Brennan, P.m. v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 688

Re: PAUL MICHAEL BRENNAN
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G249 of 1991
FED No. 688
Courts and Judges
(1992) 28 ALD 178 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)

CATCHWORDS

Courts and Judges - judicial review - application to amend statement of claim - correspondence between solicitors - admissibility - claim to "without prejudice" privilege - correspondence read by Judge - letter offering settlement on terms favourable to applicant - application for Judge to stand aside - whether reasonable apprehension that Judge prejudiced - legal adviser's lack of confidence in case.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958

Boswell's Johnson

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Rush and Tompkins Ltd v Greater London Council (1989) AC 1280

HEARING

MELBOURNE

#DATE 5:8:1992

Counsel for the Applicant: Mr T.V. Hurley

Solicitors for the Applicant: Richmond and Bennison

Counsel for the Respondents: Mr R. Downing

Solicitor for the Respondent: Australian Government Solicitor

JUDGE1

Counsel for the respondent has submitted that, in the light of developments in the hearing to which I shall refer in a moment, I should stand aside and not continue to hear this matter.

1. After the applicant's argument had been proceeding for some time, counsel for the applicant indicated he wished to apply to amend the application. Although one would normally expect such an application would be made at the commencement of the hearing, I allowed him to proceed. He relied on an affidavit sworn on 24 March 1992 by Mr Gavin Francis, a partner in the firm of solicitors acting for the applicant. Included in the exhibits to that affidavit was correspondence which passed between the Australian Government Solicitor and the applicant's solicitors. That correspondence concerned a proposal for the settlement of the current proceedings and the reconsideration by the decision maker of the applicant's original application for a permit. The correspondence was said to support an amendment to the application in these proceedings which would raise grounds that the decision was an improper exercise of power and was made in bad faith because the decision maker had prejudged the application and was determined to support a previous decision in relation to the applicant which had been set aside by consent in proceedings in this Court.

2. Counsel for the respondent objected to the admissibility of this correspondence on the ground that it was protected by the privilege which attaches to without prejudice negotiations. I asked counsel for the respondent if he had any objection to my looking at the correspondence to consider the objection. He said that he did not. I then read the correspondence but it seemed clear to me that the proposed amendment to the application had no merit and I therefore rejected it.

3. Counsel for the respondent then asked that the matter be stood down for a short time to consider his position. On resuming, he asked that I stand aside because the correspondence that I had read was, as he put it, so damaging that a proper consideration could not be given to his client's case.

4. At this stage I should refer in a little detail to the correspondence itself. It commences with a letter dated 23 January 1992 from the Australian Government Solicitor to the applicant's solicitors and is in the following terms:
   

"Brennan v The Minister for Immigration and Local Government and Ethnic Affairs.

I refer to the above and advise that the decision of 12 September 1991 may well be flawed, and accordingly I am instructed to offer settlement on the basis that

(1) the decision of 12 September 1991 be set aside;

(2) that the applicant's application for an extended eligibility (economic) temporary entry permit lodged on 21 May 1990 be reconsidered by the respondent according to law;

(3) that the respondent pay the applicant's reasonable costs in respect of the Federal Court application as agreed between the parties or in default to be taxed by the Registrar; and

(4) that the application be dismissed.

I enclose draft minutes of consent and request that these be signed and returned to me if the terms are acceptable. In relation to the conduct of the reconsideration my client has requested I inform you of the following:..."

There then follows a quite lengthy argument about the considerations which were said would apply on a reconsideration.

1. By a letter dated 10 February the applicant's solicitors responded and made some detailed comments in relation to the matters said to be relevant for a reconsideration. Suffice it to say that a contrary argument was put. Then on 11 February the applicant's solicitors wrote again noting that the s.13 reasons under the Administrative Decisions (Judicial Review) Act 1977 requested on 10 October 1991 had not been delivered and stating:
   

"We regret to advise that unless we receive a Statement of Reasons within 14 days of the date hereof we shall be forced to file a notice of motion seeking such statement prior to this action being dismissed.

Subject to your agreeing to provide us with the statement of reasons within the time specified the applicant is prepared to consent to the Proposed Minutes of Consent forwarded by you under cover of letter dated 23 January 1992. Kindly find enclosed minutes of consent duly signed on behalf of the applicant." (Writer's emphasis.)

1. A proposed figure for costs was then mentioned. The Australian Government Solicitor replied on 26 February indicating that he was instructed to reject the counter offer and advising that the offer of 23 January was no longer open.

2. I think, having looked at the correspondence, that the respondent's counsel may well be correct in contending that it was covered by the privilege attaching to without prejudice conversations. It is of course clear that the presence, or indeed absence, of the actual words "without prejudice" is not conclusive as to the existence of the privilege; see Rush and Tompkins Ltd v Greater London Council (1989) AC 1280.

3. Nevertheless, the situation remains that, as happens very frequently, a judge has looked at a document to which objection is taken and has found that the objection is well grounded. The question raised by the respondent's application is, I think, essentially the same as that which arises when there is a submission of apprehension of bias, that is to say whether the parties or the public might entertain a reasonable apprehension that the judge might not bring an unprejudiced mind to the hearing of the case: Livesey v NSW Bar Association (1983) 151 CLR 288 at 293.

4. I do not think that this is the position here. All the letter of 23 January 1992 does on its face is to indicate some lack of confidence in the ultimate success of the respondent's case and, as a consequence, a proposal of an offer of settlement. There is nothing unusual about legal practitioners having doubts about the success of cases they conduct on behalf of their clients. Sometimes those doubts turn out to be well-founded. But often the Court takes a different view and it is, as Dr Johnson pointed out long ago, the decision of the Court which the client instructs his legal advisers to obtain.
   

"BOSWELL: 'But what do you think of supporting a cause which you know to be bad?' JOHNSON: 'Sir, you do not know it to be good or bad till the Judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing a cause to be bad, must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the Judge to whom you urge it: and if it does convince him, why then, Sir, you are wrong, and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the Judge's opinion.' BOSWELL: 'But, Sir, does not affecting a warmth when you have no warmth, and appearing to be clearly of one opinion when you are in reality of another opinion, does not such dissimulation impair one's honesty? Is there not some danger that a lawyer may put on the same mask in common life, in the intercourse with his friends?' JOHNSON: "Why no, Sir. Every body knows you are paid for affecting warmth for your client; and it is, therefore, properly no dissimulation: the moment you come from the bar you resume your usual behaviour. Sir, a man will no more carry the artifice of the bar into the common intercourse of society, than a man who is paid for tumbling upon his hands will continue to tumble upon his hands when he should walk on his feet.'" (Boswell's Johnson, Vol 1, p 341).

1. Moreover, the present case raises essentially questions of law. From what I have seen of the case so far it involves quite detailed questions of the construction of the Migration Act. Reasonably competent lawyers might, as far as I can see of the case so far, take differing views as to those points of construction. There would be a substantial waste of time and money if this case were to be stood over. It is highly desirable also that question of the residence status of people like the applicant be determined efficiently and promptly in the courts.

2. In all the circumstances I do not think I should accede to counsel's application that I stand aside.