FEDERAL COURT OF AUSTRALIA

SBAQ v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 685

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

Migration Act 1958 (Cth)

SBBH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 684 - applied

SBAQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.237 of 2001

MANSFIELD J

30 MAY 2002

ADELAIDE

REASONS FOR DECISION

1                     The circumstances in this matter are, in relevant respects, parallel to those in SBBH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 684.

2                     The applicant arrived in Australia on 11 April 2001.  He applied for a protection visa under the Migration Act 1958 (Cth) on 4 May 2001.  That application was refused by a delegate of the respondent on 26 July 2001.  On 28 November 2001, the Refugee Review Tribunal (the Tribunal) affirmed that decision.

3                     The applicant applied on 20 December 2001 for judicial review of the Tribunal’s decision.  The application was not made through a solicitor.  On 15 February 2002, Jeremy Moore & Associates (the solicitors) filed a notice that they were acting for the applicant.  Then, on 19 April 2002 they filed a notice that they had ceased to act for the applicant.  That was in anticipation of other solicitors being instructed to act for the applicant.  The applicant was not available to instruct other solicitors, as he had left the Woomera Immigration Reception and Processing Centre on 29 March 2002 and his whereabouts are apparently unknown.  The notice of 19 April 2002 did not comply with O 45 r 7(3) of the Federal Court Rules.  On 24 April 2002, the solicitors filed a fresh notice that they were acting for the applicant.

4                     The matter was listed for hearing on 7 May 2002.  Senior Counsel for the applicant applied for the hearing to be adjourned indefinitely as the solicitors were not in a position to take instructions from the applicant.  There was no apparent prospect of them doing so in any finite time in the future.  He did not indicate any particular matter upon which, in relation to the applicant, instructions were necessary; one would not have expected him to do so.  That is a matter between the solicitors and the applicant.

5                     Counsel for the respondent applied for an order that the solicitors, in the circumstances, are not entitled to continue to represent the applicant.  The consequence would be that the applicant would be unrepresented, and presumably would not attend the hearing.  The respondent then proposed to apply to have the application dismissed under O 32 r 2(1)(c) of the Rules.

6                     For the reasons I have given in SBBH, I do not propose presently to accede to either application.  I regard the apparent unavailability of the applicant to give instructions as a matter for the solicitors.  I will relist the matter for hearing.  If either the solicitors or counsel appear for the applicant, it will simply proceed.  If the applicant is not represented, and appears in person, the hearing will again proceed.  If he is not represented, and does not appear, I will entertain any application by the respondent to proceed under O 32 r 2(1)(c) or indeed under any of the alternatives provided for in O 32 r 2(1).

Associate:

Dated:              29 May 2002