Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCA 18 (30 January 2004)

Last Updated: 3 February 2004

FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No.2)

[2004] FCA 18

COSTS – whether costs should be awarded against solicitor for unsuccessful applicant in favour of respondent – solicitor instituted and maintained on instructions proceedings which had little or no prospect of success – whether institution and maintenance on instructions of proceedings with no prospects of success warrants order for costs against solicitor

LEGAL PRACTITIONERS – costs - whether costs should be awarded against solicitor for unsuccessful applicant in favour of respondent – solicitor instituted and maintained on instructions proceedings which had little or no prospect of success – whether institution and maintenance on instructions of proceedings with no prospects of success warrants order for costs against solicitor


Migration Act 1958 (Cth) s 477
Judiciary Act 1903 (Cth) s 39B

Caritativo v Minister for Immigration & Multicultural Affairs (No.2) [2002] FCA 735 noted
Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 cited
De Sousa and Anor v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 considered
Deputy Commissioner of Taxation v Levick [1999] FCA 1580; (1999) 168 ALR 383 followed
Levick v Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155
Re Bendeich (No.2) (1994) 53 FCR 422 cited
NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 945 noted
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 followed
Ridehalgh v Horsefield [1994] Ch 205 followed
Rondel v Worsley [1967] UKHL 5; [1969] 1 AC 191 cited
Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157 not followed
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 cited
Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 cited
Cachia v Hanes (1993) CLR 403 cited


GOPAL KRISHAN PARDEEP KUMAR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 427 OF 2003


MANSFIELD J
30 JANUARY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 427 OF 2003

BETWEEN:	GOPAL KRISHAN PARDEEP KUMAR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	30 JANUARY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COSTS CLAIM – THE PRINCIPLES

1 On 18 December 2003, I dismissed the application with costs: Kumar v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1599 At the time, the respondent sought an order that the solicitor for the applicant be ordered to pay the costs of the application jointly with the applicant. Such an order was made by French J in Caritativo v Minister for Immigration & Multicultural Affairs (No.2) [2002] FCA 735. The issue has since been the subject of further submissions.

2 The Court has jurisdiction to make an order for costs against a solicitor. See Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 and De Sousa and Anor v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 (De Sousa).

3 In De Sousa, French J stated at p 547-548:

‘There is no doubt in my opinion that the Federal Court has the power to make an order [for costs against a solicitor] of the kind sought in this case. 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 ...’

See also Deputy Commissioner of Taxation v Levick [1999] FCA 1580; (1999) 168 ALR 783 per Hill J; upheld on appeal Levick v Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155 (Levick) per Wilcox Burchett and Tamberlin JJ.

4 In Levick, the Full Court at [31-42], 162-166 reviewed the authorities identifying when it is appropriate to order a solicitor to pay the costs or part of the costs of an unsuccessful proceeding. I respectfully adopt that review. The need for caution, and the reasons for caution, in the exercise of the power is expressed by Drummond J in Re Bendeich (No.2) (1994) 53 FCR 422 at 426-427 in the following terms:

‘As the Chief Justice observed in Bent v Gough at 207, the power to award costs against a solicitor personally involves special considerations. The cases show that this jurisdiction must be exercised with caution. There is good reason for caution. Too ready an exposure of the lawyer for a party to personal liability for costs of his client or of the other party is likely to inhibit the way the lawyer acts in conducting the litigation. It frequently happens that a lawyer will have to make judgments as to which of a number of courses is the optimum one to follow, bearing in mind his duty to advance his client´s interests by all proper means and his duty to the Court to conduct the litigation in proper fashion. The introduction of a third consideration into everyday litigation that requires a solicitor to keep in mind the need to minimise the chances of a costs order being made against him personally, would raise a conflict between the lawyer´s duties to his client and to the Court, on the one hand, and his own interests, on the other. As is understandable, such a conflict would likely be resolved by the solicitor concentrating on identifying and adopting the course most likely to minimise his own personal exposure at the expense of following courses best fitted to advantage his client and to bring the action to an expeditious end. Moreover, practitioners should be encouraged to see the threat to seek a costs order against their opposing solicitor as a tactic available to be employed in the course of litigation to put pressure on their opponent: cf the comments of the Master of the Rolls and of Dillon LJ in Orchard v South Eastern Electricity Board [1987] 1 QB 565 at 577 and 580.’

That passage was cited with approval by the Full Court in Levick at [40], 164-165 and by Jacobson J in NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 945 at [2].

5 There is no doubt that a serious dereliction of duty by a solicitor is demonstrated by the solicitor’s involvement in the institution and maintenance of proceedings for an ulterior purpose so as to amount to an abuse of the process of the Court. White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 (White Industries) is such a case: see the findings of Goldberg J at 248-249.

6 Hill J in Levick at first instance at [16], 390 pointed out that a hopeless case may support the inference that there was some ulterior purpose for the proceeding. His Honour said:

‘However, where the case advanced is so hopeless that it can have no real chance of success there is, in the broad sense an abuse of process and this will be so because it can then readily be inferred that the case was not put forward for the purposes of vindicating any right or making out any defence, but for some other ulterior purpose, such as, in the case of a person against whom a petition has been filed in bankruptcy, delaying the making of a sequestration order the making of which would, otherwise, be inevitable.’

There the advancing of clearly untenable arguments led his Honour to infer that they were made for an ulterior purpose. In reaching that view, he had regard to the fact that the unmeritorious arguments originated with the solicitors themselves, rather than with the clients.

7 The Full Court in Levick also addressed the issue of whether the institution or maintenance of a proceeding which has little or no prospect of success itself exposes the solicitor acting for the party to the risk of a costs order. They cited with approval at [41], 165 Goldberg J in White Industries at 236 in the following terms:

‘The authorities do not support the proposition that simply instituting or maintaining a proceeding on behalf of a client which has no or substantially no prospect of success will invoke the jurisdiction. There must be something more namely, carrying on that conduct unreasonably. It is not clear what is encompassed by ‘unreasonably’ initiating or continuing proceedings if they have no or substantially no chance of success. It seems to me that it involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.’

That view was to accommodate the competing principle that a party is entitled to have a solicitor act for the party even in an unmeritorious case: see e.g. Ridehalgh v Horsefield [1994] Ch 205 at 234 (Ridehalgh). The Court of Appeal in Ridehalgh at 233 said:

‘A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he acts for a party who pursues a claim or a defence which is plainly doomed to fail.’

8 Their Lordships (Sir Thomas Bingham MR and Rose and Waite LJJ) explained the public policy behind professional advisers acting for those who are ‘unpleasant, unreasonable, disreputable, and have an apparently hopeless case’: per Lord Pearce in Rondel v Worsley [1967] UKHL 5; [1969] 1 AC 191 at 275. The policy underlies the ‘cab rank’ rule applicable to barristers in independent practice. It is to ensure representation for the unpopular and the apparently unmeritorious. It does not relieve the legal practitioner from the obligation to give proper advice, including any perceived weakness in the case and the consequences of the risk of failure. But such advice need not be taken. The Court of Appeal continued at 234:

‘But clients are free to reject advice and insist that cases be litigated. It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved. They are there to present the case; it is (as Samuel Johnson unforgettably pointed out) for the judge and not the lawyers to judge it.
...
It is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it.’

9 In Levick at [43], 166 the Full Court accepted those statements of principle. Their Honours continued at [44], 166:

‘Having said that, it is equally important to uphold the right of a court to order a solicitor to pay costs wasted by the solicitor’s unreasonable conduct of a case. What constitutes unreasonable conduct must depend upon the circumstances of the case; no comprehensive definition is possible. In the context of instituting or maintaining a proceeding or defence, we agree with Goldberg J that unreasonable conduct must be more than acting on behalf of a client who has little or no prospect of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.’

10 The order of French J in De Sousa that the solicitor pay the costs was made because there was a serious dereliction of duty by a ‘serious failure to give reasonable attention to the relevant law and facts’ (at 548). That seems to reflect the second of those alternatives as expressed by the Full Court.

11 In the recent decision of the Queensland Court of Appeal in Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157; [2003] 2 QdR 683, Davies JA (with whom Williams JA and Philippides J agreed) at [24], 689 rejected the proposition that it is not improper for a legal representative to present a case which the legal representative knows or ought to know is unarguable and bound to fail. His Honour distinguished between such a case and one which is barely arguable but most likely to fail. After referring to the observations of Mason CJ in Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 556, Davies JA said:

‘If it is counsel’s duty to exercise his or her own independent judgment upon which points will be argued it must also be his or her duty, in the exercise of that judgment, to decide whether there is any point which can be argued. Greater care must be taken, in judging the conduct of a lawyer for a party in litigation, where the arguability of that party’s case depends on a question of fact than where it depends on a question of law, for it is not for counsel or solicitor to sit in judgment on the reliability of his or her client’s witnesses. Nevertheless the question, in my opinion, is the same whether it depends on fact or law. If the case is plainly unarguable it is improper to argue it.’

12 Although Williams JA agreed with those reasons, he added with apparent approval reference to Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 per Lord Hobhouse at 143-144 (Medcalf) where his Lordship said:

‘So it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is entitled to be heard; to penalise the advocate for presenting his client’s case to the court would be contrary to the constitutional principles to which I have referred. The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process.’

Philippides J agreed also with those further reasons.

13 For the present purposes, it is sufficient to note that I am bound to follow the decision of the Full Court in Levick which expressly adopted the principles referred to by Goldberg J in White Industries, in turn relying upon the Court of Appeal in Ridehalgh.

14 Consequently, I proceed on the basis that simply by instituting or maintaining on instructions proceedings which have no real prospect of success is not a dereliction of duty by a solicitor which warrants an order for costs.

15 Of course that does not excuse the solicitor from the obligation to conduct such investigations, and to give such advice, as is appropriate in the circumstances before the institution of the proceedings. It is for the client whether to take that advice. If the client does not do so, it may well be in the public interest for the client to be represented, as the solicitor then has the duty to the Court not to incur costs improperly or without reasonable cause: see e.g. O 62 r 9 Federal Court Rules. The so-called ‘wasted costs jurisdiction’ gives rise to its own problems: see Evans ‘The Wasted Costs Jurisdiction’ (2001) 64 MLR 51. The advocate also of course has duties of independence and frankness to the Court: see e.g. survey of relevant professional conduct rules in Australian Law Reform Commission, Report No 89 ‘Managing Justice’, January 2000 at pars 3.84 to 3.92. Proceedings, even hopeless proceedings, are likely to be conducted more efficiently by a solicitor for a party than by a litigant in person: see e.g. Australian Law Reform Commission, ‘The Unrepresented Party’, Adversarial Background paper 4, December 1996; ‘Managing Justice’; Law Foundation of New South Wales, Unrepresented Parties and the Equal Opportunity Tribunal: ‘A Survey of Tribunals and Recommendations for Change’, Access to Justice Series; Law Reform Commission of Western Australia ‘Review of Civil and Criminal Justice System, Consultation paper; Litigants in Person, ‘Unreasonable and Vexatious Litigants;, March 1999; Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia: Final Report, September 1999. The High Court in Cachia v Hanes [1994] HCA 14; (1993) 179 CLR 403 at 415 recognised the problems commonly experienced in the efficient conduct of litigation by litigants in person. The fact that instructions are given to pursue an apparently hopeless claim may demonstrate that, had the solicitor not acted in the matter, the litigant would have pursued the claim unrepresented. In such cases it may be difficult to discern that the conduct of the solicitor has in fact led to the other party incurring costs which otherwise would not have been incurred; generally the costs incurred are likely to have been less by reason of the representation.

16 Moreover, such an approach does not permit a solicitor to institute, or maintain, proceedings which are being conducted for an ulterior purpose. It does not entitle the solicitor to propose arguments, and then to obtain instructions to propound claims, which are clearly untenable (as occurred in Levick). If advice ought to have been given that the proposed proceedings had no real prospect of success and if, upon the material before the Court, such advice would have been accepted by the client so that the proceedings would not have been instituted, then also the solicitor may be ordered to pay the costs of the proceedings (as occurred in De Sousa).

17 Lord Bingham of Corkhill in Medcalf at [23], 135 reinforced however two points. In addressing a claim that a solicitor pay the costs of instituting and maintaining proceedings, client legal privilege precludes the solicitor (in the absence of waiver by the client) from giving any account of communications with the client. Secondly, and consequently, the Court will often be in the position where the solicitor will not have had a fair opportunity to have been heard because it will not be able to know what might have been put in opposition to the costs order sought. Such matters reflect the cautious approach urged by Drummond J in Re Bendeich cited in [4] above.

THE COSTS CLAIM – THE CONTENTIONS

18 The respondent contends that there has been a serious dereliction of duty on the part of the solicitor for the applicant in the institution and maintenance of the application to quash the decision of the Migration Review Tribunal (the Tribunal) given on 19 March 2003, because the solicitor for the applicant failed in a serious and significant way to give reasonable attention to the relevant law and facts relating to the application.

19 Counsel for the applicant (who is also the solicitor on the record for the applicant) acknowledges in submissions that the application was instituted ‘to preserve the applicant’s position’ having regard to the time limits imposed by s 477 of the Migration Act 1958 (Cth) (the Act). Section 477 provides that an application to the Court under s 39B of the Judiciary Act 1903 (Cth) for prerogative orders in respect of an order of the Tribunal which is a privative clause decision must be made within 28 days of the notification of the decision. It is accepted that the Tribunal’s decision (if made without jurisdictional error) is a privative clause decision as defined in s 474(2) of the Act. It is also accepted that the Court’s jurisdiction to make orders under s 39B of the Judiciary Act is recognised by ss 475A and 476 of the Act, but that otherwise the Court has no jurisdiction to make orders of the kind sought in the application. Counsel for the applicant points out that the 28 day period cannot be extended: s 477(2) of the Act, that often the precise date of notification of the decision of the Tribunal is unclear so it is desirable to act within 28 days of the recorded date of the Tribunal’s decision, and that the consequences of a failure to institute an application to the Court within time, when instructed to do so, may include the applicant becoming an unlawful non-citizen liable to immigration detention under s 189 of the Act and to removal from Australia under s 198 of the Act.

20 Hence, he contends, having been instructed to institute the present application, it was appropriate to do so to secure the applicant’s position and then in a timely manner to investigate in detail the nature of the claim, including securing such documentation as is appropriate, with a view to more formally advising as to the prospects of success on the application and if appropriate also advising as to amending the application itself.

21 This is not a matter where the respondent alleges that the institution of the application was not to vindicate or preserve the legal rights of the applicant but was for an ulterior purpose such as procuring the applicant’s prolonged stay in Australia when he is not entitled to it. Such an ulterior purpose would reveal that the application was an abuse of the Court’s process, and the participation of the applicant’s solicitor in such an abuse of process would warrant the making of a costs order against the applicant’s solicitor: Flower & Hart; Levick at [15].

22 The respondent’s contention in this matter is simply that the solicitor for the applicant was seriously derelict in his duty by failing to give reasonable attention to the relevant law and facts before the institution of the application. It is pointed out that the affidavit filed and served with the application (see O 4 r 6 of the Federal Court Rules) did not show the material facts on which the application was based, but simply annexed the decision of the Tribunal. It is also pointed out that the subsequent documents (the proposed amended application, and the applicant’s affidavit sworn on 12 December 2003) also do not show ‘in any tenable way’ material facts which support an allegation that the applicant was denied procedural fairness by the Tribunal. Finally, it is contended, the Tribunal’s reasons clearly identify the reason why the application for review before the Tribunal failed, namely that at the time of its proposed decision the applicant had no business sponsor (as required by subcl 457.223(4) of Sch 2 to the Migration Regulations), and that deficiency was not at any time addressed by the applicant or by his solicitor.

THE COSTS CLAIM - CONSIDERATION

23 The application for review, in what appears to be fairly stereotypical terms, specifies grounds which in terms may in part be drawn from s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It asserts, inter alia, the failure of the Tribunal to have accorded procedural fairness to the applicant. It was instituted on 7 April 2003. Apart from an appearance, nothing further occurred in the matter until the respondent’s motion of 24 October 2003.

24 In my view, the proper focus is firstly upon whether the solicitor for the applicant is shown to have been seriously delictual in his duty by reason of the institution of the application. In De Sousa, French J at 548 considered the solicitor concerned had seriously failed to give reasonable attention to the relevant law and facts. The solicitor had apparently advised that applicant to pursue a particular form of Entry Permit then available under the Migration Regulations when there was no doubt that applicant did not satisfy the then criteria for the grant of such an Entry Permit. The application was misconceived.

25 In this matter, the position is not so clear. The respondent accepts that the applicant gave the solicitor instructions to institute the application. There has been no waiver of privilege. It does not appear what information was given to the solicitor for the applicant, or what consideration or advice was given by the solicitor to the applicant. For example, it is not clear what, if any, instructions were given by the applicant or his migration adviser about communications with the Tribunal before the Tribunal’s decision. It may be inferred that any consideration or advice was brief rather than fully considered. The circumstances referred to in [19] above might explain why that is so. It may be that the solicitor gave advice that, on the basis of the instructions, the prospects of success were slight. It may be that the applicant gave instructions to make the application notwithstanding such advice. I note that the first two grounds specified in the application concern the Tribunal having failed to accord the applicant procedural fairness. On the other hand, there may have been no advice given at all. The material before the Court does not enable any firm finding to be made.

26 By instituting the proceedings on instructions, but without fully investigating the claims to be made, the solicitor for the applicant is not necessarily shown to have committed a serious dereliction of duty. It is, for example, not uncommon in challenges to the fairness of the procedure of the Tribunal to require a transcript of the hearing. Such a transcript may take a considerable time to secure. Section 477(2) accommodates no delay while full investigations are carried out. It should be noted that the time limit prescribed by s 477 will not apply where the Tribunal has committed jurisdictional error, so full investigation and advice might have been given before the proceedings were instituted: see e.g. Plaintiff S157/2002. But, upon the Tribunal’s decision, the visa application may have been finally determined: see s 5(9) of the Act, with the consequence that the applicant became an illegal non-citizen liable to immigration detention and deportation under s 189 and s 198 respectively.

27 In the factual context of De Sousa, one can readily understand why the Court regarded the serious failure to give reasonable attention to the relevant law and facts as warranting the exercise of the power to compensate the respondent by making an order for costs against the applicant’s solicitor. But each case must be viewed in its own circumstances. The ‘serious failure to give reasonable attention to the relevant law and facts’ in that case was found to demonstrate the solicitor’s serious dereliction of duty. But it will not always do so. Advice may be given that further investigation should be carried out before reliable assessment of the prospects of success can be made, but the client may instruct the institution of proceedings on the basis of preliminary advice and investigation. Or a time limit may be about to expire. Or there may be other considerations.

28 In this matter, I am not satisfied that the institution of the application by the solicitor for the applicant on the applicant’s instructions amounts to a serious dereliction of the solicitor’s duty. The fact that the applicant did not, at the time of the Tribunal’s hearing or its decision, have a business sponsor does not necessarily mean the application to quash its decision must necessarily have failed. The requirement of a business sponsor is one which must exist at the time of the Tribunal’s decision. The applicant’s affidavit of 12 December 2003 asserts that he now has a business sponsor. He wished the Tribunal hearing on 27 February 2003 to be adjourned so he could complete his efforts to secure a business sponsor. The Tribunal, if requested, may have given him that opportunity. With a little more time, he may have been able to satisfy that criterion. It is not clearly shown that the solicitor for the applicant was instructed in such clear terms that he should have advised at that time that there was no prospect of success on the proposed application, particularly as ultimately it appeared the complaint of the applicant was that he had not been accorded procedural fairness by the Tribunal.

29 The respondent’s ‘fall-back’ application is for an order for her costs to be paid from (say) 7 June 2003 by the solicitor for the applicant. That date is fixed to allow a period of two months after the commencement of the application to have completed investigations into the matter and to have given detailed advice covering it. That advice, it is contended, must have been to the effect that the application had no prospects of success so the application should have been discontinued or the solicitor for the applicant should have ceased to act for the applicant.

30 The delay needs to be explained. On 7 February 2003, the High Court remitted to the South Australia District Registry of this Court 364 matters in which the same solicitor for the applicant was acting, and which sought to quash decisions of the Tribunal or of the Refugee Review Tribunal made under the Act. The Court, after consultation with the solicitor for the applicant (and for all those applicants) and with the solicitors for the respondent, adopted specific procedures for their efficient disposition. In accordance with that procedure, those remitted matters were largely disposed of by August 2003.

31 Subsequent to that consultation, the solicitor for the applicant between 27 March 2003 and 7 July 2003 instituted 112 matters on behalf of applicants also seeking to quash decisions of the Tribunal or of the Refugee Review Tribunal. The present application is one such matter. Also, on 29 June 2003, a further 121 matters of the same general nature were remitted by the High Court to this Court for hearing and determination. Those two groups of matters were to be progressed only after the disposition of the matters remitted to this Court on 7 February 2003 had largely progressed.

32 On 5 August 2003, again after consultation with the solicitor for the applicant (and the other applicants in those subsequent two tranches of applications) and with the solicitors for the respondents, the Court adopted specific procedures for the efficient disposition of those subsequent tranches of applications. The procedures largely mirrored those previously in place. The matters were to be progressively dealt with in blocks. The solicitors for the respondent were to initiate the progressive dealing with the matters in one of two alternative ways with a view to them each coming on for hearing as promptly as possible, including the one adopted in this matter.

33 As noted, in this matter, after the appearance of the respondent was filed, the next step taken was the filing and service of the respondent’s notice of motion on 24 October 2003 for this application to be summarily dismissed. That procedure was taken in accordance with, and reflected, the arrangements referred to. The motion was heard and the application was dismissed on 18 December 2003.

34 For those reasons already given, I do not consider in the circumstances the solicitor for the applicant was seriously derelict in his duty for not having fully investigated the matter and for not having finally advised concerning it by 7 June 2003.

35 It is necessary however to also address the alternative contention by reference to the time after the respondent’s motion of 24 October 2003 to summarily dismiss the application. I do not think the solicitor for the applicant should be ordered to pay the respondent’s costs for any part of that period. In the first place, the respondent in its fallback contention has accepted a period of two months or so after it became appropriate or necessary for the solicitor for the applicant to fully investigate and advise on the matter before the stage would be reached that, if that were not done, a serious failure to give reasonable attention to the relevant law and facts would be demonstrated. That period in effect covers the time to the hearing of the motion. More importantly, as I have sought to indicate above, a serious failure to give full attention to the relevant law and facts at or before the commencement of an application will not necessarily demonstrate a serious dereliction of duty. There may be reasons why that has occurred. Those reasons may relate to the financial sources available to the applicant, to accessibility, to illness, or to a variety of factors. Without intruding beyond the veil of privilege, it will sometimes not be possible to form such a judgment.

36 Finally, there are two assumptions underlying the submission which I do not accept. The first assumption is that if proper advice were given, and not taken, the solicitor for the applicant must then cease to act. It is no doubt very common that a client, having been advised there is no real prospect of success in a proceeding, will give instructions to discontinue the proceeding. But that does not always occur. Sometimes the client will choose to take the chance, however remote, that the application may succeed. I do not know if that is what occurred in this matter. It may have. The circumstances, or the nature of the issues, do not lead to a view one way or the other. By reason of client legal privilege, the solicitor for the applicant cannot enlighten the Court. The applicant has not done so. The real possibility that the applicant was advised by the solicitor that his claim had little or no real prospect of success but nevertheless gave instructions to pursue it remains. In that event, for the reasons I have given earlier, it would not be a serious dereliction of duty on the part of the solicitor (and counsel) to pursue the application and to present such arguments as may be available in support of the claim. In fact, the solicitor for the applicant, as counsel, did appear and did present such arguments as were available in support of the claim. The argument did not take long. It was efficiently presented. It was rejected. The second assumption is that, if the solicitor, at the point of giving final advice, had said that the claim had little or no prospect of success, and had then declined to act when the advice was not taken, the respondent would then not have incurred the costs which were incurred. It is not shown that he did not give such advice and receive instructions to proceed in the face of it. The fact that he has appeared and put such arguments as might have been put tends to suggest that, had he not done so, the applicant may have proceeded in person. The respondent would have incurred the same (or perhaps greater) costs.

37 Accordingly, as it has not been shown that the solicitor for the applicant gave no proper advice or gave advice about the prospects of success, I am unable to conclude that the costs incurred by the respondent in successfully resisting the application were incurred as a result of seriously delictual conduct on the part of the solicitor for the applicant.

38 The application that the solicitor for the applicant pay the costs of the respondent is therefore refused.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 28 January 2004

Counsel for the Applicant:	M W Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 December 2003
Date of Judgment:	30 January 2004