NARI v Minister for Immigration (No.2) - [2003] FMCA 510

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARI v MINISTER FOR IMMIGRATION (No.2)

[2003] FMCA 510

PRACTICE AND PROCEDURE – MIGRATION – proceedings – discontinuance of proceedings – costs – order for costs against lawyer – application to set aside order made against solicitor personally.

Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001, rule 21.07

Applicant:

NARI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 927 of 2002

Delivered on:

28 October 2003

Delivered at:

Sydney

Hearing date:

28 October 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Bharati Solicitors

Counsel for the Respondent:

Mr Cramer

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application to discharge Order 3 made on 4 June 2003 is dismissed.
I allow three (3) months to pay the said amount of costs.
The Applicant solicitor is to pay the Respondent’s costs of this application in the sum of $685.00. I allow three (3) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 927 of 2002

NARI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

The application before the court is an application by the former solicitor of the applicant in these proceedings, Mr Bharati. He seeks to discharge an order made by me on 4 June 2003. On that occasion I handed down a decision dismissing the application by the applicant who is known as NARI pursuant to the provisions of section 91X of the Migration Act. I dismissed the application and I made an order that the applicant should pay the respondent's costs. The order that is the subject of this application says as follows:
Subject to any written submissions made by the applicant's former solicitor, Mr Jyotii Bharati, 2/232 Beamish Street, Campsie and any written submissions in response by the respondent or the applicant Mr Bharati pay $1000 towards the costs thrown away by the respondent as a result of Mr Bharati signing consent orders dismissing the application on 3 February 2003 without instructions.
I went on to make orders about the filing of written submissions and set a timetable for those. As matters have transpired no written submissions have been filed. I have heard an oral application instead. Mr Bharati puts to the court that he was representing the applicant and told him that if he found that the case had no merit then the application would have to be discontinued and the applicant acknowledged that and signed the appropriate documentation.
Exhibit 1 in these proceedings is a document entitled "acknowledgment of receiving information about new judicial review reforms in migration matters (apply for judicial review in the Federal Court)". The applicant's name, date of birth and address were inserted in that document and the document is clearly signed by the applicant and it is witnessed by Mr Bharati. The text of the acknowledgment which is clearly an appropriate document for a solicitor to bring to a client's attention makes it clear that the solicitor informed the client that if you lose the appeal in the Federal Court and it follows or in the Federal Magistrates Court that he would be responsible to pay the legal costs of the respondent and that if the applicant were to decide to continue the case without any merit he would be responsible for those costs and if the costs were not paid before departure from Australia it would be a bar to re-entering the country.
The authority goes on to recite that notwithstanding receiving that information the applicant instructs his solicitor to proceed. The document is dated 9 August 2002. There is also as exhibit 2 a form of discontinuance which appears to be dated 14 October. The date appears to be either 2002 or 2003. It is difficult to decipher. I make no finding on the date as far as the year is concerned. The solicitor told the court that he found himself in a position where the applicant would not attend his office to give him instructions and indeed he lost contact with the applicant.
He forwarded a letter to the applicant at his address, an inner suburb of Sydney and arranged for that letter to be sent by registered post. The receipt of that document was acknowledged. The signature is indistinct but could well be the signature of the applicant. The solicitor has submitted that the applicant was going to the address to collect his mail but it appears and we have it on the solicitor's account that the applicant was using that address for no other purpose than a mail drop as when the solicitor went to the premises on one occasion the applicant was not there.
The applicant did not give the solicitor any further instructions. The solicitor submitted that he believed that he should give notice to the court six weeks before the matter was due to be heard and that he believed he already had the applicant's consent to discontinue. I have had recourse to documents from the court file. The solicitor need forward a copy of the notice of discontinuance, the original of which is exhibit 2, together with a copy of the documents from Australia Post showing the registered post receipt document which is exhibit 3.
The court file also encloses a copy of a letter dated 31 January from the solicitor to the applicant. The letter makes it quite clear in paragraph 2 that the solicitor has formed the view that the case has no merit. Paragraph 2 says:
I have already explained to you that you have no merit in your case and recent decisions of the Federal Court (NAVV) stops us from seeking an order of review of the procedural fairness grounds. Since you could not see me for more than two months and I had no instructions from you I have decided to discontinue this matter in The Federal Magistrates Court. Recently received letter from respondents DIMA that if I'm going in the court without reasonable grounds the solicitor will have to pay the respondent's costs.
In the letter the solicitor goes on to say that he had gone to the applicant's place of residence and was told that the applicant had left. On 3 February in the Federal Magistrates Court an order was made by consent that the applicant be dismissed and the applicant pay the respondent's costs in the amount of $1800. The document was signed by the solicitor as solicitor for the applicant and signed by one Andrew Carter as solicitor for the respondent. Accordingly, Her Honour Federal Magistrate Barnes made the orders that were sought.
The court file also contains a copy of a letter dated 10 March from the solicitor addressed to the Registrar advising that the applicant had no more contact with the solicitor and confirming that the matter was set for hearing on 6 February but was discontinued on 3 February. There is also a copy of a letter on the court file from the solicitor to the applicant dated 1 March informing him that the matter was discontinued in the Federal Magistrates Court. What happened however was that despite the advice given to him by the solicitor the applicant did not wish to discontinue the proceedings, he wished to proceed with the application and, on finding that the application had been dismissed, he sought to appeal against that decision. The application was, in fact, reinstated and was heard before me on 29 May 2003. On 4 June 2003 I dismissed the application. I note that since then the applicant has appealed against this decision and that appeal was subsequently dismissed by the Full Court of the Federal Court.
Is this a case where it is appropriate to discharge an order that the solicitor pay a proportion of the respondent's costs? Mr Cramer, for the respondent, rests his submission squarely on the fact that this was a case where the solicitor could not obtain instructions from his client. Now, a solicitor being in a position of not being able to obtain instructions from a client about forthcoming Court proceedings is a not uncommon occurrence. It would have happened to the vast majority of solicitors who practice in litigation in Australia, I have no doubt.
What should have been done, and Mr Bharati frankly acknowledges that today, is that the solicitor should have informed the Court that he had no instructions and that he should have sought to advise the Court that he no longer acted for the applicant. That would have meant, of course, that the application which was listed for hearing on 6 February would have remained in the list.
Who is to say whether the applicant would have attended on that day or not? If the applicant had attended then the application would have proceeded. It may not have been successful as the subsequent application proved to be. If the applicant had not attended then I have no doubt that the respondents would have applied to the Court to have the application dismissed and that is a not uncommon occurrence in this jurisdiction. Indeed, in both the Sydney Registry and the Melbourne Registry of this Court I have made such orders myself when an applicant has just failed to appear, without explanation, when a matter has been listed for defended hearing.
But there is a vast difference between a solicitor informing a Court that he or she has no instructions to act, and seeking to have their name removed from the record, and taking the positive step of discontinuing an action which may well have the effect of bringing an applicant's case to an end. True it is that the applicant seems to have acted in an irresponsible way, as Mr Bharati has submitted to me this morning, and that he failed to give instructions to his solicitor. One can only sympathise, as I said, with lawyers who are left without instructions, but that is not uncommon. But to take a step to discontinue proceedings when the applicant clearly wished to continue with his application however meritorious or unmeritorious that application may be is a major step.
I have read the material that is tendered. The acknowledgment which was exhibit 1 clearly indicates that the applicant was aware of the consequences if his application should be unsuccessful. It clearly instructs the solicitor to proceed in the light of that knowledge. It does not, anywhere, of itself give instructions to discontinue. The document that is exhibit 2, dated 14 October – presumably 2002 – being a blank notice of discontinuance does not, to my mind, serve to act as authority to discontinue proceedings which the applicant clearly should not have done.
I am not of the view that the solicitor has succeeded in his claim for me to discharge the order that I made on 4 June 2003. I am of the belief that the behaviour and acting without instructions placed the Court in a difficult position and led to litigation which would have been otherwise unnecessary. The application to discharge the order is dismissed.

I will, however, hear submissions as to the time to pay the amount of money.
In respect of order 3 I allow three months to pay and I require a transcript of my reasons to this decision.
The applicant solicitor is to pay the respondent's costs of this application. I am of the view that I should allow the half-day short hearing fee as provided under the Federal Magistrates Court Rules in the sum of $685 and I will allow three months to pay.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 13 November 2003