SZHXP v Minister for Immigration
[2006] FMCA 1070
•13 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1070 |
| MIGRATION – Review of decision by Refugee Review Tribunal – procedure – failure of applicant to provide sufficiently clear instructions to instructing solicitor in relation to proposed consent orders – consent orders signed by solicitor after filing notice of ceasing to act. |
| Applicant: | SZHXP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3769 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 July 2006 |
| Date of last submission: | 13 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Newman, Newman and Associates |
| Solicitors for the Respondent: | Mr. J. Bird, Phillips Fox |
ORDERS
Direct the applicant to provide to the Court signed written instructions to Mr Newman in respect of any consent order or otherwise to sign personally any consent order.
The matter is otherwise adjourned to 19 July 2006 at 9.45am for mention.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3769 of 2005
| SZHXP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before me is a draft consent order that the parties ask me to make. For the reasons set out below, I am not prepared at this stage to make such an order and propose to adjourn the matter for one week to allow for clarification of the orders sought. The draft consent order has been signed by Mr Newman, solicitor on behalf of the applicant. At the time at which Mr Newman signed the draft consent order he had filed a notice of ceasing to act, without disclosing a forwarding address for the applicant and refusing to do so upon request from the Registry. He then filed a notice of appearance together with a letter of instructions from the applicant that do not accord precisely with the form of draft consent order.
On 20 December 2005 the applicant filed an application in this Court seeking judicial review of a decision of the Refugee Review Tribunal made on 1 November 2005 and in respect of which the applicant was notified on 22 November 2005. On 10 January 2006 the first respondent filed a response to that application together with an affidavit of Derek Tien Seng Lee affirmed 9 January 2006 and filed on 10 January 2006.
On 1 February 2006 a notice of appointment of solicitor of Newman & Associates was filed by Newman & Associates, and filed by M Newman, applicant's solicitor. On 9 February 2006 directions were made by Registrar McIllhatton setting the matter down for trial and directing the filing and service of any amended application or any further evidence.
In accordance with those directions, the first respondent filed an outline of submissions on 5 July 2006. No further document in respect of the substantive hearing was filed by the applicant. On 7 July 2006, a notice of ceasing to act was filed by Newman & Associates in respect of the matter, together with an affidavit from Mr Newman in the following terms, that affidavit having been sworn on 5 July 2006:
“1. I am the applicant's solicitor.
2. On 16 June 2006 I personally served upon the applicant a notice of ceasing to act and returned the Court book. The applicant acknowledged receipt of the book by signing the said notice.
3. Accordingly is [sic] seek to file the accompanying notice of ceasing to act.”
On 6 July 2006, Mr Newman faxed through a letter addressed to the Registrar at the Federal Magistrates Court of Australia in the following terms:
“Attention: John
Dear Sir,
Re No SYG3769 of 2005 SZHXP [the Applicant]
I refer to my conversation with John this afternoon concerning the absence of a forwarding address for the applicant on the notice of ceasing to act which I seek to have filed. I have no authority to release the address and am urgently seeking same from the former client. I shall advise as soon as I have made contact with her.
Yours faithfully,
Mel Newman”
Thereafter, on 12 July, a draft consent order was received by the Court signed by Mr Newman, and by the first respondent's solicitor. On that same date, a notice of appointment of solicitor was filed again on behalf of the applicant by Newman & Associates. Also on that date a copy of a letter was faxed both to the first respondent and my Chambers, purportedly from the applicant.
The letter is addressed to Newman & Associates, 77 William Street, Sydney, New South Wales 2011, dated 11 July 2006 and is in the following terms:
“Dear Mr Newman,
Would you please act for me and withdraw my appeal and please negotiate the Government cost.
Thanks.
Yours sincerely,
[APPLICANT]”
I note that the signature that appears on that letter is substantially similar to the signature of the applicant appearing on the application.
The consent order that the Court has been asked to approve is in the following terms:
“The Court orders by consent that:
(1)The name of the first respondent be amended to the Minister for Immigration & Multicultural Affairs.
(2)The application be dismissed.
(3)The applicant pay the respondent's costs fixed in the sum of $2350.”
Mr Newman, on behalf of the applicant, relies on the letter from the applicant as the source of his instructions. That letter, as I have already stated, requests Mr Newman to withdraw the applicant's appeal. It is by no means clear to the Court whether Mr Newman's instructions are that the application be dismissed or that the application be discontinued and Mr Newman was not able to clarify.
In light of the history of the matter and in the circumstances, it is my view that it is necessary for the Court to be satisfied with precision as to the precise nature of the consent orders agreed to by the applicant. I have gone to some detail in these reasons because the first respondent has opposed an adjournment to allow Mr Newman to obtain precise written instructions.
However, for the reasons that I have already given, it is my view that, to avoid any further complication or litigation in respect of the matter, it is necessary that the applicant’s instructions be clear and unambiguous. This is particularly so in circumstances where neither the first respondent nor the Court has the ability to communicate in writing directly with the applicant, as her contact details were withheld by Mr Newman on the basis that they were privileged and he was not obliged to disclose them and, indeed, his instructions were that he not disclose them..
RECORDED : NOT TRANSCRIBED
Accordingly, I direct the applicant to provide to the Court signed written instructions to Mr Newman in respect of any consent order or otherwise to sign personally any consent order.
RECORDED : NOT TRANSCRIBED
The matter is otherwise adjourned to 19 July 2006 at 9.45am for mention.
RECORDED : NOT TRANSCRIBED
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 28 July 2006
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