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MIGRATION / PRACTICE AND PROCEDURE - Where costs order made against solicitor for failure to attend hearing - where the solicitor was given the opportunity to explain reasons - whether the order should be vacated.

SZABF v Minister for Immigration (No.2) [2003] FMCA 178 (16 May 2003)

SZABF v Minister for Immigration (No.2) [2003] FMCA 178 (16 May 2003)
Last Updated: 23 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABF v MINISTER FOR IMMIGRATION (No.2)
[2003] FMCA 178



MIGRATION / PRACTICE AND PROCEDURE - Where costs order made against solicitor for failure to attend hearing - where the solicitor was given the opportunity to explain reasons - whether the order should be vacated.



Federal Magistrates Court Rules, rule 21.07

In the matter of Bendiech, FCA, (Unreported, 23 November 1994)

Myers v Elman [1940] AC 282, Felix v General Dental Council [1960] AC 704 Caboolture Park Shopping Centre Pty Ltd v White Industries (QLD) Pty Ltd (1993) 45 FCR 224

Bent v Gough (1992) 36 FCR 204

Applicant:
SZABF



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1109 of 2002



Delivered on:


16 May 2003



Delivered at:


Sydney



Hearing date:


29 April 2003



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr B Levet



Counsel for the Respondent:


Mr R White



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) Order 2 made on 9 April 2003 vacated.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

(3) Papers to be referred to the Registrar of this court so that they may be forwarded to the Law Society of New South Wales to investigate the conduct of Mr Bharati.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1109 of 2002

SZABF


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. I heard the substantive issue in this matter on 9 April 2003. At the time the applicant was not represented. He had previously been represented by Mr Bharati, a solicitor. On the day of the hearing I asked the applicant where Mr Bharati was and the applicant told me that he was not there because the applicant had been told that he would not be acting for him. The further history of events in relation to the solicitors conduct are contained in the paragraphs in my judgment set out hereunder:

"[16] When the applicant appeared before me today, although his solicitor was still on the record, his solicitor did not appear. The applicant told me that the solicitor had told him that he was unable to attend. Mr White gave evidence at the end of the hearing that at approximately half past two, some 15 minutes into the hearing, he had been told that Mr Bharati was in fact next door at a directions hearing. Mr White said that he went next door and he saw Mr Bharati there.

[17] It is quite unacceptable for a solicitor to put himself on the record in relation to a matter and then not to appear or to advise the court that he is ceasing to act. It is particularly unacceptable when one suspects that the solicitor may be taking fees from a person who has little ability to pay them and who quite genuinely believes that he has good grounds for seeking asylum in this country. The fact that this particular applicant was not believed upon on his evidence by the Tribunal is not to the point. If Mr Bharati no longer wished to act for him he should have said so, both to the court and to the applicant.

[18] I'm satisfied that Mr Bharati could have attended this hearing. I am satisfied that he had fair enough notice of the fact that an application under rule 21.07 may be made.

[19] I propose to order that Mr Bharati pay the costs personally in the sum of $4,500 which I assess as being the reasonable costs of this hearing pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court rules. I will however go further. I will order that these papers be referred to the Registrar of this court for the purposes of then referring them to the Law Society of New South Wales so that disciplinary action against the solicitor can be considered.

[20] Since giving this ex tempore judgment I have been shown a copy of the letter and an attachment which was sent to the Registry. In the circumstances I propose to give Mr Bharati 7 days in which to advise my associate if he wishes to be heard on the matter. I will stay the order I made as to costs until further order."

2. When I returned to my chambers after delivering this judgment I was advised that a letter, dated 10 March 2003, had been received by the registry from Mr Bharati. A copy of it was shown to me. It is in the following form:

"Dear Sir

With reference to the above matter, I want to inform you that on 8 April 2003, hearing of a High Court matter (S/395/2002 and S/396/2002) has been scheduled in Canberra.

It would be difficult for me to attend hearing of SZABF matter on 9 April 2003.

I would be grateful if you could change the date of hearing of 9 April to any available date.

Please find enclosed a copy of the letter from the Registrar of the High Court Canberra.

Thanking you.

Yours faithfully

Jyoti Bharati."

In the circumstances I felt that it was not appropriate for me to make the orders which I had made against Mr Bharati without hearing from him. I immediately wrote to Mr Bharati and to the solicitors for the respondent giving him an opportunity to contact my associate within seven days for the purposes of arranging such a hearing. This was done. At the further hearing Mr Bharati was represented by Mr Levet of counsel. Mr White, solicitor, appeared on behalf of the respondent. Mr White urged me not to change the order which I had previously made and to continue the reference of the matter by the registrar of this court to the Law Society of New South Wales.

3. Mr Bharati has sworn an affidavit for the purposes of the hearing in which he set out some facts concerning his relationship with the client and the manner in which his retainer had been terminated. He also gave oral evidence and was the subject of cross-examination by Mr White. During the course of that cross-examination at [T10] the following exchange took place:

"Mr Bharati, did you receive a letter from Sparke Helmore, Solicitors on 3 December 2003 enclosing a court book?---Yes.

Did you receive a letter from Sparke Helmore, Solicitors on 20 January 2003 indicating that you had failed to amend the application in accordance with the orders?---Yes.

Did you respond to that letter?---I tell you, I ask from the client whether they want to proceed this matter or not.

Did you respond to the respondent's solicitors?---No, I did not respond to the ---

Do you recall in that letter that there was a statement that you could face a costs order against you if you were ultimately unsuccessful?---I tell you, I thought this is not the respondent's duty to remind this thing, this is like intimidation, I feel like threatening, that why the duty of not the respondent to give this type of threatening, that it will not to try the case and we will be in court, that why intimidation and this is against the ethics of our responsibility.

Is that why you didn't respond to it, Mr Bharati?---No, I already explain to the client that there is no merit in the case, please, withdraw this case, discontinue this case.

So you formed the view at that view that he didn't have a case?---Yes, I told him at the time that there is no merit in the case and he should not proceed the case.

On 20 January you formed that view?---After that also, before that, too.

Why didn't you file a notice of ceasing to act at that point?---Because client not agreed.

You are a solicitor, Mr Bharati?---Yes.

Are you aware of the duties imposed upon a solicitor?---I know."

Mr Bharati confirmed in that cross-examination that he had been in the court next door on 9 April 2003 when the case was heard, that he had been approached by a solicitor from Sparke Helmore who informed him that case was proceeding next door and that he felt that as the client was representing himself he had no need to appear.

4. At [T14] I addressed Mr Levet as follows:

"Mr Levet just before you address me I just want to say this. It seems to me there are two issues here. There is the issue of application for a cost order against Mr Bharati personally which was really based upon the fact that he hadn't withdrawn this bad faith allegation which was eventually withdrawn on the 3rd of April by the applicant himself. And then there is the second issue, which is the issue of the conduct of Mr Bharati in the manner in which he dealt with his client and non-appearance in court.

Now my preliminary views at the moment are that I should separate the one from the other. He should not be punished in costs because of what may or may not be a failing in his practice as a solicitor, that is a matter for the Law Society and I propose to, not at the moment subject to anything you say, to continue with the decision that I had previously to refer the matter to the Registrar to refer to the Law Society as the whole issue of Mr Bharati's conduct vis-�-vis this particular client can be investigated.

That would give both Mr Bharati and the Law Society an opportunity to deal with it and it shouldn't be dealt with before me and I will be obtaining a copy of this transcript of today and it that will go to the Law Society as well. I'm not going to use any views that I may have about Mr Bharati's conduct vis-�-vis his client to consider the question of costs which was really only pressed on the basis that he had been warned about this application. He'd been warned about the nature of the ground of review. He'd been told about the requirement to put on particulars and knowing much had happened and then eventually when something did happen then it was withdrawn."

5. Having advised Mr Levet that I proposed to proceed on the basis outlined above it is only proper that this is the course that I carry out. Having re-read the transcript there must be an argument that Mr Bharati was wrong not to have withdrawn from the case on 20 January 2003 when he told his client that he had no grounds. He appears to have allowed himself to continue on the record when he well knew that his client's sole reason for maintaining the claim was that he wished to continue in his employment. On the basis of what I said to Mr Levet that is a matter for the Law Society and not for me.

6. There is provision in the rules of the Federal Magistrates Court for the court to order that costs be paid personally by a solicitor or other legal representative. The relevant rule is Part 21 Rule 21.07. The order is in the following form:

"21.07 Order for costs against lawyer

(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;

(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 the 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."

It is notorious within the legal profession that most courts now have orders similar to the one quoted above.

7. Drummond J considered the circumstances in which an order for costs should be made against a legal practitioner In the matter of Bendiech FCA, Unreported 23 November 1994. His Honour considered the authorities including Myers v Elman [1940] AC 282, Felix v General Dental Council [1960] AC 704 and Caboolture Park Shopping Centre Pty Ltd v White Industries (QLD) Pty Ltd (1993) 45 FCR 224. His Honour referred to the caution expressed by the Chief Justice in Bent v Gough (1992) 36 FCR 204. His Honour required three tests to be made out. The first being that the practitioner had committed a breach of his duty to the court to conduct the litigation on behalf of his client with due propriety. The second that the breach involved conduct more than mere negligence and amounted, at the very least, to gross negligence; and finally that the result of any such dereliction of duty by the solicitor had been to occasion useless costs of the objectors ie costs which they had incurred but which had produced no benefit to them in pursuing their objections.

8. I am satisfied from the evidence given by Mr Bharati that nothing which he did (as opposed to that which his client instructed him to do) caused the respondent to occasion useless costs. At best the respondent may not have had to have worked out a response to the claim of lack of bona fides after 20 January 2003. But in response to questions from me about that matter Mr White said:

"...I think it is an artificial distinction to draw from the point of view that you don't have a case to answer except general grounds that are alleged, you prepare in relation to all those grounds and more which may arise from questions from the bench in the absence of any specifics as to what the applicant's case is and those costs cannot be divided as between particular grounds or the absence of what those grounds are there and whether they are subsequently withdrawn because we seek to meet the case as the applicant alleges and on top of that whatever the materials might support."

9. However I do not propose to alter my earlier decision to refer the papers in this matter to the Registrar of this court so that she may forward them to the Law Society of New South Wales to investigate the conduct of Mr Bharati. I will therefore vacate my original order and replace it with an order the applicant pay the respondent's costs assessed in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules. In relation to today's proceedings I make no order as to costs.


I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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