FEDERAL COURT OF AUSTRALIA

NAEB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 945

NAEB V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1198 of 2002

JACOBSON J

3 SEPTEMBER 2003
SYDNEY

THE COURT ORDERS THAT:

1.      The respondent pay Mr Brezniak's costs of today's application.

2.      There be no order as to the costs of Ms Byers appearance at today's application.

3. Otherwise the applicant in the proceedings pay the respondent's costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     When I handed down judgment in this matter on 11 July 2003, I reserved the costs of the proceedings.  I set out the reasons why I did so at paragraphs [102] to [109] of the judgment.  The respondent, who I will refer to as the Minister, now seeks an order that Mr Brezniak pay part of the costs of the adjournment application of 28 March 2003 and the cost of the second day of the hearing of the proceedings. 

2                     Neither the power to award costs against a practitioner nor the principles governing it are in contest.  The power is relevantly compensatory, but reserved, having regard to the duties and obligations of the practitioner, to cases of serious dereliction of responsibility; see White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 229-231; see also re Bendeich (1994) 53 FCR 422 at 426-427.  In re Bendeich, Drummond J said at 426 to 427:

 As the Chief Justice observed in Bent v Gough at 207, the power to award costs against a solicitor personally involves special considerations.  The cases show that this jurisdiction must be exercised with caution.  There is good reason for caution.  Too ready an exposure of the lawyer for a party to personal liability for costs of his client or of the other party is likely to inhibit the way the lawyer acts in conducting the litigation.  It frequently happens that a lawyer will have to make judgments as to which of a number of courses is the optimum one to follow, bearing in mind his duty to advance his client’s interests by all proper means and his duty to the Court to conduct the litigation in proper fashion.  The introduction of a third consideration into everyday litigation that requires a solicitor to keep in mind the need to minimise the chances of a costs order being made against him personally, would raise a conflict between the lawyer’s duties to his client and to the Court, on the one hand, and his own interests, on the other.  As is understandable, such a conflict would likely be resolved by the solicitor concentrating on identifying and adopting the course most likely to minimise his own personal exposure at the expense of following courses best fitted to advantage his client and to bring the action to an expeditious end.  Moreover, practitioners should be encouraged to see the threat to seek a costs order against their opposing solicitor as a tactic available to be employed in the course of litigation to put pressure on their opponent: cf the comments of the Master of the Rolls and of Dillon LJ in Orchard v South Eastern Electricity Board [1987] 1 QB 565 at 577 and 580.

3                     Order 62 rule 9 does not apply to the present case because the most recent amendments to rule 9 did not commence until 4 August 2003.  Order 62 rule 9 usefully illustrates the importance of the compensatory principle.  The discretion to award costs against a practitioner in favour of an opposing party is not a jurisdiction which is punitive.  Its exercise is only appropriate if relevant personal default has, in fact, occasioned or caused additional unnecessary expense.

Adjournment application of 28 March 2003 - late start/early arrival costs 

4                     The reason why costs are sought is that Mr Brezniak is said to have caused Ms Hartstein of counsel and her instructing solicitor Ms Campos to attend court earlier than the time when the application was fixed for hearing.  They were present at 4.15, but Mr Brezniak was not present until nearly 5.00pm.

5                     The Minister relied on the evidence given on information and belief by Ms Burnett who now has the day-to-day carriage of the matter for the Minister.  It appears that Ms Campos left the employ of the Minister's solicitors some time after 28 March 2003. 

6                     Ms Burnett's evidence is that she was informed by Ms Hartstein that on 28 March 2003 the court contacted Ms Campos and advised that the hearing of the application for an adjournment would be changed from 4.15pm to 5.00pm at the request of Mr Brezniak.  Ms Burnett also says on information and belief that subsequently the applicant's solicitors contacted Ms Campos stating that the applicant's counsel was now able to meet the original scheduled time of 4.15pm and that the hearing of the application was to be at that time. 

7                     Ms Campos and Ms Hartstein attended court at 4.15pm but Mr Brezniak was not present until shortly before 5.00pm.  Mr Brezniak's evidence is that after the adjournment application was listed for hearing for 4.15pm he contacted my associate to say that he had difficulties in appearing at that time.  The matter was therefore re-listed for 5pm to enable Mr Brezniak to appear.  However, Mr Brezniak says that during the afternoon of 28 March 2003 he learned that he could appear earlier than 5pm and he contacted my associate to tell her. 

8                     Efforts were then made to bring the time forward to 4.15pm.  Mr Brezniak's evidence is that he notified the solicitor for the Minister (opposing counsel being unavailable at that time) but, having done so, he was then notified by my associate that I was not available until 5.00pm and although he had endeavoured to notify the Minister's solicitors it was too late to do so because the solicitor and her counsel had already left for court.

9                     Mr Brezniak says that the reason he did not attend court until shortly before 5.00pm was that he was told by my associate, as I have said, that I would not be available until that time.  There was no contrary evidence to the evidence contained in Mr Brezniak's affidavit in respect of the relevant conversations and he was not cross examined on them.

10                  I accept that the evidence discloses no more than a miscommunication which occurred when Mr Brezniak and his instructing solicitor, Ms Byers, attempted to arrange for all parties to attend the court earlier than 5.00pm.  I also accept that it is inappropriate to attribute relevant blame to anyone involved on the evidence before me.

11                  It therefore follows that the Minister has not discharged the necessary evidentiary onus to enliven the jurisdiction to make a costs order in respect of wasted costs of the afternoon and early evening of 28 March 2003.

Costs of the application of 28 March 2003

12                  In their written submissions the solicitors for the Minister initially sought the costs of the whole of this application against Mr Brezniak personally but this was not pursued today.

Costs of the second day of hearing on 4 June 2003

13                  The Minister seeks costs against Mr Brezniak on three bases.  The first is that he was not prepared for the hearing on 1 May 2003 and that he failed to comply with a direction that submissions be filed by 23 April 2003.  This was said to have made it necessary for the Minister's counsel to seek an adjournment thereby resulting in an unnecessary second day of the hearing.  

14                  The second reason was put to me orally this morning and was not contained in the Minister's written submissions.  It was that if Mr Brezniak had been properly prepared for the hearing his submissions would not have taken the whole afternoon and a second day's hearing would not then have been necessary. 

15                  The third reason is that the applicant had no basis for an allegation of bias and that, in the Minister's submissions, most of the grounds in the amended application were incomprehensible and unparticularised.

16                  The third ground may be disposed of quickly. Whilst I do not think that the bias allegation has any proper foundation I do not consider that it involved the Minister's legal representatives in any additional costs.  Further, there is no evidentiary basis to justify a conclusion that any infelicity of expression in the amended application caused the Minister's solicitors or counsel to incur any delay or additional expense.

17                  I turn then to the first ground.  At the hearing on 1 May 2003 Mr Brezniak said that he was not fully prepared to present his submissions even though two previous adjournments had been granted.  I set out in my judgment at paragraph 107 the statement which he made to me on the morning of 1 May 2003.  Mr Brezniak handed up written submissions which were due to be filed on 23 April 2003.  He also filed an affidavit annexing a transcript of the hearing before the RRT which formed the basis for much of the submissions.

18                  The transcript of 1 May 2003 records that counsel for the Minister foreshadowed the need to make an application for an adjournment because she was supplied with the submissions and the transcript only on the morning of the hearing. However, she did not make an application.  The transcript records that the applicant's oral argument occupied the whole of the hearing time on 1 May 2003. 

19                  At transcript page 41 Ms Hartstein indicated a willingness to continue to participate in the oral argument on that day.  At transcript page 53 the transcript records that the matter would have to go over part heard and at transcript page 55 it is recorded that the matter was adjourned at 4.44pm on 1 May 2003.

20                  It is true that on page 4 of the transcript of 1 May Ms Hartstein said that she would need an adjournment to consider what had been said, to get instructions and to consider what she was going to say.  However, it is apparent that this exchange was overtaken by the events of the afternoon and in particular the fact that the applicant's submissions occupied the whole of the afternoon of the hearing.

21                  In any event, there is no evidentiary basis for concluding that any personal default on Mr Brezniak's part contributed in any material way to the incurring of unnecessary costs.  It is obvious and not disputed by Mr Brezniak that he did not comply with the direction to file his submissions by 23 April 2003.  Mr Taylor SC who appeared for Mr Brezniak conceded that Mr Brezniak should have explained his delay prior to the explanation which has recently been given.  But the failure to provide the submissions on time or the lack of a timely explanation for the delay have not been shown to have led to the Minister incurring unnecessary costs.

22                  Moreover, Mr Brezniak's unchallenged evidence is that he pursued his instructing solicitor in April to provide the transcript of the RRT hearing and that he was not provided with it in a satisfactory form until the morning of 1 May 2003.  The transcript of the RRT hearing was necessary for Mr Brezniak to present the case.  There is nothing to suggest any serious dereliction or default on his part in the delay in obtaining the transcript.  His solicitor may have been at fault, but costs are not sought against her.

23                  Mr Taylor conceded that it was discourteous not to have informed the court or the Minister about Mr Brezniak's difficulty in obtaining the transcript or in filing his written submissions.  However, I accept Mr Taylor's submission that Mr Brezniak's personal conduct has not been shown to be the cause of either delay or expense to the respondent. 

24                  As to the second ground of this application, no such submission was put in the written submissions filed by the Minister.  It was a matter of which Mr Brezniak was entitled to notice and proper particulars so that he could be in a position to meet the case put against him.  I do not accept that the submission contained in paragraph 16 of the Minister's written submissions sufficiently identifies the second ground as it was put to me today.

25                  In the absence of notice and particulars, at least in the form of written submissions which clearly covered the point, this ground cannot be pursued.  It follows that on the evidence before me the Minister's application that Mr Brezniak pay the costs of the second day's hearing must fail.

The costs of this application and the costs of the proceedings. 

26                  As to the costs of this application it seems to me that the appropriate order is that costs follow the event.  The Minister undertook the burden of establishing that Mr Brezniak was guilty of serious dereliction of his duty.  This evidentiary onus was not discharged and that is sufficient to justify an application of the ordinary rule as to costs.  It is true that Mr Brezniak has, as Mr Taylor conceded, been discourteous to his opponents and to the court but that is not a ground for departing from the usual rule as to costs.

27                  The costs orders in the proceedings are therefore as follows:

1.         The respondent pay Mr Brezniak's costs of today's application.

2.         There be no order as to the costs of Ms Byers appearance at today's application.

3.         Otherwise the applicant in the proceedings pay the respondent's costs of the proceedings.

Associate:

Dated:              10 September 2003