FEDERAL COURT OF AUSTRALIA

A159 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1087

A159 of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 138 of 2003

SELWAY J

10 OCTOBER 2003

DARWIN (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1.         Leave to discontinue the proceedings.

2.         Direct that the proceedings be discontinued forthwith, a notice of discontinuance having already been filed and served.

3.         Order:

            (a)        that the applicant pay the first respondent’s costs (including disbursements and including the costs of proceedings in the High Court of Australia) of the application up to and including the directions hearing on 20 June 2003.

            (b)        That Mr Mark Clisby, legal practitioner, pay 70 per cent and Mr Tuferu Habib, legal practitioner and migration agent, pay 30 per cent of the first respondent’s costs relating to events occurring subsequent to the completion of the directions hearing on 20 June 2003 and up to and including the directions hearing on 21 August 2003 (including any costs directly related to appearances at that hearing).

            (c)        That Mr Tuferu Habib, legal practitioner and migration agent, pay the costs of the first respondent of and in relation to the hearing on 30 September 2003, including any costs incurred by the first respondent in relation to the delivery of these reasons.

4.         No order for costs of the second or third respondent.

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

REASONS FOR JUDGMENT

1                     The applicant is a Pakistani citizen.  So far as is relevant the applicant arrived in Australia on 20 October 1998.  On 19 April 2000, the applicant applied for a protection visa on the basis that he had a well-founded fear of persecution by reason of his political beliefs if he returned to Pakistan.  On 5 September 2000, his application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’).  He sought a review of that decision by the Refugee Review Tribunal (‘the Tribunal’).  On 13 June 2002, the Tribunal affirmed the decision made by the delegate.

2                     On 8 August 2002, a legal practitioner in this State filed an application in the High Court of Australia on behalf of the applicant seeking an order nisi directed to the respondents to show cause why orders for mandamus, prohibition and certiorari should not be made against them.  The solicitor filed an affidavit in support of that application.  That affidavit annexed the reasons of the Tribunal for its decision.  The grounds for the application, as set out in the affidavit were as follows:

‘5.1        that a breach of the rules of natural justice occurred in connection with the making of the Decision.

5.2         that the Decision involved an error of law, whether or not the error appears on the record of the Decision.

5.3         that procedures that were required by law to be observed in connection with the making of the Decision were not observed.

5.4         that the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

5.5         that there was no evidence or other material to justify the making of the Decision.

5.6         that the Decision was otherwise contrary to law.’

I note the similarity of some of these grounds of review set out in s 6(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).  I note that no particulars are given to identify how or in what manner the Tribunal made any of the alleged errors.  I am aware from other cases before this Court that the same solicitor, acting for other applicants (indeed, for several hundred other applicants) made a similar application to the High Court in the same terms supported in each case by an affidavit also in the same terms.

3                     The applicant’s application in the High Court was not called on in that Court pending that Court’s consideration and judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 and in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24.  Those decisions established that this Court had the jurisdiction to hear judicial review proceedings in these matters.  The High Court delivered its judgment in those two matters on 4 February 2003.  Following those decisions the High Court remitted the several hundred proceedings instituted by that solicitor on behalf of his various clients to this Court.  On 7 February 2003, the High Court ordered that the application in this matter be remitted to this Court.

4                     The matter first came on for directions in this Court on 28 April 2003.  On that occasion various orders were made requiring the applicant to provide further particulars of the claim, to provide an outline of submissions and to provide various other details on or before 5 June 2003.  The hearing was adjourned to Friday 20 June 2003.  The order expressly provided that in the event that the above requirements were not complied with ‘the applicant will be called on at the adjourned directions hearing to show cause why the matter should not stand dismissed’.

5                     On 20 May 2003, the solicitor, purportedly on behalf of the applicant, filed a Notice of Discontinuance in this Court.  There is no dispute that that Notice was ineffective to discontinue the proceedings.  Pursuant to the Federal Court Rules leave of the Court was required for the applicant to discontinue the proceedings.

6                     On 22 May 2003, there was filed in this Court, apparently by the applicant, a Notice of Acting in Person.  On the face of it the effect of that Notice was that the solicitor no longer acted for the applicant.  Obviously this raised questions as to what instructions that solicitor had to file the Notice of Discontinuance two days before.  In any event, that solicitor was no longer in a position to seek leave to discontinue the proceedings.

7                     When the matter came before the Court at the next directions hearing on 20 June 2003 the solicitor formerly on the record appeared again apparently for the applicant. The Court explained that he could no longer do so.  The matter was further adjourned to 11 July 2003.  Although he was no longer acting, the Court directed that the solicitor formerly on the record also attend on that occasion.  The Court wrote to the applicant at the address as stated on the Notice of Acting in Person informing the applicant of what had occurred and informing him that if he did not comply with the orders made by the Court on 28 April 2003, then his application might be dismissed.

8                     On 26 June 2003, Ms White, a solicitor employed by the solicitors acting for the Minister, filed an affidavit setting out her information and belief that the applicant had left Australia on 12 May 2003.  Assuming that was correct, it obviously raised some questions as to what instructions the applicant had given to the solicitor formerly on the record in relation to the Notice of Discontinuance.  But in particular, it raised an obvious question as to whether the applicant had signed and filed on 22  May 2003, the Notice of Acting in Person that was on the Court file.

9                     When the matter came before the Court on 11 July 2003, the solicitor formerly on the record informed the Court that he did receive instructions to file the Notice of Discontinuance from a migration agent, purportedly on behalf of the applicant. In this regard I note that the migration agent is also a solicitor admitted to practice in Victoria.  In that capacity the migration agent is admitted to the High Court roll and consequently is an officer both of the High Court and of this Court. The solicitor formerly on the record also informed the Court that the applicant did sign the Notice of Acting in Person.  The directions hearing was further adjourned to 21 August 2003.  Orders were made that the solicitor formerly on the record and the migration agent, as officers of the Court, file affidavits setting out what instructions they had obtained and from whom in relation to filing the Notice of Discontinuance and the Notice of Acting in Person.  Each of them was also directed to attend at the hearing on 21 August 2003.

10                  On 20 August 2003, the solicitor formerly on the record filed an affidavit which set out the background to the proceedings from his perspective.  He stated that he received instructions to act for the applicant and to institute proceedings in the High Court on behalf of the applicant from the migration agent.  At the same time as he received those instructions he received a fee waiver form, a trust account form, a cheque on account of his legal fees payable to his Trust Account and a Notice of Acting in Person form, all of which had been signed by the applicant.  The solicitor stated in his affidavit that he instituted the proceedings in the High Court.  He stated that the purpose of having the Notice of Acting in Person form signed was so that it could be filed by the solicitor’s office when the matter was finalised ‘…so that my office would receive no further correspondence in this matter in relation to costs and to enable the applicant to negotiate directly with the Department of Immigration concerning the payment of any costs, after the matter was finalised.’  The solicitor stated that he was absent from his office from 10 – 25 May 2003.  During that period his secretary was ‘in charge’ of his office.  On 16 May 2003, his office received written instructions from the migration agent to discontinue the proceedings and to refund to the migration agent any moneys due to the applicant.  Upon receipt of those instructions his secretary completed and filed the Notice of Discontinuance which has been referred to above.

11                  The affidavit also explained that his secretary also made the relevant changes to the Notice of Acting in Person which had been received from the migration agent in August 2003 and that she then filed that Notice.  The solicitor’s affidavit at least implies that the Notice should not have been filed at that time and that it should have been filed after leave had been granted for the matter to be discontinued.  As he put it in his affidavit, ‘The Notice of Acting in Person was filed without my authority.  This was an administrative error.’  Given that the solicitor’s secretary had been left ‘in charge’ it may be arguable whether or not her actions were unauthorised.  But it would not appear that anything turns on this.  It can be accepted for present purposes that the Notice of Acting in Person was filed earlier than the solicitor had expected.  The solicitor is responsible for any consequences that flow from that.

12                  Although not detailed in his affidavit, it would seem clear from subsequent submissions and evidence that the Notice of Acting in Person form had been prepared in the solicitor’s office as a template and provided to the migration agent.  The form supplied to the migration agent and signed by the applicant was headed ‘In the High Court of Australia.’  There were various ‘blanks’ on the form which needed to be filled in, including the action number, the name of the applicant, the date, the applicant’s signature and the applicant’s address for service.  Some of these were completed by the applicant.  These would seem to have included inserting the name of the applicant, the address of the applicant, and the signature of the applicant. In order to file the Notice in this Court the solicitor’s secretary followed the procedure that had been adopted in other cases of filling the remaining blanks (eg the action number and the name of the Tribunal member) and ‘whiting out’ those aspects of the form that were no longer appropriate and inserting other information.  For example, it is clear that the reference to the High Court of Australia was whited out and the words ‘Federal Court of Australia’ inserted in ink.  It is also clear that the date ‘22 May 2003’ was inserted as the date of the document by the solicitor’s secretary.

13                  Of course, the existence of that Notice was entirely inconsistent with the instructions the solicitor had initially received.  The filing of that Notice without specific instructions to do so at the time it was filed was, at the very least, inappropriate.  The changes made to that form in the solicitor’s office without specific instructions to do so were, at the very least, inappropriate.  And the filing of the form when there was no reason to believe that the information on it was accurate (eg as to the applicant’s address for service) was, at the very least, inappropriate.  None of these issues involved any administrative error by the solicitor’s secretary.  They were the result of the fundamental misunderstanding by the solicitor of his relationship with his client and his duty to the Court.

14                  On 19 August 2003, the migration agent also made an affidavit or, at least, purported to do so.  In that affidavit he stated that he was ‘the solicitor and migration agent who acted for the applicant’ and that he was instructed by the applicant in person to file a High Court appeal.  I will refer generally to him hereafter as ‘the migration agent’ in distinction to the solicitor formerly on the record who I shall generally refer to as ‘the solicitor’. He instructed the solicitor formerly on the record (‘a barrister in Adelaide’) to file the appeal and conduct the case.  He said that he obtained the documents referred to above as well as an application for a bridging visa.  He said that he told the applicant that the Notice of Acting in Person would be filed by the solicitor formerly on the record ‘after the matter had been finalised.’

15                  In that affidavit the migration agent said that he ‘received instructions from [the applicant] to discontinue his Appeal on or about 16 May 2003’ and that he instructed the solicitor formerly on the record’s office to discontinue the appeal on that day.

16                  These affidavits were considered by the Court on 21 August 2003.  At that hearing the Minister was represented by Mr Harris SC and the solicitor formerly on the record was represented by Ms Nelson QC.  The migration agent was unrepresented.  Mr Harris SC applied to cross-examine both the solicitor and the migration agent.  He pointed out that the migration agent claimed to have received instructions ‘or or about 16 May 2003’ when the applicant had departed the country on 12 May 2003.  However, instructions can be given by telephone, by letter, by facsimile and so on even when the person giving the instructions is not in Australia.  Both the solicitor and the migration agent are officers of the Court.  In the absence of any evidence to raise any doubts as to their affidavits I initially declined that application.  The first respondent then made an application for costs against the solicitor.  That was opposed by the solicitor primarily on the basis that he had acted on instructions that had been conveyed to him by the migration agent.  However, in the course of his submissions on the question of who should bear the costs, the migration agent made a number of statements which appeared to contradict his affidavit that he had received instructions ‘on or about 16 May 2003.’  In particular, he said that the applicant instructed him to discontinue the proceedings prior to his departure from Australia: ‘Prior to 16 May. Sometime in early May; late April and early May.’  In those circumstances leave was given for the first respondent to cross-examine the migration agent.  The hearing was adjourned to 30 September 2003 to enable the migration agent to obtain legal representation.

17                  On 29 September 2003, the migration agent filed in this Court an undated affidavit.  That affidavit stated that the migration agent was ‘the solicitor and registered migration agent who acted for the applicant in this matter.’  He said that he had not charged any fee to the applicant and did not open an ‘official’ file.  He simply ‘assisted’ the applicant.  He said that in early May 2003, the applicant telephoned him requesting that he ask the solicitor to discontinue his appeal.  He said that he telephoned the solicitor’s office where he spoke to the solicitor’s ‘assistant’ informing her that the applicant had instructed that the matter be discontinued and that the applicant was seeking a refund of any moneys held in the solicitor’s trust account that were repayable to the applicant.  The migration agent also produced various documents in response to a Notice to Produce which had been issued by the first respondent.  Although not formally proved before me those documents were referred to by the parties.  They included an e-mail apparently sent on 1 September 2003 by the applicant to the migration agent confirming that the applicant telephoned the migration agent before he left Australia and instructed the migration agent to inform the solicitor formerly on the record ‘to withdraw my High Court application.’  The e-mail also referred to some assistance afforded to the applicant by the migration agent in purchasing the applicant’s plane ticket.

18                  When the directions hearing came on again on 30 September 2003, the migration agent was represented by Mr Boden.  He was cross-examined by Mr Harris SC for the Minister.  He was also asked some questions by Ms Nelson QC and by Mr Boden.  It would be fair to say that the migration agent’s evidence was not altogether clear and some matters remain confused.  At least in part this would seem to be a consequence of the fact that the migration agent did not retain any notes of various matters that he might have been expected to keep some record of, particularly the instructions he was given and when he was given them.  It is clear that the migration agent knew the applicant personally.  It is also clear that the migration agent was the only point of contact between the applicant and the solicitor.  The migration agent never received any instructions or other information from the applicant as to what complaint he had concerning the Tribunal process and decision.  He never conveyed any such information to the solicitor.  He nevertheless instructed the solicitor to institute legal proceedings, which the solicitor did.  It would be fair to say that the migration agent had little knowledge or understanding of what those proceedings might be.  He has variously described them as an appeal and a group action.  It would also seem that the migration agent had little understanding of the significance or otherwise of the forms that he arranged for the applicant to sign, including the Notice of Acting in Person.  He says that he left all of these matters to the solicitor and merely did that which he had been told.  It is also clear that the migration agent never received (and consequently the applicant never received) any advice from the solicitor or anyone else as to the prospects of success of the legal proceedings.

19                  The migration agent said in his evidence that the applicant contacted him, apparently by telephone, before he left Australia.  The applicant informed the migration agent that he wished to leave Australia.  Apparently he did not have the necessary money to purchase his ticket.  He instructed the migration agent to instruct the solicitor to discontinue the proceedings.  He also instructed the migration agent to obtain the reimbursement of whatever moneys were due to him from the solicitor’s trust account.  The migration agent contacted the solicitor’s office and ascertained that an amount of $550 was repayable.  The migration agent made a payment of at least that amount to the applicant who presumably used it to purchase his air ticket. He left Australia on 12 May 2003.  On 16 May 2003, the migration agent sent a facsimile message to the solicitor which provided, ‘Notice of Discontinuance.  Please kind discontinue the above case and make refund attention to Habib.  Thanks. (sic)’  The refund was to be payable to the migration agent because he had already made the relevant payment to the applicant.  The solicitor’s secretary forwarded a cheque for $550 to the migration agent.

20                  I am satisfied that the applicant gave instructions to the migration agent that the proceedings be discontinued; that the migration agent conveyed those instructions to the solicitor and that those instructions have not relevantly been withdrawn.  Although it is apparent that the applicant had no understanding of what the proceedings were or what they involved I do not think there is much doubt that the proceedings before me are the proceedings that the applicant intended to discontinue.  In these circumstances it is appropriate that leave be given to the applicant to discontinue the proceedings and that the proceedings be treated as discontinued as from the making of this order.  The first respondent agrees to this course.

21                  The first respondent seeks an order for costs personally against the solicitor and/or the migration agent.  The first respondent submitted that I can infer from all of the above circumstances that the solicitor and the migration agent entered into a scheme to abuse the processes of this Court by instituting proceedings which had no prospects of success.  Mr Harris SC, for the first respondent, drew my attention in particular to the reason given for obtaining the Notice of Acting in Person.  He said that this clearly showed that the solicitor and the migration agent knew that the proceedings were bound to fail.  Although Mr Harris SC did not deal with it directly, it may be assumed that the purpose of this scheme, if it existed, was to enable the applicant to obtain a bridging visa for the period before the proceedings were finally disposed of.

22                  Such a scheme, if it existed, would have involved a clear abuse of the processes of the Court.  In such circumstances a personal order for costs against the persons involved, would be entirely appropriate particularly if they were officers of the Court.  Other action might also be taken.  However, I am not satisfied on the evidence before me that I can infer that there was such a scheme. For me to draw such an inference I would need to be satisfied that both the solicitor and the migration agent had a clear understanding that what they were doing was inappropriate. To put it bluntly, I am not satisfied that both of them or even that either of them did have such an understanding. 

23                  Obviously there are aspects of the actions of the solicitor formerly on the record and the migration agent that are established on the material before me that do cause concern.  One is the apparent failure of the solicitor formerly on the record to consider and advise on the prospects of success of the proceedings.  A lawyer owes a duty to the Court not to bring or defend proceedings, or assert or controvert an issue in such proceedings unless there is a basis for doing so that is not frivolous.  That duty is reflected in Order 11 Rule 1B of the Federal Court Rules, but the duty exists independently of that rule.  Of course, the extent of the duty needs to be understood in the context of the duties also owed by a legal practitioner to his or her client and in the context of the realities of legal practice.  For example, the duty does not prevent a practitioner from issuing proceedings where it is necessary to do so in order to protect his or her client from the expiration of time limits or for other good reason, providing that the prospects of success are considered as soon as reasonably practicable thereafter.  Similarly, the duty does not prevent a lawyer from putting forward a claim or an argument based upon a good faith argument for an extension, modification or reversal of existing law.  And Courts need to be sensible of the possibilities in that regard.  But whatever limitations there maybe on the duty, they have no application in this case.  It is apparent that no consideration was given to the merits (if any) of the proceedings.  The application was a ‘template’ application having no obvious relationship to anything in the processes of the Tribunal that were complained of.  The practice adopted by the solicitor in this case was a breach of his duty to the Court.

24                  But this does not mean that an order for costs should be made against him personally.  If his breach of duty had resulted in costs being unnecessarily incurred then that would be one thing; but in this instance the case was discontinued for reasons that would not seem to be directly related to the prospects of success if the case had proceeded.  Indeed, it would not appear that the applicant had any understanding of what the case was about or what its prospects of success may have been.  Some of the grounds of review that have been alleged would not seem to have anything to do with the processes adopted by the Tribunal in this case, but this does not mean that there was not some arguable proposition that could have been put if the applicant had wished to proceed.  I have heard nothing about the merits of the case and it is not appropriate that I do so.  In the circumstances I do not think it appropriate to make an order for costs against the solicitor on the basis that he breached his duty to the Court to consider the prospects of success of the proceedings before instituting them.

25                  Another matter of concern which does have some impact upon the issue of who should pay the costs in this case is the filing of the Notice of Acting in Person.  I have already referred above to the practice of obtaining a ‘blank’ Notice of Acting in Person.  I have also commented on the inappropriateness of that practice in other cases.  In my view it would be appropriate to make an order for costs personally against at least the solicitor formerly on the record in any case where that practice resulted in further costs.  As discussed below, some of the costs in this case were the result of that practice, exacerbated by the ‘administrative error’ in the solicitor’s office.  It is appropriate that the solicitor meet at least some of those costs personally.

26                  The migration agent is also a legal practitioner and an officer of this Court.  In his oral evidence he claimed that he was not acting in either capacity for the applicant.  It is plain that that is not correct.  It may be that he did not receive any payment from the applicant and that he assisted him by reason of their friendship, but plainly enough the migration agent was acting as an agent.  This does not mean that the solicitor was not performing the role of the applicant’s solicitor and barrister in relation to these proceedings.  The solicitor purported to be so acting when he filed the relevant documents in the High Court and in this Court.  I see no reason to doubt that he was correct in doing so, even though the solicitor’s submissions on at least one of the direction hearings suggested that he may have been confused as to whether he was acting for the applicant or the migration agent.  On the other hand, whether or not the migration agent was acting in his capacity as a solicitor or a migration agent or a mere agent, the migration agent did not have primary responsibility for the conduct of the legal proceedings.  So, for example, I do not think that the migration agent had an independent duty to consider whether the proceedings had any prospect of success.

27                  As already mentioned, the migration agent is, in fact, an officer of the Court, no matter what capacity he was acting in.  Even though he did not have the primary conduct of the proceedings he still had duties to this Court at least insofar as it should have been apparent to him that the proceedings in which he was involved might involve a breach or abuse of the processes of the Court.  Consequently, even though he did not have an independent duty to consider whether the proceedings had any prospect of success there may well come a point at which he should have been aware both that this question had not been considered and that the applicant had not received advice on it.  At that point he might well have been under a duty both to the Court and to the applicant to intervene.  This issue was not explored before me.  And it would be inappropriate to make a costs order against the migration agent in this regard for the same reason as it was inappropriate to do so in the case of the solicitor.

28                  On the other hand the migration agent, as an officer of the Court, should not have been involved in having the applicant sign the blank Notice of Acting in Person.  In my view it is no answer for an officer of the Court to say that he relied upon another officer of the Court when the relevant form is completely inconsistent both with the instructions given by the client and with the role that the relevant lawyer was to perform in carrying out those instructions.  Nor is it an answer for the migration agent to say that he was not acting in the capacity as a solicitor.  As an officer of the Court the migration agent is not entitled to be ignorant of the obligations and duties that the solicitor has and had and was not entitled to advise and assist the applicant and the solicitor formerly on the record in breaching those duties.

29                  Nevertheless, it would seem to me that the direct cause of extra costs being incurred (as discussed below) was not the signing of the Notice of Acting in Person, but the filing of that Notice, particularly that it was filed before the action had been discontinued.  The solicitor formerly on the record must take the primary responsibility for those actions.  In relation to the extra costs incurred by the first respondent as a result of the filing of the Notice of Acting in Person it would seem to me to be a fair result that the solicitor formerly on the record pay 70 per cent of those costs and that the migration agent pay 30 per cent of those costs.

30                  Finally there are the extra costs occasioned by the apparent confusion between the affidavit made by the migration agent on 19 August 2003 and the submissions made by him to the Court on 21 August 2003.  In the context of the issues that were before the Court on 21 August 2003, the reference in the affidavit to ‘on or about 16 May 2003’ when the real position was that the instructions had been given before the applicant left Australia on 12 May 2003 is, at best, unclear if not misleading.  The migration agent should personally meet the Minister’s costs arising from that confusion.  Mr Boden, representing the migration agent, properly conceded that he could not oppose any such order.

31                  The consequence of the above is that the applicant should pay the first respondent’s costs in relation to the proceedings up to and including the directions hearing on 20 June 2003.  All of the first respondent’s costs up to and including that hearing would have been incurred in any event, presuming for this purpose (in the absence of anything to the contrary) that there was some arguable proposition that justified the proceedings being brought in the first place.  In relation to the first respondent’s costs incurred subsequent to the completion of the directions hearing on 20 June 2003 and up to and including 21 August 2003 (including any costs directly related to appearances at that hearing) the solicitor should pay 70 per cent and the migration agent should pay 30 per cent of those costs.  The migration agent should pay the costs of the first respondents of and in relation to the hearing on 30 September 2003, including any costs incurred by the first respondent in relation to the delivery of these reasons.

Associate:

Dated:              10 October 2003