Wzaut v Minister for Immigration

[2015] FCCA 418

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAUT v MINISTER FOR IMMIGRATION [2015] FCCA 418

Catchwords:
MIGRATION – Application concerning removal of applicant from Australia.

PRACTICE AND PROCEDURE – Failure by applicant to file notice of discontinuance as agreed and ordered – costs.

Legislation: 

Federal Court of Australia Act 1999 (Cth), ss.3 and 42

Federal Circuit Court Rules 2001 (Cth), r.1.03, Schedule 1, Part 3, Divisions 1 and 2

Migration Act 1958 (Cth), s.198(6)

Applicant: WZAUT

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: PEG 325 of 2014

Judgment of: Judge Lucev

Hearing date: 18 February 2015

Date of Last Submission: 18 February 2015

Delivered at: Perth

Delivered on: 18 February 2015

REPRESENTATION

Counsel for the Applicant: Mr R.E. Lindsay

Solicitors for the Applicant: James Chong Lawyers

Counsel for the Respondent: Mr A. Gerrard

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Order 2 of the Court’s orders of 10 November 2014 be set aside.

2. The application be dismissed.

3. The applicant pay the respondent’s costs in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 325 of 2014

WZAUT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Extempore reasons edited from the transcript)

1. On 15 October 2014, the applicant made an urgent application to the Court for relief against the allegedly impending removal of the applicant from the Commonwealth of Australia. At that time orders were sought, in the terms set out in the application, both on an interlocutory and final basis, in relation to what was described as “the decision” which was a decision to remove the applicant under s.198(6) of the Migration Act 1958 (Cth) (“Migration Act”). That decision was one made some time shortly before the application was filed on 15 October 2014.

2. The Court dealt with the matter on an urgent basis, and it was brought before the Court for hearing on 16 October 2014. At the same time as the Court was hearing the matter it transpired that a psychiatrist, appointed by the respondent, was assessing the applicant. During the course of the first part of the hearing on 16 October 2014, the Court was informed about the assessment, and that the psychiatrist had reached a view that the applicant was unfit to travel, and in those circumstances the threat of imminent removal from Australia had abated.

3. Following a reasonably lengthy adjournment, Counsel for the respondent confirmed to the Court that the psychiatrist had indeed reported to the respondent that the applicant was unfit to travel, and as a consequence, Counsel for the respondent indicated to the Court that the respondent did not seek to remove the applicant from Australia and that if removal was to be sought in the future, it would be the subject of the usual notice given in those circumstances.

4. Having been told about the psychiatrist’s report and informed that removal was no longer imminent, the Court made the following orders:

   (1)     The application be adjourned to 9.30 am on 27 October 2014.

   (2)     There be conferral between the parties on the issue of costs.

   (3)     There be liberty to apply urgently.

5. The Court added to the above order a note in the following terms:

   And the Court notes that the respondent has advised the Court that the applicant will not be removed from Australia in accordance with the notice of intention to remove from Australia issued on 14 October 2014 in light of a psychiatrist’s advice that the applicant is not fit to travel.

6. When the matter came before the Court again on 27 October 2014, having been urged to do so by the parties and noting that the applicant was represented by Counsel from the independent bar, instructed by the lawyers who were then on the record and remain on the record, the Court made the following orders:

   (1)     With respect to the costs of the interlocutory application and the costs of today:

   (a)     The application file and serve a written outline of submissions by 7 November 2014;

   (b)     The respondent file and serve a written outline of submissions by 14 November 2014;

   (c) The applicant file and serve a written outline of submissions in reply by 21 November 2014;

   (d)     Costs to be determined on the papers.

   (2)     Leave be granted to the applicant to otherwise discontinue the application.

7. On 10 November 2014, the Court made consent orders in the following terms:

   (1)     The orders made by Judge Lucev on 27 October 2014 with respect to the costs of the interlocutory application and the costs of that day be set aside.

   (2)     The respondent pay the applicant’s costs fixed in the sum of $2000.

8. No notice of discontinuance has subsequently been filed pursuant to order 2 of the orders made on 27 October 2014. Consequently, the respondent has sought and caused the matter to be relisted today.

9. In support of the applicant to have the matter relisted, an affidavit of Aaron Niall Gerrard, sworn 20 January 2015 was filed and read in these proceedings, together with a further affidavit of Mr Gerrard sworn 18 February 2015. Those affidavits set out the background that had led to the making, in particular, of the consent orders of 10 November 2014.

10. In that regard, the Court notes the following appears to be the sequence of events as it transpired leading up to today. On 6 November 2014, Mr Blades, who was Counsel for the applicant, sent an email to the respondent’s solicitors requesting that they prepare consent orders to discharge the orders made on 27 October 2014 insofar as they related to submissions on costs.

11. On the same day, the respondent’s solicitors sent an email to Mr Blades, of Counsel, attaching a draft consent order which would finalise the proceedings.

12. On 7 November 2014, Mr Blades, of counsel, sent an email to the respondent’s solicitors stating as follows:

    In relation to the proposed order for the application to be dismissed, as Judge Lucev has already granted leave for the application to be discontinued, in my view the matter should be brought to an end by the applicant filing a notice of discontinuance. That was the basis on which the matter was resolved at the hearing on 27 October (leaving only the issue of costs to be determined. I therefore modify the consent order to reflect this).

13. The Court notes it was the applicant who was urging to bring the matter to an end by the filing of a notice of discontinuance. Orders were made accordingly, as the Court has already indicated, on 10 November 2014

14. On 12 November 2014, Mr Gerrard sent an email to Mr Blades, of Counsel, as follows:

    We note that despite orders in relation to costs being made the applicant has yet to discontinue these proceedings. As you will recall, at your request we removed from our proposed consent orders the order dismissing the proceedings on the basis of your advice that the application would be discontinued. Can you please take steps to ensure that this is attended to promptly.

15. The same day, that is 12 November 2014, Mr Blades, of Counsel, sent an email to Mr Gerrard in the following terms:

    I had to deal urgently in Christina Chang’s absence with the costs issue owing to the Court’s timetable in respect of that, I was going to leave the NOD [Notice of Discontinuance], until Christina’s return on 14^th November I believe. But if you require it sooner, yes we will attend to that.

16. So quite clearly, Counsel (who appears to have been acting as a solicitor in the absence of a solicitor) effectively undertook to attend to the filing of the notice of discontinuance on 12 November 2014, having urged that the notice of discontinuance approach be adopted as early as 7 November 2014 and then appearing, on the hearing of the matter, at which the Court made the orders of 10 November 2014.

17. On 14 November 2014, Mr Gerrard replied to Mr Blades, of Counsel, indicating that the proposed course was acceptable and in response to a subsequent email from a Ms Jacki Channing, from the applicant’s solicitors, advising that Ms Chang would not return until 17 November 2014. Mr Gerrard further replied that that date was acceptable.

18. On 28 November 2014, no notice of discontinuance having been filed, Mr Gerrard sent an email to Ms Chang following up that issue. By reply email Ms Chang advised that she was “waiting for instructions.”

19. Mr Gerrard then wrote an email to Ms Chang in which he expressed his concern as to what Ms Chang meant by “waiting on instructions” and Mr Gerrard then says:

    It was put to us that the order should be amended to remove the order for the matter to be dismissed on an assurance that your client would discontinue. You must have had instructions for that. If you are now saying there is an issue with obtaining instructions to discontinue, then the foundation on which those consent orders were signed is in issue. Obviously this is not a matter which either party would want to continue any longer than it needs to but unless my client is assured that a discontinuance is forthcoming in the very near future, we will need to seek instructions to seek a directions hearing to have the matter dismissed or, alternatively, set aside the costs orders which were made.

20. Ms Chang sent a reply email saying “I hear what you say…” but further saying to Mr Gerrard that she was required to speak with the applicant, via a third party, and she needed to get written instructions in circumstances where it appeared that her instructions may have been terminated.

21. On 2 December 2014, Mr Gerrard received a further email from Ms Chang. Ms Chang advised that she did not have instructions in relation to dismissal or discontinuance at that stage. Further, she understood that the applicant was seeking “immigration legal assistance” from Case for Refugees (“Case”) and that Case may take over the conduct of the matter, and that she was communicating with the applicant to ascertain his instructions, not only in relation to these proceedings, but also as to whether Ms Chang was to continue to represent him, given the offer for Case to assist him on a pro bono basis. Ms Chang indicated that she would revert to Mr Gerrard once her instructions were finalised one way or the other.

22. On 22 December 2014, Mr Gerrard wrote to Ms Chang advising that unless a discontinuance was received by 12 January 2015, the respondent would seek to have the proceedings dismissed.

23. It suffices to observe that, notwithstanding the above course of events, no notice of discontinuance has been filed by the applicant.

24. It has been urged today, by Counsel for the applicant, Mr Lindsay, that there is or was, a difficulty in Ms Chang obtaining instructions to file the notice of discontinuance. As the Court indicated to Counsel, that is, in real terms, by the by. The notice of discontinuance should have been filed shortly after the Court’s orders were made on 10 November or shortly after Mr Blades, of Counsel, advised the respondent’s solicitors on 12 November 2014, two days after those orders were made, that that would be attended to, noting that that the filing of a notice of discontinuance was a course which the applicant advocated.

25. No affidavit in opposition has been filed by the applicant and no affidavit filed indicates any need for orders other than those originally sought. There is no application in a case by the applicant, no amended application, and no change of lawyers or solicitors on the record has been filed by the applicant.

26. A number of matters are therefore clear. Firstly, that the notice of discontinuance ought by now to have been filed by the applicant and, indeed, ought to have been filed shortly after the orders were made on 10 November 2014 or when the assurance was given by Mr Blades, of Counsel, to the respondent’s solicitors on 12 November 2014 that that matter would be attended to. It goes without saying, in the Court’s view, that given what was put to the Court and given what was put to the respondent’s solicitors by Counsel for the applicant, that there must have been instructions, at that point in time, for a notice of discontinuance to be filed and the fact that it was not filed, is a matter which the Court considers to be of concern.

27. Secondly, the respondent agreed to the payment of the applicant’s costs on the basis that the notice of discontinuance was to be filed, and filed reasonably soon after the orders of 10 November 2014 were made or the assurance was given on 12 November 2014 by Mr Blades, of Counsel, that a notice of discontinuance would be filed by the applicant.

28. Thirdly, the applicant has not complied with the arrangements which were agreed with the respondent in November 2014 as set out in Mr Gerrard’s affidavit of 20 January 2015.

29. Fourthly, the orders which were originally sought, both interim and final, have been rendered otiose by the course of subsequent events.

30. The question remains, therefore, what to do in these circumstances? The first matter that requires remedy is the costs order, order 2 of the Court’s orders of 10 November 2014. In view of the fact that the applicant has not complied with the order and given that it was an order that was sought by the applicant and with which the respondent agreed, and in relation to which the applicant indicated that a notice of discontinuance would be filed, it would appear that the basis for the agreement on costs has not been complied with by the applicant. It follows that the costs order made in the orders of 10 November 2014, should be set aside. There will therefore be an order that order 2 of the Court’s orders of 10 November 2014 by set aside.

31. The second matter is what is to happen to the application itself. As the Court has already observed, the application has been rendered otiose by the march of events. There is no evidence that, and no submission that, there is any immediate threat or any foreseeable threat that the applicant will be removed from Australia. In those circumstances, there is no basis for further orders, either interim or final. The application cannot be used as an insurance policy in circumstances where there is simply no evidence of a present intention to remove the applicant from Australia. To dismiss the application in those circumstances would be consistent with the objects and mode of operation of this Court, as set out in ss.3 and 42 of the Federal Court of Australia Act 1999 (Cth) and r.1.03 of the Federal Circuit Court Rules 2001 (Cth). (“FCC Rules”). The appropriate order therefore is to dismiss the application and there will be an order to that effect.

32. The third matter which now requires resolution is the costs of today. Costs usually follow the event and the respondent today has been successful in the purpose for which the matter has been relisted and should therefore have its costs. The respondents’ costs are assessable under Schedule 1, Part 3 of the FCC Rules, Division 1 of which deals with concluded migration proceedings, while Division 2 of which deals with costs of migration proceedings that have been discontinued.

33. Because these proceedings were not discontinued by the applicant and because the applicant did not comply with the Court’s order or the costs agreement with the respondent, the orders made today will conclude the proceedings by way of an order of dismissal. The costs should therefore be assessed under Division 1 of Part 3 of Schedule 1 of the FCC Rules because this is a proceeding which has now been concluded. Item 2(a) appears to be the appropriate item for this matter; this now being a proceeding that has concluded after the first Court date for the proceeding. The costs prescribed are $3416. Having regard to the course of correspondence set out in Mr Gerrard’s affidavits, the preparation of those affidavits and today’s hearing, that sum does not appear to the Court to be excessive. There will be an order that the applicant pay the respondent’s costs in the sum of $3416.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 26 February 2015