Applicant A152 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1051

Applicant A152 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1051

Because neither the applicant nor her next friend gave instructions to discontinue, and there was no authority to file the notice of acting in person, the notice of discontinuance and consequential orders must be set aside; the application remains on foot, and costs incurred due to the former solicitor's unauthorised actions are payable by him.

Jurisdiction
Australia
Judgment Date
02 October 2003
Procedural Posture
Judicial Review / Application to Set Aside Discontinuance and Related Orders
Outcome
Notice of discontinuance and prior orders set aside; costs ordered against former solicitor; application to proceed to directions hearing.
Legal Topics
['setting Aside Discontinuance' 'authority of Legal Representative' 'costs Orders']
['administrative Law' 'migration Law'] ['setting Aside Discontinuance' 'authority of Legal Representative' 'costs Orders']

Case Brief

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Procedural Posture

Judicial Review / Application to Set Aside Discontinuance and Related Orders

Legal Issues

  1. 1 ['Whether the notice of discontinuance was effective given lack of authority from the applicant or next friend' 'Whether orders made on 20 June 2003 should be set aside' "Entitlement to costs thrown away due to former solicitor's actions"]

Ratio Decidendi

Because neither the applicant nor her next friend gave instructions to discontinue, and there was no authority to file the notice of acting in person, the notice of discontinuance and consequential orders must be set aside; the application remains on foot, and costs incurred due to the former solicitor's unauthorised actions are payable by him.

Court Disposition

Notice of discontinuance and prior orders set aside; costs ordered against former solicitor; application to proceed to directions hearing.

Orders

  • ['The purported notice of discontinuance filed on 26 May 2003 is set aside.' 'Orders made on 20 June 2003 giving leave to discontinue the proceedings, dismissing the application, and awarding costs to the first respondent are set aside.' "The former solicitor for the applicant, Mark Wallis Clisby, is to pay the...