A159 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1087

A159 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1087

The applicant had instructed the migration agent to discontinue the proceedings, those instructions were conveyed to the solicitor, and they had not been withdrawn, so leave to discontinue was appropriate. The evidence did not justify an inference that the solicitor formerly on the record and the migration agent had entered a scheme to abuse the Court's processes. Although the solicitor breached his duty to the Court by instituting template proceedings without considering their merits, that breach was not shown to have caused the relevant costs. However, the inappropriate practice of obtaining and filing a blank or altered Notice of Acting in Person caused extra costs, for which the...

Jurisdiction
Australia
Judgment Date
10 October 2003
Procedural Posture
Judicial Review Proceeding Concerning a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Application for Leave to Discontinue and Determination of Costs After Remittal From the High Court of Australia
Outcome
Leave to discontinue granted; proceedings discontinued; costs ordered against the applicant, the solicitor formerly on the record, and the migration agent in specified proportions; no costs order for the second or third respondent.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'discontinuance' 'personal Costs Orders Against Legal Practitioners' 'duty to the Court' 'abuse of Process']
['administrative Law' 'migration Law' 'civil Procedure' 'costs' 'legal Profession'] ['protection Visa' 'refugee Review Tribunal' 'discontinuance' 'personal Costs Orders Against Legal Practitioners' 'duty to the Court' 'abuse of Process']

Case Brief

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Procedural Posture

Judicial Review Proceeding Concerning a Refugee Review Tribunal Decision Affirming Refusal of a Protection Visa / Application for Leave to Discontinue and Determination of Costs After Remittal From the High Court of Australia

Legal Issues

  1. 1 ['Whether leave should be granted to discontinue the proceedings after a notice of discontinuance had been filed without leave.' "Whether the applicant, the solicitor formerly on the record, or the migration agent should bear the first respondent's costs." "Whether the solicitor formerly on the record and the migration agent had engaged in an abuse of the Court's processes by instituting proceedings with no prospects of success." 'Whether the filing of a blank or altered Notice of Acting in Person caused unnecessary costs.' 'Whether the migration agent should personally bear costs caused by confusion between his affidavit and submissions about when instructions to discontinue were received.']

Ratio Decidendi

The applicant had instructed the migration agent to discontinue the proceedings, those instructions were conveyed to the solicitor, and they had not been withdrawn, so leave to discontinue was appropriate. The evidence did not justify an inference that the solicitor formerly on the record and the migration agent had entered a scheme to abuse the Court's processes. Although the solicitor breached his duty to the Court by instituting template proceedings without considering their merits, that breach was not shown to have caused the relevant costs. However, the inappropriate practice of obtaining and filing a blank or altered Notice of Acting in Person caused extra costs, for which the...

Court Disposition

Leave to discontinue granted; proceedings discontinued; costs ordered against the applicant, the solicitor formerly on the record, and the migration agent in specified proportions; no costs order for the second or third respondent.

Orders

  • ['Leave to discontinue the proceedings.' 'Direct that the proceedings be discontinued forthwith, a notice of discontinuance having already been filed and served.' "The applicant pay the first respondent's costs, including disbursements and including the costs of proceedings in the High Court of Australia, of the...