judge Manousaridis.

   7.Rule 21.07 of the Federal Circuit Court Rules 2001 (Cth) 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. 

   8.In the circumstances stated above, Judge Manousaridis is of the opinion that there may be a case that the occasion of the Court’s deciding to adjourn the hearing arose from your failure, while a 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 first respondent’s costs that were thrown away by reason of the adjournment was therefore due to your failure to do all that was reasonably necessary to ensure that the matter was heard at the appointed time and date. Judge Manousaridis is also of the opinion that there may also be a case that the necessity for granting an adjournment arose because of your failure to remove yourself as the lawyer on the record for the applicants.

   9.Accordingly, the matter is listed before Judge Manousaridis at 10.15am on 4 May 2018 for the purpose of hearing submissions from you and the first respondent as to whether, pursuant to r.21.07 of the FCC Rules, you should be ordered to pay the first respondent’s costs thrown away by reason of the adjournment. If that time and date is not convenient to you or the first respondent his Honour would be prepared to list the matter at a time and place that is convenient to you and the first respondent.

4. That letter was sent by email. 

5. As far as I am aware the lawyer has not responded to that email either to the Court or to my chambers. As foreshadowed in that letter, the matter was listed before me at 10.15 am on 4 May 2018 for the purpose of hearing submissions from the lawyer and the first respondent as to whether, pursuant to r.21.07 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), the lawyer should be ordered to pay the first respondent’s costs thrown away by reason of the adjournment I granted on 23 March 2018.

6. Ms Hillary appears on behalf of the first respondent (Minister). Ms Hillary, however, does so only with a view to rendering such assistance as the Court may require, and does not intend to make any submission one way or the other as to whether an order for costs should be made.  I should note here that I have previously assessed the costs thrown away by reason of the adjournment in the amount of $2,187.  I was then satisfied that that was a fair assessment of the costs thrown away, and I continue to be satisfied that that is a fair assessment of the costs thrown away.

7. The matter was called.  By “called” I mean that I instructed my associate to call out the name of the lawyer outside the court room.  That brought forth no appearance by or on behalf of the lawyer.  In those circumstances I propose to deal with the matter which it was foreshadowed in the Registrar’s letter of 6 April 2018 I would deal with today, and that is whether an order for costs should be made personally against the lawyer on the grounds set out in that letter.

8. I do not need to repeat r.21.07 of the FCC Rules, because the full terms of that rule are set out in the letter which I have already reproduced. It is appropriate, however, that I record here the email communications that passed between the lawyer for the Minister, in this case Ms Hillary, and the lawyer. The email chain begins with an email sent on 16 March 2018, one week before the hearing, from the Minister’s lawyer to the lawyer, attaching by way of service a sealed copy of the Minister’s submissions and a copy of an affidavit. There then was an email sent by Ms Hillary to the lawyer on 19 March 2018, which was as follows:

   I refer to our below email.  As you remain on the record for the applicant, we are obliged to serve you with the submissions.  As you have advised that you are no longer acting for the applicant but have not taken steps to formally withdraw from the record nor provided contact details for the applicant, can you please confirm by return email that you have provided these documents to the applicant.

9. The next email is one again from Ms Hillary to the lawyer, and is as follows:

   I refer to my below email, to which I have not received the courtesy of a reply.  I note that you remain on the record for the applicant.  I remind you of your duty to the Court as a legal practitioner and request that you please confirm urgently that if you do not intend to attend the hearing this afternoon – that you provide a copy of the first respondent’s written submissions to the applicant and that he is aware of the hearing this afternoon.  If the applicant fails to attend the hearing, I will seek to have the matter dismissed and will seek costs against the applicant.  I put you on notice that if it becomes necessary to do so, I will tender this correspondence to the Court.

10. That email elicited the following email from the lawyer:

    I do not appreciate your threatening emails.  Learn the proper manner of professional communication.  I have not been able to respond because I have a sick mother in hospital who requires my attention.  Like I have advised you in previous emails, I do NOT act for this client and have not since filing the notice of appearance.  Please have the matter adjourned and I will try to seek instructions.

11. The final email is one sent by Ms Hillary to the lawyer on the same day at 9.41 am, and is as follows:

    I refer to your email below.  I will not be seeking an adjournment on your behalf.  If you wish to make such an application, you should attend the hearing or approach the Court.

12. As I have noted above, the matter came before me for hearing, and the lawyer retained the services of an agent to apply for an adjournment. The agent made the application without any supporting evidence, and purely on the basis of instructions the agent said she received from the lawyer.

13. The question, therefore, that I must consider is whether the costs thrown away by reason of the adjournment can be said to have arisen or have been incurred because of any undue delay, negligence, improper conduct or other misconduct or default by the lawyer. The notion of default is explained in r.21.07(2) of the FCC Rules to include a failure to do any other act necessary for the hearing to proceed.

14. In my opinion the lawyer’s remaining on the record without taking any steps to have the matter ready for hearing, or to take the appropriate steps in advance of the hearing to withdraw from the case so that the matter could nevertheless still proceed in the absence of the lawyer, is the cause of the costs that were thrown away by reason of the adjournment.  And the lawyer’s conduct can be characterised as negligence at the very least.  It is not necessary for me to make the harsher findings of improper conduct or other misconduct.  It is also conduct which can be characterised as default on the part of the lawyer. 

15. The email correspondence which I have reproduced above appears to disclose a lack of appreciation by the lawyer of the fairly fundamental duties a lawyer owes to the Court and, indeed, to his or her client by reason of representing to the Court that the lawyer is the lawyer of the applicants appearing before the Court.  The failure of the lawyer to respond in any way to the letter dated 6 April 2018 or, indeed, to make an appearance before me further manifests a lack of appreciation by the lawyer of her fundamental duties as a lawyer, and also of the common duties of courtesy that one would expect not only of a lawyer but of any person transacting business with the Court. 

16. These are matters that, perhaps, should be looked into by authorities that are responsible for looking into the conduct of lawyers. And it is my intention, at the very least, to direct a Registrar to refer these reasons to the relevant body, together with a copy of the letter that was sent to the lawyer, including the transcript of the hearing of 23 March 2018. In these circumstances, I propose to make an order pursuant to r.21.07 of the FCC Rules that the lawyer pay the first respondent’s costs, set in the amount of $2,187. I also propose, however, given that I have given these reasons in the absence of the lawyer, to give her liberty to apply to set aside these orders.

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

Associate: 

Date:  22 May 2018