Joel v Migration Agents Registration Authority [2000] FCA 1919 | Case summary

Order 16 Rule 12 of the High Court Rules relates to representative parties where there are a number of applicants for relief, and the present High Court proceedings in which the Applicant here is engaged as a solicitor for the refugee applicants have apparently been brought upon the basis of such Rule. 32 Professional privilege applies of course to both written and oral communications between a legal advisor and his or her client, and the client's agent. Advice qualifying for the privilege will be most frequently that provided for the sole purpose of preparing for, or of use in, existing or contemplated judicial or quasi-judicial proceedings (Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475 at 490), but the privilege is not so confined as was previously thought to be the case, as the majority of the High Court decided in Baker v Campbell (1983) 153 CLR 52. In one of the majority judgments in Baker v Campbell (that of Deane J at 115-116), the following appears in relation to circumstances of privilege other than judicial or quasi-judicial proceedings: "Once one recognizes that the principle underlying legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications and that the privilege is not confined to such communications as are made in the course of or in anticipation of litigation but extends generally to confidential communications of a professional nature between a person and his lawyer made for the purpose of obtaining or giving legal advice, common sense points to a conclusion that the principle should not be seen as restricted to compulsory disclosure in the course of such proceedings. Indeed, the doctrine of legal professional privilege would represent an aberration of the common law if it withheld from the courts information or documents which were material in the search for truth in circumstances where the disclosure thereof could be compelled as a matter of course by any administrative officer with a relevant and general statutory mandate to require the provision of information or the production of documents." The Law Council of Australia has correctly submitted to me that since Baker v Campbell, legal professional privilege has taken on the character of a civil right rather than a rule of evidence, citing the subsequent decisions of the High Court in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121, Goldberg v Ng (1995) 185 CLR 83 and Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501. The relevance of legal professional privilege outside the immediate contemplation or course of litigation to circumstances such as the present is therefore readily apparent. And as Pearce and Geddes Statutory Interpretation in Australia (4th ed) Butterworths 1996 para 5.22 point out, the right to claim legal professional privilege will only be taken to be abrogated in circumstances where potentially applicable legislation clearly so indicates. No such indication is to be found within s 308 of the Act. 33 I do not think that the Respondent's contention, firstly extracted in [30] above, that the meaning of its question to the Applicant "What advice was given to the applicants in relation to their position in the class action" was clear on its face, and asks only about immigration assistance with s 276 of the Act [3]. The question is at worst ambiguous, and is readily susceptible to being read and understood as referring to advice of the Applicant provided to his clients engaged in any one of the High Court class actions as to the possible or likely outcome thereof. The word "position" as used in such question is capable of reflecting or encompassing such a meaning. Since the second notice followed upon the first notice in the circumstances explained in [29] above, it is appropriate to pay regard to the content of the first notice as a contextual guide to the natural meaning of what otherwise might be thought to be ambiguities of expression appearing in the second notice, and thus in particular to that part of the first notice which addressed the subject matter of the foregoing question in the second notice, namely paragraph F of the first notice, which is extracted at [13] above. Whilst sub-paragraph 1 of such paragraph F does appear to be confined in scope to client applications for bridging visas (as to which see again [31] above), in accordance with the thrust of the Respondent's submission, sub-paragraphs 2 and 3 of such paragraph F are directed to advice of the Applicant provided to his numerous clients engaged in the High Court proceedings as to the respective impacts upon them of successful or unsuccessful outcomes generally to such proceedings, whilst sub-paragraph 4 of paragraph F could conceivably, albeit not necessarily relate to a matter of legal professional privilege to the extent of the Applicant's response (Clause 9.1 of the Code of Conduct is reproduced at [8] above). Moreover the "Reasons for the Decision of the Authority" (extracted at [21] above) would have been reasonably and objectively read as referring at least mainly to the High Court class actions and the relevance thereto of the advertisement [11], and that theme was consistent with the material attributable to the Minister, to the Department, and to the Respondent cited in [17] above. Accordingly with the assistance of such contextual material contained in the first notice, I do not think that the submission of the Respondent extracted in [30] as to the meaning of the Respondent's question to the Applicant "What advice was given to the applicants in relation to their position in the class action" was confined to the subject of bridging visas but extended to advice of the Applicant on the likely outcome of the High Court proceedings. I therefore uphold the submission of the Application that this critical question would have been sensibly read and understood as referring to the provision by the Applicant of legal advice as to the implications of both a successful and unsuccessful outcome for each or any of the applicants engaged in the High Court proceedings. Independent support for that view may be seen from the text of the Respondent's Solicitors' advice of 31 May 2000 paragraphs numbered 3 and 5 (see [7] above) (to which texts the Respondent proffered no specific reply in its response to 3 August 2000, as to which see [18] above). A similar observation may be justifiably made in relation to the letter of the Law Society of New South Wales of 7 September 2000 addressed to the Minister for Immigration and Multicultural Affairs (which letter is substantially reproduced in [22] above and to which no reply was apparently ever furnished). As stated in J.D. Heydon, Cross on Evidence 6th ed Butterworths 2000) at para 25265, "It is important to emphasise that the privilege is that of the client", and what here is at issue are the legal professional privileges of literally thousands of the Applicant's clients. 34 I therefore would reject the Respondent's contention that "Read fairly the entire June s 308 decision asks only after immigration assistance within s 276(1)(b) of the Act".. Whilst the Respondent's second notice also stated "The authority would remind you that it is only interested in matters where immigration assistance in relation to bridging visas had been given", and the Respondent's "Reasons for the Decision…" document referred to "… production of information and documents relating to instances of immigration assistance…," the ambit of the question "What advice was given to the applicants in relation to their position in the class action", particularly in the light of the other contextual matters to which I have referred, was too compelling to avoid the implication of infringement of the privilege. In any event, I do not think that the statutory contrast between "immigration assistance" and "immigration legal assistance" produces the consequence that advice by a lawyer on matters within the former category are necessarily outside the scope of legal professional privilege. Advice upon matters within the former category by a lawyer, such as the Applicant who specialises in migration law and who also carries on practice as a registered migration agent, may well constitute legal advice within the scope of legal professional privilege, irrespective of the statutory distinction drawn for the purpose of marking out the limits of permissible conduct for migration agents who are not also qualified lawyers. The privilege can of course be abrogated by statute although statues having such an operation are rare, and the courts will not lightly infer a legislative intention so to do. Statutory clarity would certainly be warranted on the subject. As appears from the judgment of Deane J in Baker v Campbell, supra at 116: "It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment." I do not consider that the operation of s 308(1)(a) avoids the application of such a stringent test, in so far as legal advice in respect of immigration assistance may be given by a lawyer. Why the High Court in Corporate Affairs Commission of NSW v Yuill (1990-1) 172 CLR 319 took a different path, in relation to the explicit legislative scheme of exclusion contained in the Companies (NSW) Code 1991 concerning the obligation to produce documents, was explained by Brennan CJ at 322 as follows: Baker v Campbell should not be regarded as prescribing an alteration in the rules of statutory construction, but rather as declaring legal professional privilege to be a common law right or privilege available (unless excluded) not only in judicial and quasi-judicial proceedings but whenever the exercise of a statutory power would trespass upon the confidentiality of the communications which the privilege protects. We are therefore not so much concerned with a change in the rules of statutory constructions, as with an application of the presumption that the legislature does not intend to abrogate a common law right or privilege unless a contrary intention is clearly expressed or implied in the statute. That presumption is a means by which to discover the true intention of the legislature… We are thus concerned with an application of that presumption in a legal matrix which has changed since the Code was enacted. The alteration of the law which Baker v Campbell prescribed evokes an application of the rule contemporanea expositio est optima et fortissimo in lege - the best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up: Broom's Legal Maxims, 10th ed. (1939), p.463. And so, the answer to our first question is that the Code came into force - that is, the law as it stood before Baker v Campbell was decided - unless there be something in the Code which is inconsistent with the operation that would thus be attributed to the Code." 35 I therefore conclude that to the extent that the Respondent's notice of 3 August 2000 required the Applicant to answer the question "What advice was given to the applicants in relation to their position in the class action", the Applicant was entitled to decline to answer the same on the ground of infringement of the legal professional privileges of the plaintiffs to the class action affected thereby, and accordingly the notice has no legal operation or effect to the extent of such question. I further conclude that to the extent that the third notice of the Respondent directed to the Applicant and bearing date 14 September 2000 purports to rely for its operation upon the applicant's absence of response to the question "What advice was given to the applicants in relation to their position in the class action" contained in the second notice of the Respondent directed to the Applicant and bearing date 3 August 2000, the same has no force or effect as a requirement for the purposes of s 308(1) or s 309(2) of the Act. 36 I do not however accept the submission of the Applicant seemingly advanced to me that as a consequence of so purporting to abrogate the legal professional privilege of the Applicant's clients and no more, the Respondent's notice of 3 August 2000 (ie the second notice) has no legal operation or effect as to the remaining questions or demands thereby made, and further as to the notice of 14 September 2000 (ie the third notice). It therefore becomes necessary to consider the Applicant's other grounds of attack in relation to such remaining questions or demands of the second notice. Whether such additional requirements of the second and third notices are inoperative upon another ground or grounds of challenge, will now be examined below. Other Grounds for Administrative Challenge 37 As appears from the Applicant's written submissions summarised in [25] above, the Applicant has sought to set aside the first and second notices, and consequently the third notice, upon numerous other grounds said to be provided by ss 5 or 6 of the ADJR Act and/or s 39B(1A)(c) of the Judiciary Act. In [27-28] above, I have determined that grounds for review are not available under s 5 of the ADJR Act, but are potentially available under s 6 thereof, and also under s 39B(1A)(c). In [29] above, I have determined that the first notice became suspended from operation in favour of the second notice, and accordingly I pay no regard to the same, except for the limited purpose of interpreting where appropriate the meaning of the second notice. And in [30-35] above, I have determined that no effect in law can be given to the requirement of the second notice that the Applicant should provide a statutory declaration stating "What advice was given to the applicants in relation to their position in the class action". I therefore approach the remainder of the Applicant's abovementioned written submissions upon the bases set out in this paragraph. 38 It is first appropriate to focus closely upon the text of the second notice, which as earlier indicated, was issued on 3 August 2000. As appears from such text (see [18] above), the Respondent had decided at a meeting on 25 July 2000 that it would consider proposals alternatively to those stipulated in its first notice which had issued on 29 June 2000, and then stated as follows: "In an attempt to minimise the administrative burden to you the Authority has decided not to require at this time all of the information requested in the letter of 29 June last… The authority will accept the following in relation to the visa applications you referred to." Thereafter followed items (i) and (ii) already set out in [18] above, commencing "(i) A copy of each client record…". There can be no doubt that the foregoing represented a substantial reduction in the scope of the requirements of the first notice (compare again with [13] above). Moreover the third notice was sent by reference to the second notice, as appears from the reference therein to the expression "…the Authority amended its request for information…" in [23] above. 39 The impetus to the Respondent's conduct in giving the Applicant the second notice, as previously in the case of the first notice, was undoubtedly attributable in the first place to Government and Departmental concerns in relation to the Applicant's conduct of these very substantial class actions in the High Court and his media advertising for additional refugee clients to join in such actions. In that regard I refer back to [10-12] as to such class actions, the Applicant's form of advertisement and the nature of the documents disclosed by the Department of Immigration and Multicultural Affairs under the Freedom of Information Act [16]. I refer also to the Minutes of an inter-departmental meeting held on 17 February 1999 at which concern was expressed by those persons present as to the initiation of class actions "without foundation or serious intent in a positive outcome for the client", and where reference was made to "… an advertisement by Adrian Joel touting for business from Bangladeshis" (see [17(i)] above). It was in that context that the Respondent sought legal advice from the Sydney legal firm Barker Gosling Legal Group at the apparent instigation of the Department: see [17(ii) to (iv)] above). As appears from the concluding paragraph of the legal advice provided by that firm to the Respondent (see [17(v) above), the behavioural issues formulated for such advice related to Clauses 2.1(a), 2.10, 2.11 and 2.17 of the Code of Conduct (see [7] above), which concern the obligations of migration agents to act in the legitimate interests of clients, not to engage in false or misleading advertising such as guaranteeing success of an application, not to encourage vexatious or grossly unfounded applications, and not to advertise for participation in class actions without a genuine belief as to reasonable prospects of success. As appears from the Department's Minute extracted in [17(i)] above, such matters had been the subject of Ministerial and Departmental attention and concern at least since February 1999. Whilst such Government concerns may be placed in the perspective of the Respondent's concession that only one client complaint concerning the Applicant had been received up to the date of the hearing of the proceedings (transcript page 13), it cannot be asserted that such attention and concerns were misplaced or improper, and that the Respondent's conduct in accommodating such concerns evinced an intention on its part "to cause significant interruption and disruption to the applicant and his practice", as the Applicant has submitted. The substantial modification of the scope of the first notice by way of substitution at least for the time being of the second notice sufficiently demonstrates that finding. A similar conclusion can be drawn from the content of the decision, which of course gave rise to the second notice, regard may be paid to the Respondent's "Reasons for the Decision…" extracted in [21] above, notwithstanding that the same purported to provide reasons only for the first decision and thus the issue of the first notice, and not for the second decision or second notice. Such document referred to the lodgment of a complaint on 21 October 1999 with the Department, to the Respondent's advertisement to refugees (being presumably that or similar to that extracted in [11] above, and to indications "of the concerns expressed by the Joint Standing Committee on Migration, and other concerns and evidence presented to that Committee and the concerns expressed by the Senate Legal and Constitutional Legislation Committee…". 40 The evidence which I have summarised in [39] above has led me to the conclusion, contrary to the Applicant's submission, that the second decision did not take into account irrelevant considerations, as contended by the Applicant (see [25(iii)] above), such as to vitiate the second decision upon that basis of administrative law, and as a consequence the third decision. The issue of the second notice, and as a consequence the third notice, constituted a purported exercise of at least the functions provided for in paragraphs (b), (c) and (g) of s 316 of the Act (reproduced at [6] above). 41 The next issue is whether the Respondent failed to take into account relevant considerations, being the four considerations enumerated on behalf of the Applicant in [25(iv)] above. In so far as the third of such considerations related to the legal professional privilege of the Applicant's clients, I have already found that the question contained in the Respondent's second notice, "What advice was given to the applicants in relation to their position in the class action" was vitiated independently on the grounds of the contravention of legal professional privileges of clients of the Applicant engaged in the class actions. It is therefore unnecessary to address the issue of privilege on the basis that there was a failure to take the same into account as a relevant consideration. The fourth of such considerations contained in [25(iv)] above) is that "the making of the decisions might well constitute a contempt of the High Court of Australia in relation to the proper conduct of the class actions or be considered an unacceptable interference with the due administration of justice…," and reference is made by the Applicant to Hammond v The Commonwealth (1982) 152 CLR 188, for instance at 198 (per Gibbs CJ) and to Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 98 FCR 311 at [36]. I think that the only requirements of the second notice which could conceivably be said to interfere with the due administration of justice in the High Court class actions is the question asked in breach of the class action refugees' legal professional privilege, namely "What advice was given to the applicants in relation to their position in the class action", which question as just stated is vitiated in any event on ground of contravention of such privilege [30-35]. 42 The first and second considerations advanced by the Applicant upon this ground of failure on the part of the Respondent to take into account relevant considerations [25(iv)] require closer consideration. Those two considerations must be of such a nature that the Respondent was bound to take the same into account, and the factors which the Respondent may have been bound to take into account fall to be determined by construction of the statute (here of course the Migration Act and the Regulations thereunder) conferring the discretion involved in the decision-making process: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39 per Mason J (as he then was). And as explained earlier by Brennan J in Kioa v West (1985) 159 CLR 550 at 619: "No doubt the matters to which the repository is bound or entitled to have regard depend upon the terms of the particular statute and, if there be no positive indications in its text, the subject-matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or entitled to have regard to individual interests… When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised." 43 Addressing the first of such remaining considerations propounded by the Applicant in relation to the alleged failure of the Respondent to take into account relevant considerations [25(iv)], namely that the Applicant could not comply with the first and second decisions for the four reasons described in sub-paragraph (a) of [25(iv)] above, it is here that the Applicant tends to blur the requisite analysis which must be undertaken by not distinguishing in his submission the relevant differences between the first and second notices, notwithstanding that the first decision was overtaken, at least for the time being, by the second decision, as I have so found in response to the Respondent's submission. As earlier pointed out, it was in purported recognition of verbal complaints advanced by the Applicant in response to the first notice of 29 June 2000 [13] that the Respondent substantially modified the same in the form of the second, as I have initially explained in [29] above. Such modification was truly substantial, in that the Applicant was not required by the second notice to provide, by statutory declaration or at all, the names of each individual falling within any of the descriptions appearing in Section A of the first notice, the six pieces of information set out in Section B of the first notice relating to each of those individuals, and the seven items of documentation described in Sections E and F of the first notice. The Applicant was still being required by the second notice to provide "a copy of each client account record" (presumably the same as "your client account" referred to in Section C of the first notice), but as stated in the Respondent's fax of 26 July 2000 to the Applicant (see [15] above), and again in the second notice [18], the same were to be confined to those client account records related to immigration assistance for bridging visas obtained as part of the class actions, and not all records relating to the class actions. Whether as a practical matter the client account records were in fact partitioned in the class action records of the Applicant between applications for bridging visas as such, and pleading etc in the class actions, is not explicitly stated, but I would infer from the Applicant's letter of 18 August 2000 to the Respondent that such may be the case. In any event, the statement of services required to be provided to clients in relation to fees or other rewards for the giving of financial assistance pursuant to s 313 of the Act (see [5] above and also Part 5 of Schedule 2), was confined by the second notice to take the form merely by way of sample, indeed so it would seem, literally a single sample. As to the remaining material required by the second notice to be verified by statutory declaration, the same was confined first to a statement as to the number of clients of the Applicant, in relation to whom "immigration assistance for obtaining bridging visas had been given", and who had respectively received the statement of services required by s 313 (set out in [5] above) being apparently the same as the statements of services referred to in Regulation 5.5 (see [6] above), secondly to a statement of account relating to such services presumably of the kind stipulated in Regulation 7.4(d) of Part 7 of Schedule 2 (set in [8] above), thirdly to a statement of the number of clients of such description who had furnished written confirmation to the Applicant of the terms of the services the subject of s 313, and fourthly to confirmation that only registered migration agents had given immigration assistance to the Applicant's clients, and that only such persons had communicated with or made other immigration representations to the Department (see again s 276 set out in [3] above and the substance of s 280 also referred to in [3] above). 44 As to the first of the considerations advanced by the Applicant as relevant matters not taken into account by the Respondent, (being those summarised in [25(iv)(a)] above), which may be together described as the personal circumstances of the Applicant as a sole legal practitioner engaged in massive litigation with only meagre logistical resources, I do not think that such considerations were relevant matters which the Respondent was bound to take into account upon the true construction of the Act and Regulations. The requirements of the second notice related essentially to obligations of migration agents the subject of statutory and regulatory requirements referred to in [43] above as follows: (i) as to "client account records": Regulation 7.4(a) of Part 7 of Schedule 2; (ii) as to statements of services: s 313; (iii) as to confining the provision of immigration assistance: ss 276 and 280. The Respondent correctly contends that for the Applicant to take on the logistical burden of conducting High Court class actions involving thousands of applicants, as well as providing accompanying "immigration assistance" within s 276 involving bridging visa applications, provides no basis in principle for avoiding the duty, when so invoked by the Authority, to demonstrate compliance with statutory and regulatory requirements, including compliance with obligations of an ethical character prescribed by Regulation 2.17 (see [8] above). The assertion of the Applicant to the Respondent in his letter of 18 August 2000 [19] that "My professional responsibilities dictate that I must be totally committed to this trial. I am not in a position to commit more resources during this period to participate", did not render irrelevant or otherwise unwarranted the need for the Applicant, when so required by the Respondent pursuant to s 308(1)(a), to demonstrate compliance when called upon so to do. It follows that the detailed logistical matters, set out in the Applicant's letter of 18 August 2000 to the Respondent [19], were not relevant matters which, by reason of the Act and Regulations, the Respondent was bound to take into account. As to the issue raised by the Application referred to in [25(iv)(d)] concerning possible contempt of the High Court, the same was also not a relevant matter required to be taken into account by the Respondent: see [42] above. 45 The ground for review which is next appropriate to address is that asserted by the Respondent in [25(vi)] above, namely that stipulated by s 6(2) of the ADJR Act that the "exercise of a power that is so unreasonable that no reasonable person could have exercised the power". This ground is of course commonly referred to by the epithet "Wednesbury unreasonableness". There is at least one component of the second decision in relation to which this ground of review has been established: I refer to the requirement that "A copy of each client record" be furnished by the Applicant to the Respondent (see again [18] and in particular Regulation 7.4(d)). The obligation imposed upon a migration agent to maintain such records separately for each client is set out generally in Part 7 of the Schedule 2 (see again [8] above). No express obligation is there imposed upon a migration agent to provide copies of such records to the Respondent, in contrast to the recently enacted provisions of ss 306D and 306E of the Act relating to so-called "inactive agents". The requirement of Regulation 7.5 as to making available such records to the Respondent for inspection on request, but no more, tends to work against the implication of any such potentially onerous financial obligation, particularly if one adds to the equation the circumstance that the account record for any one client, as the Applicant has demonstrated, may involve various numbers of sheets of paper which would have to be copied: see in that regard Regulation 7.4. If there is further added to the existence of such lesser requirement of Regulation 7.5 the combination of the following factors here present, namely the existence of literally thousands of client account records apparently falling within the scope of the description of documentary records involved, and the consequential significant cost in photocopying the same additionally to the indirect cost of personnel time involved in creating the requisite copies, as explained in the Applicant's letter of 18 August 2000 to the Respondent [19], there is established a case in favour of the Applicant of such disproportionality of demand on the part of the Respondent as to attract the application of the Wednesbury doctrine of unreasonableness in administrative decision-making. Why the provision of samples of client account records, obtained upon an inspection by the Respondent pursuant to Regulation 7.5, was not adequate, was never explained by the evidence adduced by the Respondent. 46 I am conscious of the controversy of the so-called disproportionality thesis as an aspect of the ground of unreasonableness for setting aside decisions of an administrative character, as discussed for instance in Judicial Review of Administrative Action (supra, at pages 289-292). The situation here of what I have described as disproportionality does not however involve merely issues as to weight, or of trespass into review on the merits, as was discussed recently in the majority judgments of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, for instance at 627-8 (per Gleeson CJ and McHugh J). The situation here concerns interference with more fundamental rights, in the sense of imposing a substantial financial as well as an associated administrative burden on the Applicant. Counsel for the Respondent has contended that authority for the Respondent's requirement for provision of copies of the client account records is already to be found within s 308(1)(c) of the Act, but I would reject that submission. Whether or not the account records the subject of the second notice may be rightly described as "relevant to the agent's continued registration" with s 308(1)(c), such statutory provision is in any event is silent as to any obligation to provide copies, in contrast for instance to ss 306D(2) and 306E(2). 47 There remains the remainder of the second notice for consideration which I have not addressed, as follows: "(ii) A Statutory Declaration from you with a sample attached of the section 313 statement of services given to the clients. Your declaration should state: · How many clients received the statement of service, · How many clients received a statement of account, · How many clients returned to you written confirmation of the terms of service; … · that only registered migration agents gave immigration assistance and only registered agents communicated with or made other immigration representations to the Department of Immigration and Multicultural Affairs." 48 I have already found that these matters involved relevant considerations in relation to the exercise by the Respondent of its powers conferred by s 308(1)(a) and (c) of the Act. There would obviously be a not insignificant logistical expense to the Applicant involved in compliance with these remaining requirements of the second notice. However the emphasis of the Applicant's concerns as to compliance, set out in the Applicant's letter of 18 August 2000 and the accompany draft letter (ss [19-20] above), was directed predominantly to the provision of copies of each client account record, and secondly to advice given to applicants in the class actions in relation to their "position" in those actions, and I have found that each of those requirements are not valid and enforceable by the Respondent. I am not persuaded that the Respondent's decision to impose the remaining requirements set out in [47] above, were unreasonable within the Wednesbury test. It may well be that in order to make the requisite statutory declaration in accordance with s 308(1), the Applicant may have be inspect each client file, notwithstanding that only a single sample document is required to be actually produced. But as I have earlier indicated, the Applicant is not excused from providing information to the Respondent about his clients because of his voluntary determination to undertake work in the nature of immigration assistance and immigration legal assistance on such a massive scale as is involved in the High Court class actions. 49 The remaining grounds of attack upon the second notice set out in [25] above, which as earlier indicated were directed to the first notice as well as the second notice without distinction, have no justification in relation to the second notice, essentially for the reasons I have already articulated in relation to the grounds identified in [25(iii), (iv) and (vi)]. For instance, save as to the issue related legal professional privilege earlier discussed, I do not think that the Respondent wrongly interpreted s 308 of the Act in its framing of the second notice. I have some reservation as to the adequacy of the time stipulated by the Respondent for compliance with the second notice, but having regard to the way in which the Applicant has mounted his attack in relation to the first and second decisions jointly and not severally, and the absence of any evidence from the Respondent as to the time estimated to be involved in compliance only with the second notice, it is not possible for me to review such a timing issue.

Joel v Migration Agents Registration Authority

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Judgment (13 paragraphs)

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Legislation Cited (5)

Cases Cited (17)

Cited By (3)