FEDERAL COURT OF AUSTRALIA

Caritativo v Minister for Immigration & Multicultural Affairs (No 2) [2002] FCA 735

COSTS – solicitor and barrister – power to award costs against – Federal Court of Australia Act 1976 (Cth) – s 43.

Federal Court of Australia Act 1976 (Cth) s 43

De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 cited

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

CLIFFORD CARITATIVO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W484 OF 2001

FRENCH J

11 JUNE 2002

PERTH

THE COURT ORDERS THAT:

1.         The applicant’s solicitor, Viji de Alwis, pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT ON ORDER FOR COSTS

AGAINST SOLICITOR

1                     On 17 December 2001, I dismissed an application for judicial review by Clifford Caritativo, a national of the Philippines, who entered Australia on 28 May 1987 and was subsequently granted a permanent residency visa – Caritativo v Minister for Immigration & Multicultural Affairs [2001] FCA 1873.

2                     On 7 August 2001, the Minister for Immigration and Multicultural Affairs cancelled Mr Caritativo’s visa under s 501(2) of the Migration Act 1958 (Cth).  This cancellation was based, inter alia, upon Mr Caritativo’s convictions in March 1996 for conspiracy to sell or supply Methylamphetamines and Lysergic Acid Diethylamide.  On these counts he was sentenced to a total of nine years and eight months imprisonment.  He was released on parole in August 2000. 

3                     A notice of the cancellation was served on Mr Caritativo on 3 September 2001.  On 2 November 2001, an application was filed in this Court naming Mr Caritativo as applicant and the Minister as respondent.  The application was headed:

“Application by Clifford Caritativo FOR REVIEW OF THE DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL TO AFFIRM THE DECISION OF THE MINISTER’S DELEGATE TO CANCEL HIS PERMANENT RESIDENT VISA and an URGENT INJUNCTION ON THE RESPONDENT NOT TO REMOVE THE APPLICANT FROM AUSTRALIA AND FOR AN ORDER THAT THE APPLICANT SHOULD NOT BE DETAINED.”

The application sought the setting aside of a decision of the Administrative Appeals Tribunal to affirm the decision of the Minister’s delegate to cancel the applicant’s visa and to deport him from Australia.  An order for his release from detention and an injunction preventing his deportation pending the determination of the application were sought. 

4                     Although signed by Mr Caritativo, the application bore the endorsement:

“Prepared by: Viji De Alwis, as amicus curiae [pending leave of Court].”

The address for service was said to be:

“C/- Viji de Alwis,

First Floor, 544, Hay Street,

PERTH   WA    6000”

5                     On 23 November 2001, the matter came on for directions and orders were made in the following terms:

"1.       The directions hearing is adjourned to 7 December at 2.15pm.

 2.        The applicant is to file and serve any proposed amended application by 5 December 2001 together with any supporting affidavits.

3.         The respondent is to file and serve an affidavit exhibiting all documents recording the decision to cancel the applicant's visa and documents before the decision maker in relation to that decision by 30 November.

4.         The respondent is to file any objection to competency by 6 December 2001.

5.         The question whether the application can be amended and the objection to competency are to be argued on 7 December at 2.15pm.

6.         Costs of today be reserved.

7.         There be liberty to apply."

Mr de Alwis, who is a legal practitioner, then appeared by leave on behalf of Mr Caritativo.  He informed the Court on that day that he would file a notice that he was acting as solicitor for the applicant.  Later that day a notice was sent by fax to the Court in terms which included the following:

“Viji De Alwis, Barrister & Solicitor

of

DE ALWIS & ASSOCIATES

“WOG  LAWYERS”

            Suite 3, First Floor,

            544 Hay Street,

            PERTH  WA  6000

            ACTS FOR THE APPLICANT.”

By 5 December 2001, no amended application had been filed and that remained the position when the matter came on for hearing.  On 6 December 2001, the respondent filed a motion seeking summary dismissal of the application under the Federal Court Rules.  The motion came on for hearing on 7 December 2001 and was argued on behalf of the respondent.  The matter was then adjourned part heard until 17 December 2001.  I indicated at that time to Mr Caritativo that I expected he would endeavour to prepare some written submissions between 7 December and 17 December 2001.  At the commencement of argument on 17 December 2001, he had not done so. 

6                     It was submitted for the respondent on 7 December 2001 that the application was misconceived and defective because it sought to review a decision of the Administrative Appeals Tribunal when no such decision had been made.  There had never been an application to, or hearing before, the Administrative Appeals Tribunal.  The decision to cancel the applicant’s visa was made by the Minister on the basis that the applicant did not meet the character test requirements of s 501 of the Act.  The applicant had not sought leave to amend the application.  In any event it was submitted that the application should be dismissed as being out of time.  It had not been made within the twenty-eight day period required by s 477(1) of the Act.  Mr Caritativo had been notified of the decision of 7 August 2001 by a letter dated 13 August 2001 which was given to him by hand on 3 September 2001.  In the event, after hearing oral argument from Mr de Alwis on 17 December, I upheld the Minister’s motion that the application should be dismissed.  In the reasons for judgment I said:

“The test for striking out an application generally speaking is that it is manifestly untenable.  This application, as framed, falls into that category because it seeks review of an Administrative Appeals Tribunal decision which was never made.  There was never an application to that Tribunal.  It is now too late to seek judicial review of the Minister's decision because of the effect of s 477 of the Act and even if it could be said that Pt 8 of the Act, as it stood before the amendments that came into effect on 2 October were still in operation, the time limit problem is still intractable.  The time limit is not a procedural matter, it is a matter which goes to the jurisdiction of the Court and therefore cannot be extended by the Court.   The constitutional issue in relation to that was considered and dealt with in Hocine. [Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269]”

In concluding, I observed that the application in this case had been prosecuted with incompetence by Mr de Alwis.  I stated that I was considering making an order that he personally pay the respondent’s costs and I allowed him until 14 January 2002 to file written submissions in that respect.  No written submissions were lodged by Mr de Alwis.

7                     In De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 at 546, I held that the Court has power under s 43 of the Federal Court of Australia Act 1976 (Cth) to make an order that the solicitor for an unsuccessful party pay the costs of the successful party personally.  This view was approved by the Full Court in Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 229.  In considering the criteria for the exercise of that power, I said:

“I accept the proposition that the jurisdiction is to be exercised with care and discretion and only in clear cases.  The mere fact that litigation fails is plainly no ground for its exercise.  There has to be something which amounts to a serious dereliction of duty: Edwards v Edwards [1958] P 235 at 248.  It is not necessary to ground the power to order costs against a solicitor in the existence of any duty to the opposing party and whether it can be so grounded is open to doubt: Orchard v South Eastern Electricity Board [1987] 1 QB 565 at 571 but cf Lord Denning MR in Kelly v London Transport Executive  [1982] 1 WLR 1055 at 1064-1065: [1982] 2 All ER 842 at 850-851.  It is debatable whether the traditional immunity of counsel would extend to limit the statutory power of the court in this respect, but it is not necessary to decide that question in this case.  Although practising in a fused profession the applicant’s solicitor was acting in his capacity as a solicitor when he lodged the application for the permits and as a solicitor or solicitor and barrister when he instituted these proceedings.”  [p 547-548]

8                     In my opinion an order should be made that Mr de Alwis pay the respondent’s costs of these proceedings.  The proceedings were brought out of time and seeking an extension of time when the overwhelming weight of authority was that the Court has no power to grant such an extension.  No submission was lodged with the Court to attempt to address that question.  The application was misconceived from the outset as it was directed to a decision of the Administrative Appeals Tribunal, when the Administrative Appeals Tribunal had made no decision.  Indeed it appears that there was never an application before the Administrative Appeals Tribunal.  This was a matter of fact which could easily have been checked by Mr de Alwis who did not seek to amend the application notwithstanding that it was raised on materials filed by the respondent. 

9                     Mr de Alwis in his conduct of the application failed properly to address either the law or the facts of the case and took no steps to amend the application or to make any submissions in relation to it.  Opportunities to do both were afforded to him by the Court.  He has been derelict in his duty as a legal practitioner and incompetent in the prosecution of the application.  Mr Caritativo bears no responsibility for his failings.  Mr de Alwis should pay the respondent’s costs and I will make an order accordingly.

Acting Associate:

Dated:              11 June 2002