FEDERAL COURT OF AUSTRALIA

Applicant A26 of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050

IMMIGRATION – discontinuance of proceeding without instructions – whether notice of discontinuance should be set aside.

PRACTICE AND PROCEDURE – discontinuance of proceeding – solicitor filing notice of discontinuance did not have instructions to file notice – solicitor also filing notice that applicant was acting in person without instructions to do so – need for leave to discontinue – leave given without the Court being made aware of absence of instructions to do so – whether Court has power to set aside notice of discontinuance in circumstances – whether court should set aside notice of discontinuance.

Migration Act 1958 (Cth) s 36(2)

Castanho v Brown and Root (UK) Ltd [1981] AC 557 considered

Ernst & Young (a Firm) v Butte Mining PLC [1996] 1 WLR 1605 considered

Wool International v Sedgwick Ltd (No.2) [1997] FCA 709 - considered

Re Minister for Immigration & Multicultural Affairs: Ex parte ‘A’ (2001) 185 ALR 489 referred to

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 referred to

APPLICANT A26 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

S 47 OF 2003

MANSFIELD J

2 OCTOBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The notice of discontinuance dated 26 May 2003 be set aside.

2.         The orders made on 29 May 2003:

            (a)        giving leave to file and serve the said notice of discontinuance,

(b)               that the application do stand discontinued, the said notice of discontinuance having been filed and served; and

(c)                that the applicant pay the costs of the first respondent;

be set aside.

3.         The former solicitor for the applicant Mark Wallis Clisby pay to the applicant costs of the application from 9 July 2003 to the date of these orders.

4.         The former solicitor for the applicant Mark Wallis Clisby pay to the first respondent costs of the application from 9 July 2003 to the date of these orders, and costs of and incidental to the directions hearing on 29 May 2003.

5.         The application be listed for further directions on a date to be fixed.

6.         Liberty to apply is given to any party.

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

REASONS FOR JUDGMENT

the notice of motion

1                     This is an application by motion filed 11 July 2003 to re-open the application to quash a decision of the Refugee Review Tribunal (the Tribunal) for jurisdictional error.  It is claimed that the applicant’s former solicitor, without his consent, discontinued the application.  The notice of motion also seeks that the former solicitor pay the costs of the motion and thrown away by reason of the discontinuance.

2                     Discontinuance of proceedings is a process by which an applicant puts an end to the claim in the proceedings.  It is, however, permitted only if it does not amount to an abuse of process:  Castanho v Brown and Root (UK) Ltd [1981] AC 557.  Lord Scarman at 571 pointed out the curiosity of treating an act which purports to terminate a proceeding as being an abuse of that proceeding, but nevertheless regarded it as appropriate to override illogicality ‘if justice requires’.

3                     In Ernst & Young (A Firm) v Butte Mining PLC [1996] 1 WLR 1605 Robert Walker J considered that there had been an abuse of process in the filing and service of a notice of discontinuance having regard to the overall position of the parties, and what the plaintiff there was attempting to achieve by discontinuance.  His Lordship set aside a notice of discontinuance, in the context of the reason for the discontinuance being the strategic benefit to one party to the detriment of the other party.  He pointed out at 1622 that, even if there has been an abuse of process, the discretion whether to set aside a notice of discontinuance should be considered by reference to what the Court’s attitude would have been if leave to discontinue had been sought.  In Wool International v Sedgwick Ltd (No.2) [1997] FCA 709 Beaumont J referred to his Lordship’s remarks with approval.

4                     In this matter, the allegation is that the notice of discontinuance was filed without instructions, and (as appears below) the leave of the Court to discontinue was procured through the Court being mislead as to the existence of instructions from the applicant that the proceedings should be discontinued.  It is quite evident that, if those allegations are made out, such that the Court had been aware at the time of the order made on 29 May 2003 giving leave to discontinue the proceedings that the then solicitor for the applicant did not have instructions to discontinue the proceedings, leave to do so would not have been given.

5                     In my judgment, the respondent sensibly and appropriately acknowledged that the Court has power to set aside the discontinuance in its discretion, as part of its inherent power to prevent injustice, if the circumstances alleged are made out.  Thus, it is not necessary to explore in any detail the content of the concept of abuse of process in the present context.  It was accepted by the respondent that the allegations, if made out, fell within its reach.

the claim for a protection visa

6                     It is necessary to refer to the circumstances in which the application came to be made.

7                     The applicant is a Singhalese from Sri Lanka.  He arrived in Australia on 14 January 1996.  On 15 October 1996 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act).  It is not necessary at this point in the proceedings to refer in detail to the grounds upon which he claimed to be a refugee within the meaning of Art 1A of the Refugees Convention as amended by the Refugees Protocol (the Convention) and so to satisfy the criteria for the grant of a protection visa:  see s 36(2) of the Act.  In essence, his claim was that he feared persecution by the LTTE or the JVP of the People’s Alliance in Sri Lanka by reason of his political activities in Sri Lanka in opposition to those entities.  He left Sri Lanka legally to arrive in Australia.

8                     On 30 June 1997 a delegate of the respondent refused his application for a protection visa.  The Tribunal on 27 January 2000 affirmed the decision of the delegate of the respondent.  At this point it is not necessary to explore the reasons for that refusal.  I was told that the applicant then pursued judicial review of the Tribunal’s decision through the Federal Court, and then by an application for special leave to appeal to the High Court.  That application was ultimately unsuccessful on 15 February 2002.

the discontinuance

9                     On 4 March 2002, considerably outside the time limits permitted under the High Court Rules (as time ran from the date of the Tribunal’s decision), the applicant applied in the High Court for prerogative orders to set aside the decision of the Tribunal made on 27 January 2000.  That application was remitted to this Court for hearing and determination by order of Hayne J on 7 February 2003.  Orders were made on 3 April 2003, including that any application for an extension of time within which to have instituted the proceedings in the High Court be filed and served with supporting material by 8 May 2003 and be listed for hearing on 29 May 2003.  Further directions in the matter generally were also to take place on 29 May 2003.  In the events which happened, that directions hearing was a brief one.

10                  On 27 May 2003 a document dated 26 May 2003 and signed by the applicant’s then solicitor was filed.  It purported to discontinue the application.  It is headed ‘Notice of Discontinuance’ and indicated that the applicant discontinued the application against the respondents.  However, by reason of O 22 r 2 of the Federal Court Rules, in the circumstances, the purported discontinuance could not take effect without the leave of the Court to file the notice.  At the directions hearing on 29 May 2003, a judge of the Court made the following orders:

‘1.        Leave be granted to the applicant to discontinue the proceedings.

2.                  The action will stand discontinued as of today, the notice of discontinuance having earlier been filed and served.’

Orders for costs were also made.

the hearing

11                  In view of the allegations being made in the material in support of the notice of motion, on 13 August 2003 I fixed a date for the hearing of the motion and directed that the notice of motion and supporting material be served upon the applicant’s former solicitor.  Also on 13 August 2003 a fresh solicitor had filed a notice of acting on behalf of the applicant.  The notice is dated 12 August 2003.

12                  The former solicitor for the applicant appeared by counsel on the hearing of the motion.  He accepted through counsel that he filed the notice of discontinuance dated 26 May 2003 without instructions, and that he is responsible for having done so in error.  He offered to pay the reasonable costs of the application being reinstated.

13                  In support of the application by motion, the applicant relied upon his two affidavits of 11 July 2003 and 1 September 2003.  Counsel for the former solicitor did not challenge any of the contents of those affidavits, or cross-examine the applicant.  Counsel for the first respondent cross-examined him in some respects.  The first respondent put the view that the Court had power to make the orders sought in the circumstances alleged provided that the applicant himself had acted conscionably, and that they amounted to a serious irregularity in the conduct of the proceedings.

14                  In the absence of any challenge to the applicant’s credit, I make findings of fact based upon his affidavits, and inferences clearly available as a result of those primary facts.  I pointed out to counsel for the former solicitor the prospect of those findings being made, and invited submissions as to whether I should make them.  No submissions were made that I should not do so. 

the findings

15                  The application for special leave to appeal to the High Court was refused on 15 February 2002.  The evidence indicates that following the refusal by the High Court of special leave to appeal, the applicant came into contact with a registered migration agent in Melbourne for advice.  He was then contacted by the former solicitor for the applicant, that solicitor apparently having been contacted by the registered migration agent.  He discussed his circumstances with the former solicitor.  He then received a letter of 20 February 2002 from his former solicitor confirming instructions to ‘appeal’ to the High Court, and enclosing a series of documents to sign including a ‘Notice of Acting in Person’ and a fees agreement.  The applicant said that he was told orally at the time that he had a good case.  That evidence was not challenged.  I take the reference to an ‘appeal’ to be the proposed application to the High Court for orders in the nature of prerogative relief.

16                  I find that the next contact that the applicant had with the former solicitor was when he received a letter of 30 April 2003.  The heading referred to this matter and a related matter concerning Applicant A152 of 2002.  It was in the following terms:

‘I have read and analysed the relevant documents in the above matters including the RRT Decision.

In my opinion this case is not a strong one and I therefore propose to file Notice of Discontinuances on or about 26 May 2003.  Could you please send a very short letter instructing me to discontinue these matter [sic].

If you wish to apply for an extension of time to extend your stay in Australia I suggest you contact one of our Melbourne agents, Mr Harold Jones on Phone: 03 9826 8899 Mobile: 0419 996 088 who may be able to assist.  You will need to do this as soon as possible.’

17                  Following receipt of the letter of 30 April 2003 the applicant tried unsuccessfully to contact his former solicitor.  He was unable to do so.  I accept that he contacted the office of his former solicitor, but the solicitor was not available.  He left a message asking that the solicitor contact him.  I do not know whether the message got through to the solicitor.  There was no contact in response.  I am not satisfied that the applicant left a message that he did not want to discontinue the proceedings, as his evidence on that particular matter was vague and a little contradictory.

18                  I accept that the applicant did not respond to that letter by giving instructions to discontinue the matter.  I find he did not give instructions to discontinue the matter.  I find he did not authorise the filing on 27 May 2003 of any document that he was acting in person.

19                  In fact, following the notice of discontinuance being filed, a document entitled ‘Notice of Acting in Person’ was also filed.  It is dated 27 May 2003 and was apparently also filed on 27 May 2003.  It did not come to the attention of the Court at the directions hearing on 29 May 2003.  It is signed by the applicant.  The document is largely typed, but has sections where the name of the second respondent, the name of the applicant, its date, the court and registry in which the document is filed and the action number are all inserted in hand printing.  I find that those hand printed entries were made by or at the direction of the solicitor then for the applicant.  I also find that that document was filed by the former solicitor for the applicant following the filing of the purported notice of discontinuance.  Those findings are made by inference, based upon the uncontradicted evidence of the applicant that he did not on 27 May 2003 or about that time sign that document.  In the letter confirming the applicant’s instructions dated 20 February 2002, he was asked to sign an incomplete Notice of Acting in Person at the request of his former solicitor which was in the form of the typed pro forma document without the hand printed details to which I have referred.  He did not then give any instructions about the circumstances in which that document might be completed or filed.

20                  I accept that the applicant was unaware of the events which happened on 26 to 29 May 2003 until, on 9 July 2003, he received a letter from the Department for Immigration & Multicultural & Indigenous Affairs (the Department) that his bridging visa had ceased.  It was only upon inquiry to the Department that he was informed that his application to the Court had been discontinued.  He promptly caused the institution of the notice of motion now before the Court.

conclusions

21                  In the light of those findings, I am satisfied that there is power to set aside the notice of discontinuance filed on 26 May 2003 and the subject of the orders made on 29 May 2003.  The notice of discontinuance was filed without instructions.  The ‘Notice of Acting in Person’ was also filed without instructions.  In the case of the notice of discontinuance, it was apparently filed and served through oversight on the part of the former solicitor for the applicant that he had not received the instructions he had requested.  Had he followed the matter up, he would not have got those instructions.  I have also taken into account that the former solicitor of the applicant also implicitly represented to the Court on 29 May 2003 that he had instructions to discontinue the proceedings.  Again, it seems that was in error.  I have no reason to think there was then an attempt to deliberately mislead the Court.

22                  But at the time, the former solicitor had also wrongly caused to be filed and served the ‘Notice of Acting in Person’.  He had no authority to do that.  He had no authority to complete the ‘pro forma’ document to that effect at that time.  He had no instructions from the applicant that the applicant wished at that point to act for himself.  There was no earlier communication which could have amounted to an authority or instruction to the former solicitor to complete or have completed the ‘pro forma’ document at that time.  The initial letter of 20 February 2002 confirming the instructions did not explain the purpose of the ‘pro forma’ document or foreshadow the circumstances in which it might be completed and filed.

23                  Those combined circumstances, in my judgment, are sufficient to fall within the expression used by counsel for the first respondent of ‘serious irregularity’.  The finding that the notice of discontinuance was filed in error, and without instructions, must be measured in the context of the only relevant communication from the former solicitor being the letter of 30 April 2003.  It occurred despite the initial oral advice that the applicant had a good case.  The finding must also be measured in the context of the Notice of Acting in Person having also been completed and filed without instructions, and without instructions to so proceed being sought.  Moreover, despite the filing of that document, the former solicitor for the applicant attended the directions hearing on 29 May 2003 and maintained the position that he was instructed to act for the applicant and sought leave on behalf of the applicant to file and serve the notice of discontinuance.  The fact of the Notice of Acting in Person was not brought to the attention of the Court by the applicant’s former solicitor.  The failure to do so is unexplained.

24                  In the exercise of my discretion, I propose to make the orders sought in the notice of motion.  There was no real focus in the submissions on the prospects of the applicant securing an extension of time to have brought the application, if an extension of time is necessary.  One consideration would be the length of the delay, but it is arguable that the Court on that score should take into account the fact that the applicant acted previously following the completion of his attempts to seek judicial review of the Tribunal’s decision in this Court and by seeking special leave to appeal to the High Court:  see e.g. per Kirby J in Re Minister for Immigration & Multicultural Affairs; Ex parte ‘A’ (2001) 185 ALR 489 at [31]-[34] made in the light of the decision of the High Court in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at [13]-[15].  The evidence as to any other explanation for the delay, and submissions about whether the applicant has a real prospect of succeeding in his application were not advanced by either party.  There were no other matters put in contentions as relevant to my discretion.  The injustice to the applicant of being deprived of the opportunity of pursuing his claims, even if there is little prospect of success, is clear and the first respondent will not be prejudiced as the orders I propose to make will not enhance the position of the applicant beyond that which he occupied before his former solicitor erroneously discontinued the application.  The first respondent will otherwise be protected by an order for costs payable by the former solicitor for the applicant.

Associate:

Dated:              2 October 2003