Case: Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683
Outcome: cited
In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18 ; (2004) 133 FCR 582, Mansfield J rejected an application for costs made by the Minister against the solicitor for the applicant. His Honour held that, simply by instituting or maintaining on instructions, proceedings with no real prospect of success a solicitor would not be exposed to an order for costs. He referred to Medcalf v Mardell at 143-144 (Lord Hobhouse) and the decision of the Queensland Court of Appeal in Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [24] (Davies JA). In the latter case Davies JA, with whom Williams JA and Philippides J agreed, said that: 'If the case is plainly unarguable it is improper to argue it.' Nevertheless Mansfield J found, in the concurring judgment of Williams JA, a qualification in his reference to what Lord Hobhouse said in Medcalf v Mardell (at 143-144) : 'So it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is entitled to be heard; to penalise the advocate for presenting his client's case to the court would be contrary to the constitutional principles to which I have referred. The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process.' 18 Weinberg J drew a distinction between the approach taken by the Full Federal Court in Levick and that taken by the Queensland Court of Appeal in Steindl. He regarded Steindl as sanctioning a range of cases in which a solicitor might be ordered to pay costs, wider than that enunciated in Levick . He said of O 62 r 9(1) (at [15]): ' The question whether costs have been unreasonably incurred because of the manner in which a legal practitioner has conducted a case should not require consideration of whether this was done for an ulterior purpose. If a client instructs a legal representative to take points that are manifestly without merit, the legal representative has a duty to the Court to refuse to act on those instructions. In that regard, there is a distinction between points that are barely arguable, but most likely to fail which can and sometime must be taken, and points that are simply unarguable. If a point is plainly unarguable, it is improper to argue it. If a client insists upon it being argued, the legal representative should decline to do so and, if necessary, withdraw from the proceeding.' 20 In Lemoto McColl JA referred, at 324, to an apparent tension between decisions of the Federal Court and those of State appellate courts in circumstances in which legal practitioners act for litigants with hopeless cases. The Full Court in Levick had approved Goldberg J's conclusion in White Industries that a solicitor does not act improperly by acting for a party with a hopeless case unless that conduct is 'unreasonable'. On the other hand, in Carson v Legal Services Commission [2000] NSWCA 308 at [113] , Sheller JA (Giles JA agreeing) apparently excluded from the scope of proper conduct proceedings which are 'futile or fore doomed to fail'. And in Steindl (at 689) Williams JA set apart the case '... which is plainly unarguable and ought to be so to the lawyer who presents it'. Her Honour found it unnecessary to resolve those tensions in the case before the Court of Appeal in Lemoto . Nor is it necessary here to resolve those tensions. However, what Weinberg J said in Tran appears to involve the proposition that the wider range of cases is open to the application of O 62 r 9.