Federal Court of Australia

CVDQ v Minister for Immigration and Multicultural Affairs (Adjournment Application) [2025] FCA 936

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth) the applicant is required to file and serve submissions by no later than 4pm on 12 August 2025.

2.    The first respondents file and serve any updated submissions in response to the applicant’s submissions by 4pm on 15 August 2025.

3.    The matter be adjourned for final hearing until 10:15am on 18 August 2025.

4.    The costs thrown away by the adjournment be paid by the applicant.

5.    Any affidavit or other material relied upon by the legal practitioners in order to resist an order for costs being made against them be filed by 4pm on 15 August 2025.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION AND BACKGROUND

1    There seems to be a deeply entrenched misconception among some practitioners of this Court that migration litigation is some form of Galápagos Island where the ordinary rules do not apply, including the provisions of Pt VB of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

2    This proceeding was called on for hearing at 11am today. Orders were made timetabling the matter for hearing on 27 May 2025, and a court book was lodged by the first respondent (which I will refer to as the respondent) on 27 June 2025. By order 2 of the orders dated 27 May 2025, the applicant was due to file and serve her submissions as long ago as 4 July 2025. As of today, no such submissions have been received by the Court.

3    On 9 July 2025, my Associate received an email communication informing the Court that counsel for the applicant required an extension of time to 10 July 2025 to file the applicant’s submissions because of “Court commitments and poor health”.

4    On 14 July 2025, a further email was received which stated that the applicant would file her submissions on 15 July 2025, and that her lawyers had been unable to do so earlier because “extreme weather” had caused the applicant’s counsel to be unwell.

5    My Associate responded that the Court had granted the extension for the filing of the applicant’s submissions by 10 July 2025 (along with a commensurate extension for the filing of the respondent’s submissions), but that any further delay should be remedied as soon as practicable.

6    On 25 July 2025, a further email was received by my Associate from the applicant’s solicitor (on suggestion of counsel for the applicant that the email be sent). In that email, the applicant’s solicitor stated that “[c]ounsel for the [a]pplicant… has advised that to date, he has been unable to finalise the submissions due to ongoing and chronic asthma-related health issues”. The applicant’s solicitor went on to say that “[i]n these circumstances, we respectfully request leave to vacate the current hearing date and for an updated timetable to be proposed”. The next business day, my Associate responded as follows:

Dear Practitioners

I refer to the below correspondence, which I have raised with his Honour.

The matter remains listed for hearing on Friday, 1 August 2025.

If there is to be an adjournment application, it should be supported by proper evidence, including a detailed explanation as to the circumstances said to give rise to the adjournment, and why alternative counsel or the solicitor for applicant is unable to present submissions (including oral submissions at the hearing).

The applicant should not assume that the matter will be adjourned.

Yours faithfully

7    Although no evidence was adduced, an aide memoire was provided to the Court. This, in and of itself, was unsatisfactory. It will be necessary to return to this aspect of the application below.

8    In any event, it appears from this document that various communications were exchanged between the applicant’s legal representatives and the respondent’s solicitors. To give context to this adjournment application, it is necessary to rehearse some of those exchanges.

9    On 7 July 2025, counsel informed his instructing solicitors that he would have to seek an extension for the filing of the applicant’s submissions which he noted were “[a]lready overdue”. Following other exchanges concerning the status of the submissions, on 10 July 2025, counsel informed his solicitors that he needed “until tomorrow” to complete the submissions because he had “come down unwell with the gale and pollen. Allergies/asthma”.

10    Following various follow-up messages, on 11 July 2025, counsel for the applicant informed his solicitors that he was now better and “back to work” on the matter. Several other messages were exchanged. Then, on 21 July 2025 (six business days later), counsel advised his solicitors that he was working solely on the matter until the submissions were complete which he stated, “must be today”.

11    It then appears that on 22 July 2025, the solicitor for the applicant booked air tickets to travel to Poland, and I am told (again without evidence and from the Bar table), that travel was to deal with a family emergency. That travel was to commence six days later, being 29 July 2025, and assuming that I can infer the solicitor boarded the flights, the solicitor is now overseas.

12    The day after those tickets were booked (being 23 July 2025), the solicitor messaged counsel stating that the “hearing is next Friday and we still haven’t filed our submissions yet. I wanted to check whether we’re still planning to file them or if we should write to the other side to seek their consent to vacate the current hearing date and request a new timetable?”. Eventually, counsel responded that “[w]e should vacate and seek a new hearing date” and that he “[is] impeded by asthma”.

13    Prior to the applicant’s solicitors sending the email on 25 July 2025 to my Associate to which I have referred above, the applicant’s solicitors wrote to the respondent seeking their consent to “request to vacate the current hearing date and for an updated timetable to be proposed”. The respondent’s solicitors responded stating that:

…

The Minister does not consent to such an adjournment, noting the applicant’s submissions were initially due almost three weeks ago, there has not been any update on the applicant’s position for over a week, and if the applicant’s counsel has been suffering from ill health over such a prolonged period, the applicant has had more than sufficient time to brief a different counsel.

The Minister’s submissions will be filed today and the Minister will seek his costs thrown away should the applicant seek to amend the application at this late stage.

…

14    Before the applicant’s solicitors sent the email to my Associate on 25 July 2025 requesting that the hearing be vacated, it appears that there was a phone call between the applicant’s solicitors and counsel. During that phone call, counsel apparently said that “…in cases of illness and ill health, the Court will vacate the hearing”. Counsel is said to have “advised to write an email to the court to seek the hearing date be vacated and note the Respondent does not agree”. It was also supposedly discussed that the respondent had said that the applicant had time to brief new counsel. Counsel had responded to that correct observation by responding that “we don’t know in advance how long people are unwell”.

15    As I have noted, despite the Court making it pellucidly clear, that if an adjournment was to be sought, it should be supported by proper evidence, including a detailed explanation of the circumstances said to give rise to the adjournment, and why alternative counsel, or the solicitor for the applicant is unable to present submissions, no such evidence has been provided. As further noted above, the only material provided to me was an apparent summary of some email communications and phone conversations (some of which I have referred to above), together with the flight details of the applicant’s instructing solicitor’s trip.

16    Needless to say, this is an entirely unsatisfactory state of affairs. The suggestion in any other form of litigation that practitioners would simply assume that what has occurred here would automatically be the grounds for an adjournment would rightly be regarded as risible.

17    Plenty of opportunity has been afforded to the applicant to prepare submissions. As long ago as April this year, a certificate was prepared under s 486I of the Migration Act 1958 (Cth) (Migration Act), whereby the applicant’s solicitor certified there were reasonable grounds for believing that this migration litigation had a reasonable prospect of success.

18    What further concerns me about this matter is that counsel today said that part of the reason why an adjournment was sought was that the applicant’s solicitor is overseas, and yet, this was not a matter that was raised with the Court in the communication sent to my Associate on 25 July 2025 when seeking an adjournment.

B    CONSIDERATION

19    Ultimately, the decision as to whether I should adjourn this case is a practice and procedure decision that, pursuant to s 37M of the FCA Act, “must” be carried out in a way that best promotes the overarching purpose which includes the just resolution of disputes “as quickly, inexpensively and efficiently as possible”.

20    The provisions within Pt VB of the FCA Act should not be regarded by those practising in this area as some sort of dead letter. They mean something, and litigation must be conducted in a way which facilitates the overarching purpose.

21    Counsel for the respondent, Mr Johnson, opposes the adjournment. Despite this, and with conspicuous fairness, he has reminded me of the fact that whatever criticisms can be levelled at the circumstances that have brought about this adjournment application, behind them is an applicant who has “engaged lawyers to, as it were, put her best foot forward to prosecute [her case]”.

22    In all the circumstances, I regard this application for an adjournment to be very finely balanced. Ultimately however, and with a considerable degree of reluctance, I have decided to adjourn the hearing because the applicant has understandably placed her faith in others to look after her interests and I am reluctant to decide her case without giving those in whom she has reposed confidence a further and final opportunity to discharge their duty to her to make submissions.

23    I had hoped and expected that the applicant’s submissions would be able to be advanced orally today so that the matter could proceed. I am told by counsel, however, that he is not physically in a position to present those submissions, and despite the want of evidence on the adjournment application, I do not think it is in the interests of justice for me to proceed further.

C    CONCLUSION AND ORDERS

24    I propose to adjourn the hearing on the condition that the costs thrown away by the adjournment be paid by the applicant. I propose to ask the legal representatives of the applicant to show cause as to why that costs order should not be payable by the legal representatives themselves rather than their client, and why an order ought not be made that the legal costs associated with this hearing on a solicitor/client basis not be charged to the applicant.

25    A factor that has weighed heavily in my reluctance to grant an adjournment is the state of my diary. In saying this, this is serious litigation, and I think I must make some time over the course of the next few weeks to try to fit this in, perhaps even after hours, so this matter can be determined within the foreseeable future. I am going to fix a date now, and I will hear from the applicant as to why I ought not also make an order under s 37P(2) of the FCA Act requiring submissions to be filed by a particular date.

26    The applicant should be told by her lawyers that if she fails to comply with this direction, the Court may then proceed under s 37P(5) of the FCA Act to dismiss the proceeding in whole or in part. It would be a very serious thing, given the history of this matter, for the submissions not to be filed in a timely way. Every effort should be made to ensure that this matter proceeds on the next occasion. If counsel remains unwell, then the solicitors acting for the applicant should immediately proceed to brief new counsel. My review of the papers indicates to me that, whatever its underlying merits, this is not a complicated matter, neither factually nor legally – indeed, quite the contrary.

[THE PARTIES MADE SUBMISSIONS]

27    Even though it is necessary for me to displace other commitments, I have decided to set this matter down for a final hearing commencing at 10:15am on 18 August 2025. I will order, pursuant to s 37P(2) of the FCA Act, that the applicant’s belated submissions be filed and served no later than 4pm on 12 August 2025. This allows eleven days from the date of this order. If there is any real risk that counsel for the applicant will not be able to comply with this order, then it seems to me that it will be necessary for alternative counsel to be briefed. The respondent should file any updated submissions in response to the applicant’s submissions by 4pm on 15 August 2025. Any affidavit or other material relied upon by the legal practitioners in order to resist the foreshadowed costs orders being made against them personally should also be filed by 4pm on 15 August 2025.

Associate:

Dated: 11 August 2025