Da Sousa, M. Da C. Dos S. v Minister of State for Immigration, Local Government & Ethnic Affairs

[1993] FCA 312

Re: MARIA DA CONCEICAO DOS SANTOS DA SOUSA and CLAUDIO MARCELO FERNANDES
And: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WAG22 of 1992
FED No. 312
Number of pages - 6
Costs
(1993) 114 ALR 708
(1993) 41 FCR 544
(1993) 30 ALD 782 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J(1)

CATCHWORDS

Costs - power of the Court to award costs against solicitor - basis of power - grounds for exercise - duty to Court - misconceived application for entry permit - misconceived proceedings instituted - neglect of duty by solicitor.

Migration Regulations reg. 131A, 142C

Migration Act 1958

Federal Court of Australia Act 1976 s.43

Administrative Decisions (Judicial Review) Act 1977

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321

Davy-Chiesman v. Davy-Chiesman (1984) 1 All ER 321

Myers v. Elman (1940) AC 282

Aiden Shipping Co. Ltd v. Interbulk Ltd (1986) 1 AC 965

Knight v. F.P. Special Assets Ltd (1992) 107 ALR 585

Edwards v. Edwards (1958) P 235

Orchard v. South Eastern Electricity Board (1987) 1 QB 565

Kelly v. London Transport Executive (1982) 1 WLR 1055

Broughton v. Broughton (1955) SASR 241

HEARING

PERTH, 2 April 1993

#DATE 5:4:1993

Counsel for the Applicant: Mr H. Christie

Solicitors for the Applicant: Legal Aid Commission

Counsel for the Respondent: Mr D. Viskovich

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The Court orders that:

1. The first applicant pay one quarter of the respondent's costs of these proceedings.

2. That Bryan Francis Stokes, the former solicitor for the first applicant, pay three quarters of the respondent's costs of these proceedings.

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

JUDGE1

FRENCH J On 8 May 1992 I dismissed an application for an order of review brought by the applicants in relation to various decisions said to have been taken by a delegate of the Minister for Immigration, Local Government and Ethnic Affairs. In so doing, I expressed my concern that the first applicant had lodged an application for entry permits prepared by or with the assistance of her solicitor, who was later the solicitor of the record, and which application was misconceived. So too in the event were these proceedings. In the circumstances I directed that the solicitor file written submissions on the question whether or not an order for costs should be made against him personally in favour of the respondent. Submissions were filed by the solicitor on 19 May 1992 and there was some discussion between him and the Australian Government Solicitor's office about the possibility of agreeing a figure for costs. Those discussions were apparently inconclusive and there was no further movement on the matter until the filing of a motion on 25 March 1993 by the Minister seeking an order that the applicants or their former solicitor pay the costs of the application. I heard argument on the motion on 2 April 1993 and reserved until today. The applicants were represented by counsel instructed by the Director of the Legal Aid Commission, who is now their solicitor on the record. The former solicitor for the applicants was served with notice of the motion but did not appear at the hearing.

Factual Background
2. The background to the proceedings is set out in detail in the reasons for judgment which were published on 8 May 1992 and it is unnecessary to repeat that detail here. It is sufficient to point out that the principal decision under review was the rejection of an application lodged by Mrs De Sousa for a class of temporary and permanent entry permits for which she could not possibly have qualified. The temporary entry permit she sought was one for which provision is made in reg.131A of the Migration Regulations and is called a December 1989 (Temporary) Entry Permit. The permanent entry permit for which she applied in conjunction with the application for a temporary entry permit is known as a December 1989 (Permanent) Entry Permit and is provided for in reg.142C of the Migration Regulations. It is a condition of the grant of a December 1989 (Permanent) Entry Permit that the applicant is the holder of a December 1989 (Temporary) Entry Permit. One of the prescribed criteria applicable to the temporary entry permit is that the applicant was a prohibited non-citizen on or before 18 December 1989. As I said in the reasons for judgment, to a legal practitioner familiar with the provisions of the Act and Regulations, there should have been no doubt that the application which was sent to the Department related to permits under regs. 131A and 142C respectively. Nor should there have been any doubt that Mrs De Sousa did not qualify for the grant of such permits. When Mrs De Sousa entered Australia in November 1989 she did so as the holder of a six month temporary entry permit. It was still in force on 18 December 1989 and she was then and therefore legally in the country.

1. It is to be noted that as a result of the application for this class of permit being lodged and refused, Mrs De Sousa was exposed to the considerable risk that by virtue of s.37 of the Act she would not be entitled to make any further application for an entry permit while she remained in Australia. The only qualifications on that prohibition are:
   

(a) That there has been a prescribed change in the person's circumstances since he or she applied for an entry permit; and

(b) No deportation order has been made in respect of that person under s.59.

1. The application lodged with the Department was misconceived. So too were these proceedings to the extent that they relied upon it. Two other aspects of these proceedings were subject to summary dismissal at the threshold. The first was the challenge to a preliminary determination made by a delegate of the Minister on 2 October 1991 that sub-ss.20(2)(b)(ii) and 35(2)(b) of the Migration Act applied rendering Mrs De Sousa and her son illegal entrants for the purposes of the Act from 17 July 1991. There was no legally operative determination by the delegate in this respect, merely a conclusion that misleading statements had been made in relation to the application for a permanent entry permit and that by operation of law Mrs De Sousa and her son were illegal entrants. Consistently with the decision of the High Court in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321, I held that the delegate's conclusion was merely a step along the way to a decision and not reviewable under the Administrative Decisions (Judicial Review) Act 1977.

2. The other matter the subject of summary disposition was the challenge embodied in the application for review, to the alleged decision of another delegate whereby Mrs De Sousa and her son were required to leave Australia within twenty eight days pursuant to s.82 of the Act. At the commencement of the hearing it was contended for the Minister, and not disputed, that in fact the delegate had made no requirement pursuant to s.82 of the Act and indeed had no delegation to make such a requirement. A letter written by the delegate to Mrs De Sousa on 3 February 1992 had said, inter alia:
   

"In your case as you became an illegal entrant on 15 July 1991, and the period of grace had expired before you applied for this entry permit, you must immediately arrange to depart from Australia as you have now become liable for mandatory deportation."

This was no more than it purported to be, advice to Mrs De Sousa of her legal position. It was not a notice of the kind contemplated by s.82 of the Act. This aspect of the application was also summarily dismissed.

The Liability of the Solicitor for Costs
6. The power of the Federal Court to make costs orders derives from s.43 of the Federal Court of Australia Act 1976 which provides, inter alia:

"43(1) Subject to sub-s.(1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. .

.

.

(2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge."

Sub-section 1A relates only to representative proceedings and is not material for present purposes. In addition to s.43, reference should be made to O.62 r.9 which provides:

"The Court or a Judge may, after reference to and report by the taxing officer, order a solicitor to repay to his client costs ordered to be paid by the client to another party where those costs had been incurred by that party in consequence of delay or misconduct on the part of the solicitor."

That rule assumes the existence under the Act of power to make an order for costs against a solicitor. The mechanism it establishes for the exercise of that power however is facultative and not exhaustive. Were it exhaustive it would prevent the Court or Judge from exercising the power without first obtaining a report from the taxing officer. It would also prevent the Court from making an order that a solicitor pay the costs of the successful party direct. I cannot accept that it was intended to so constrain the broad power conferred by s.43.

1. The power conferred by the section is, in my opinion, no narrower than that conferred by like provisions on the Supreme Courts of the various States and by the Rules of the Supreme Court in England. The power to make a costs order against a solicitor is expressed in O.62 r.8 of the Rules of the Supreme Court in England. The rule has been described as "intended to cover and provide for the inherent jurisdiction of the Court over solicitors, particularly in respect of costs, in circumstances in which the Court thinks it right to exercise that jurisdiction" - Davy - Chiesman v. Davy-Chiesman (1984) 1 All ER 321 at 328 per May LJ. The jurisdiction is to be distinguished from the disciplinary powers of superior courts to strike solicitors off the rolls on the grounds of professional misconduct. That distinction was discussed in Myers v. Elman (1940) AC 282 where Viscount Maugham said:
   

"The primary object of the Court is not to punish the solicitor, but to protect the client who has suffered and to indemnify the party who has been injured. Order LXV., s.11, of the Rules of the Supreme Court provides the necessary machinery where the person injured is the client of the solicitor. It is a rule supplementary to the summary jurisdiction of the Court. It is not limited to misconduct or default, but expressly extends to costs incurred improperly or without reasonable cause, or which have proved fruitless by reason of undue delay in proceeding under a judgment or order. The jurisdiction to order the solicitor to pay costs to the opposite party is exercised on similar grounds." (p 289)

Although the discretion to order costs against a solicitor will generally be exercised on grounds related to the duty of the solicitor to the Court and/or the solicitor's client, it is but an aspect of the wider power of Superior Courts to order costs against non-parties - Aiden Shipping Co. Ltd v. Interbulk Ltd (1986) 1 AC 965. Speaking in that case of the power of the Court to order costs against a solicitor acting for a party in the proceedings or against a relator in a relator action and against a next friend, Lord Goff of Chievely said at 980:

"In each of them, costs may indeed be awarded against a person who is not a party to the proceedings. The existence of these cases adds weight to (the) submission that no implied limitation with reference to the word "party" can be read into the broad terms of the statute; though, had these cases stood alone, I would perhaps have been unwilling to rely on such special cases as the sole justification for rejecting the previous authorities in the Court of Appeal. I prefer to proceed upon the broader ground, that there is no basis for the proposed implied limitation upon the express words of the statute; and, on that basis, I am happy to rely upon these special cases in support of that broader approach."

1. Order 91 r.1 of the Rules of the Supreme Court of Queensland provides that the costs of and incident to any proceedings in the Court shall be in the discretion of the Court or Judge. In Knight v. F.P. Special Assets Ltd (1992) 107 ALR 585, Mason CJ and Deane J (Gaudron J agreeing) observed that according to their natural and ordinary meaning, the words of the rule are sufficiently expansive to enable the court to make an order for costs against a person, whether that person is formally a party to the proceedings or not. Their Honours said at 589:
   

"The jurisdiction and the discretion thereby conferred are not limited. Because they are not limited it is easy to postulate a variety of circumstances where an exercise of the jurisdiction against a non-party would be extravagant and unjust. However, the existence of that possibility provides no justification for the imposition by the courts, by way of implication, of an arbitrary limitation upon the general jurisdiction conferred by the rule. To do so would, as will appear, deny power to the court to order costs against a non-party in cases in which, in the interests of justice, such orders should be made."

1. There is no doubt in my opinion that the Federal Court has the power to make an order 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 - Edwards v. Edwards (1958) P 235 at 248. It is not necessary to ground the power to order costs against a solicitor in the existence of any duty to the opposing party and whether it can be so grounded is open to doubt - Orchard v. South Eastern Electricity Board (1987) 1 QB 565 at 571 but cf. Lord Denning MR in Kelly v. London Transport Executive (1982) 1 WLR 1055 at 1064-1065. It is debatable whether the traditional immunity of counsel would extend to limit the statutory power of the Court in this respect, but it is not necessary to decide that question in this case. Although practising in a fused profession the applicant's solicitor was acting in his capacity as a solicitor when he lodged the application for the permits and as a solicitor or solicitor and barrister when he instituted these proceedings. I note that Sir John Donaldson MR observed in Orchard v. South Eastern Electricity Board (supra) that he could "find no basis in logic or authority for holding that the essential public interest immunity affirmed in Rondel v. Worsley (1969) AC 191 protects the bar in relation to claims by their own lay clients, leaving them unprotected in respect of the far greater risk of claims by disgruntled litigants on the other side". It may be that one answer to that contention is that the power to award costs against counsel, if it is an element of the statutory power, would arise in the case of a breach of a duty to the court and not to counsel's client or any other party.

2. In the circumstances of this case which I have already outlined, I am satisfied that an order for costs is appropriate against the solicitor. The application lodged with the Department, in my opinion, reflected a serious failure to give reasonable attention to the relevant law and facts as did the proceedings instituted in this Court - cf Broughton v. Broughton (1955) SASR 241 at 246-249. Worse, the applicants were exposed to the possibility of prejudice by being excluded from applying for an entry permit in some other category. That aspect of the application which related to the challenge to the initial determination on 2 October 1991 that Mrs De Sousa and her son were illegal entrants was held to be outside the framework of the Administrative Decisions (Judicial Review) Act 1977 by virtue of the decision of the High Court in Australian Broadcasting Tribunal v. Bond (supra). I would not think it appropriate to make any order against a solicitor in relation to that matter. The question of the departure advice from the second delegate may also conceivably have been capable of amounting to a direction under s.82 of the Act. No doubt, a simple enquiry by the solicitor would have sufficed to resolve the matter before the application was filed. In the circumstances however, I do not consider that a costs order should be made against the solicitor in relation to that aspect of the application either. In my opinion however, these aspects of the application counted for a small proportion of the costs associated with the proceedings. I propose therefore to order that the first applicant pay one quarter of the respondent's costs of the application and that the first applicant's former solicitor, Bryan Francis Stokes, pay the other three quarters of the costs.