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[2019] FCA 2091
Federal Court of Australia
2019-11-22
Mr J, Wigney J
Original judgment source is linked above.
WIGNEY J: 1 This is an appeal from a decision of the Administrative Appeals Tribunal. The appeal was originally listed for hearing on 13 November 2019. On that date the hearing was required to be adjourned in the rather unsatisfactory circumstances I will explain shortly. The appeal was then listed for hearing to commence on 26 November 2019. Provision was, however, made for the appellant to file a further adjournment application by filing an interlocutory application supported by affidavit evidence. The appellant took up that invitation and filed an interlocutory application seeking to have the 26 November 2019 hearing date vacated and the appeal listed for hearing on a date some time after 7 February 2020. 2 The appellant's present adjournment application, which was listed for hearing on 22 November 2019, was supported by an affidavit of her now solicitor, Mr Dickran Yakenian. Before I refer to the contents of that affidavit, I should refer briefly to the chronology of these proceedings.
background 3 The underlying issue in this proceeding concerns the refusal by the first respondent, the Minister for Home Affairs, of the appellant's application for a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa. The Minister refused that visa application over five years ago. It is unnecessary to go through the entire chronology of events which have occurred over the last five years. It suffices to note that the Tribunal hearing, which is at the heart of the appeal in this matter, was conducted almost three years ago, in June 2016, and the Tribunal published its decision and reasons on 5 August 2016. The appellant's judicial review application was filed in the Federal Circuit Court of Australia on 2 September 2016, but was not heard until 9 July 2018. The primary judge in the Circuit Court handed down a judgment almost a year later, on 27 June 2019. The appellant then filed a notice of appeal in this Court. At that stage the appellant was represented by a solicitor, Zhaojiang Lu of VSTAR Lawyers. 4 On 30 July 2019, a Registrar of this Court made various procedural orders for the hearing of the appeal. Those orders included an order that the appellant file written submissions at least 10 business days prior to the hearing and the Minister file written submissions at least five business days prior to the hearing. On 13 September 2019, the parties were advised that the appeal had been listed for hearing on 13 November 2019. The parties accordingly had two months' notice of the hearing date. 5 The appellant did not file any written submissions as she had been ordered to do. The Minister nonetheless filed written submissions in accordance with the orders. On 30 October 2019, which was about the time the appellant's submissions were due to be filed, the appellant's former solicitors filed a notice of ceasing to act. Rule 4.05(1) of the Federal Court Rules 2011 (Cth) required the appellant's solicitors to give the appellant at least seven days' notice of their intention of ceasing to act. It follows that the appellant must have been on notice that her former solicitors intended to cease to act for her by about 23 October 2019, which was about three weeks prior to the date on which her appeal was listed to be heard. There was no evidence about the circumstances in which the appellant's former solicitors ceased to act for her. Nor was there any evidence to explain why the appellant did not file written submissions in accordance with the orders made by the Registrar. 6 On the evening prior to the original hearing date, the Court received an email indicating that the appellant and first respondent consented to an order vacating the hearing date. The reason given for the vacation of the hearing was that the appellant had only just retained a new solicitor, Mr Yakenian. Despite the common position taken by the parties in relation to the hearing, the consent orders were not made in chambers and the parties or their representatives were advised that they should appear at the hearing the next day. 7 Mr Yakenian did not appear at the hearing on 13 November 2019. Shortly before the hearing was to commence Mr Yakenian sent an email to the Court advising that his firm was based in Sydney and he would not be able to attend the hearing in Melbourne. The email from Mr Yakenian also indicated that he had only been instructed the day before the hearing, that he had been unable to arrange an agent and that he had asked the Minister's solicitor to mention his client's appearance. Mr Yakenian also offered to attend the hearing by telephone and provided a mobile telephone number that he presumably expected the Court to call if minded to take up his invitation. 8 When the hearing commenced at 10.15am on 13 November 2019, there was initially no appearance by or on behalf of the appellant. Some short time later, however, the appellant appeared in person. The appellant appeared to be able to converse to a certain extent in English, though English obviously was not her first language. The Court had arranged a Mandarin interpreter for her when her previous lawyer filed a notice of ceasing to act, however as she was again represented by the time of the hearing no interpreter was present in Court. 9 The position that the Court found itself in on 13 November 2019 was entirely unsatisfactory. The appellant had only just retained a new solicitor, though it was not at all apparent why that was so. Despite having been retained, that new solicitor made no effort to appear for the appellant at the hearing and obviously just told the appellant to appear herself. Despite the complete absence of any acceptable explanation for why the appellant's former solicitors had ceased to act and why the appellant only retained a new solicitor on the eve of the hearing, the Minister had consented to the adjournment of the hearing. By doing so, the Minister effectively put the Court in a position where an adjournment had to be granted. Given that the Minister had communicated his consent on the evening before the hearing, it would have been quite unfair to have proceeded with the hearing, particularly in circumstances where the appellant's solicitor had chosen not to appear, the appellant herself was not entirely able to communicate in English and there was no interpreter in court. 10 I accordingly reluctantly acceded to the vacation of the hearing. I listed the matter for further hearing on 26 November 2019. As the appellant had appeared unrepresented, I made provision for the filing of a further adjournment application, if that was what the appellant intended to do after consulting with her new solicitor. I also listed any further adjournment application for hearing on 19 November 2019. 11 The appellant filed an interlocutory application seeking a further adjournment in accordance with the orders made on 13 November 2019. The interlocutory application was supported by an affidavit sworn by Mr Yakenian.
evidence in support of further adjournment application 12 In his affidavit, Mr Yakenian stated that to the fact that his office was contacted by the appellant, apparently by text message, on or around 6 November 2019. In that text message the appellant requested Mr Yakenian's firm to act for her in her appeal. Mr Yakenian said that, once he received the text message he began to peruse the limited information that had been provided to him. It was at that point that he became aware that the appeal was listed for hearing on 13 November 2019. 13 Mr Yakenian received another text message from the appellant on or about 8 November 2019. That text message provided some further, albeit apparently limited, information about the matter. At that point, Mr Yakenian apparently formed the view that he did not have sufficient time to prepare for the hearing. He did not, for example, have a copy of the "file" or any of the Court documents. What was left largely unexplained, however, was why, in those circumstances, it was not until 12 November 2019, the day before the original hearing date, that he instructed a solicitor or employee of his firm to contact the Minister's solicitors to advise them that his firm had been retained to act and that he did not have sufficient time to prepare for the hearing. Mr Yakenian also did not file a notice of acting until the day before the original hearing date. 14 The basis for the adjournment, as set out in Mr Yakenian's affidavit dated 19 November 2019, was (as drafted): Due to the last-minute change of solicitors, I have not had the opportunity to obtain the file from the previous solicitors. I have only obtained the Appeal Book and Notice of Appeal today and have not had the chance to peruse it. I am also in the process of instructing Counsel on this matter and have not been able to obtain one. 15 At the hearing of the adjournment application Mr Yakenian indicated that since swearing his affidavit he has retained counsel. He was, however, uncertain as to whether the barrister he had retained counsel was available on 26 November 2019, being the date that the appeal had been listed for hearing. 16 It is extraordinary that Mr Yakenian apparently took so long to retain counsel. It is even more extraordinary that he chose to retain a barrister who may not have been available to appear at the hearing. It would appear that Mr Yakenian must have been proceeding on the assumption that the hearing would once again be adjourned. Certainly his evidence was he believed that he did not have enough time to prepare for the hearing or to properly instruct counsel to appear on 26 November 2019. He needed more time. Exactly why that was so, given the fairly narrow scope of the appeal, was left largely unexplained. 17 Mr Yakenian also referred to the difficulty that he faced given that his office was located in Sydney whereas the appeal was to be heard in Melbourne. Those difficulties must, however, have been apparent to Mr Yakenian when he accepted the retainer. 18 With the greatest respect to Mr Yakenian and his client, the evidence relied on in support of the adjournment application raised more questions than it answered. 19 It did not explain why it was that the appellant's former solicitors ceased to act. It did not explain why the appellant, who must have been on notice that her former solicitors intended to cease to act at least three weeks prior to the original hearing date, did nothing about retaining Mr Yakenian until a week before the hearing. It did not explain why, when the appellant finally decided to apparently instruct Mr Yakenian, she did so by text message and apparently provided Mr Yakenian with next to no information in relation to the matter. It failed to explain why, having been contacted by his client, Mr Yakenian did not file a notice of acting and did not contact the Minister's solicitors until the date before the original hearing date. It did not explain why, despite having apparently received only fairly limited information from the appellant on 6 and 8 November 2019, Mr Yakenian did not endeavour to obtain information in relation to the matter from other sources, including, for example, from the Minister's solicitors or from the Commonwealth Courts Portal. At the very least Mr Yakenian would have been able to obtain copies of the Tribunal's decision, the Circuit Court judgment and the appellant's notice of appeal. Finally, the evidence does not explain why Mr Yakenian took so long to brief counsel and why, when he eventually did so, he briefed someone who may not be available on the hearing date. 20 Had Mr Yakenian taken reasonable steps to obtain relevant information and brief counsel when he received instructions on either 6 or 8 November 2019, or shortly thereafter, there is no reason to believe that counsel would not have been in a position to argue the appeal on 26 November 2019. That is so particularly given that the issues raised by the appeal are very narrow and the amount of material in the appeal book is quite small. Competent counsel with some experience in administrative law would have little trouble mastering their brief in this matter in a very short space of time. 21 The inadequacy of the evidence adduced in support of the adjournment application must also be considered in the context of the unsatisfactory delays that have already been encountered in this matter and the unsatisfactory circumstances in which the original hearing date was vacated. 22 Mr Barrington of counsel, who appeared for the Minister, opposed the adjournment application. His submissions in opposition to the adjournment referred to most of the deficiencies in the evidence to which reference has already been made. Mr Barrington properly conceded that the Minister would not suffer any prejudice which could not be remedied by a costs order if the appeal was further adjourned. That may be so. There is, however, a public interest and a clear public expectation that appeals of this nature will be effectively and efficiently heard and determined by this Court within a reasonable period of time. The delays that have already occurred in the matter, albeit delays that occurred at the Tribunal and Circuit Court stage, are unsatisfactory. No further delay should be countenanced unless there is a good reason for it. Appeals of this nature also should not be adjourned unless the party seeking the adjournment provides a proper and reasonable explanation for why an adjournment should be granted. No reasonable explanation has been provided for the further adjournment of this matter. 23 In all the circumstances, the appellant's further adjournment application must be refused.
CONCLUSION AND DISPOSITION 24 The interlocutory application filed by the appellant on 19 November 2019 seeking an adjournment of the matter is dismissed. The applicant should pay the Minister's costs of the application. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.
Huang
Minister for Home Affairs