FEDERAL COURT OF AUSTRALIA

SBBH v Minister For Immigration & Multicultural & Indigenous Affairs

[2002] FCA 684

PRACTICE AND PROCEDURE – Solicitors – application to dismiss - standing of respondent to challenge applicant’s solicitor’s retainer – scope of general retainer in circumstances where client institutes proceedings and then cannot be found – matters upon which solicitors require specific instructions for the purposes of properly conducting the litigation.

MIGRATION – Whether solicitors properly instructed to conduct review application.

Federal Court Rules, O 32 r 2(1)(c), O 45 r 7

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth)

Chisholm v State Transport Authority (1986) 41 SASR 37 – referred to

Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 – referred to

KM & A Chadwick Pty Ltd v Yeung [1995] FCA 354

McAusland v Commissioner of Taxation  (1994) 47 FCR 369 – referred to

Minister Administering the Crown Lands (Consolidation Act and Wester Lands Act v Tweed Byron Aboriginal Lands Council (1990) 71 LGRA 201 – referred to

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 – referred to

Richmond v Branson & Son [1914] 1Ch 968 – referred to

Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 – referred to

Thompson v Howley [1977] 1 NZLR 16 – referred to

White Industries Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 – cited

Young v Toynbee [1910] 1 KB 215 – discussed

SBBH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.14 of 2002

MANSFIELD J

30 MAY 2002

ADELAIDE

REASONS FOR DECISION

1                     The respondent seeks to have this application under s 39B of the Judiciary Act 1903 (Cth) dismissed or permanently stayed in unusual circumstances.  The application was made at the hearing, but neither party wished the hearing to proceed on the merits at that time.

2                     The applicant arrived in Australia on 20 April 2001.  He applied for a protection visa under the Migration Act 1958 (Cth) on 18 July 2001.  That application was refused by a delegate of the respondent on 4 September 2001, and the delegate’s decision was affirmed by the Refugee Review Tribunal on 19 December 2001.

3                     The application to the Court was made on 11 January 2002.  The applicant was not then legally represented.  His application was not expressed in terms clearly referable to s 39B of the Judiciary Act.  On 15 February 2002 Jeremy Moore & Associates (the solicitors) filed a notice under the Federal Court Rules that they were acting for the applicant.  Subsequently, those solicitors engaged counsel.  On 27 March 2002, directions were given to have the matter ready for trial, including leave to file and serve an amended application, and the hearing date fixed.

4                     At all material times until 29 March 2002 the applicant was in immigration detention at the Woomera Immigration Reception and Processing Centre (Woomera IRPC).  He escaped from Woomera IRPC on 29 March 2002.  His present whereabouts are unknown.

5                     On 8 April 2002 the solicitors filed a notice that they were no longer acting in the matter.  Then, on 1 May 2002, the solicitors filed a notice that they were acting for the applicant.  How that came about is common ground.  The solicitors have offered to act pro bono publico for many of the residents of the Woomera IRPC.  Not surprisingly, their offers have been taken up in many instances.  In April 2002, it was proposed that a new firm of solicitors would take over the handling of the matters for inmates of Woomera IRPC in lieu of the solicitors still acting on a pro bono publico basis.  In the case of the applicant, he was not available to instruct the new firm of solicitors to act for him.  They did not therefore, as they had done in other matters, file a notice of acting.  Instead, when the solicitors realised the situation, they simply filed a notice of acting again.  In reality, their retainer had never been terminated.

6                     At the hearing, counsel for the respondent challenged the authority of counsel engaged by the solicitors to appear on behalf of the applicant.  There were two grounds for the challenge.  The more substantive one is that the applicant is not presently available to give instructions to the solicitors at all.  As his whereabouts are unknown, he has chosen to place the solicitors in that position by his actions.  It is contended that, in those circumstances, the Court should rule that the solicitors no longer are retained to represent the applicant.  The other ground is that the solicitors did not obtain and could not have obtained instructions to file the notice of acting on 1 May 2002, so they could not now be acting for the applicant.  He contends that the Court should then proceed to call on the matter and, if the applicant is absent, should dismiss his application under O 32 r 2(1)(c) of the Rules.

7                     Senior counsel for the applicant acknowledged that, on the authorities, the respondent had standing to challenge the authority of the solicitors to act for the applicant in this matter, including to instruct counsel:  Richmond v Branson & Son [1914] 1 Ch 968 at 974 per Warrington J.  In the normal course, such an objection should be made by a substantive application or by notice of motion.  In this matter the application has been made at the commencement of the hearing, but with adequate notice to the solicitors and to counsel appearing for the applicant, and they have taken no objection to the issue being raised in that way.  See also McAusland v Commissioner of Taxation (1994) 47 FCR 369.

8                     It is convenient to deal with that alternative ground first.  In my view, the circumstances in which the solicitors came to file in short succession a notice of no longer acting and a notice of acting indicates clearly enough that such retainer as the solicitors had at 18 April 2002 continued after that date.  The notice of ceasing to act was filed without instructions, but in anticipation that instructions would be given to the proposed new solicitors to take over the conduct of the application.  If the retainer of the solicitors entitled them to conduct the application on the applicant’s behalf to that date, subject of course to his instructions, it continued after that date.  The filing of the further notice of acting was therefore still in accordance with the initial instructions given by the applicant to the solicitors.  Moreover, the notice that the solicitors had ceased to act did not comply with O 45 r 7(3) of the Federal Court Rules because the affidavit required to show that the applicant had seven days’ notice of the solicitors’ proposal to cease acting for him had not been filed.  The Court had not given leave to do so.  Strictly speaking, the solicitors therefore remained on the record as solicitors for the applicant at all times.  If the proposed new solicitors had filed a notice of change of solicitors under O 45 r 3, as was proposed if the applicant had been available to give instructions to that effect, the position would have been regularised.

9                     The primary question is whether the solicitors are entitled to continue to act for the respondent, notwithstanding his escape from Woomera IRPC on 29 March 2002, after that date.  Senior counsel appearing on behalf of the applicant indicated that his instructions from the solicitors were to appear at the hearing, but to seek the matter to be adjourned to a date to be fixed so that the application would proceed only when the applicant became available again to give instructions.  His precise instructions could then be sought on matters relating to the application, including as to the precise grounds to be argued on the hearing and the terms of any amended application.  Senior counsel acknowledged, for example, that an allegation of lack of good faith on the part of the Tribunal in the exercise of its powers (cp R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 per Dixon J at 617-618), or an allegation of actual bias which might support an allegation of lack of good faith on the part of the Tribunal, should only be made on the specific instructions of the applicant:  see e.g. Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201 at 203-204; Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 348 and the discussion of Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 241 where his Honour said:

“In the pleading of fraud, some requirements of the law are clear beyond argument.  These requirements are not only rules of pleading and practice established by decisions of the courts.  They are rules of ethical conduct binding on all members of the legal profession.  It is a serious matter to allege fraud … It is for this reason, among others, that legal practitioners must take care to have specific instructions and an appropriate evidentiary foundation, direct or inferred, for alleging and pleading fraud.”

There may be other matters upon which the applicant’s instructions are necessary.  Instructions about matters before the Court may be needed to advise whether particular lines of inquiry, or of argument, should be pursued.  It is not uncommon to address the circumstances of earlier interviews, or to seek to identify persons who can confirm facts asserted by an applicant for a protection visa, or to explore the adequacy of interpretation, as areas possibly giving rise to facts upon which an order under s 39B of the Judiciary Act might be sought.  That is not intended to be an exhaustive list, but simply to indicate that there are many matters upon which the solicitors might need to seek instructions for the purposes of properly conducting the matter for the applicant.

10                  Initially, it is clear that the solicitors were retained by the applicant to act for him in his application to the Court for review by the Court of the Tribunal’s orders.  I accept that the retainer authorised the solicitors to file a notice of acting, to review the available material, and to advise the applicant about his prospects of success on the application.  It also authorised the solicitors, subject to particular matters which would require specific instruction, to amend the application in an appropriate way, to attend directions hearings, and to prepare the matter for hearing including engaging counsel.  Senior counsel for the applicant, like the solicitors, is appearing pro bono publico so that no question arises of the need to seek the applicant’s specific instruction to incur the fees of counsel.  The retainer would not entitle the solicitors to consent to the dismissal of the application without specific instructions:  Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381; Thompson v Howley [1977] 1 NZLR 16.

11                  In my view, it is now a matter for the solicitors to determine whether they can in the circumstances continue to act for the applicant.  That may depend upon the extent of the instructions obtained from the applicant prior to 29 March 2002.  It may depend upon the nature of the case, and the issues to be argued.  Those are matters as between the solicitors and the applicant.  By continuing to act, the solicitors will be maintaining to the Court and to the respondent an implied representation that the authority which they profess to have does in point of fact exist:  Young v Toynbee [1910] 1 KB 215.  In that case, the solicitors for a defendant were held to be liable for the costs incurred by the plaintiff upon the faith of such a representation when the representation was not correct, as the defendant had become of unsound mind.  If the solicitors continue to act for the applicant, notwithstanding that he is not presently available to instruct them, I will accept that they have the necessary instructions and will relist the matter for hearing.  I do not see why the hearing should be deferred indefinitely because the applicant has put himself in the position where he cannot presently give further instructions to the solicitors.   The respondent has a proper and legitimate interest in applications such as the present being brought to finality.  It is in the public interest that applications before the Court should be dealt with in an expeditious and fair manner.

12                  The solicitors may seek leave to file a notice that they are no longer acting for the applicant, or may file such a notice after giving the applicant seven days’ notice to his address, under O 45 r 7 of the Rules.  The fact that the applicant has apparently made himself unavailable to be informed of the progress of his application, or to give instructions may provide reason for so doing:  KM & A Chadwick Pty Ltd v Yeung [1995] FCA 354;  Chisholm v State Transport Authority (1986) 41 SASR 37.  In my view, that is presently a matter for the solicitors.

13                  For the reasons given, I am not persuaded on the material before me that the solicitors do not have instructions to act generally in this matter.  The respondent is understandably concerned that, if the matter proceeds to hearing without the solicitors having full instructions, he may later be faced with some claim that the hearing should be re-opened.  I do not presently see that there is any risk of that occurring, unless there is some unforeseen explanation for the applicant’s conduct.  In addition, I consider that the applicant really bears the responsibility for the application proceeding, if it does, with the solicitors representing the applicant.  It is not satisfactory for any litigant to limit instructions to solicitors in a way which might affect the conduct or outcome of a hearing adversely to that litigant, and then be in a position to complain about the outcome at a later point.  Consequently, if the solicitors continue to act in the matter, it will be upon the basis that they have adequate instructions to conduct the matter properly on behalf of the applicant.  If their ability to do is inhibited because they cannot obtain all necessary or appropriate instructions, that circumstance should generally be a private matter between the client and the solicitors.  It should not disadvantage the respondent, nor provide a reason why the Court should not hear the matter.

14                  I have alternatively viewed the present application by senior counsel as an application for an adjournment to enable further instructions to be sought.  This is not a case where there is an application for an adjournment for a specified time while further instructions are sought.  There is no reason to think that any particular further time to take instructions will alter the circumstances.  In that circumstance, in my discretion, I refuse such an application.

15                  I accordingly propose to relist the matter for hearing at a time convenient to the parties.  If, at that time, the solicitors for the applicant do not continue to act for him and the applicant himself does not attend, the respondent may seek an order under O 32 r 2(1)(c) of the Rules dismissing the application.  I will consider whether such an order should be made at that time.

Associate:

Dated:              29 May 2002