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Cases

MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - application dismissed for non compliance with court order.

COSTS - Order for costs against solicitor for the applicant.

LAW REFORM - Desirability of an amendment to s.91X of the Migration Act 1958 (Cth) in relation to documents published by the Court to an applicant.

SZBBF v Minister for Immigration [2004] FMCA 628 (15 September 2004)

SZBBF v Minister for Immigration [2004] FMCA 628 (15 September 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBF v MINISTER FOR IMMIGRATION
[2004] FMCA 628




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - application dismissed for non compliance with court order.

COSTS - Order for costs against solicitor for the applicant.

LAW REFORM - Desirability of an amendment to s.91X of the Migration Act 1958 (Cth) in relation to documents published by the Court to an applicant.




Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.91X

NABY of 2001 v Minister for Immigration [2002] FCA 1334

Applicant:
SZBBF




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1474 of 2003




Delivered on:


15 September 2004




Delivered at:


Sydney




Hearing date:


15 September 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Counsel for Dr Bharati: Mr B Levet

Solicitors for Dr Bharati: Glover & Associates

Counsel for the Respondent:


Mr R Beech-Jones




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) Pursuant to rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules") and the liberty granted to the applicant by order 4 made on 21 July 2004 the application for judicial review is dismissed or default of compliance with order 1 made on 21 July 2004.

(2) Dr Jyoti Bharati is to pay the respondent's costs and disbursements of an incidental to the respondent's application for summary dismissal, assessed in accordance with the Federal Magistrates Court scale for a stage 2 proceeding, noting that those costs will comprise a lump sum of $1,135, plus 150 per cent of the daily hearing fee for a half day hearing, plus disbursements.

(3) Dr Bharati and the applicant are each to pay 50 per cent of the respondent's costs and disbursements of today's costs application, fixed in the sum of $2,000.

(4) The applicant is to pay the respondent's costs of the judicial review application for stage 1 of a proceeding under the Federal Magistrates Court Rules 2001 (Cth), comprising a lump sum $1,820 plus a daily hearing fee of $190.

(5) The Court directs that the transcript of today's proceedings be obtained and sent by the Court to the Legal Services Commission for such action as the Commission deems appropriate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1474 of 2003

SZBBF



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me an application by the respondent Minister filed on 17 August 2004 seeking an order that the applicant's former solicitor, Dr Jyoti Bharati, pay the respondent's costs of the proceedings in this matter to 21 July 2004 pursuant to rule 21.07 of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules") and, secondly, that Dr Bharati pay the respondent's costs of the costs application.

2. The circumstances leading to that application are that a motion came before me on 21 July 2004 for summary dismissal of an application to review a decision of the Refugee Review Tribunal ("the RRT") instituted on behalf of the applicant by Dr Bharati. The applicant did not appear when the matter was called for hearing but was subsequently contacted by telephone and attended by telephone. The applicant asserted that he was unaware of the hearing on 21 July 2004 and sought and received further time in order to file a further amended application to review the decision of the RRT. As matters turned out, no further amended application has been filed and the application for judicial review has been dismissed. The outstanding issue is the issue of costs. The Minister relies upon an affidavit by Andrew John Crockett filed on 17 August 2004. Mr Crockett deposes as to circumstances relevant to the issue of costs. Mr Crockett was not required for cross-examination and I received the affidavit.

3. The applicant was subpoenaed to attend the hearing today. He did attend and gave oral evidence. I note in passing that the subpoena was, as it would have to be, directed to the applicant named with his real name. The subpoena is a document issuing from the Court, although at the instigation of a party, in this case the Minister. It is certainly arguable that the issuing of a subpoena naming a protection visa applicant in proceedings before the Court constitutes a breach of s.91X of the Migration Act 1958 (Cth) ("the Migration Act"). Frankly, I cannot see any way that the breach could have been avoided in this case and if there was a breach it was a breach procured on behalf of the Minister. That points to a possible defect in s.91X of the Migration Act that might properly excite the attention of the Commonwealth. There ought to be circumstances in which it is permissible for the Court to name an applicant in protection visa proceedings where documents are addressed from the Court in the proceedings to the applicant.

4. The applicant, in his evidence before the Court today, confirmed evidence that he gave on 21 July 2004. The substance of that evidence was that he was not informed by his former solicitor, Dr Bharati, of the court hearing on 21 July 2004. Dr Bharati had ceased to act for him on or about 6 April 2004 and had provided to the applicant a form of notice of appearance completed by Dr Bharati but signed by the applicant and filed by him on 14 April 2004. The apparent intention of the filing of that notice of appearance was that the applicant was assuming responsibility for the proceedings from that point. The applicant said that he only received two copies of the notice of appearance and did not know who to send a copy to in order to notify the respondent of his personal appearance.

5. I raised a number of concerns at the hearing on 21 July 2004 concerning the apparent conduct of Dr Bharati based upon the evidence given by the applicant at that time. The first of those concerns was a concern as to why Dr Bharati had seen it appropriate to commence acting for the applicant in the first place, given claims made against Dr Bharati by the applicant before the RRT, as set out in the RRT decision in the book of relevant documents, that there were mistakes in his documents put to the RRT that were the fault of Dr Bharati. That is an issue of only marginal, if any, significance for today's costs hearing and I discount it for the purposes of determining the issue of costs. It may have some relevance for the Legal Services Commission.

6. The second issue of concern to me was that the motion for summary dismissal was filed in the light of an amended application prepared by Dr Bharati and filed on 17 December 2003. It is not in dispute that that amended application was incompetently prepared. It relies upon s.476 of the Migration Act in a form that was irrelevant because the section in that form had been repealed well before the amended application was filed. That particular defect was known to Dr Bharati at the time the amended application was prepared as is apparent from the decision of the Federal Court in NABY of 2001 v Minister for Immigration [2002] FCA 1334.

7. The third issue of concern to me was whether Dr Bharati had notified the applicant of the court fixture on 21 July 2004. The applicant said that he had not been advised. I was concerned that Dr Bharati had not filed a notice of ceasing to act in accordance with rule 9.03(1) of the Federal Magistrates Court Rules until 20 July 2004, after he had been contacted by my associate to point the issue out to him.

8. Dr Bharati gave evidence today. In his evidence he asserted that he had written to the applicant on 25 March 2004 to request him to attend his office and discuss the proceedings. The applicant denied receipt of that letter although evidence was presented that it had been dispatched to the correct address by registered post. I find on the balance of probabilities that the letter (exhibit B1) was sent to the applicant by Dr Bharati on or about 26 March 2004. I do not accept the applicant's denial that he did not receive it. The applicant conceded that he was in contact with Dr Bharati's office at around that time and that he did attend the office on 6 April 2004. Dr Bharati's evidence was that he discussed the applicant's application to the Court in detail with him and provided copies of some documents from his file at that time, including the notice of appearance which was completed by Dr Bharati and signed by the applicant.

9. There is a lot of confusion in the evidence as to what may have been said and what documents may have been provided by Dr Bharati to the applicant at that time. The evidence of both the applicant and Dr Bharati was internally inconsistent and, in my view, unreliable. The fact is that I do not know what was said to the applicant by Dr Bharati and what advice may have been given. I do not know what documents may have been provided by Dr Bharati to the applicant on that occasion apart from the notice of appearance. As best as I understand Dr Bharati's evidence, copies of four documents were given to the applicant on 6 April 2004. Those were the record of the decision of the RRT, the amended application filed in December 2003, the notice of appearance, and a letter from the Court advising of the Court fixture on 21 July 2004.

10. Significantly, in my view, none of those documents indicated to the applicant that the Minister was legally represented and that the applicant would need to send the notice of appearance to those lawyers. The amended application contained an address for service of the respondent but it was the wrong address. It was not the address of the Minister's lawyers. Rather, it was the address of the Minister's Department.

11. I am unable to find, on the state of the evidence, that the applicant was not informed by Dr Bharati of the Court fixture on 21 July 2004. He may well have been informed by reason of getting a copy of the letter from the Court from Dr Bharati. If he did, it is surprising that the applicant did not attend court on 21 July 2004 as from that point he has taken a genuine interest in the proceedings. It is possible that the applicant simply did not understand the significance of the letter. Whatever the true facts may be, on the state of the evidence I am unable to find that Dr Bharati failed to inform his client of his need to attend court on 21 July 2004.

12. That, however, does not excuse Dr Bharati from liability in respect of costs. Rule 21.07 relevantly provides:

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.

13. Leaving aside the issue of whether the applicant was informed by Dr Bharati of the court date on 21 July 2004, which, if it had been established against Dr Bharati, may have pointed to improper conduct, it is clear that the amended application prepared by Dr Bharati was incompetently prepared, which points to negligence. It is also clear that the motion for summary dismissal of the application for judicial review came about because of that incompetently prepared amended application.

14. It was put to me by Mr Levet, for Dr Bharati, that Dr Bharati should be spared any costs liability as from 6 April 2004 as he had ceased to act. Exhibit B3 clearly establishes that. Dr Bharati ceased to act for the applicant on that day. However, even if Dr Bharati had withdrawn from the record at that point, the applicant was not to know that in order to protect his interests he needed to prepare a better application if he wished to pursue the legal proceedings any further. In this case, in addition, Dr Bharati had not withdrawn from the record pursuant to the Federal Magistrates Court Rules at that point. On his own evidence, he relied upon his client to file a notice of appearance and to serve a copy of that notice of appearance on the Minister's lawyers, even though on Dr Bharati's own evidence his client did not have anything to tell him who the Minister's lawyers were. Dr Bharati remained on the record until such time as he withdrew in accordance with the Federal Magistrates Court Rules, pursuant to rule 9.03. That did not occur until 20 July 2004. This was also a default on the part of Dr Bharati relevant to an assessment of costs.

15. Taking these matters into consideration, I have come to the view that Dr Bharati should bear all of the Minister's costs incurred in dealing with the motion for summary dismissal.

16. The scale of costs set out in schedule 1 to the Federal Magistrates Court Rules provides a fixed amount for an interim or summary hearing as a discrete event. That sum is $1,135 plus the daily hearing fee. The daily hearing fee for a half day hearing is $685. In addition, where counsel is properly retained that figure can be increased by 150 per cent where the Court certifies that the briefing of counsel was reasonable. Where a solicitor advocate appears rather than counsel the daily hearing fee can still, pursuant to the Federal Magistrates Court Rules, be increased by 150 per cent, but no additional hearing fee is payable for solicitors. In this case the Minister was represented by a solicitor advocate.

17. The appropriate costs order, in the circumstances, is that Dr Bharati pay the Minister's costs and disbursements of and incidental to the application for summary dismissal dealt with on 21 July 2004 assessed in accordance with the Federal Magistrates Court scale for a stage 2 proceeding, noting that those costs will comprise a lump sum of $1,135, plus 150 percent of the daily hearing fee, plus disbursements.

18. In relation to today's proceedings, Dr Bharati should bear 50 per cent of the Minister's costs of the hearing of this costs application. No specific amount is specified in the Federal Magistrates Court Rules for such an application. I think it unlikely that the Minister's costs and disbursements for today's proceedings would have exceeded $2,000 in terms of preparation and counsel's fees. Fifty per cent of those costs is $1,000. I will therefore order that Dr Bharati and the applicant each pay the 50 per cent of the Minister's costs and disbursements of today's costs application, fixed in the sum of $2,000.

19. The balance of the costs of these proceeding should be borne by the applicant himself. Those costs comprise the outstanding costs of the judicial review application itself. The Federal Magistrates Court Rules prescribe an amount of $1,820 for stage 1 of the proceeding up to and including the first court date, plus a daily hearing fee which is $190 for a short mention. I will order that the applicant pay the Minister's costs of the judicial review application for stage 1 of a proceeding under the Federal Magistrates Court Rules comprising a lump sum of $1,820 plus a daily hearing fee of $190.

20. The only other matter that I can think of is that the record of today's hearing ought to be brought to the attention of the Legal Services Commission. I will direct that the transcript of today's proceeding be obtained and sent by the Court to the Legal Services Commission for such action as the Commission thinks appropriate.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 September 2004
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