Singh v Minister for Home Affairs

1. The applicant is to pay the first respondent's costs fixed in the sum of $18,722.00.

ON 23 JANUARY 2019 THE COURT ORDERED THAT: 2. The Registrar is to draw these reasons to the attention of the Law Society of New South Wales and the Bar Association of New South Wales and to provide those bodies with a copy of the transcripts of the case management conferences, the transcript of the hearing of the respondent's notice of objection to competency, the Court file, and correspondence between the parties and the Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 On 23 October 2018, I made orders dismissing the applicant's appeal instituted under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act): Singh v Minister for Home Affairs [2018] FCA 1596 (Singh (No. 1)). In so holding, I found that the appeal was incompetent because the notice of appeal failed to identify any question of law so as to invoke the Court's jurisdiction under s 44 of the AAT Act. I also found that, insofar as the appeal purported to seek judicial review of the Minister's personal decision to cancel the appellant's visa, it was incompetent. 2 The orders made on 23 October 2018 reserved the question of costs and set a timetable within which the parties were to file and serve submissions and any evidence on the issue of costs, as well as addressing whether the conduct of Mr Satchithanatham Thambappah (who also described himself as Mr Satchi) in the proceeding raised concerns that ought to be conveyed by the Court to a relevant authority. Mr Satchi was neither a lawyer nor a party to the proceeding but purported to represent the applicant in this proceeding. With respect to Mr Satchi's conduct, counsel for the Minister had earlier observed at the hearing of the objection to the competency of the appeal on 15 October 2018 that "[h]aving regard to the seriousness of the conduct [by Mr Satchi], or the potential seriousness of the conduct, it might amount to a series of criminal offences in the nature of one of the fraud ones". 3 In this regard, while stating that he was aware that Mr Satchi was not a lawyer, the applicant described Mr Satchi in written submissions filed on 15 October 2018 as "a legal adviser". The applicant also stated in those submissions that he had paid a significant sum of money to Mr Satchi who put his case in the Tribunal. It also appears that Mr Satchi may have communicated with non-legal officers of the Department on the applicant's behalf about this appeal. Further, Mr Satchi continued to file documents purportedly on behalf of the applicant in this proceeding even after pro bono legal counsel had accepted a referral by this Court under rule 4.12 of the Federal Court Rules 2011. It also appears that the applicant may have been dissuaded from taking the advice of pro bono counsel as a result of Mr Satchi's involvement and Mr Satchi's involvement appears to have played a role in matters which led pro bono counsel to decide that she was unable to continue to act, as she advised the Court at the case management hearing on 16 May 2018. Nor did Mr Satchi's involvement cease following the withdrawal of pro bono counsel, with Mr Satchi attempting to file further documents on the applicant's behalf subsequently. Mr Satchi also indicated to the Court at the case management hearing on 18 April 2018 that he was "involved with many legal proceedings, but… not as a qualified lawyer". I further note that Mr Satchi did not suggest that he was a registered migration agent. 4 I should make it completely plain that in raising these concerns, I have made no findings as to any potential misconduct by Mr Satchi and it would be inappropriate to do so without affording Mr Satchi an opportunity to be heard. However, it is necessary to explain some of the matters which gave rise to my concerns as to Mr Satchi's involvement and which potentially impacted upon the approach as to costs, underpinned the observations by the Minister, and led to the question of whether Mr Satchi's conduct should be referred to relevant authorities being raised. 5 The Minister filed submissions in accordance with the orders made on 23 October 2018 seeking his costs as against the applicant. The Minister did not, however, ultimately apply for costs to be paid by Mr Satchi as a non-party on the basis that any such application would increase the Minister's costs in circumstances where the prospects of recovery were unclear and would prolong the finalisation of the dispute. Nonetheless in written submissions dated 28 November 2018 at [15], the Minister observed that "there is material in the papers that could provide a factual foundation for the view that Mr Satchi might have received income by way of payments in respect of purported legal services provided by him which might form the basis for a referral of the papers to policing authorities or the Australia [sic] Taxation Office (as to whether it warrants further inquiry or investigation)." 6 As to the quantum of costs sought against the applicant, the Minister relied upon an affidavit affirmed by Charlotte Elizabeth Saunders on 28 November 2018. Ms Saunders explained in her affidavit that the Minister sought an order for costs fixed in the sum of $18,722.00 on the basis that this sum comprised 75% of the Minister's costs and disbursements and that 75% was a reasonably conservative estimate of the figure that would be recovered on a taxation of the Minister's party/party costs and disbursements. 7 No submissions or evidence were filed by the applicant opposing an order in the terms sought by the Minister or on the question of whether Mr Satchi's conduct should be referred to the relevant authorities. 8 I made orders on 20 December 2018 that the applicant is to pay the Minister's costs fixed in the sum of $18,722. In considering that this was the appropriate order, I took into account a number of factors. First, the applicant did not oppose the orders sought. Secondly, the Minister was wholly successful on the issues of fact and law underpinning his notice of objection to the competency of the appeal. Thirdly, as I explained in Singh (No. 1) at [22], the applicant had been removed from Australia in accordance with the Departmental Removals Policy in circumstances where he was out of time to seek judicial review of the Minister's decision and there was no injunction from a Court preventing his removal. Nor do I consider that the apparent involvement of Mr Satchi in the litigation provided a reason as to why the Minister should be deprived of his costs as against the applicant. As the Minister submitted, despite the opportunities afforded to the applicant by the Court by way of a referral for legal assistance, the applicant apparently agreed to Mr Satchi's involvement in the proceeding as appears, for example, from a purported "authority" and "consent" dated 2 March 2018 annexed to an affidavit filed in the proceeding appointing Mr Satchi to represent the applicant in "the courts and Tribunal", and from Mr Satchi's continued involvement in the proceeding before, during and after the appointment of pro bono counsel. In these circumstances, there is no reason why the ordinary rule should not be applied that costs should follow the event: Ruddock v Vadarlis [2001] FCA 1865; (2001) 11 FCR 229 at [9] (Black CJ and French J). Accordingly, the Minister as the successful litigant should be awarded his costs as against the applicant. 9 I also accept that the quantum of costs and disbursements expended and the proportion sought to be recovered by the Minister as against the applicant are reasonable having regard to the course of the proceeding, including: (1) the fact that it proved necessary to hold a number of case management conferences as well as the hearing of the notice of objection to competency; and (2) the necessity for the Minister to put on evidence to explain the circumstances in which the applicant's removal took place given correspondence from the applicant prior to his removal advising of his intention to bring proceedings in the Administrative Appeals Tribunal. 10 Finally, as the Minister submitted, this Court has power to make an order for costs to be paid by a third party: Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192 (Mason CJ and Deane J). Nonetheless, despite concerns as to the extent to which Mr Satchi may have influenced the applicant in the conduct of an appeal which was misconceived, I agree that the proceeding should be finalised and the question of whether any order for non-party costs order as against Mr Satchi ought to be made should not be taken further. That notwithstanding, I consider that the apparent conduct of Mr Satchi is of sufficient seriousness that the Court ought to direct the Registrar to draw these reasons to the attention of the Law Society of New South Wales and the Bar Association of New South Wales and to provide those bodies with a copy of the transcripts of the hearings in this matter, the Court file, and correspondence between the Court and the parties in relation to the proceeding. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.