SZVAG and Anor v Minister for Immigration and Anor (No.2)
[2014] FCCA 2536
•6 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVAG & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2014] FCCA 2536 |
| Catchwords: WORDS AND PHRASES – “proper consideration to the prospects of success of migration litigation”. |
| Legislation: Migration Act 1958, ss.486E, 486F, 486G, 486H, 486I Federal Circuit Court of Australia Act 1999, ss.17A, 79 |
| Cases Cited: SZFDZ v Minister for Immigration & Multicultural Affairs (2006) 155 FLR 482 Spencer v Commonwealth (2010) 241 CLR 118 Mitry Lawyers v Barnden [2014] FCA 918 |
| First Applicant: | SZVAG |
| Second Applicant: | SZVAH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2488 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 15 October 2014 |
| Date of Last Submission: | 15 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 6 November 2014 |
REPRESENTATION
| Solicitors for the Applicants: | Mr C. McArdle of McArdle Legal |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The applicants’ solicitor, Chris McArdle, pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2488 of 2014
| SZVAG |
First Applicant
| SZVAH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
On 5 September 2014 the applicants filed in this Court an application seeking judicial review of a decision of the second respondent dated 7 August 2013 affirming an earlier decision of a delegate of the first respondent (“Minister”) to not grant them protection visas. On 15 October 2014, on the application of the Minister and pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, I dismissed the applicants’ application on the basis that it did not raise an arguable case for the relief claimed.
The Minister then sought an order that the applicants’ solicitor, Mr McArdle, pay the costs of the proceeding fixed in the sum of $5,000.
Application for judicial review
In the application commencing this proceeding the applicants alleged:
1.The Applicant [sic] appeals against or in the alternative seeks a declaration as specified above [a declaration that the Tribunal’s decision was not made in accordance with law] regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 7 August 2014 on the grounds that it was not a decision under the act [sic].
Particulars
i.Section 5E
ii.Transcript and evidence, whereby the Tribunal refused to accept facts that are obvious.
2.The Tribunal appeared to “come what may” not permit the facts as to religious intolerance in China to be considered. The Tribunal misapplied the required application of the Refugee Convention with respect to the applicant’s [sic] Religious involvement.
3.The Tribunal was apparently so predisposed to refuse to believe the applicant [sic] as to deny them procedural fairness by way of statutory breach
4.The Tribunal’s conclusion was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.
5.Such other grounds as this Honourable Court may deem just.
No further particularisation of those allegations was made prior to the summary dismissal of the application.
Forming part of the application was a solicitor’s certificate signed by Mr McArdle. It stated:
Lawyer’s Certification (see section 486I of the Migration Act 1958)
I, Chris McArdle, the lawyer filing this document commencing migration litigation, certify that there are reasonable grounds for believing that this migration litigation has a reasonable prospect of success.
Legislation
Part 8B of the Migration Act 1958 (“Act”) relevantly provides:
486E Obligation where there is no reasonable prospect of success
(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
…
(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.
486F Cost orders
(1)If a person acts in contravention of section 486E, the court in which the migration litigation is commenced or continued may make one or more of the following orders:
(a)an order that the person pay a party to the migration litigation (other than the litigant), the costs incurred by that party because of the commencement or continuation of the migrationlitigation;
…
(3)An order under this section may be made:
…
(b)on the application of a party to the migration litigation.
(4)The motion or application must be considered at the time the question of costs in the migration litigation is decided.
(5)A person is not entitled to demand or recover from the litigant any part of an amount which the person is directed to pay under an order made under this section.
486G Person must be given reasonable opportunity to argue against costs order
The court must not make an order under section 486F unless the person has been given a reasonable opportunity to argue why the order should not be made.
486H Limited waiver of legal professional privilege
(1)If, in proceedings to determine whether an order under section 486F should be made:
(a)a person wishes to produce a document, record or information for the purpose of arguing why an order under section 486F should not be made; and
(b)to do so would, but for this section, deny legal professional privilege to any person entitled to claim it;
the person may produce the document, record or information for that purpose.
(2) However:
(a)the document, record or information does not cease to be subject to legal professional privilege for any other purpose, or in any other circumstances; and
(b)the court must make any orders necessary to ensure that legal professional privilege is protected for other purposes and in other circumstances.
(3)Nothing in this section prevents a person who is entitled to claim legal professional privilege in relation to the document, record or information, from waiving that privilege.
(4) In this section:
legal professional privilege includes privilege (however described) under any provision of Division 1 of Part 3.10 of the Evidence Act 1995.
486I Lawyer’s certification
(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.
Application for costs
The Minister submitted that Mr McArdle should be considered to be a person who encouraged the applicants to commence the proceeding in the sense referred to in s.486E in that he had been willing to act on their behalf in the filing of the application and supporting affidavit. The Minister also submitted that consideration of the material available at the commencement of the proceeding would have revealed that it did not have reasonable prospects of success, with the consequence that Mr McArdle’s certification that there were such prospects indicated that he had not given proper consideration to the case’s prospects, as required by the Act.
Mr McArdle said that he had commenced the proceeding based on instructions and that he would sign the s.486I certificate again, were it necessary to do so. He submitted that there had been sufficient evidence to commence the proceeding although, because no transcript of the Tribunal hearing had been available prior to the filing of the application, there had not been enough evidence to provide particulars.
The Minister acknowledged that the applicants had not had access to a transcript of the Tribunal hearing before they filed their initiating application but argued that as the certification of the application had had to be made prior to its filing, the consideration required by s.486E(1)(b)(i), which was implicit in Mr McArdle’s s.486I certification, had to be made by reference to the information on hand at that time. The Minister submitted that s.486F of the Act therefore applied such that Mr McArdle was required to pay the Minister’s costs caused by the commencement of the litigation.
No evidence was adduced as to the substance of the applicants’ instructions to Mr McArdle. Nor was any evidence adduced of information which might have become available to Mr McArdle or the applicants after the commencement of the proceeding and which might have indicated to Mr McArdle that the application did have reasonable prospects of success. I note in this regard that although a transcript of the Tribunal hearing was annexed to an affidavit filed in the proceeding, that affidavit was not read or the content of the transcript relied on.
Consideration
In this matter the Minister should have his costs and I consider the $5,000 he has sought in this connection to be a reasonable amount to award. The remaining issue is who should pay those costs.
I accept that in preparing and filing the applicants’ application and supporting affidavit Mr McArdle “encouraged” the applicants in the sense referred to s.486E(1): SZFDZ v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 482 at 486-487 [21].
As to whether the proceeding had reasonable prospects of success as referred to in s.486E(1)(a) of the Act, it should be noted that that section, and the remainder of pt.8B of the Act, was inserted into the Act by the Migration Litigation Reform Act 2005. That Act also amended what is now the Federal Circuit Court of Australia Act 1999 by the insertion of s.17A, which provides for the summary dismissal of matters which lack reasonable prospects of success. At the same time a similar provision, s.31A, was inserted into the Federal Court of Australia Act 1976.
I infer that “reasonable prospect of success” in s.486E has the same meaning in the Act as it does in the Federal Circuit Court of Australia Act and the Federal Court of Australia Act, a meaning which was discussed in Spencer v Commonwealth (2010) 241 CLR 118. Relevantly for this case, it was said in Spencer v Commonwealth at 130-131 [22] and 141 [59] that a case which did not disclose a reasonable cause of action or which was bound to fail lacked reasonable prospects of success. As the application in the present proceeding did not disclose an arguable case for the relief claimed, it therefore did not, at the time of filing, have reasonable prospects of success in the sense referred to in s.486E(1)(a) of the Act.
The fact that a legal practitioner representing a party to proceedings such as this must include in the initiating application a s.468I certificate signed by him or her indicates that the consideration of the proceeding’s prospects of success required by s.486E(1)(a) must be undertaken no later than the filing of the application. That has the consequence that the prospects of the litigation must be assessed on the information available at the time of filing.
Mr McArdle submitted that the instructions he had been given before the commencement of the proceeding justified the filing of the application and that further information received since then provided information sufficient for a particularisation of at least some part of the application, although which was not identified. However, as noted earlier, no evidence which would have made out those assertions was adduced, notwithstanding that s.486H of the Act has the effect that client legal privilege would not have been lost by placing any such evidence before the Court. Consequently, the only material by reference to which the application of s.486E(1)(b)(i) to this matter can be considered is the initiating application filed on 5 September 2014. In making that comment I have not overlooked Mr McArdle’s affidavit filed with the initiating application but have concluded that it contained no admissible evidence which was material to the present question.
In SZFDZ it was said at 487 [25] that the word “proper” in s.486E(1)(b)(i) invites consideration of whether, in the circumstances, there had been a balanced and thoughtful assessment of the case’s prospects of success. As I have said, Mr McArdle did not adduce any evidence of the substance of his instructions or of the information available to him at the time of filing and the application was dismissed because it failed to raise an arguable case for the relief claimed. In those circumstances, I infer that Mr McArdle’s instructions and the information in his possession before he filed the initiating application would not have led him to conclude, upon a balanced and thoughtful assessment of the case’s prospects of success, that those prospects were reasonable. I therefore find that such consideration as he may have given to the application’s prospects prior to filing was not the proper consideration referred to in s.486E(1)(b)(i).
The necessary preconditions for a costs order to be made against Mr McArdle have been satisfied. Whether such an order should be made is a matter of discretion. Section 79 of the Federal Circuit Court of Australia Act and r.21.07 of the Court’s Rules provide the Court with a general power to order a legal representative to pay the costs of part or all of a proceeding if costs have been incurred because of undue delay, negligence, improper conduct of other misconduct or default. In such circumstances, considerations such as those referred to in Mitry Lawyers v Barnden [2014] FCA 918 at [42] would be expected to apply, namely:
The relevant principles emerge from three decisions of this Court: the judgment of Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169; and two Full Court decisions; Levick; and Macteldir v Roskov [2007] FCAFC 49. The principles may be summarised as follows:
1.Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against a lawyer.
2.Something which involves “unreasonable conduct” is required.
3.What constitutes unreasonable conduct will depend on the circumstances of the particular case.
4.The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success.
5.The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice.
6.An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless.
7.The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning clients, or particular issues or arguments, for fear of personal costs orders being made against them.
However, the Act mandates consideration of different matters. Significantly, pt.8B of the Act provides that instituting, on behalf of a client, a proceeding which has no reasonable prospect of success, in circumstances where the person encouraging the proceeding has not given proper consideration to the case’s prospects of success, is all that is required for that person to be liable for costs. The Act does not require unreasonableness, negligence or improper conduct to be shown and I infer that it intended that such considerations would not be relevant to a decision under s.486F of the Act. Even so, the person in question may demonstrate, notwithstanding that the requirements of s.486E have been satisfied, that the Court should take other matters into account when deciding how or whether to exercise its discretion. What those matters might be depends on the facts of the case. I have considered Mr McArdle’s submissions concerning whether he should be ordered to pay the Minister’s costs personally but am not persuaded that I should exercise my discretion other than as sought by the Minister.
I therefore find that Mr McArdle should bear the Minister’s costs personally.
Conclusion
The applicants’ solicitor, Mr McArdle, should pay the first respondent’s costs fixed in the sum of $5,000.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 6 November 2014
CORRECTIONS
Paragraph 19 line 16 – delete “any” insert “my”.
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