Minister for Immigration & Multicultural & Indigenous Affairs v Fonua

Conduct in other cases 6 This is not the first occasion on which Mr Fonua has come to the adverse attention of the Court. He has been involved in several matters concerning applications for review by Tongan citizens, at times assisting with the preparation of applications and at other times acting as a representative with leave of the Court. On three particular occasions, Mr Fonua has been involved in the bringing of applications before the Court in similar terms to those of the present (that is, applications for review of a decision of a departmental officer not to refer to the Minister the applicant's request that the Minister exercise his power under either s 48B, s 351 or s 417 of the Act), applications which have also failed because there was no legal basis for bringing them (see Tavalu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1027, NAQG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1016, Kolotau v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1145 ('Kolotau')). 7 In Kolotau, Hely J refused to order costs against Mr Fonua partly because the Minister had failed to warn Mr Fonua of the risk that it might seek to have costs awarded against him, but also because he was not satisfied that Mr Fonua was responsible for the institution of the proceedings (at [17]). 8 After NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1044 ('NAQG"), one of the cases mentioned in [6] above in which Mr Fonua must have become aware of the utter hopelessness of the present proceedings. The decision was delivered on 23 August 2002. Although Branson J declined to make a costs order against Mr Fonua, her Honour said at [20]- [22]: 'I am satisfied that it was Mr Fonua who caused this proceeding to be instituted and that he did so without giving any responsible consideration to the question of the Court's jurisdiction to hear it. In that sense he was reckless as to whether the Court had the jurisdiction purportedly invoked by the application. The exemption from the payment of fees granted by the Court to the applicant indicates that the applicant himself is without significant financial means. Mr Fonua's conduct has thus caused the Minister and ultimately Australian taxpayers to incur legal costs for which the Minister is unlikely to be compensated unless an order for costs is made against Mr Fonua. The power to order a non‑party to pay a party's costs is not to be exercised lightly. For this reason I have, with some hesitation, decided not to make such an order in this case. A major factor which has ultimately led me to decide against the making of a costs order against Mr Fonua is my belief that Mr Fonua may not have understood the extent to which his conduct was inappropriate. This factor is unlikely to be one upon which Mr Fonua will be able to rely should a similar case arise in the future.' (emphasis added) 9 Evidence was led by the Minister to show that in September 2003, Mr Fonua had again assisted applicants to lodge another claim of this type, demanding that it be filed despite the Registrar informing the applicants that the Court has no power to consider the grounds of review claimed in the application.

Legal principles 10 In Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 71 ALD 1, the Full Court (Sackville, Allsop and Jacobson JJ) comprehensively summarised the legal principles as to ordering costs against non-parties in yet another matter concerning Mr Fonua: 'The jurisdiction of the Court to award costs is conferred by s 43 of the Federal Court Act. Section 43 provides, relevantly, as follows: "Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. … (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." … The jurisdiction conferred by s 43(1) extends not only to an award of costs against parties to proceedings, but to non-parties: Knight v FP Special Assets Ltd (1992) 174 CLR 178, at 190, per Mason CJ and Deane J (with whom Gaudron J agreed); at 202-203, per Dawson J; Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, at 229-230, per curiam; White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, at 229 (affirmed sub nom Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134); Yates v Boland [2000] FCA 1895 (FC). The circumstances in which it is appropriate to award costs against a third party are confined, but this is a question of discretion rather than jurisdiction: Knight v Special Assets,at 203, per Dawson J. It is no barrier to the exercise of the jurisdiction that the original proceeding in respect of which costs are sought against a non-party has been terminated by pronouncement of judgment: Caboolture Park v White Industries, at 230, 236. There are certain categories of cases in which the jurisdiction to award costs against a non-party has been exercised, if not frequently, then with some degree of regularity. One such category is where the non-party is considered to be the "real party" to the litigation: Knight v FP Special Assets Ltd, at 188, per Mason CJ and Deane J. Another is where the non-party is a legal representative of a party to the proceedings. A costs order may be made, for example, against a solicitor in consequence of his or her conduct in the litigation: Caboolture Park, at 231. While s 43 of the Federal Court Act empowers the Court to make a costs order against a legal representative of a party, a second source of jurisdiction is the "implied", "accrued" or "inherent" jurisdiction of the Court over its own officers: Caboolture Park, at 231. The jurisdiction to award costs against non-parties is not limited to these particular categories of cases. Mason CJ and Deane J said in Knight v Special Assets, at 192-193, that it was appropriate to recognise a general category of case in which an order for costs should be made against a non-party: "That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against he non-party if the interests of justice require that it be made." In Knight v Special Assets itself, the costs award had been made against the receiver of a company who was the real instigator of the litigation and the person conducting it: see at 206, per McHugh J. In Yates v Boland, the passage from Knight v Special Assets was held to be an appropriate guide to the exercise of judicial discretion where the effective controller of a company was found to have played an active part in the litigation and to have a real and personal interest in the subject matter. Costs have been awarded against non-parties in other circumstances. For example, in Minister for Immigration & Multicultural Affairs v Shen [2002] FCA 899, Madgwick J ordered a migration agent to pay the Minister's costs to the extent that the agent had caused them to be incurred or enlarged. His Honour found (at [22]) that the agent had "cynically exploit[ed]" the Court's processes in a cause he well knew to be hopeless and that the applicant in the proceedings was "a man of straw". Moreover, the agent, who had provided his services for reward, was found to have provided legal services in contravention of the Legal Profession Act. There is no reason in principle why the Court's jurisdiction to award costs against a non-party could not extend, in an appropriate case, to a non-lawyer who, without fee or reward, conducts legal proceedings, or takes steps in such proceedings, on behalf of a litigant. However, in considering whether the case is appropriate for an order of this kind, some general propositions should be borne in mind. First, the authorities suggest that the object of the jurisdiction is to reimburse to a party costs which that party has incurred by reason of the conduct of the non-party. The jurisdiction is not punitive or disciplinary: see White v Flower & Hart, at 229-230, per Goldberg J and cases cited there. While Goldberg J was concerned with an application for costs against a solicitor, the same principle applies where an order for costs is sought against a non-party who is not a legal practitioner: Yates v Boland, at [17]. Indeed, there is less justification for regarding the jurisdiction as punitive or disciplinary in the case of a lay person, since the Court's disciplinary powers (as distinct from its power to impose sanctions for contempt) are confined to legal practitioners: cf Caboolture Park v White Industries, at 233-234. …

Secondly, an order for the payment of costs by a non-party is exceptional and any application for such an order should be treated with considerable caution: Symphony Group Plc v Hodgson [1994] QB 179, at 192, per Balcombe LJ, cited with apparent approval in Yates v Boland, at [22]; Orchard v South Eastern Electricity Board [1987] QB 565, at 572, per Donaldson MR, with whom Croom-Johnson LJ agreed. Caution is especially called for when the non-party is providing voluntary assistance to a litigant who is not legally represented and who (as in many migration cases) is unfamiliar with the legal system and speaks little or no English. The task facing such a litigant is daunting enough without the courts subjecting unpaid advisers too readily to adverse costs orders. Thirdly, the mere fact that the non-party has been actively involved in preparing and presenting a hopeless case will not, of itself, ordinarily justify a costs order against that person. In White v Flower & Hart, Goldberg J pointed out that some cases had suggested that a solicitor who commences or maintains proceedings with little or no prospects of success is at risk of an adverse costs order. His Honour said (at 231), correctly in our view, that a "proposition expressed so broadly must be treated with considerable caution as it exposes a tension with the important right of a person to have a case conducted in the courts irrespective of the view which his or her legal adviser has formed about the case and its prospects of success." Goldberg J considered that something more than commencing or maintaining proceedings with little or no prospects of success was required for a costs order to be made against a practitioner. In his view (at 231): "Something more must be added to the equation such as, for example, an ulterior purpose, abuse of process or a serious dereliction of duty." Similarly, a stranger who, without reward and without contravening any statute, assists a person to institute or maintain legal proceedings will not, on that account alone, ordinarily be exposed to a costs order. Something more will be needed.' 11 In NAGM, the Full Court refrained from ordering costs against Mr Fonua in circumstances where he encouraged and assisted the appellants to bring a meritless appeal. Although Mr Fonua had prepared the initiating process, the appellant's written submissions and the notice of appeal, the Full Court was of the view that Mr Fonua did not have the knowledge or expertise to understand that the appeal was hopeless and bound to fail (see [71]-[73]). The Full Court did not consider that Mr Fonua's actions amounted to an abuse of the Court's process but noted, in the final sentence of its judgment, that:

'The failure of the application in this case does not necessarily mean that no future application could ever be successful.' (at [76])

Conclusions 12 In the present case, unlike NAGM,it is clear that Mr Fonua was knowingly responsible for the institution of hopeless proceedings. He was also aware of the risk that the Minister might seek costs against him, following the clear and unambiguous warning of Branson J in NAQG and the remarks of the Full Court in NAGM. The applicant did not have the knowledge necessary to make the application filed by Mr Fonua without his advice and direction. Mr Fonua's involvement in this matter went a long way beyond that of a mere interpreter or incompetent well-wisher. Mr Fonua not only 'interpreted' for the applicant, he actively advised the applicant to make the application as well as helping him to make what Mr Fonua knew was a worthless application to the Court. In this case the overwhelming inference is that Mr Fonua's purpose in lodging the application was, as has been suspected of him in previous matters, simply to delay the applicant's departure from Australia without any legal justification. It is not necessary to reach a conclusion about the reason for Mr Fonua's involvement in so many legally quite meritless matters for Tongan applicants, allegedly without financial reward for his efforts. Whatever Mr Fonua's motivations, he well knew that there was no legal basis to file such an application, yet advised the applicant to do so anyway. That is an abuse of process. It has been committed by a person who knew the implications of so proceeding. The Minister incurred unnecessary costs as the natural and probable result. In the circumstances of probable inability to recover costs from the applicant, the Minister should have whatever additional security a costs order against Mr Fonua may afford. 13 It is, in my opinion, an appropriate case to make the order the Minister seeks. I will therefore make orders that Mr Fonua pay the respondent's costs of both the application and of this motion. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 5 March 2004 Solicitor for the applicant to this notice of motion: Blake Dawson Waldron

The respondent to this notice of motion appeared in person.

Date of Hearing: 2 October 2003

Date of Judgment: 5 March 2004