Personal costs

There is specific power in section 486E Migration Act, to make personal costs orders (against advisers). As Rangiah J explained in SZTMH v Minister for Immigration and Border Protection (2015) 230 FCR 550, there is a balance. On one hand there is a clear intention to “discourage persons from encouraging others to make and continue unmeritorious applications in migration cases“, but on the other, “It is in the public interest that lawyers should not be deterred from pursuing their clients’ interests by fear of incurring a personal liability to their clients’ opponents“.

Relevantly 486E provides that:

(1)          A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:

(a)       the migration litigation has no reasonable prospect of success; and

(b)       either:

(i)          the person does not give proper consideration to the prospects of success of the migration litigation; or …..

In DAB16 v Minister for Immigration & Anor [2018] FCCA 3957, the problem for the solicitor started when the appeal court dismissed his client’s appeal and made a finding that there had been no reasonable prospects of success.

What I find interesting about this case are the other two elements, namely: (a) there was “encouragement”; and (b) “no proper consideration”.

In relation to encouragement: at [64]…. “The lawyer’s conduct in formulating the grounds, filing the notice of appeal and certifying the grounds as having reasonable prospects of success, whilst asserting an entitlement to charge fees for legal services for doing those things are together sufficient to support an inference that a legal practitioner has “encouraged” the client to commence and continue the litigation in the requisite sense.  Of course it is open to the lawyer to adduce evidence to rebut the inference that otherwise arises.  However, in the absence of advice and instructions, it is reasonable to infer that the carriage of a case is wholly entrusted to the legal practitioner on the client’s reasonable assumption that the litigation has some prospect of success.”

In addition the solicitor had unsuccessfully made an identical argument in a different case and described his pursuit of the matter as a “passion”. “In light of that belief, it may be fairly inferred that the weaknesses in [solicitor’s] arguments were not apparent to him and, as a consequence, it is very unlikely that the weaknesses were made known to the appellant in the form of correct and measured advice concerning the prospect of success of the litigation.” (at [67]).

In relation to “proper consideration”: at [78] Of particular concern is [solicitor’s] assumption that the primary judge (and this Court) could and should receive evidence that was not before the Authority so as to reach a different conclusion on a factual question to that reached by the Authority …. That aspect of the argument alone indicates that any consideration that was given to the merits by [solicitor] proceeded from a flawed understanding of fundamental legal principles. Any consideration founded on that flawed understanding could not be “proper consideration” for the purposes of s 486E of the Act.

[79] There may be a category of case in which a legal practitioner makes an error of judgment or proceeds from an understandable misapprehension of legal principle or in ignorance of recently decided authority or recently made amendments to the Act.  A finding that the lawyer has not given “proper consideration” in such cases may be more problematic.  I do not consider this case to fall within that category.

Creative commons acknowledgment for the photograph.