FEDERAL COURT OF AUSTRALIA

Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 396

COSTS – application for a costs order against a non-party – non-party is neither a lawyer nor migration agent, but prepares documents in support of a hopeless appeal – no deliberate abuse of process – whether order appropriate.

Judiciary Act 1903 (Cth), ss 39B, 78B

Migration Act 1958 (Cth), ss 48B, 280, 417, 476

Federal Court of Australia Act 1976 (Cth), s 43

Federal Court of Australia Regulations 1978 (Cth), reg 2(4)(c)

Federal Court Rules, O 52 r 10

Legal Profession Act 1987 (NSW), ss 48B, 48E

Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395, referred to.

Amrit Lal Narain v Parnell (1986) 9 FCR 479, cited.

NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1016, cited.

NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1044, cited.

Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1027, cited.

Kolotau v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1145, cited.

Tuuhoko v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1204, cited.

Knight v F P Special Assets Ltd (1992) 174 CLR 178, applied.

Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, cited.

White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, cited.

Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134, cited.

Yates v Boland [2000] FCA 1895, cited.

Minister for Immigration & Multicultural Affairs v Shen [2002] FCA 899, considered.

Symphony Group Plc v Hodgson [1994] QB 179, cited.

Orchard v South Eastern Electricity Board [1987] QB 565, cited.

Williams v Spautz (1992) 175 CLR 509, cited.

NAGM, NAGN, NAGO AND NAGP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N664 of 2002

SACKVILLE, ALLSOP & JACOBSON JJ

SYDNEY

5 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 664 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANTS NAGM, NAGN, NAGO AND NAGP OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SACKVILLE, ALLSOP AND JACOBSON JJ
DATE OF ORDER:	5 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Minister’s application for Mr Fonua to pay the costs of the appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 664 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APPLICANTS NAGM, NAGN, NAGO AND NAGP OF 2002

APPELLANTS

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES:	SACKVILLE, ALLSOP AND JACOBSON JJ
DATE:	5 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The respondent to this appeal (“the Minister”) has filed a motion seeking an order that George Liusau Fonua (“Mr Fonua”) pay the Minister’s costs of the appeal. In a separate judgment we have given our reasons for dismissing the appeal as incompetent and dismissing what we treated as an application for leave to appeal: Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395.

2 Mr Fonua was not a party to the purported appeal. Nor is he a legal practitioner or a registered migration agent. However, he did prepare the notice of appeal and other documents on behalf of the appellants and sought leave to appear for them at an interlocutory stage of the appeal. The Minister says that the circumstances of Mr Fonua’s involvement in the appeal are such that the Court should exercise its power under s 43 of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) to make a costs order against him.

FACTUAL BACKGROUND

3 The appellants are citizens of Tonga. The first and second appellants (the “female appellant” and “male appellant”, respectively) are husband and wife. The other appellants are their children. The family arrived in Australia on 19 November 1996. They applied for protection visas in 1997, but their applications were refused on 12 September 1997. The evidence does not disclose whether the appellants were subsequently detained as unlawful non-citizens although we were told from the bar table that they were. In any event, it appears that they did not pursue an application to the Refugee Review Tribunal (“RRT”) to review the delegate’s decision. Section 48A of the Migration Act 1958 (Cth) (“Migration Act”) prevents an unsuccessful applicant for a protection visa making a second application for such a visa.

4 On 4 April 2002, Mr Fonua wrote to the Minister, stating that he had been requested by the appellants to prepare a submission under ss 48B and 417 of the Migration Act. Section 48B empowers the Minister, acting personally, to determine that s 48A of the Migration Act should not apply to a particular person. Section 417(1) of the Migration Act empowers the Minister, if he thinks that it is in the public interest to do so, to substitute for a decision of the RRT a decision more favourable to an applicant.

5 Mr Fonua’s letter advanced several arguments in support of the appellants’ claim that the Minister should exercise his discretion in their favour. The letter enclosed a number of documents, such as letters of support from relatives and friends of the appellants.

6 On 11 April 2002, a Departmental minute recorded that a determination had been made that the request for ministerial intervention lodged on 4 April 2002 did not meet the Minister’s guidelines. It does not appear that at that stage Mr Fonua or the appellants were advised of the determination.

7 On 12 April 2002, the appellants lodged applications for bridging visas. The object of this application, according to an affidavit sworn by Mr Fonua in the proceedings at first instance, was:

“to allow [the appellants] to remain legally in Australia pending a decision on [their] request under ss 48B and 417 of the Migration Act”.

8 On 23 April 2002, the appellants filed an application in this Court purporting to seek relief under s 476 of the Migration Act and s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”). The application claimed that a “decision of the delegate given on 12 April 2002 was incorrect”. It appears from Mr Fonua’s affidavit that “the decision” referred to was:

“that the [appellants] must show travel tickets to the Department by 26 April 2002 and must make arrangements to leave the country”.

The application referred to ss 48B and 417 of the Migration Act, but apparently only for the purpose of alleging that the requests made under those sections had not been brought to the delegate’s attention when the decision of 12 April 2002 was made.

9 On 15 May 2002, the Minister for Citizenship and Multicultural Affairs wrote to the female appellant informing her that her case would not be referred to the Minister for his consideration under s 48B of the Migration Act. Although the letter did not say so, the author clearly had in mind s 48B (6) of the Migration Act, which provides as follows:

“The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances”.

The letter also pointed out that the female appellant had not sought review of the delegate’s decision to refuse to grant an application visa and thus the Minister had no power under s 417 of the Migration Act to intervene in her case. Presumably, similar letters were sent to the other appellants.

THE PROCEEDINGS AT FIRST INSTANCE

10 On 6 June 2002, the Minister filed a notice of objection to competency to the proceedings in this Court. The notice objected to the jurisdiction of the Court to determine the application, on the following grounds:

“1. The application seeks to challenge decisions of the [Minister] under [s] 48B and [s] 417 of the Migration Act …

2. Decisions under these provisions are expressly excluded from the Court’s jurisdiction by sub-section 476(2) of the Act”.

Section 476(2) of the Migration Act provides, inter alia, that the Federal Court does not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s powers under ss 48B and 417 of the Migration Act.

11 It will be seen that the Minister’s representatives apparently assumed that the application to the Court was intended to challenge the Minister’s decisions not to consider the exercise of his powers under ss 48B or 417 of the Migration Act. In fact, the application was filed in this Court before those decisions had been made and challenged only the refusal to grant the appellants a bridging visa.

12 The next step in the proceedings was that on 7 June 2002 a “Notice of Constitutional Matter” was filed in the Court. This document, which was signed by the female appellant but drafted by Mr Fonua, purported to be issued in compliance with s 78B of the Judiciary Act. The constitutional issues said to arise were whether ss 474, 475 and 476 of the Migration Act were invalid. The grounds of the application were said to be that it was unconstitutional for the Parliament to enact a “private [sic] clause decision”, being one that:

“(a) is final and conclusive and

(b) must not be challenged, appealed against, reviewed or called in question in any court and

It is not clear whether this document was intended to challenge the validity of s 476(2) of the Migration Act and, if so, what the ground of that challenge might have been.

13 The Minister filed written submissions in support of his objection to competency. These submissions, like the objection to competency itself, assumed that the proceedings were intended to challenge the refusal of the Minister to consider whether he should exercise his powers under ss 48B and 417 of the Migration Act in favour of the appellants. On that basis, the submissions invoked s 476(2) of the Migration Act as a bar to any application to review a decision made in relation to ss 48B or 417 of the Migration Act. The Minister also argued that no “decision” had ever been made under s 417 of the Migration Act in relation to the appellants, since the letter of 15 May 2002 had merely pointed out that the Minister lacked any power to intervene under s 417.

14 The hearing of the application took place on 17 July 2002. The Minister was represented by a solicitor, Mr Peek. Mr Fonua sought and was granted leave by the primary Judge to appear on behalf of the appellants, but seems not to have filed or relied on written submissions.

THE PRIMARY JUDGMENT

15 The primary Judge delivered an ex tempore judgment in which he dismissed the application as incompetent. His Honour treated the application as one to review the decision of an officer of the Department, made on 11 April 2002, to decline to refer to the Minister the appellants’ application under s 48B of the Migration Act. His Honour held that s 476(2) of the Migration Act precluded the Court having jurisdiction to deal with the application. The primary Judge also accepted the Minister’s submission that no decision had been made on any application under s 417 of the Migration Act because the “relevant application [had been] withdrawn”.

16 The primary Judge referred in his judgment to the notice purportedly given in compliance with s 78B of the Judiciary Act. His Honour pointed out that the grounds of the notice were directed to s 474 of the Migration Act and did not raise any constitutional point about the operation of s 476(2). It was this provision which was decisive against the claim made by the appellants.

THE APPEAL

17 On 8 July 2002, the appellants filed a notice of appeal from a judgment of the primary Judge. The notice of appeal was drafted by Mr Fonua. It identified four grounds as follows (the numbering reflects that used in the notice of appeal):

“1. That [Tamberlin J] erred in law and findings that the decision given by the delegate on 11 April 2002 was not a bona fide attempt to exercise its power was ground for the decision to be challenged in the Federal Court.

3. That [Tamberlin J] wrongly failed to follow the procedures as is required by s 78B of the Judiciary Act 1903 filed by appellants dated 7 June 2002.

4. That [Tamberlin J] erred in findings that decision letter sent to appellants dated 15 May 2002 after the application for Order of review filed on 23 April 2002 was done in bad faith was a further ground to challenge the decision in the Federal Court.

5. That the decision exceeded the limits set out in the Commonwealth Constitution”.

18 It will be seen that the notice of appeal makes no reference to the alleged decision of 12 April 2002, in which a Departmental officer apparently declined to issue a bridging visa to the appellants. Rather, the notice of appeal treats the subject matter of the appeal as the decision, recorded in a Departmental minute, that the request for Ministerial intervention did not meet the relevant guidelines. The notice of appeal also challenges the “decision letter” of 15 May 2002, although it notes that the letter was sent after the application for review had been filed in this Court. Each decision is said not to be a bona fide attempt to exercise power or to have been made in bad faith.

19 It will also be seen that the notice of appeal, although referring in the vaguest of terms to the Constitution, does not claim that s 476(2) of the Migration Act is invalid. Indeed, the notice of appeal does not suggest that the author has grasped the reasons given by the primary Judge for rejecting the application.

20 On 31 July 2002, a callover of pending appeals in the New South Wales Registry, including the present appeal, was held. Mr Fonua did not, on that occasion, seek leave to appear on behalf of the appellants.

21 On 8 August 2002, the Minister filed a document entitled “Notice of Objection to the Competency of the Appeal”. The notice asserted that the judgment of the primary Judge was interlocutory. The notice also pointed out that no application for leave had been made within seven days of the pronouncement of judgment, as required by Federal Court Rules (“FCR”), O 52 r 10(2) and that no application had been made for an extension of time in which to file and serve an application for leave to appeal.

22 On 11 September 2002, the Registrar held a hearing for the purpose of settling the index to the appeal papers. Mr Fonua sought leave to appear for the appellants. Notwithstanding the objection of the Minister’s representative, leave was granted. The Registrar directed that an appeal book index be filed by 25 September 2002 and that the appeal book be filed by 4 October 2002. Mr Fonua stated that he would comply with these directions on behalf of the appellants.

23 On or about 12 September 2002, the female appellant sent notices under s 78B of the Judiciary Act to the Attorneys-General of the Commonwealth and States. The terms of the notices were in identical form to those sent on 7 June 2002 in the proceedings at first instance. The responses indicated that the Attorneys-General did not wish to intervene in the matter.

24 On 30 October 2002, Mr Fonua attended the office of the Minister’s solicitors and delivered what was described in an affidavit read on behalf of the Minister as a ‘draft appeal book”. No appeal book, however, has ever been filed.

25 Also on 30 October 2002, the Minister filed a motion in this Court seeking orders that:

1. the appeal be dismissed as incompetent;

2. Mr Fonua pay the Minister’s costs of the appeal; and

3. (in the alternative to 2), the appellants pay the costs of the appeal.

26 This motion was duly served on Mr Fonua. The covering letter advised Mr Fonua that the Minister would oppose any application he might make for leave to represent the appellants. The letter stated that the reason for taking this position was that:

“you are not a lawyer, registered migration agent, or accredited interpreter, and that you have been involved in a systematic abuse of the process of the Federal Court of Australia”.

27 The appeal was set down for hearing on 6 November 2002. Prior to the hearing, the Minister filed and served written submissions. These submissions addressed both the competency of the appeal and the Minister’s application that Mr Fonua pay the costs of the appeal.

28 Mr Fonua was present at the hearing but, perhaps discouraged by the letter of 30 October 2002, did not seek leave to appear on behalf of the appellants. The male and female appellants, assisted by an interpreter, represented themselves. Mr Reilly of counsel appeared for the Minister.

29 The Court indicated that it would deal first with the competency of the appeal. Mr Reilly repeated the written submission that the primary Judge’s decision was interlocutory and that, accordingly, the appeal was incompetent since leave had neither been sought or granted. He also submitted that, if leave were to be granted, the appeal nevertheless should be dismissed as hopeless.

30 Not surprisingly, the appellants were unable to make any meaningful answer to these submissions. However, the appellants handed up written submissions which had been prepared by Mr Fonua, although not signed by him. The submissions stated that the application under review had sought to challenge the Minister’s decision of 15 May 2002. It is not necessary to set out the submissions at length. It is enough to say that they consist of a series of assertions unsupported by any reasoning process. For example, par 10 asserts that it

“is unconstitutional for the Commonwealth to enact legislation in the form of Migration Act as per ss 474, 475 and 476 to abolish the rights to have a poor decision [checked] by an independent umpire according to law”.

31 We do not regard this assertion as attracting the operation of s 78B of the Judiciary Act. Section 474 of the Migration Act is irrelevant to the appeal. The assertion does not identify any basis for the constitutional invalidity of s 475 or s 476 of the Migration Act. It is not possible to discern the constitutional issue in question insofar as it is relevant to the appeal: see generally Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489, per Burchett J.

32 After giving the appellants an opportunity to make their submissions, the Court announced that it proposed to dismiss the appeal as incompetent and, to the extent that the appeal could be treated as an application for an extension of time in which to file and serve an application for leave to appeal, to dismiss that application. The presiding Judge stated that reasons would be provided later. Those reasons were given in the separate judgment to which we have referred.

THE COSTS APPLICATION

Course Of The Proceedings

33 Following the announcement that it proposed to dismiss the appeal, the Court indicated that it would deal with the Minister’s motion on costs. Mr Fonua stated that he intended to represent himself in connection with the Minister’s application.

34 Mr Reilly read two affidavits in support of the Minister’s case. He then put the argument that Mr Fonua should pay the costs of the appeal. In substance, the argument was as follows:

· The evidence demonstrated that Mr Fonua, who is neither a legal practitioner nor a migration agent, had assisted in bringing numerous incompetent applications to the Court and had drafted numerous misconceived notices purportedly under s 78B of the Judiciary Act.

· Mr Fonua had been “intimately involved” in drafting the notice of appeal, the s 78B notice and the submissions in the present appeal.

· The appeal was manifestly hopeless.

· Mr Fonua had been warned in previous cases that his practice of assisting in bringing hopeless applications would lead to costs orders being made against him personally.

35 In response to questions from the Court, Mr Reilly submitted that the following inferences should be drawn from the evidence:

· Mr Fonua had instigated the appeal, in the sense that he had prepared all relevant documentation and appeared at the settling of the index.

· Mr Fonua knew from the outset that the appeal was manifestly hopeless.

· Mr Fonua intended to prolong the proceedings (and therefore the appellants’ stay in Australia), knowing that the appeal was hopeless.

36 At the conclusion of Mr Reilly’s argument, the Court asked Mr Fonua whether he wished to seek an adjournment to obtain legal advice or to put on evidence in affidavit form. Mr Fonua declined to seek an adjournment. He also stated that he wished to give evidence to address some of the matters raised by Mr Reilly. Mr Fonua duly gave evidence and was cross-examined by Mr Reilly.

The Documentary Evidence

37 The evidence adduced by the Minister establishes that Mr Fonua sought and was granted leave to appear in a number of matters in this Court involving the same or similar issues as the present appeal.

NAQG of 2002 v Minister

38 On 12 August 2002, after the present appeal had been instituted, Mr Fonua appeared on behalf of the applicant in NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1016. In that case, the applicant challenged the refusal by a delegate to refer to the Minister a request that the Minister exercise his powers under s 48B of the Migration Act. Branson J noted that Mr Fonua had asserted that s 476(2) was unconstitutional, but that he had advanced no argument founded on constitutional law in support of that assertion. Her Honour dismissed the application. She also ordered Mr Fonua, who confirmed that he had drafted the application, to pay the Minister’s costs.

39 Branson J re-listed the matter on 16 August 2002 because, upon reviewing the transcript, she had become concerned that Mr Fonua, despite claiming twenty-five years of knowledge of the Migration Act, may not have been aware of the Court’s power to order the payment of costs by a non-party. Her Honour set aside the order she had made on 12 August 2002. The Minister thereupon renewed his application that Mr Fonua be ordered to pay the costs of the proceedings.

40 Branson J ultimately declined to make an order for costs against Mr Fonua personally: NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1044 (“NAQG v Minister”). Her Honour’s reasoned (at [15]-[23]) as follows:

“It is plain that Mr Fonua was at all relevant times well aware that, at the least, great difficulties attended the application filed in this matter. On 12 August 2002 he told the Court

“this case is pretty hopeless and helpless, so that according to our custom I had to step in and give some assistance”

It is also plain that Mr Fonua drew the application without giving any real consideration to the question of the Court’s jurisdiction to hear it … [The] complexities [of the Migration Act] are plainly not understood by Mr Fonua notwithstanding his involvement in previous cases. While his undoubted desire to assist Tongan nationals who come within the purview of the Act is admirable, it does not give him licence to abuse the process of the Court.

I entertain a suspicion that this proceeding was instituted, not because Mr Fonua considered that it had any prospect of success, but because the applicant wished to delay his removal from Australia and Mr Fonua believed that the filing of even a hopeless application in the Court was a means of achieving delay ….

Were I satisfied, rather than merely suspicious, that Mr Fonua caused this proceeding to be instituted simply to delay the applicant’s removal from Australia I would not hesitate to order Mr Fonua to pay the Minister’s costs. However, my suspicion falls short of satisfaction.

I accept Mr Fonua’s statement that he has provided advice and representation to the applicant without charging a fee …. However, the power of the Court to order a non-party to pay costs is not confined to non-parties who stand to derive financial benefit from the litigation. Each case is to be looked at in the light of its own circumstances.

I am satisfied that it was Mr Fonua who caused this proceeding to be instituted and that he did so without giving any responsible consideration to the question of the Court’s jurisdiction to hear it. In that sense he was reckless as to whether the Court had the jurisdiction purportedly invoked by the application.

…

The power to order a non-party to pay a party’s costs is not to be exercised lightly. For this reason I have, with some hesitation, decided not to make such an order in this case. A major factor which has ultimately led me to decide against the making of a costs order against Mr Fonua is my belief that Mr Fonua may not have understood the extent to which his conduct was inappropriate. This factor is unlikely to be one upon which Mr Fonua would be able to rely should a similar case arise in the future.

… Mr Fonua has involved himself in the affairs of a significant number of individuals whose applications under the Act have come before the Court. Although not a lawyer, it appears that he has provided to those individuals services in connection with their applications to the Court of the kind that would ordinarily be provided by a lawyer. His motives in doing so may be exemplary. I am prepared to assume that they are exemplary. However, … good motives provide no licence for abusing the process of the Court. The consequences of an abuse of process of the kind that arose in this case is first, the opposing party is put to cost and inconvenience and, secondly, the limited resources available to fund the administration of justice of this Court are expended without the interest of justice being in any way advanced. If Mr Fonua is to continue to act as the unpaid representative of applicants to this Court he will be well advised to obtain at least enough legal advice to ensure that he does not abuse the process of the Court and, even more importantly, does not mislead, and possibly prejudice, the position of the individuals who turn to him for help”.

41 On 15 August 2002, the applicant in NAQG v Minister filed a notice of appeal against the judgment given by Branson J on 12 August 2002. We infer from the form of the notice of appeal that it was drafted by Mr Fonua.

Tavalu v Minister

42 On 15 August 2002, Mr Fonua was granted leave to appear at the hearing of the application in Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs [2002]FCA 1027. The decision under challenge was the Minister’s refusal to consider exercising his power under s 351 of the Migration Act to substitute for a decision of the Migration Review Tribunal a decision more favourable to an applicant. Moore J held that there was no enforceable right to require the Minister to consider whether to exercise the power. This followed from the terms of s 351(7) of the Migration Act (which is in substantially the same terms as s 48B(6)).

43 Moore J noted that the applicant had filed a notice, purportedly pursuant to s 78B of the Judiciary Act, putting in issue the validity of ss 474, 475 and 476 of the Migration Act. His Honour formed the view, however, that the case could be disposed of without reference to these sections. His Honour observed (at [7]) that:

“it would not be a large step to infer that the notice was filed for the purposes of delaying the hearing with the practical effect of enabling the applicant to remain in Australia for a period longer than otherwise might be the case.”

44 The applicant in Tavalu v Minister has filed a notice of appeal. We infer from the form of the notice of appeal that it, too, was drafted by Mr Fonua.

Kolotau v Minister

45 On 5 September 2002, Mr Fonua was permitted to address the Court in Kolotau v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1145. Once again, these proceedings challenged a decision by the Minister not to consider exercising his powers under s 351 of the Migration Act.

46 Hely J held that the proceedings were bound to fail by reason of the terms of s 351(7) of the Migration Act. Because a notice had been given under s 78B of the Judiciary Act and because no information was available as to the responses of the Attorneys-General, his Honour declined to dismiss the proceedings for want of jurisdiction pursuant to s 476(2). His Honour observed, however, that, assuming the subsection to be valid, it clearly precluded the Court from exercising jurisdiction so as to grant the relief sought by the applicant.

47 The primary Judge refused the Minister’s application for a costs order against Mr Fonua. His Honour declined to make such an order because the Minister had consented to Mr Fonua speaking on behalf of the applicant, without alerting him that he would be at risk of costs if he did so. His Honour nonetheless added that he did not disagree with anything said by Branson J in NAQG of 2002 v Minister.

48 The applicant in Kolotau v Minister has filed a notice of appeal. We infer that it was drafted by Mr Fonua.

Tuuhoko v Minister

49 This application was heard on 20 September 2002 by Emmett J: Tuuhoko v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1204. Mr Fonua was given leave to appear on behalf of the applicant. Emmett J dismissed the application on the basis that the Court lacked jurisdiction by reason of s 476(2) of the Migration Act. Once again, a notice under s 78B of the Judiciary Act had been filed prior to the hearing.

50 The applicant in Tuuhoko v Minister has filed a notice of appeal. We infer that the notice of appeal was drafted by Mr Fonua.

Other Proceedings

51 In two other matters, heard respectively on 25 September 2002 and 16 October 2002, Mr Fonua was given leave to appear on behalf of the applicants. Each application was dismissed as incompetent.

Findings

52 Mr Fonua gave evidence and was cross-examined, although some matters that we might have expected would be put to Mr Fonua were not put to him. We have concluded that there is no basis for disbelieving Mr Fonua’s evidence. We have, however, formed the strong impression that he has little understanding of the provisions of the Migration Act, and little, if any, understanding of the principles of administrative and constitutional law applicable to the judicial review of migration decisions.

53 The specific findings we make are these:

· Mr Fonua, as he claimed, is an accredited interpreter in New South Wales in the Tongan language.

· Mr Fonua prepared the initiating process, the written submissions and the notice of appeal in the present case. He has done the same in many proceedings involving Tongan citizens who have challenged decisions affecting them.

· Mr Fonua was granted leave to appear on behalf of the appellants at the hearing before the primary Judge and at the settling of the index of the appeal book. Apart from the hearings to which we have specifically referred, the probabilities are that Mr Fonua has been granted leave to appear on behalf of Tongan citizens in many other proceedings in this Court.

· We are not satisfied that Mr Fonua, at the time he prepared the notice of appeal and the written submissions in the present case, believed or understood the appeal was hopeless (although it was). We accept his evidence that he had (and has) a genuine belief that if notices are filed under s 78B of the Judiciary Act, a court ultimately may find in favour of the people he represents. He appears to have assumed that if there is a doubt about the validity of the privative clause in the Migration Act (s 474(1)), all other provisions that seem to operate adversely to the people he represents might also be invalid. He is unable to articulate the reasons why this might be so.

· To the extent that Mr Fonua believes that the present appeal and others that raise the same or similar issues are not hopeless, his belief is largely the product of his inability or unwillingness to understand the relevant legal principles. He maintains his belief about a possible favourable outcome notwithstanding the universal lack of success he has thus far enjoyed.

· On the evidence in this case, we are not satisfied that Mr Fonua pursues appeals on behalf of the people he represents simply to extend the time during which they can remain in Australia (although that is the effect of what he does). In particular, we are not satisfied that he took steps in the present appeal on behalf of the appellants simply in order to prolong their stay in Australia.

· On the evidence, there is no basis for finding that Mr Fonua has asked for or received a fee or reward from the appellants for the services he has provided to them in connection with the litigation, including the appeal. Nor is there any basis for rejecting Mr Fonua’s claim that he provided those services to the appellants and other Tongan citizens out of a sense of cultural obligation.

· We infer from Mr Fonua’s evidence that he has given false hope to the appellants and to others he represents as to their chances of succeeding in their challenges to migration decisions. There is no basis for finding that he has done so dishonestly.

54 We note that it was not put to Mr Fonua in cross-examination that he had read and understood the remarks of Branson J in NAQG v Minister. Nor was it put to him that, but for his advice, the appellants would not have filed their notice of appeal or taken other steps in the proceedings. Indeed, he was not asked about any conversations that he may have had with the appellants about the institution, or the maintenance, of the proceedings, whether before commencement of the proceedings or after the decision in NAQG v Minister, or about the advice that he provided to the appellants or to any other persons whom he had represented in litigation in this Court or other courts.

the provision of migration assistance

55 In the course of his evidence and submissions Mr Fonua referred, in general terms, to the Migration Act permitting him to prepare and file documents and act on behalf of Tongan citizens wishing to challenge adverse migration decisions. Although Mr Fonua did not correctly identify the provisions he had in mind, he appears to have been referring to s 280 of the Migration Act.

56 Section 280(1) provides that, subject to the section, a person who is not a registered agent must not give “immigration assistance”. This expression is defined to include using or purporting to use knowledge of migration procedure to assist a visa applicant by “preparing for proceedings before a court … in relation to the visa application” or representing the visa applicant in proceedings before a court in relation to the visa application: s 276(1)(c),(d).

57 Section 280(5) provides as follows:

“This section does not prohibit an individual from giving immigration assistance if the assistance is:

(a) not given for a fee or other reward; and

(b) not given in his or her capacity as an employee of, or a voluntary worker for, another person or organisation; and

However, a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance: s 281(1).

58 Since, as we have found on the evidence before us, Mr Fonua did not seek a fee or reward from the appellants, he did not breach s 281(1) of the Migration Act. Nor did he contravene s 280(1), since the assistance he provided to the appellants was excluded from the prohibition by reason of s 280(5). In this respect, although Mr Fonua is an accredited interpreter, it does not seem that the assistance he has provided to Tongan citizens in relation to legal proceedings has been given in the course of or in association with his profession as an interpreter, since he has not charged a fee to the persons he assists.

59 It follows that nothing done by Mr Fonua in the course of this appeal involved a contravention of the Migration Act. Since Mr Fonua did not seek a fee or reward from the appellant for his services, he has also not contravened the prohibition in the Legal Profession Act 1987 (NSW) on unqualified persons performing legal work: see ss 48B, 48E.

reasoning

60 The jurisdiction of the Court to award costs is conferred by s 43 of the Federal Court Act. Section 43 provides, relevantly, as follows:

“Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

…

(2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.”

These provisions apply in the exercise of the Court’s appellate jurisdiction.

61 The jurisdiction conferred by s 43(1) extends not only to an award of costs against parties to proceedings, but to non-parties: Knight v FP Special Assets Ltd (1992) 174 CLR 178, at 190, per Mason CJ and Deane J (with whom Gaudron J agreed); at 202-203, per Dawson J; Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, at 229-230, per curiam; White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, at 229 (affirmed sub nom Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134); Yates v Boland [2000] FCA 1895 (FC). The circumstances in which it is appropriate to award costs against a third party are confined, but this is a question of discretion rather than jurisdiction: Knight v Special Assets,at 203, per Dawson J. It is no barrier to the exercise of the jurisdiction that the original proceeding in respect of which costs are sought against a non-party has been terminated by pronouncement of judgment: Caboolture Park v White Industries, at 230, 236.

62 There are certain categories of cases in which the jurisdiction to award costs against a non-party has been exercised, if not frequently, then with some degree of regularity. One such category is where the non-party is considered to be the “real party” to the litigation: Knight v FP Special Assets Ltd, at 188, per Mason CJ and Deane J. Another is where the non-party is a legal representative of a party to the proceedings. A costs order may be made, for example, against a solicitor in consequence of his or her conduct in the litigation: Caboolture Park, at 231. While s 43 of the Federal Court Act empowers the Court to make a costs order against a legal representative of a party, a second source of jurisdiction is the “implied”, “accrued” or “inherent” jurisdiction of the Court over its own officers: Caboolture Park, at 231.

63 The jurisdiction to award costs against non-parties is not limited to these particular categories of cases. Mason CJ and Deane J said in Knight v Special Assets, at 192-193, that it was appropriate to recognise a general category of case in which an order for costs should be made against a non-party:

“That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against he non-party if the interests of justice require that it be made.”

In Knight v Special Assets itself, the costs award had been made against the receiver of a company who was the real instigator of the litigation and the person conducting it: see at 206, per McHugh J. In Yates v Boland, the passage from Knight v Special Assets was held to be an appropriate guide to the exercise of judicial discretion where the effective controller of a company was found to have played an active part in the litigation and to have a real and personal interest in the subject matter.

64 Costs have been awarded against non-parties in other circumstances. For example, in Minister for Immigration & Multicultural Affairs v Shen [2002] FCA 899, Madgwick J ordered a migration agent to pay the Minister’s costs to the extent that the agent had caused them to be incurred or enlarged. His Honour found (at [22]) that the agent had “cynically exploit[ed]” the Court’s processes in a cause he well knew to be hopeless and that the applicant in the proceedings was “a man of straw”. Moreover, the agent, who had provided his services for reward, was found to have provided legal services in contravention of the Legal Profession Act.

65 There is no reason in principle why the Court’s jurisdiction to award costs against a non-party could not extend, in an appropriate case, to a non-lawyer who, without fee or reward, conducts legal proceedings, or takes steps in such proceedings, on behalf of a litigant. However, in considering whether the case is appropriate for an order of this kind, some general propositions should be borne in mind.

66 First, the authorities suggest that the object of the jurisdiction is to reimburse to a party costs which that party has incurred by reason of the conduct of the non-party. The jurisdiction is not punitive or disciplinary: see White v Flower & Hart, at 229-230, per Goldberg J and cases cited there. While Goldberg J was concerned with an application for costs against a solicitor, the same principle applies where an order for costs is sought against a non-party who is not a legal practitioner: Yates v Boland, at [17]. Indeed, there is less justification for regarding the jurisdiction as punitive or disciplinary in the case of a lay person, since the Court’s disciplinary powers (as distinct from its power to impose sanctions for contempt) are confined to legal practitioners: cf Caboolture Park v White Industries, at 233-234.

67 The Minister’s submissions seem to have overlooked that the jurisdiction is compensatory, since they did not advert to the question of whether the appellants would be able to satisfy any costs order made against them. However, since the appellants were exempted from the payment of fees, we are prepared to assume that they do not have the means to satisfy a costs order: see as to exemption from filing fees, Federal Court of Australia Regulations 1978 (Cth), reg 2(4)(c).

68 Secondly, an order for the payment of costs by a non-party is exceptional and any application for such an order should be treated with considerable caution: Symphony Group Plc v Hodgson [1994] QB 179, at 192, per Balcombe LJ, cited with apparent approval in Yates v Boland, at [22]; Orchard v South Eastern Electricity Board [1987] QB 565, at 572, per Donaldson MR, with whom Croom-Johnson LJ agreed. Caution is especially called for when the non-party is providing voluntary assistance to a litigant who is not legally represented and who (as in many migration cases) is unfamiliar with the legal system and speaks little or no English. The task facing such a litigant is daunting enough without the courts subjecting unpaid advisers too readily to adverse costs orders.

69 Thirdly, the mere fact that the non-party has been actively involved in preparing and presenting a hopeless case will not, of itself, ordinarily justify a costs order against that person. In White v Flower & Hart, Goldberg J pointed out that some cases had suggested that a solicitor who commences or maintains proceedings with little or no prospects of success is at risk of an adverse costs order. His Honour said (at 231), correctly in our view, that a

“proposition expressed so broadly must be treated with considerable caution as it exposes a tension with the important right of a person to have a case conducted in the courts irrespective of the view which his or her legal adviser has formed about the case and its prospects of success.”

Goldberg J considered that something more than commencing or maintaining proceedings with little or no prospects of success was required for a costs order to be made against a practitioner. In his view (at 231):

“Something more must be added to the equation such as, for example, an ulterior purpose, abuse of process or a serious dereliction of duty.”

Similarly, a stranger who, without reward and without contravening any statute, assists a person to institute or maintain legal proceedings will not, on that account alone, ordinarily be exposed to a costs order. Something more will be needed.

70 If we had found, as Mr Reilly invited us to do, that Mr Fonua drafted the notice of appeal, served the s 78B notices and prepared written submissions knowing that the appeal was hopeless and intending to prolong the appellants’ stay in Australia, the case may well have been appropriate for a costs order against him. On those facts, he would have knowingly and materially contributed to an abuse of the process of the Court (Williams v Spautz (1992) 174 CLR 509, at 527-528, per Mason CJ, Dawson, Toohey and McHugh JJ). Of course, there might be other considerations to take into account in determining whether an order for costs should be made and, if so, the form of the order. For example, while the Full Court in Yates v Boland has held that the absence of a warning that a costs application will be made is not necessarily fatal to the success of such an application, the Court recognised (at [34]) that “the question of warning has been treated as a material consideration in certain circumstances”. Nonetheless, even a stranger to litigation who acts on a voluntary basis might be exposed to a costs order if he or she materially contributes to an abuse of process.

71 Mr Fonua, as we have found, provided services to the appellants and other Tongan citizens on a voluntary basis. Since he received no reward for his services he breached neither the Migration Act nor New South Wales law. On the evidence before us, he did not knowingly participate in or contribute to an abuse of the Court’s process. Nor was he specifically warned in these proceedings that the Minister would seek costs against him personally until the notice of motion was served on him shortly before the hearing. He neither sought nor was granted leave to appear at the hearing.

72 It is true that Mr Fonua drafted documents designed to assist in the prosecution of an appeal which was in fact hopeless. It is also true that a lay person better able to understand the operation of the Migration Act than Mr Fonua probably would have understood from the outset that the appeal was hopeless. In our view, however, these circumstances are not sufficient to justify making an order for costs against Mr Fonua.

73 It is true that Mr Fonua has encouraged and assisted the appellants to bring an appeal which was in fact hopeless. It is also true that a more clear-thinking person, even without legal training, would have realised, at least by the date the index was settled, that the appeal was hopeless. But Mr Fonua himself has never understood the issues in the case or why the appeal was bound to fail. Taking all the circumstances into account, we do not think that this is an appropriate case for costs to be ordered against Mr Fonua personally.

74 We wish to add two points.

75 First, on the basis of the evidence in this case, we would not grant Mr Fonua leave to appear on behalf of litigants in this Court in migration cases. In our opinion, he does not have the knowledge or understanding to make any useful contribution to the proceedings; indeed his contributions are likely to be counter-productive. It is a matter for each Judge or Court to determine whether leave should be granted, but the experience in this case might be taken into account if either Mr Fonua or an unrepresented litigant seeks leave for him to appear on behalf of the litigant.

76 Secondly, the fate of any future application for costs against Mr Fonua in relation to his role in instituting and maintaining legal proceedings on behalf of others will depend on the circumstances of the particular case and the findings of fact made by the Court on the evidence before it. The failure of the application in this case does not necessarily mean that no future application could ever be successful.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville, Allsop & Jacobson JJ.

Associate:

Dated: 5 December 2002

Mr Fonua appeared in person.

Counsel for the Respondent:	Mr T Reilly

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	6 November 2002

Date of Judgment:	5 December 2002

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