Case: Ridehalgh v Horsefield [1994] Ch 205
Outcome: cited
The Privy Council accepted the Court of Appeal's conclusion (at 25-26): '...that a duty rests on officers of the Court to achieve and maintain appropriate levels of competence and care and that, if he is in serious dereliction of such duty, the officer is properly amenable to the costs jurisdiction of the Court.' Their Lordships cautioned, however, that care must be taken not to assume that just because it appears to the court that the case was hopeless there was a failure by the barrister or solicitor to achieve the appropriate level of competence and care. In this respect the same distinction was drawn, as in the Australian cases, between the practitioner who represents a client in a weak or hopeless case after having advised the client of its weakness or hopelessness on the one hand and the practitioner who lends assistance to proceedings which are an abuse of process of the court. Their Lordships cited the Master of the Rolls in Ridehalgh v Horsefield [1994] Ch 205 (at 234): 'It not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it.' The Privy Council added (at 26): 'The essential point is that it is not errors of judgment that attract the exercise of the jurisdiction, but errors of a duty owed to the Court.' 26 The legal practitioner, who acted as both counsel and solicitor for the applicants in this case, described his clients in an affidavit sworn on 23 August 2005. He referred to them as 'elderly, disabled non-English speaking, unskilled labourers or unemployed persons'. In his written submission filed on 26 August 2005 and signed by him, he said (at [77]): 'The applicants are disadvantaged asian (sic) Islanders of non-English speaking background without any education or training who were resettled to mainland Australia from Christmas Island at the direction and authority of the Commonwealth. They ought not have to be subjected to further unconscionability and inequity by the respondent.' There is no basis for any suggestion that the shortcomings of the application and the way in which the proceedings were conducted has anything to do with the applicants themselves. The circumstances of this case make it highly improbable that the practitioner advised his clients of the hopelessness of the application and that he was instructed to proceed with it notwithstanding. 27 The application for judicial review did not, as required by the Federal Court Rules , set out the grounds of the order for review it sought. It sought no extension of time for claims which were plainly out of time. It disclosed a conceptual confusion between the identification of the conduct and decisions complained of and the grounds of judicial review themselves. The formulation of the claim for relief by way of mandamus in the amended application was thus: '... a writ of mandamus directing:- 1.1 An order of review in respect of the decision of the respondent...' 28 The ADJR Act applies to decisions of an administrative character made 'under an enactment'. The relevant enactment was not able to be identified by the practitioner and as it turned out there was none. The legal assistance scheme was administered pursuant to an appropriation made under Appropriations Acts. In the event no relief was available under the ADJR Act as there was no enactment under which, it could be said, any of the challenged decisions had been made. There was no legal duty which mandamus could enforce. 29 In written submissions on the costs issue the applicants' legal practitioner argued that the application was considered by him 'to be the only legal relief available to resolve the legal assistance application'. He said 'There are no other legal avenues available.' The practitioner argued further (at [23]): 'The applicant's (sic) solicitors presented proper evidence and presented various authorities in support. The list of authorities filed 26 August 2005 contained 23 authorities and the outline of submissions were well researched and were 20 pages long. The research and effort placed into the application was substantial and the facts were well presented. The parties agreed to a final hearing based on affidavit evidence only and that final hearing was relatively brief of 1.5 hours. The applicants did all they could to seek the intervention of the court in a diligent and cost effective manner considering the lack of financial capacity available.' The practitioner submitted that an order that he pay the costs of the applicants would be 'unfair and contrary to the authorities referred to above as the solicitors acted in their best endeavours on a bona fide basis with a proper and moral purpose to obtain legal assistance funding for the applicants in their best interests'.