Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

The applicant in this case sought to set aside a notice of discontinuance that had been filed on his behalf without his knowledge or consent. The Minister for Immigration and Multicultural and Indigenous Affairs was the respondent. The applicant, who had arrived in Australia on a tourist visa but had overstayed, had filed an application for review of a decision to refuse him a bridging visa. The application was subsequently discontinued without his knowledge or consent, and he was unaware of the discontinuance until he received a letter from the Department of Immigration & Multicultural & Indigenous Affairs informing him that his bridging visa had ceased. The applicant promptly filed a notice of motion seeking to set aside the discontinuance.

The legal issues before the Court were whether the notice of discontinuance had been properly filed and whether it could be set aside. The Court found that the notice of discontinuance had been filed without the applicant's instructions and that the former solicitor for the applicant had no authority to file the notice or to complete a 'Notice of Acting in Person'. The Court found that there had been a 'serious irregularity' in the proceedings and that the notice of discontinuance and the orders made on the basis of it should be set aside.

The Court set aside the notice of discontinuance and the orders made on the basis of it. The Court also ordered that the former solicitor for the applicant pay costs to both the applicant and the respondent. The Court listed the application for further directions and granted liberty to apply to any party.

The Court's decision highlights the importance of ensuring that notices of discontinuance are properly filed and that lawyers acting for applicants in immigration cases take care to follow their clients' instructions. The Court also emphasised the need for lawyers to ensure that they have proper instructions before filing any documents on behalf of their clients.