Migration Litigation Reform Act 2005
TABLE OF CONTENTS
Introduction
The previous big change in judicial review was the enactment of the Migration Litigation Reform Act 2005 on 1 December 2005.
It has some big effects on judicial review. Here’s a summary:
- Almost all judicial review cases have to be started in the Federal Magistrates Court with an appeal to a single judge of the Federal Court.
- Migration agents and lawyers who advise on judicial review may be personally liable for costs if the judicial review proceedings has no reasonable prospects of success.
Here are some of the details. Lets look at the costs issue first where the Migration Act is amended as follows:
486E Obligation where there is no reasonable prospect of success
(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
(ii) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.
(2) For the purposes of this section, migration litigation need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(3) This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.
486F Cost orders
(1) If a person acts in contravention of section 486E, the court in which the migration litigation is commenced or continued may make one or more of the following orders:
(a) an order that the person pay a party to the migration litigation (other than the litigant), the costs incurred by that party because of the commencement or continuation of the migration litigation;
(b) an order that the person repay to the litigant any costs already paid by the litigant to another party to the migration litigation, because of the commencement or continuation of the migration litigation;
(c) where the person is a lawyer who has acted for the litigant in the migration litigation:
(i) an order that costs incurred by the litigant in the commencement or continuation of the migration litigation, are not payable to the lawyer;
(ii) an order that the lawyer repay the litigant costs already paid by the litigant to the lawyer in relation to the commencement or continuation of the migration litigation.
(2) If the court, at the time of giving judgment on the substantive issues in the migration litigation, finds that the migration litigation had no reasonable prospect of success, the court must consider whether an order under this section should be made.
(3) An order under this section may be made:
(a) on the motion of the court; or
(b) on the application of a party to the migration litigation.
(4) The motion or application must be considered at the time the question of costs in the migration litigation is decided.
(5) A person is not entitled to demand or recover from the litigant any part of an amount which the person is directed to pay under an order made under this section.
And the courts will have power to order summary judgement to dismiss a proceeding. By way of example here is the amendment to the Federal Magistrates Act 1999 adding a new s. 17A:
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
A lawyer has to certify that there are reasonable prospects of success:
- 486I Lawyer’s certification
(1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
(2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.
There is some guidance from the NSW Supreme Court in Degiorgio v Dunn (No 2) [2005] NSWSC 3 where Barrett J observed of a similar provision in NSW:
the Legal Profession Act should not, in my opinion, be presumed to intend that lawyers practising in New South Wales courts must boycott every claimant with a weak case. A statutory provision denying to the community legal services in a particular class of litigation cannot be intended to stifle genuine but problematic cases. Nor do I see the statutory provisions as intended to expose a lawyer to the prospect of personal liability for costs in every case in which a court, having heard all the evidence and argument, comes to a conclusion showing that his or her client’s case was not as strong as may have appeared at the outset to be. The legislation is not meant to be an instrument of intimidation, so far as lawyers are concerned
Degiorgio was endorsed by the NSW Court of Appeal in Lemoto v Able Technical Pty Ltd & 2 Ors [2005] NSWCA 153 per McColl JA (Hodgson JA, Ipp JA agreeing), granting leave to appeal and allowing the appeal against a decision to award costs against a practitioner:
2 The question whether legal services were provided without reasonable prospects of success for the purposes of Part 11, Division 5C of the Legal Profession Act 1987 turns on whether the solicitor or barrister held a reasonable belief that the provable facts and a reasonably arguable view of the law meant that the prospects of recovering damages or defeating a claim or obtaining a reduction in the damages claimed were “fairly arguable”.
Degiorgio v Dunn (No 2) [2005] NSWSC 3 applied.
3 The question whether a solicitor or barrister believed that they had material which objectively justified proceeding with a claim or a defence turns on whether that belief “unquestionably fell outside the range of views which could reasonably be entertained”.
Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 referred to……
5 The mere fact litigation is resolved adversely to a party does not mean costs should be ordered against the legal practitioner who provided legal services to that party.
Deputy Commissioner of Taxation v Levick [1999] FCA 1580; (1999) 168 ALR 383 applied; R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470; Commonwealth of Australia (Department of Defence); Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 416 referred to.