SZTMW v Minister for Immigration and Anor (No.2)
[2014] FCCA 2639
•14 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTMW v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2014] FCCA 2639 |
| Catchwords: MIGRATION – Costs – application for a costs order personally against a legal practitioner in migration proceedings – whether the solicitor contravened s.486E of the Migration Act 1958 (Cth) considered. |
| Legislation: Migration Act 1958 (Cth), ss.486E, 486F |
| Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219 SZTKR & Anor v Minister for Immigration & Anor [2014] FCCA 1705 |
| Applicant: | SZTMW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2772 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C McArdle of McArdle Legal |
| Counsel for the Respondents: | Mr N J Williams SC, with Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The applicant in the principal proceedings is to pay the first respondent’s costs and disbursements of an incidental to the application, fixed in the sum of $6,646.
The applicant on the Application in a Case filed on 25 September 2014 is to pay the costs of Mr Christopher McArdle of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2772 of 2013
| SZTMW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an Application in a Case filed on 26 September 2014 seeking costs orders arising out of proceedings instituted under s.476 of the Migration Act 1958 (Cth) (Migration Act).
The Minister, who is the applicant in the Application in a Case, seeks orders that the solicitor for the applicant in the principal proceedings, Mr Chris McArdle, pay the Minister’s costs of the principal proceedings fixed in the amount of $6,646 pursuant to s.486F of the Migration Act. In the alternative, the Minister seeks an order that the applicant in the principal proceedings pay the Minister’s costs in that amount. Other relief of a consequential nature is also sought.
The application is supported by three affidavits by the Minister’s solicitor, Ms Carr, made on 25 September 2014, 21 October 2014 and 16 October 2014. Ms Carr was not required for cross-examination. Her affidavits detail the procedural history of the substantive proceedings.
I have been assisted this morning by oral submissions by the parties which augment the Minister’s written submissions in support of the relief sought.
Section 486F provides the Court with a discretion in migration proceedings to make a costs order against a non party. The condition precedent for the making of such an order is that the person must be found to have acted in contravention of s.486E. That section provides:
(1) A person must not encourage another person (the litigant ) to commence or continue migration litigation in a court if:
(a) the migration litigation has no reasonable prospect of success; and
(b) either:
(i) the person does not give proper consideration to the prospects of success of the migration litigation; or
(ii) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.
(2) For the purposes of this section, migration litigation need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(3) This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.
Also material to the consideration of the issues before me is s.486I which provides:
(1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
(2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.
These provisions were introduced into the Migration Act in order to deal with the mischief of manifestly unmeritorious litigation which is encouraged by persons other than applicants. Those other persons may be legal practitioners, but frequently are not.
I was taken during the course of argument to the decision of the Federal Court in SZFDZ v Minister for Immigration [2006] FCA 1366 where Moore J found that a non party had acted in contravention of s.486E so as to attract a personal costs order. The person in that case was not a legal practitioner. He was a person not qualified to provide legal advice or assistance.
It is common ground that in this case Mr McArdle complied with s.486I. The question to resolve is whether he gave proper consideration to the prospects of success that he certified. Mr McArdle has recently been the subject of an adverse order pursuant to s.486F. That occurred in SZVAG & Anor v Minister for Immigration (No.2) [2014] FCCA 2536. That decision by Judge Cameron was taken at the conclusion of an interlocutory hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). His Honour in that case, had the advantage of being able to direct his mind specifically to the question of whether the application before him raised an arguable case for the relief claimed. I did not have that advantage in these proceedings at the time I dismissed the principal application. The application was dismissed after a final hearing and a reserved judgment.
It is apparent from the affidavit material detailing the procedural history of the litigation that the Minister’s lawyers were troubled by the difficulty in identifying the relevant elements of the asserted jurisdictional error in the principal application based on the then available material and has sought clarification. It appears that they were not satisfied with that clarification.
The Minister’s response to the principal application at [2], noted that the grounds in the application appeared to be materially identical to those pleaded in SZTKR & Anor v Minister for Immigration & Anor[1] and SZTMH v Minister for Immigration & Anor[2]. In both of those cases the applicants were also represented by Mr McArdle and both, as I recall, were proceedings before me.
[1] [2014] FCCA 1705
[2] [2014] FCCA 1807
The Minister’s lawyers were also alive to the fact that Mr McArdle had, at an earlier time, been the recipient of some judicial criticism from me. That was pointed out, both in correspondence and in oral argument at an early stage of the trial of this matter. I note from the transcript, which is before me[3], that I drew a distinction between the litigation which had led to that judicial criticism and the case which was before me in these proceedings.
[3] on page 7, at line 38
Notwithstanding that the Minister’s lawyers had concerns about the state of the application, the parties reached agreement on procedural orders which I made by consent, on 3 December 2013. The parties were not required to attend in person on the return date on the principal application because both the Minister and the applicant were legally represented and had reached agreement on the necessary procedural orders.
Order 6, which I made by consent on 3 December 2013, dispensed with the need for a show cause hearing and listed the matter for a final hearing at a later time. There were other orders made for the filing of additional material to prepare the matter for that final hearing.
The allegation in the principal proceedings was that the Tribunal decision was vitiated by an apprehension of bias. The evidence in support of that contention was the transcript of the hearing conducted by the Tribunal which was referenced to the decision of the Tribunal.
Mr McArdle, in his submissions in support of the application, conceded that apprehended bias could not be established by reference to the decision alone. He drew attention to passages of apparent concern in the transcript. In my judgment, in particular at [11], I rejected the proposition that the transcript, either by reference to particular passages or viewed as a whole, supported the allegation of an apprehension of bias.
I was concerned at the weakness of the case and with that in mind, I issued the caution, which might also be described as a warning, at [13] of my judgment.
I also acknowledged, however, at [12] what I had previously said in SZTMH and SZTKR concerning the challenge facing the Tribunal in this jurisdiction in dealing with a high volume of a particular class of protection visa applications who are generally unsuccessful. In that paragraph I put a view that it cannot be assumed that applicants who fall into a particular class are untruthful in their applications simply because they are members of that class. Each case needs to be considered on its merits. That is an obligation falling on the Tribunal and also, on judicial review, on the Court.
In his oral submissions this morning, Mr McArdle drew attention to the observations of the High Court in Agar v Hyde[4] where Gaudron, McHugh, Gummow and Hayne JJ observed:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. (footnote omitted)
[4] [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
In the present matter, while there was concern about the merits of the judicial review application brought before the Court, the parties agreed that the matter was fit to proceed to a final hearing. While I had some concerns about the legal merits of the application, which concerns stemmed in part from the two earlier applications I had already received and was in the course of dealing with, I was satisfied that the case was fit to proceed to a final hearing.
The difficulty with the Minister’s application is that it invites the Court, with the benefit of hindsight, to impose a costs penalty on the solicitor for the applicant because substantive application has been found by the Court to be seriously wanting. That is, in my view in this case, an insufficient basis for the Court to draw the requisite conclusion for s.486E in order to make the costs order sought pursuant to s.486F.
In substance, what has been demonstrated in this case, and in the other two cases referred to in my principal judgment, is that Mr McArdle has a misguided view of what facts support an allegation of apprehended bias.
The Court has dealt with each of those matters on a final basis. One of the Court’s purposes in dealing with those cases is to provide judicial guidance.
If, in other proceedings, Mr McArdle pursued the same misguided belief as has been demonstrated in this case and the other cases referred to, the appropriate course would be to deal with such cases on an interlocutory basis. It may be that, as a result of dealing with such cases in that way, a costs order pursuant to s.486F, might be called for. That is what happened in SZVAG.
In the present case, I am not satisfied that the prerequisite in s.486E has been met and hence the costs orders sought pursuant to s.486F should not be made.
I will make the alternative order sought in the application that the applicant in the principal proceedings pay the Minister’s costs, fixed in the amount of $6,646.
In the light of the orders that I have made in the Application in a Case, Mr McArdle seeks an order for costs in his favour of that application in the case, fixed in the sum of $2,000. That is resisted by the Minister, both in principle and in relation to the quantum.
As to the quantum, I accept that Mr McArdle would have incurred, on a party and party basis, costs of not less than $,2000 in preparing for today’s hearing and in attending it. The preparation was not manifest in written submissions but Mr McArdle had plainly researched a significant body of jurisprudence in order to resist the personal costs order.
As to the general principle, in the ordinary course, I would have made a costs order against the applicant in the principal proceedings, on giving judgment against that applicant. The Application in a Case was completely unnecessary for that purpose. Plainly, the salient purpose in the Application in a Case was to obtain the costs order personally against Mr McArdle. That aspect of the application having failed, the appropriate consequence is a costs order in Mr McArdle’s favour.
I will order that the applicant, on the applicant in a case, pay the respondent’s costs of that application, fixed in the sum of $2,000.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 November 2014
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