THE COSTS CLAIM - CONSIDERATION
23 The application for review, in what appears to be fairly stereotypical terms, specifies grounds which in terms may in part be drawn from s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It asserts, inter alia, the failure of the Tribunal to have accorded procedural fairness to the applicant. It was instituted on 7 April 2003. Apart from an appearance, nothing further occurred in the matter until the respondent's motion of 24 October 2003.
24 In my view, the proper focus is firstly upon whether the solicitor for the applicant is shown to have been seriously delictual in his duty by reason of the institution of the application. In De Sousa, French J at 548 considered the solicitor concerned had seriously failed to give reasonable attention to the relevant law and facts. The solicitor had apparently advised that applicant to pursue a particular form of Entry Permit then available under the Migration Regulations when there was no doubt that applicant did not satisfy the then criteria for the grant of such an Entry Permit. The application was misconceived.
25 In this matter, the position is not so clear. The respondent accepts that the applicant gave the solicitor instructions to institute the application. There has been no waiver of privilege. It does not appear what information was given to the solicitor for the applicant, or what consideration or advice was given by the solicitor to the applicant. For example, it is not clear what, if any, instructions were given by the applicant or his migration adviser about communications with the Tribunal before the Tribunal's decision. It may be inferred that any consideration or advice was brief rather than fully considered. The circumstances referred to in [19] above might explain why that is so. It may be that the solicitor gave advice that, on the basis of the instructions, the prospects of success were slight. It may be that the applicant gave instructions to make the application notwithstanding such advice. I note that the first two grounds specified in the application concern the Tribunal having failed to accord the applicant procedural fairness. On the other hand, there may have been no advice given at all. The material before the Court does not enable any firm finding to be made.
26 By instituting the proceedings on instructions, but without fully investigating the claims to be made, the solicitor for the applicant is not necessarily shown to have committed a serious dereliction of duty. It is, for example, not uncommon in challenges to the fairness of the procedure of the Tribunal to require a transcript of the hearing. Such a transcript may take a considerable time to secure. Section 477(2) accommodates no delay while full investigations are carried out. It should be noted that the time limit prescribed by s 477 will not apply where the Tribunal has committed jurisdictional error, so full investigation and advice might have been given before the proceedings were instituted: see e.g. Plaintiff S157/2002. But, upon the Tribunal's decision, the visa application may have been finally determined: see s 5(9) of the Act, with the consequence that the applicant became an illegal non-citizen liable to immigration detention and deportation under s 189 and s 198 respectively.
27 In the factual context of De Sousa, one can readily understand why the Court regarded the serious failure to give reasonable attention to the relevant law and facts as warranting the exercise of the power to compensate the respondent by making an order for costs against the applicant's solicitor. But each case must be viewed in its own circumstances. The 'serious failure to give reasonable attention to the relevant law and facts' in that case was found to demonstrate the solicitor's serious dereliction of duty. But it will not always do so. Advice may be given that further investigation should be carried out before reliable assessment of the prospects of success can be made, but the client may instruct the institution of proceedings on the basis of preliminary advice and investigation. Or a time limit may be about to expire. Or there may be other considerations.
28 In this matter, I am not satisfied that the institution of the application by the solicitor for the applicant on the applicant's instructions amounts to a serious dereliction of the solicitor's duty. The fact that the applicant did not, at the time of the Tribunal's hearing or its decision, have a business sponsor does not necessarily mean the application to quash its decision must necessarily have failed. The requirement of a business sponsor is one which must exist at the time of the Tribunal's decision. The applicant's affidavit of 12 December 2003 asserts that he now has a business sponsor. He wished the Tribunal hearing on 27 February 2003 to be adjourned so he could complete his efforts to secure a business sponsor. The Tribunal, if requested, may have given him that opportunity. With a little more time, he may have been able to satisfy that criterion. It is not clearly shown that the solicitor for the applicant was instructed in such clear terms that he should have advised at that time that there was no prospect of success on the proposed application, particularly as ultimately it appeared the complaint of the applicant was that he had not been accorded procedural fairness by the Tribunal.
29 The respondent's 'fall-back' application is for an order for her costs to be paid from (say) 7 June 2003 by the solicitor for the applicant. That date is fixed to allow a period of two months after the commencement of the application to have completed investigations into the matter and to have given detailed advice covering it. That advice, it is contended, must have been to the effect that the application had no prospects of success so the application should have been discontinued or the solicitor for the applicant should have ceased to act for the applicant.
30 The delay needs to be explained. On 7 February 2003, the High Court remitted to the South Australia District Registry of this Court 364 matters in which the same solicitor for the applicant was acting, and which sought to quash decisions of the Tribunal or of the Refugee Review Tribunal made under the Act. The Court, after consultation with the solicitor for the applicant (and for all those applicants) and with the solicitors for the respondent, adopted specific procedures for their efficient disposition. In accordance with that procedure, those remitted matters were largely disposed of by August 2003.
31 Subsequent to that consultation, the solicitor for the applicant between 27 March 2003 and 7 July 2003 instituted 112 matters on behalf of applicants also seeking to quash decisions of the Tribunal or of the Refugee Review Tribunal. The present application is one such matter. Also, on 29 June 2003, a further 121 matters of the same general nature were remitted by the High Court to this Court for hearing and determination. Those two groups of matters were to be progressed only after the disposition of the matters remitted to this Court on 7 February 2003 had largely progressed.
32 On 5 August 2003, again after consultation with the solicitor for the applicant (and the other applicants in those subsequent two tranches of applications) and with the solicitors for the respondents, the Court adopted specific procedures for the efficient disposition of those subsequent tranches of applications. The procedures largely mirrored those previously in place. The matters were to be progressively dealt with in blocks. The solicitors for the respondent were to initiate the progressive dealing with the matters in one of two alternative ways with a view to them each coming on for hearing as promptly as possible, including the one adopted in this matter.
33 As noted, in this matter, after the appearance of the respondent was filed, the next step taken was the filing and service of the respondent's notice of motion on 24 October 2003 for this application to be summarily dismissed. That procedure was taken in accordance with, and reflected, the arrangements referred to. The motion was heard and the application was dismissed on 18 December 2003.
34 For those reasons already given, I do not consider in the circumstances the solicitor for the applicant was seriously derelict in his duty for not having fully investigated the matter and for not having finally advised concerning it by 7 June 2003.
35 It is necessary however to also address the alternative contention by reference to the time after the respondent's motion of 24 October 2003 to summarily dismiss the application. I do not think the solicitor for the applicant should be ordered to pay the respondent's costs for any part of that period. In the first place, the respondent in its fallback contention has accepted a period of two months or so after it became appropriate or necessary for the solicitor for the applicant to fully investigate and advise on the matter before the stage would be reached that, if that were not done, a serious failure to give reasonable attention to the relevant law and facts would be demonstrated. That period in effect covers the time to the hearing of the motion. More importantly, as I have sought to indicate above, a serious failure to give full attention to the relevant law and facts at or before the commencement of an application will not necessarily demonstrate a serious dereliction of duty. There may be reasons why that has occurred. Those reasons may relate to the financial sources available to the applicant, to accessibility, to illness, or to a variety of factors. Without intruding beyond the veil of privilege, it will sometimes not be possible to form such a judgment.
36 Finally, there are two assumptions underlying the submission which I do not accept. The first assumption is that if proper advice were given, and not taken, the solicitor for the applicant must then cease to act. It is no doubt very common that a client, having been advised there is no real prospect of success in a proceeding, will give instructions to discontinue the proceeding. But that does not always occur. Sometimes the client will choose to take the chance, however remote, that the application may succeed. I do not know if that is what occurred in this matter. It may have. The circumstances, or the nature of the issues, do not lead to a view one way or the other. By reason of client legal privilege, the solicitor for the applicant cannot enlighten the Court. The applicant has not done so. The real possibility that the applicant was advised by the solicitor that his claim had little or no real prospect of success but nevertheless gave instructions to pursue it remains. In that event, for the reasons I have given earlier, it would not be a serious dereliction of duty on the part of the solicitor (and counsel) to pursue the application and to present such arguments as may be available in support of the claim. In fact, the solicitor for the applicant, as counsel, did appear and did present such arguments as were available in support of the claim. The argument did not take long. It was efficiently presented. It was rejected. The second assumption is that, if the solicitor, at the point of giving final advice, had said that the claim had little or no prospect of success, and had then declined to act when the advice was not taken, the respondent would then not have incurred the costs which were incurred. It is not shown that he did not give such advice and receive instructions to proceed in the face of it. The fact that he has appeared and put such arguments as might have been put tends to suggest that, had he not done so, the applicant may have proceeded in person. The respondent would have incurred the same (or perhaps greater) costs.
37 Accordingly, as it has not been shown that the solicitor for the applicant gave no proper advice or gave advice about the prospects of success, I am unable to conclude that the costs incurred by the respondent in successfully resisting the application were incurred as a result of seriously delictual conduct on the part of the solicitor for the applicant.
38 The application that the solicitor for the applicant pay the costs of the respondent is therefore refused.