Applicant A72 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 579 (29 May 2003)

Last Updated: 12 June 2003

FEDERAL COURT OF AUSTRALIA

Applicant A72 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 579

APPLICANT A72 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 64 of 2003

von DOUSSA J

ADELAIDE

29 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S64 OF 2003

BETWEEN:	APPLICANT A72 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	29 MAY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. Subject to par 4 below, application dismissed for want of prosecution.

2. The applicant pay the respondents' costs fixed at $900.

3. Mr Mark Clisby pay the respondents' costs fixed at $2,100 on or before 24 July 2003.

4. Liberty reserved to Mr Mark Clisby to take action in these proceedings, if so advised, against the migration agent by way of joinder or otherwise to recover the order for costs made against him.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S64 OF 2003

BETWEEN:	APPLICANT A72 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	von DOUSSA J
DATE:	29 MAY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 I have been asked to hear a notice of motion filed by the first respondent on 26 May 2003. No point is taken about the shortness of time between the filing and a hearing today.

2 The background is that an application for constitutional writs was filed in the High Court of Australia on 30 May 2002 by the applicant in these proceedings. On 7 February 2003, the proceedings were remitted to this Court. The procedure required by O 51A of the Federal Court Rules was then followed. A notice was given to the respondents. The respondents appeared.

3 An order was made on 9 April 2003, directing the filing of an amended application, an outline of submissions, and the filing of a memorandum stating the State or Territory in which the applicant is residing, whether the applicant wishes to be present at the hearing of the application, whether the matter is one that could be transferred to the Federal Magistrates Court and whether the applicant objects to the transfer to the Federal Magistrates Court. Those matters were to be complied with by 15 May 2003.

4 On 9 May 2003 an amended application and submissions were filed as was a memorandum purporting to provide the information required by the direction. That memorandum said that the applicant resides in the State of New South Wales, that he does not wish to be present at the hearing of the application, and the matter is one that could be transferred to the Federal Magistrates Court.

5 On 26 May 2003 a notice of motion was filed by the first respondent seeking to have the proceedings dismissed on the ground that the amended application and supporting material provided no possible basis upon which the relief claimed by the applicant could be granted.

6 In the course of preparing the affidavit in support of that notice of motion, the first respondent, the Minister, caused inquiries to be made which revealed that the applicant, who had been a student in Australia, had departed Australia on 24 October 2002. The first respondent immediately sought an explanation for the filing of the documents by the applicant's solicitor in the light of that information.

7 That inquiry elicited a letter in which the applicant's solicitor said that he obtained his instructions from a registered migration agent and the registered migration agent had indicated that his client - that is, the applicant - had never communicated to him that he had departed Australia. Accordingly the registered migration agent had never communicated to the applicant's solicitor that his client had departed Australia. The letter went on to say that the applicant had never instructed the migration agent to discontinue the matter and accordingly the migration agent had never instructed the solicitor to discontinue the matter.

8 Inconsistently with that information, however, the letter said that in view of the circumstances, the migration agent had instructed the solicitor to forthwith discontinue the proceedings. Contemporaneously, a notice of discontinuance was filed by the applicant's solicitor on the record and a copy sent to the first respondent.

9 The notice of motion that I have been asked to hear today is the one that sought the dismissal of the action and consequential orders for costs. The order for costs now sought is that the applicant's solicitor pay the whole or part of the costs of the proceedings.

10 In my opinion, from the information that I have outlined, the Court should infer that on 30 May 2002 the applicant was in Australia and through a migration agent duly instructed the solicitor on the record to make the application to the High Court of Australia. That retainer would imply authority to the solicitor to take appropriate action in respect of the proceedings in the High Court. I think that the implied retainer extended to the formal appearance before the High Court that occurred on 7 February 2003 when this matter and 364 like matters were remitted by the High Court to this Court to be processed. However, I think it is plain that from that time onwards, the documents that were filed by the applicant's solicitor were filed without the authority or instruction of the applicant. It follows also, in my opinion, that the notice of discontinuance which the solicitor purported to file on 27 May 2003 was not effective to discontinue the action as it was filed without authority. Moreover it was filed without leave as required under O 22 r 2 of the Federal Court Rules.

11 Given the information which has been put forward by the first respondent in support of the notice of motion, I am satisfied that it is proper in the circumstances to dismiss the proceedings on the ground that the applicant is no longer in Australia and has failed to duly prosecute the proceedings by giving the necessary instructions to his solicitor through the migration agent. Accordingly, the proceedings will be dismissed, subject to what is said below about costs.

12 It is necessary then to consider the question of costs. The costs of the proceedings in the High Court and the remittal, in my opinion, are the responsibility of the applicant and not costs that should be roped home to the applicant's solicitor. However, the law in my opinion is quite clear that if a solicitor wittingly or unwittingly commences proceedings without a client or without authority from the person named as applicant, the solicitor is personally liable for the costs of those proceedings.

13 The costs cannot be awarded against anyone else presently before the Court. They cannot be awarded against the named applicant because the named applicant has not authorised the action that has been taken.

14 In my opinion there should be an order for costs against the solicitor personally in respect of action that has been made necessary by the amended application and other documents that have been filed since 7 February 2003.

15 It may be unfortunate for Mr Clisby that the order for costs is made against him personally, as the information on the Court file indicates that he was not the party primarily at fault for the failure that has occurred in obtaining the instructions of the client. However, as he is the solicitor on the record, he is the only party against whom the order for costs can formally be made today.

16 If the situation is as Mr Clisby has informed the Court, namely that he has been misled as to the position by the migration agent, a costs order could also be made against the migration agent if he were before the Court. He is not presently before the Court, so the Court is, at the moment, without power to make an order against him. If he is joined as a third party or otherwise brought before the Court, it is probable that this Court would order him to indemnify Mr Clisby. Accordingly, the order of the Court will reserve liberty to Mr Clisby to take action against the migration agent in these proceedings.

17 However, even if such an order is made in the future against the migration agent, the primary responsibility under the order that I make today rests and will continue to rest with Mr Clisby.

18 Quite apart from the action that has in fact been taken on the documents filed without authority, it would have been necessary in order for the respondents to have the action dismissed, to take out a notice of motion, file limited material showing the departure of the applicant from Australia and to have appeared before the Court to obtain an order for dismissal. Accordingly I think that costs subsequent to 7 February 2003 should be apportioned between the applicant and the solicitor on the record.

19 In other matters that were remitted to this Court on 7 February 2003 where the green book has been filed but the applicant has chosen not to go on with the matter and has filed a notice of discontinuance, orders for costs against the applicant have been fixed at $1,500, being in round terms about $200 for the proceedings in the High Court and about $1,300 for the costs of preparing the green book and the other action taken by the respondents up until the filing of the notice of discontinuance. Accordingly, I think that I should allow $1,500 in this matter to cover the work done up to and including 9 May 2003, and apportion it as to $200 to the applicant and $1,300 to the solicitor on the record.

20 In respect of the costs incurred thereafter by the first respondent in relation to the notice of motion, supporting affidavit and appearance today, I fix the costs at a total figure of $1,500, apportioning $800 of that to the solicitor on the record and $700 to the applicant to cover costs that would otherwise have been incurred in having the matter dismissed. The end result is that there will be an order for $900 against the applicant personally and $2,100 against the solicitor on the record, Mr Mark Clisby, personally.

21 The formal orders are:

1. Subject to par 4 below, application dismissed for want of prosecution.

2. The applicant pay the respondents' costs fixed at $900.

3. Mr Mark Clisby pay the respondents' costs fixed at $2,100 on or before 24 July 2003.

4. Liberty reserved to Mr Mark Clisby to take action in these proceedings, if so advised, against the migration agent by way of joinder or otherwise to recover the order for costs made against him.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated: 11 June 2003

Counsel for the Applicant:	Mr M W Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr L K Leerdam
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 May 2003
Date of Judgment:	29 May 2003