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Goldsmith v Minister for Immigration & Multicultural Affairs [2006] FCAFC 130 (28 August 2006)

Last Updated: 28 August 2006

FEDERAL COURT OF AUSTRALIA

Goldsmith v Minister for Immigration & Multicultural Affairs [2006] FCAFC 130

PRACTICE & PROCEDURE –– personal costs order against solicitor arising from costs thrown away due to adjournment of hearing – whether solicitor afforded a fair hearing on issue of whether should pay the costs thrown away – where reasons for adjournment known only by Federal Magistrate and not disclosed until publication of reasons – whether rehearing in Federal Magistrates Court necessary

Evidence Act 1995 (Cth) s 16
Federal Court of Australia Act 1976 (Cth) s 28
Federal Magistrates Act 1999 (Cth) s 79

Federal Magistrates Court Rules r 9 and r 21

BARRIE GOLDSMITH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NSD 638 OF 2006

BRANSON, FINN AND BENNETT JJ
28 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 638 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BARRIE GOLDSMITH Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	BRANSON, FINN AND BENNETT JJ
DATE OF ORDER:	28 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. Orders (1) and (2) made by the Federal Magistrates Court on 15 March 2006 be set aside except to the extent that order (2) requires the appellant to pay the costs of SZEKQ of the costs hearing.
3. The matter be remitted to the Federal Magistrates Court for further hearing and determination.
4. The respondent pay the appellant’s costs of the appeal.
5. The application for costs made by counsel for SZEKQ be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 638 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BARRIE GOLDSMITHAppellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRSRespondent

JUDGES:	BRANSON, FINN AND BENNETT JJ
DATE:	28 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

1 The appellant, Mr Goldsmith is a solicitor. Between January and June 2005 he was the solicitor on the record of the Federal Magistrates Court for SZEKQ, an applicant for judicial review of a decision of the Refugee Review Tribunal. Mr Goldsmith was not present in court when SZEKQ’s application was called for hearing at 2:15 pm on 17 June 2005. The hearing did not proceed on that day. The Minister applied for an order that Mr Goldsmith personally pay her costs thrown away on 17 June 2005.
2 On 15 March 2006 the Federal Magistrates Court ordered Mr Goldsmith to pay to the Minister for Immigration & Multicultural & Indigenous Affairs:

(a) $2500 for her costs thrown away by reason of the adjournment on 17 June 2005 of a hearing fixed for that day; and
(b) her costs of the application for Mr Goldsmith to pay her costs thrown away by reason of the adjournment.

3 Mr Goldsmith has appealed from each of the above orders. The principal grounds on which the appeal is brought are that Mr Goldsmith’s conduct did not cause the adjournment of the hearing scheduled for 17 June 2005 and that Mr Goldsmith was not afforded a fair hearing on the issue of whether he should pay the Minister’s costs thrown away.
4 SZEKQ is not a party to this appeal although it appears that the notice of appeal was served on him. He filed a submitting appearance. Inexplicably counsel appeared on his behalf when the appeal was called for hearing. The appearance was unnecessary as no order capable of affecting any interest of SZEKQ was sought on the appeal.
5 For the reasons set out below, the appeal will be allowed and the matter remitted to the Federal Magistrates Court for further hearing and determination.

BACKGROUND FACTS

6 It is appropriate to expand on the circumstances that gave rise to the Minister’s application for an order that Mr Goldsmith personally pay her costs thrown away by reason of the adjournment.

The Judicial Review Application

7 On 16 September 2004 SZEKQ filed an application in the Federal Magistrates Court seeking judicial review of a decision of the Refugee Review Tribunal. On 21 January 2005 Mr Goldsmith filed a notice of his appointment to act on behalf of SZEKQ (Rule 9.01 of the Federal Magistrates Court Rules). On the same day Goldsmiths Lawyers filed an amended application for judicial review of the decision of the Tribunal. The amended application was initially listed for hearing on 14 March 2005.
8 On 14 March 2005, at the request of SZEKQ, the hearing of the application was adjourned until 17 June 2005. SZEKQ was ordered to pay the Minister’s costs thrown away by reason of the adjournment fixed in the sum of $1350. Orders were additionally made concerning the future conduct of the matter including orders that SZEKQ file and serve submissions and list of authorities by 20 May 2005 and that no further application for an adjournment by SZEKQ would be granted.
9 It appears that Mr Goldsmith wrote to SZEKQ on 18 May 2005. That letter is not in evidence. However, SZEKQ’s letter of response dated 24 May 2005 is in evidence. By that letter SZEKQ acknowledged receiving advice that counsel ‘has not found anything to go on’ but he requested that Mr Goldsmith and the barrister nonetheless represent him at the hearing to challenge the decision of the Tribunal. By letter dated 30 May 2005 Mr Goldsmith wrote to SZEKQ’s brother (who, unlike SZEKQ, is apparently fluent in English) advising that he was not prepared to attend the hearing and that he expected that the barrister would also be unwilling to attend.
10 By a letter dated 14 June 2005 addressed to SZEKQ Mr Goldsmith confirmed that neither he, nor the barrister, would attend the hearing on 17 June 2005 for fear that they might be ordered to pay the Minister’s legal costs if the application were dismissed.
11 On 16 June 2005 Mr Goldsmith advised the Minister’s solicitors by letter that his firm no longer acted for SZEKQ and that no member of the firm would appear for SZEKQ at the Federal Magistrates Court the next day. He requested the Minister’s solicitors to provide the court with a copy of the letter and ‘request that our attendance be dispensed with.’
12 By a letter of the same date the Minister’s solicitors advised Mr Goldsmith that it was not their role to pass on Mr Goldsmith’s correspondence to the court or to request that his attendance be dispensed with. They drew Mr Goldsmith’s attention to the terms of Rule 9.03 of the Federal Magistrates Court Rules which relevantly provide:

‘(1) A lawyer for a party may withdraw from the record in a proceeding by filing a notice of withdrawal and serving the notice on each other party.

(2) However, a lawyer may not file or serve a notice of withdrawal without leave of the Court unless the lawyer has, not less than 7 days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting.’

The Hearing on 17 June 2005

13 Mr Goldsmith was not present when SZEKQ’s application for judicial review was called for hearing at approximately 2:30 pm on 17 June 2005. SZEKQ and his brother were present as was counsel for the Minister. No interpreter was present. The learned Federal Magistrate was handed a copy of Mr Goldsmith’s letter of the previous day and the Minister’s solicitors’ reply. SZEKQ’s brother produced Mr Goldsmith’s letter of 18 May 2005 and SZEKQ’s response of 24 May 2005. Counsel for the Minister alerted his Honour to the fact that one of the letters contained legal advice. At his Honour’s suggestion she read to his Honour so much of the letters as did not contain legal advice. While Mr Goldsmith’s letter of 14 June 2005 was also referred to, his Honour was not shown or told of Mr Goldsmith’s letter to SZEKQ of 30 May 2005.
14 The Federal Magistrate asked SZEKQ’s brother what he would like him to do. The response was:

‘It comes back to our lawyers, we haven’t got a lawyer to represent ourselves once again.’

15 His Honour expressed his displeasure at Mr Goldsmith’s conduct and indicated that he would stand the matter down to allow contact to be made with Mr Goldsmith’s office. He stated:

‘If any costs are thrown away today I would want to give consideration to whether they should be paid by Mr Goldsmith, but I wouldn’t do that without hearing from Mr Goldsmith.’

16 Counsel for the Minister foreshadowed that if the hearing did not proceed that day a costs application would be made against Mr Goldsmith personally. His Honour replied:

‘I’d have to hear from him before I’d do that obviously. What I propose to do is to stand the matter down. I’m not sure what’s happening. There is another matter this afternoon and we have to take the blame for that. There were two matters listed by accident in my chambers and I accept that was unfortunate.’

17 After an exchange with SZEKQ’s brother concerning the payment of the earlier costs order, his Honour said, apparently to the Minister’s counsel:

‘I think you’ll have to accept also that your matter won’t be going ahead this afternoon as a substantive matter given that the other matter is ready to go and the applicant is here. In this case I think there might be some significant prejudice or some prejudice as far as the applicant is concerned.’

18 The Minister’s counsel again raised the issue of costs that would be thrown away should the matter not proceed and his Honour responded:

‘I understand that and I’ve got to take into account also the fact that the double listing was my blunder.’

19 SZEKQ’s application for judicial review was called again at 4:37 pm on 17 June 2005. Mr Goldsmith was then present and announced his appearance as follows:

‘Mr Goldsmith in Court not acting for the applicant.’

20 The transcript reveals that Mr Goldsmith’s conduct thereafter was ill-considered, ill-informed and discourteous. Counsel for the Minister made an oral application under rule 21.07 of the Federal Magistrates Court Rules for a costs order against Mr Goldsmith. Mr Goldsmith sought directions for the filing of a notice of motion supported by affidavits. His Honour made directions pursuant to which Mr Goldsmith was required to file and serve a notice of withdrawal and the Minister was required to file and serve an application under rule 21.07. His Honour additionally fixed a timetable for the preparation of the application for hearing.
21 On 20 June 2005 Mr Goldsmith filed a notice of withdrawal from the record as solicitor for SZEKQ (Rule 9.03 of the Federal Magistrates Court Rules).

The Application under Rule 21.07

22 On 30 June 2005 the Minister filed an application under rule 21.07 seeking costs in the amount of $3445 to be paid by Goldsmiths Lawyers. The application was supported by an affidavit sworn by a solicitor employed by the firm of solicitors who represented the Minister on SZEKQ’s judicial review application.
23 The hearing of the Minister’s application under rule 21.07 unfortunately took two and a half days and was not completed until 14 March 2006. On the following day the Federal Magistrate made orders, including the orders identified in [2] above, and delivered ex tempore reasons for judgment which have subsequently been revised and edited.

REASONS FOR JUDGMENT ON APPLICATION UNDER RULE 21.07

24 The reasons for judgment of the Federal Magistrate (SZEKQ v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FMCA 390) commence with a review of the factual background to the Minister’s application and of the authorities touching on the circumstances in which a solicitor will be ordered personally to pay legal costs. His Honour accepted that the critical issue for his determination was, as Mr Goldsmith had contended, whether Mr Goldsmith’s failure to attend the hearing listed for 17 June 2005 and his failure to file and serve a notice of withdrawal in a timely fashion, caused the adjournment of the hearing.
25 His Honour’s reasons for judgment note that Mr Goldsmith contended that there was no evidence that his conduct caused the adjournment; he had argued that the evidence showed that the court’s ‘blunder’ in listing two matters at the same time, together with the court’s ‘mistaken belief’ that the hearing could not proceed in the absence of the solicitor on the record, caused the adjournment.
26 The Federal Magistrate deals with Mr Goldsmith’s contentions on the issue of causation in [37]-[43] of the reasons for judgment. The following passage is extracted from those paragraphs:

‘Double listing

Two matters were listed for hearing before me at 2.15 p.m. on 17 June 2005. This was contrary to my normal practice at that time, although it is something which is very common in this Court. This double listing was because of an error in my chambers. As is clear from the transcript the current case was called first. The other matter was ready to proceed although for various reasons it did not go ahead that afternoon.

Mr Goldsmith has extracted from the transcript of 17 June 2005 certain comments I made in support of his submission. ...

Mr Goldsmith's submission is just wrong. The transcript of 17 June 2005 should not be read akin to a legislative instrument. Mr Goldsmith is focusing on selective extracts. The transcript must be read in context. It should also be remembered that the transcript does not purport to be, nor should it be read as a statement of my reasons for adjourning on that day. I did not give my reasons at the time for adjourning. Mr Goldsmith is not in a position to say why I adjourned as he was not present and he has not since sought my reasons. The adjournment had nothing to do with the double listing.

If the current applicant's case had been able to go ahead the other matter may have been heard later in the day, a common practice. Alternatively the other matter could have been put over to a later date. It was a mere coincidence that the double listing occurred on this particular day.

Who could be heard

Mr Goldsmith's assertion that I was under a mistaken belief that as he was the solicitor on the record and he was not present the matter could not lawfully go ahead is also wrong. I did express concern about how we could proceed given that he was absent. This was because the applicant appeared at least to have expected him to be present. The applicant spoke very little English. He was assisted by his brother and a friend. The brother spoke good English.

The practice in this Court if a party is represented by a lawyer and that party does not speak English is that no interpreter is provided by the Court. If the party is not represented by a lawyer and requires an interpreter the Court provides an interpreter. There was no interpreter present on this day because the applicant was to be represented by a lawyer.

In my view, as the record clearly shows, I was concerned about prejudice to the applicant (see pages 7 and 8 of the transcript). Any "mistaken belief" I held had nothing to do with the adjournment.’ (emphases added)

27 The reasons for judgment of the Federal Magistrate record at [46] that SZEKQ could have been seriously prejudiced if the hearing of his application for judicial review had proceeded on 17 June 2005 for the following reasons:

(a) the solicitor to whom he had entrusted his case was not present;
(b) he had a period of only approximately two weeks to arrange and brief alternative lawyers; and
(c) he spoke little English and there was no interpreter present.

28 We note that it is unlikely that the Federal Magistrate was aware on 17 June 2005 of the fact that Mr Goldsmith had advised SZEKQ approximately two weeks before that he was not prepared to attend the hearing on that day. His Honour was not shown or told on that day of Mr Goldsmith’s letter of 30 May 2005.
29 At [47] his Honour concluded:

‘This adjournment was directly the consequence of the defaults of Mr Goldsmith - his failure to attend and his failure to file and serve a timely notice of withdrawal. I note that had he filed and served such a withdrawal with reasonable notice the hearing could have been vacated.’

30 After noting that the amount of costs sought by the Minister was excessive, the Federal Magistrate fixed the amount of the costs thrown away by the Minister at $2500 and ordered Mr Goldsmith to pay that amount directly to the Minister. His Honour further ordered Mr Goldsmith to pay the costs of the Minister and SZEKQ of the costs application. Mr Goldsmith accepts that he made no submission to the Federal Magistrate in opposition to the making of this last order.

APPLICATION TO VARY COSTS ORDER

31 On 16 March 2006 Mr Goldsmith wrote directly to the Federal Magistrate concerning the judgment of the previous day. He sent a copy of his letter to the Minister’s solicitors. By his letter Mr Goldsmith sought leave to make submissions on the question of the costs of the application made pursuant to Rule 21.07 and additionally advanced submissions on that question. The letter acknowledged that he should have sought to address the Federal Magistrate the previous day on the question of the costs of the application but submitted that no prejudice was caused by his seeking to do so one day later. The letter argued that Mr Goldsmith should have been ordered to pay part only of the Minister’s costs of the application because some of the hearing time was spent investigating an issue eventually not pursued by the Minister.
32 We interpolate that it was quite inappropriate for Mr Goldsmith to have written directly to the Federal Magistrate. All correspondence between a solicitor or party concerning a matter that has been, or is being, litigated in a court should be addressed to the associate or clerk of the judicial officer involved.
33 The Federal Magistrate declined to proceed as requested by Mr Goldsmith in his letter of 16 March 2006. Thereafter Mr Goldsmith filed and served an application for an order varying the order for costs made on 15 March 2006. His Honour dealt with the application on the basis of written submissions.
34 On 14 July 2006 Mr Goldsmith’s application for an order varying the costs order made on 15 March 2006 was dismissed with costs. In his reasons for judgment published on that day (SZEKQ v Minister for Immigration & Anor (No 2) [2006] FMCA 994) his Honour recorded his conclusions on the application in the following terms (at [17]-[19]):

‘The time to put submissions on costs was when offered at the end of my ex tempore judgment. Alternatively, leave could have been sought to put written submissions. It is inappropriate for a party to say very little about costs – including as in this case to not oppose costs for the successful party – and then to later seek to have the orders varied under the setting aside provisions in rule 16.05.

Furthermore, it would not be proper to set aside or vary orders of a judgment under appeal.

The application must be dismissed with costs.’

THE NOTICE OF APPEAL

35 By an amended notice of appeal Mr Goldsmith has appealed from the whole of the judgment of the Federal Magistrates Court published on 15 March 2006. He has not appealed from the judgment published on 14 July 2006. The grounds of his appeal are that the Federal Magistrate:

(a) failed to afford Mr Goldsmith a fair hearing because his Honour failed to disclose the reasons why he adjourned the hearing of SZEKQ’s application for judicial review on 17 June 2005;
(b) erred in finding that the conduct of Mr Goldsmith caused costs incurred by the Minister to be thrown away;
(c) erred in finding that the conduct of Mr Goldsmith justified the making of a costs order against him personally; and
(d) erred in ordering Mr Goldsmith to pay the entire costs of the application under rule 21.07 of the Federal Magistrates Court Rules.

36 Mr Goldsmith’s complaint that his Honour erred in finding that SZEKQ expected Mr Goldsmith to attend the hearing on 17 June 2005 is best understood as a particular of one or both of the grounds (b) and (c) above. It is not of itself a ground upon which the orders made by his Honour could be varied or set aside.
37 Mr Goldsmith’s failure to appeal from his Honour’s judgment dismissing his application to vary the order requiring Mr Goldsmith to pay the entire costs of the application under rule 21.07 would ordinarily be fatal to his appeal against that order. However, as we have concluded that this appeal should be allowed on the ground that Mr Goldsmith was denied a fair hearing on the Minister’s application under rule 21.07, the costs order must necessarily be set aside together with the order that Mr Goldsmith pay the Minister $2500.

RULE 21.07

38 Rule 21.07 of the Federal Magistrates Court Rules relevantly provides:

‘(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; or
(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.

...

(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.’

WAS THE HEARING FAIR?

39 As the Federal Magistrate correctly identified, rule 21.07(1) required him to determine if Mr Goldsmith had caused costs to be thrown away by his misconduct. This determination required identification of the reason or reasons why the hearing scheduled for 17 June 2005 did not proceed on that day. Yet neither Mr Goldsmith nor the Minister requested his Honour to publish his reasons for adjourning the hearing.
40 As his Honour had not explicitly given reasons for his decision to adjourn the hearing, the parties, and it seems his Honour, approached the hearing of the Minister’s application under rule 21.07 on the basis that the reasons why the hearing scheduled for 17 June 2005 did not proceed on that day were a matter of fact susceptible of proof in the usual way.
41 The parties provided his Honour with written submissions which canvassed what were the reasons for the adjournment on 17 June 2005. Mr Goldsmith cross-examined the solicitor whose affidavit was filed in support of the application as to what was, and what was not, said in court on 17 June 2005. The transcript of what was said by the Federal Magistrate on 17 June 2005 was carefully analysed in oral submissions for the purpose of drawing inferences from what his Honour said on that day as to why his Honour adjourned the hearing scheduled for that day.
42 However, as his Honour’s reasons for judgment of 15 March 2006 recognise (see [26] above), his Honour’s reasons for adjourning the hearing scheduled for 17 June 2005 can not be deduced by drawing inference from what was, and what was not, said in court on that day. His Honour did not given reasons on that day for his decision to adjourn the hearing. His Honour’s reasons for adjourning the hearing were, at the time of the hearing of the Minister’s application pursuant to rule 21.07, and thereafter until the publication of his Honour’s reasons for judgment on that application, known only to his Honour. If the Minister, or Mr Goldsmith, wished to establish why the hearing scheduled for 17 March 2005 did not proceed, the appropriate course was to ask his Honour to give reasons for his decision to adjourn the hearing to another day.
43 The Minister submitted to this Court that any reasonable person in the position of Mr Goldsmith would have known that his contention that the hearing was adjourned because of the court’s ‘blunder’ might not be accepted by the Federal Magistrate. She further submitted that:

‘To say now as the Appellant does that he was denied procedural fairness because he was not told what the Court’s judgment on this matter was to be amounts to an argument that His Honour was obliged to expose his preliminary conclusions to the Appellant before giving judgment, which it is well established is not required by procedural fairness’.

44 The above submissions reflect the erroneous assumption which pervaded the hearing of the application under rule 21.07, namely that the reasons of the Federal Magistrate for adjourning the hearing scheduled for 17 June 2005 were capable of proof by evidence. As his Honour’s reasons for judgment on that application rightly acknowledge, his reasons for adjourning the hearing scheduled for 17 June 2005 were not capable of proof by evidence; they were known to his Honour alone. His Honour was not a competent witness on the application under rule 21.07 (s 16 of the Evidence Act 1995 (Cth)).
45 As [39] of his Honour’s reasons for judgment on the application under rule 21.07 acknowledge, Mr Goldsmith defended that application in ignorance of his Honour’s reasons for adjourning the hearing scheduled for 17 June 2005. His Honour, being the only person who knew those reasons, did not disclose them until the publication of his reasons for judgment on the application under rule 21.07.
46 We therefore conclude that the submission that Mr Goldsmith was in the circumstance denied a fair hearing should be upheld. As his Honour did not disclose to the parties his reasons for adjourning the hearing scheduled for 17 June 2005, Mr Goldsmith was seriously hampered in his endeavours to show that the adjournment was not caused by his misconduct.
47 We have reached the above conclusion with regret because it seems to us that much of the responsibility for the miscarriage of the hearing of the application under rule 21.07 falls on Mr Goldsmith (who unwisely did not obtain independent representation) and on the representatives of the Minister. Together they failed to provide his Honour with the appropriate level of assistance on the hearing of the Minister’s application.

CONCLUSION

48 Having regard to our conclusion that Mr Goldsmith was denied a fair hearing on the application under rule 21.07, his Honour’s order that Mr Goldsmith pay the Minister $2500 for costs thrown away due to the adjournment on 17 June 2005 will be set aside. As indicated above, the order that Mr Goldsmith pay the Minister’s costs of the application necessarily falls with that order.
49 Both Mr Goldsmith and the Minister invited this Full Court, should we determine that the appeal should be allowed, to exercise the discretions vested in the Federal Magistrates Court:

(a) by rule 21.07 by making such order on the application under that rule as ought to have been made at first instance; and
(b) by s 79 of the Federal Magistrates Act 1999 (Cth) by making such order as to costs as should have been made at first instance.

50 It seems plain that this Court has power to accept the above invitation (s 28 of the Federal Court of Australia Act 1976 (Cth)). However, with reluctance, we have concluded that it would not be appropriate in the circumstances for it to do so. An appeal to the Federal Court from a judgment of the Federal Magistrates Court is an appeal by way of rehearing – but it is not an appeal by way of rehearing de novo. A rehearing de novo is necessary in this case because the hearing before the Federal Magistrate miscarried. For this reason it was not appropriate for any orders to be made at first instance; the application to the Federal Magistrates Court could not be fairly resolved until his Honour gave reasons for the earlier adjournment and the parties had the opportunity to be heard with respect to them. A rehearing is thus necessary before any orders may properly be made on the application. That rehearing should be conducted in the Federal Magistrates Court and any order as to the costs of the earlier hearing made by that court at the conclusion of the rehearing. The Federal Magistrate is peculiarly qualified, by reason of his detailed knowledge of the circumstances that gave rise to the application under rule 21.07, of practice in the Federal Magistrates Court generally, and his involvement in the earlier hearing, to conduct that rehearing and to exercise the relevant discretions.
51 The matter will therefore be remitted to the Federal Magistrates Court for further hearing and determination. Nonetheless we hope that common sense will prevail and the parties will resolve this matter without further recourse to the Federal Magistrates Court.
52 The appropriate orders on this appeal are:

(1) The appeal be allowed.

(2) Orders (1) and (2) made by the Federal Magistrates Court on 15 March 2006 be set aside except to the extent that order (2) requires Mr Goldsmith to pay the costs of SZEKQ of the costs hearing.
(3) The matter be remitted to the Federal Magistrates Court for further hearing and determination.

(4) The Minister pay Mr Goldsmith’s costs of the appeal.

(5) The application for costs made by counsel for SZEKQ be dismissed.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Finn and Bennett.

Associate:

Dated: 28 August 2006

Counsel for the Appellant:	Mr R Beech-Jones

Solicitor for the Appellant:	Goldsmiths Lawyers

Counsel for the Respondent:	Mr T Reilly

Solicitor for the Respondent:	Sparke Helmore

Counsel for SZEKQ:	Mr JM Patel

Date of Hearing:	1 August 2006

Date of Judgment:	28 August 2006

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3	Mr Goldsmith has appealed from each of the above orders. The principal grounds on which the appeal is brought are that Mr Goldsmith’s conduct did not cause the adjournment of the hearing scheduled for 17 June 2005 and that Mr Goldsmith was not afforded a fair hearing on the issue of whether he should pay the Minister’s costs thrown away.
4	SZEKQ is not a party to this appeal although it appears that the notice of appeal was served on him. He filed a submitting appearance. Inexplicably counsel appeared on his behalf when the appeal was called for hearing. The appearance was unnecessary as no order capable of affecting any interest of SZEKQ was sought on the appeal.
5	For the reasons set out below, the appeal will be allowed and the matter remitted to the Federal Magistrates Court for further hearing and determination.

7	On 16 September 2004 SZEKQ filed an application in the Federal Magistrates Court seeking judicial review of a decision of the Refugee Review Tribunal. On 21 January 2005 Mr Goldsmith filed a notice of his appointment to act on behalf of SZEKQ (Rule 9.01 of the Federal Magistrates Court Rules). On the same day Goldsmiths Lawyers filed an amended application for judicial review of the decision of the Tribunal. The amended application was initially listed for hearing on 14 March 2005.
8	On 14 March 2005, at the request of SZEKQ, the hearing of the application was adjourned until 17 June 2005. SZEKQ was ordered to pay the Minister’s costs thrown away by reason of the adjournment fixed in the sum of $1350. Orders were additionally made concerning the future conduct of the matter including orders that SZEKQ file and serve submissions and list of authorities by 20 May 2005 and that no further application for an adjournment by SZEKQ would be granted.
9	It appears that Mr Goldsmith wrote to SZEKQ on 18 May 2005. That letter is not in evidence. However, SZEKQ’s letter of response dated 24 May 2005 is in evidence. By that letter SZEKQ acknowledged receiving advice that counsel ‘has not found anything to go on’ but he requested that Mr Goldsmith and the barrister nonetheless represent him at the hearing to challenge the decision of the Tribunal. By letter dated 30 May 2005 Mr Goldsmith wrote to SZEKQ’s brother (who, unlike SZEKQ, is apparently fluent in English) advising that he was not prepared to attend the hearing and that he expected that the barrister would also be unwilling to attend.
10	By a letter dated 14 June 2005 addressed to SZEKQ Mr Goldsmith confirmed that neither he, nor the barrister, would attend the hearing on 17 June 2005 for fear that they might be ordered to pay the Minister’s legal costs if the application were dismissed.
11	On 16 June 2005 Mr Goldsmith advised the Minister’s solicitors by letter that his firm no longer acted for SZEKQ and that no member of the firm would appear for SZEKQ at the Federal Magistrates Court the next day. He requested the Minister’s solicitors to provide the court with a copy of the letter and ‘request that our attendance be dispensed with.’
12	By a letter of the same date the Minister’s solicitors advised Mr Goldsmith that it was not their role to pass on Mr Goldsmith’s correspondence to the court or to request that his attendance be dispensed with. They drew Mr Goldsmith’s attention to the terms of Rule 9.03 of the Federal Magistrates Court Rules which relevantly provide:

22	On 30 June 2005 the Minister filed an application under rule 21.07 seeking costs in the amount of $3445 to be paid by Goldsmiths Lawyers. The application was supported by an affidavit sworn by a solicitor employed by the firm of solicitors who represented the Minister on SZEKQ’s judicial review application.
23	The hearing of the Minister’s application under rule 21.07 unfortunately took two and a half days and was not completed until 14 March 2006. On the following day the Federal Magistrate made orders, including the orders identified in [2] above, and delivered ex tempore reasons for judgment which have subsequently been revised and edited.

24	The reasons for judgment of the Federal Magistrate (SZEKQ v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FMCA 390) commence with a review of the factual background to the Minister’s application and of the authorities touching on the circumstances in which a solicitor will be ordered personally to pay legal costs. His Honour accepted that the critical issue for his determination was, as Mr Goldsmith had contended, whether Mr Goldsmith’s failure to attend the hearing listed for 17 June 2005 and his failure to file and serve a notice of withdrawal in a timely fashion, caused the adjournment of the hearing.
25	His Honour’s reasons for judgment note that Mr Goldsmith contended that there was no evidence that his conduct caused the adjournment; he had argued that the evidence showed that the court’s ‘blunder’ in listing two matters at the same time, together with the court’s ‘mistaken belief’ that the hearing could not proceed in the absence of the solicitor on the record, caused the adjournment.
26	The Federal Magistrate deals with Mr Goldsmith’s contentions on the issue of causation in [37]-[43] of the reasons for judgment. The following passage is extracted from those paragraphs:

28	We note that it is unlikely that the Federal Magistrate was aware on 17 June 2005 of the fact that Mr Goldsmith had advised SZEKQ approximately two weeks before that he was not prepared to attend the hearing on that day. His Honour was not shown or told on that day of Mr Goldsmith’s letter of 30 May 2005.
29	At [47] his Honour concluded:

31	On 16 March 2006 Mr Goldsmith wrote directly to the Federal Magistrate concerning the judgment of the previous day. He sent a copy of his letter to the Minister’s solicitors. By his letter Mr Goldsmith sought leave to make submissions on the question of the costs of the application made pursuant to Rule 21.07 and additionally advanced submissions on that question. The letter acknowledged that he should have sought to address the Federal Magistrate the previous day on the question of the costs of the application but submitted that no prejudice was caused by his seeking to do so one day later. The letter argued that Mr Goldsmith should have been ordered to pay part only of the Minister’s costs of the application because some of the hearing time was spent investigating an issue eventually not pursued by the Minister.
32	We interpolate that it was quite inappropriate for Mr Goldsmith to have written directly to the Federal Magistrate. All correspondence between a solicitor or party concerning a matter that has been, or is being, litigated in a court should be addressed to the associate or clerk of the judicial officer involved.
33	The Federal Magistrate declined to proceed as requested by Mr Goldsmith in his letter of 16 March 2006. Thereafter Mr Goldsmith filed and served an application for an order varying the order for costs made on 15 March 2006. His Honour dealt with the application on the basis of written submissions.
34	On 14 July 2006 Mr Goldsmith’s application for an order varying the costs order made on 15 March 2006 was dismissed with costs. In his reasons for judgment published on that day (SZEKQ v Minister for Immigration & Anor (No 2) [2006] FMCA 994) his Honour recorded his conclusions on the application in the following terms (at [17]-[19]):

39	As the Federal Magistrate correctly identified, rule 21.07(1) required him to determine if Mr Goldsmith had caused costs to be thrown away by his misconduct. This determination required identification of the reason or reasons why the hearing scheduled for 17 June 2005 did not proceed on that day. Yet neither Mr Goldsmith nor the Minister requested his Honour to publish his reasons for adjourning the hearing.
40	As his Honour had not explicitly given reasons for his decision to adjourn the hearing, the parties, and it seems his Honour, approached the hearing of the Minister’s application under rule 21.07 on the basis that the reasons why the hearing scheduled for 17 June 2005 did not proceed on that day were a matter of fact susceptible of proof in the usual way.
41	The parties provided his Honour with written submissions which canvassed what were the reasons for the adjournment on 17 June 2005. Mr Goldsmith cross-examined the solicitor whose affidavit was filed in support of the application as to what was, and what was not, said in court on 17 June 2005. The transcript of what was said by the Federal Magistrate on 17 June 2005 was carefully analysed in oral submissions for the purpose of drawing inferences from what his Honour said on that day as to why his Honour adjourned the hearing scheduled for that day.
42	However, as his Honour’s reasons for judgment of 15 March 2006 recognise (see [26] above), his Honour’s reasons for adjourning the hearing scheduled for 17 June 2005 can not be deduced by drawing inference from what was, and what was not, said in court on that day. His Honour did not given reasons on that day for his decision to adjourn the hearing. His Honour’s reasons for adjourning the hearing were, at the time of the hearing of the Minister’s application pursuant to rule 21.07, and thereafter until the publication of his Honour’s reasons for judgment on that application, known only to his Honour. If the Minister, or Mr Goldsmith, wished to establish why the hearing scheduled for 17 March 2005 did not proceed, the appropriate course was to ask his Honour to give reasons for his decision to adjourn the hearing to another day.
43	The Minister submitted to this Court that any reasonable person in the position of Mr Goldsmith would have known that his contention that the hearing was adjourned because of the court’s ‘blunder’ might not be accepted by the Federal Magistrate. She further submitted that:

44	The above submissions reflect the erroneous assumption which pervaded the hearing of the application under rule 21.07, namely that the reasons of the Federal Magistrate for adjourning the hearing scheduled for 17 June 2005 were capable of proof by evidence. As his Honour’s reasons for judgment on that application rightly acknowledge, his reasons for adjourning the hearing scheduled for 17 June 2005 were not capable of proof by evidence; they were known to his Honour alone. His Honour was not a competent witness on the application under rule 21.07 (s 16 of the Evidence Act 1995 (Cth)).
45	As [39] of his Honour’s reasons for judgment on the application under rule 21.07 acknowledge, Mr Goldsmith defended that application in ignorance of his Honour’s reasons for adjourning the hearing scheduled for 17 June 2005. His Honour, being the only person who knew those reasons, did not disclose them until the publication of his reasons for judgment on the application under rule 21.07.
46	We therefore conclude that the submission that Mr Goldsmith was in the circumstance denied a fair hearing should be upheld. As his Honour did not disclose to the parties his reasons for adjourning the hearing scheduled for 17 June 2005, Mr Goldsmith was seriously hampered in his endeavours to show that the adjournment was not caused by his misconduct.
47	We have reached the above conclusion with regret because it seems to us that much of the responsibility for the miscarriage of the hearing of the application under rule 21.07 falls on Mr Goldsmith (who unwisely did not obtain independent representation) and on the representatives of the Minister. Together they failed to provide his Honour with the appropriate level of assistance on the hearing of the Minister’s application.

48	Having regard to our conclusion that Mr Goldsmith was denied a fair hearing on the application under rule 21.07, his Honour’s order that Mr Goldsmith pay the Minister $2500 for costs thrown away due to the adjournment on 17 June 2005 will be set aside. As indicated above, the order that Mr Goldsmith pay the Minister’s costs of the application necessarily falls with that order.
49	Both Mr Goldsmith and the Minister invited this Full Court, should we determine that the appeal should be allowed, to exercise the discretions vested in the Federal Magistrates Court:

50	It seems plain that this Court has power to accept the above invitation (s 28 of the Federal Court of Australia Act 1976 (Cth)). However, with reluctance, we have concluded that it would not be appropriate in the circumstances for it to do so. An appeal to the Federal Court from a judgment of the Federal Magistrates Court is an appeal by way of rehearing – but it is not an appeal by way of rehearing de novo. A rehearing de novo is necessary in this case because the hearing before the Federal Magistrate miscarried. For this reason it was not appropriate for any orders to be made at first instance; the application to the Federal Magistrates Court could not be fairly resolved until his Honour gave reasons for the earlier adjournment and the parties had the opportunity to be heard with respect to them. A rehearing is thus necessary before any orders may properly be made on the application. That rehearing should be conducted in the Federal Magistrates Court and any order as to the costs of the earlier hearing made by that court at the conclusion of the rehearing. The Federal Magistrate is peculiarly qualified, by reason of his detailed knowledge of the circumstances that gave rise to the application under rule 21.07, of practice in the Federal Magistrates Court generally, and his involvement in the earlier hearing, to conduct that rehearing and to exercise the relevant discretions.
51	The matter will therefore be remitted to the Federal Magistrates Court for further hearing and determination. Nonetheless we hope that common sense will prevail and the parties will resolve this matter without further recourse to the Federal Magistrates Court.
52	The appropriate orders on this appeal are: