Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 , 232 CLR 189
Outcome: distinguished
submission on behalf of Mr Harding was that this conversation brought him within SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 , 232 CLR 189. In SZFDE the applicants had there not attended a hearing before the Refugee Review Tribunal. They had failed to respond to an invitation to do so on the advice of a person they had retained, a Mr Hussain. That person had wrongly represented himself to be a solicitor and a migration agent. The fraud of the agent, it was concluded, had the effect that the decision of the Tribunal was no decision at all. Although the Tribunal was unaware of the fraud of the agent, the result of his fraud was that the applicants had been denied such natural justice as was afforded by the Migration Act 1958 (Cth). The submission advanced on behalf of Mr Harding was understood to be that, just as the conduct of Mr Hussain had deprived the applicants in SZFDE of the opportunity to be heard before the Refugee Review Tribunal, the conduct of the solicitor had deprived Mr Harding of his opportunity to be heard before the District Court. The submission was that Mr Harding was " lied to or at least misled by the Respondent's legal representative about the utility of his cross claim before Kearns DCJ ". The submission is to be rejected. Whether or not Mr Harding should have applied to the District Court to have the judgment set aside, as was contended by the Deputy Commissioner, may be left to one side. Also left to one side is whether the approach pursued in SZFDE may be extended so as to potentially vitiate proceedings before a court as opposed to an administrative tribunal. The submission is to be rejected upon the more fundamental basis that the conduct of the solicitor is in no way comparable to that of Mr Hussain. It is not considered that Mr Harding was " lied to or at least misled ". The extent of the detail provided by Mr Harding to the solicitor is unknown. But even if the solicitor had been told such detail as to Mr McClure's conduct as was explained in the present proceeding, the solicitor's statement that that conduct " had no relevance " was accurate if the solicitor was directing attention to the issues then before the District Court. Mr Harding certainly had not been " lied to ". On the basis of the statement of claim as filed in the District Court and upon the basis of the defence as filed, the conduct of Mr McClure was irrelevant to the issues then before that Court. Nor is it considered that Mr Harding was " misled ". It was no part of the duty of the solicitor then appearing for the Deputy Commissioner to give advice to the then defendant, Mr Harding, as to either the prospect of a claim being made against the Commonwealth or even advice confined to the prudence of Mr Harding getting independent legal advice. The Australian Government Solicitor is established pursuant to s 55J of the Judiciary Act 1903 (Cth). That Act further provides for the issue by the Attorney-General of Legal Services Directions : s 55ZF. Directions have in fact been issued requiring the Commonwealth and its legal representatives to act as a " model litigant ". No particular provision of the Directions was relied upon by the Applicant. But it is not considered that the standards of a " model litigant " extend to imposing any general duty to give advice to an opponent as to the prospect of resisting a claim being advanced by the Commonwealth, or even a duty to suggest that independent advice be obtained. Whether or not the duty of a " model litigant " may in some particular circumstances embrace such a duty need not be resolved. Considerable caution should be exercised before imposing any such duty upon solicitors within the Australian Government Solicitor. Confined to the circumstances of the present proceeding, there was scant evidence as to what the solicitor had in fact been told by Mr Harding. Even assuming that Mr Harding had told the solicitor the entirety of his dealings with Mr McClure and his subsequent conversations with officers of the Australian Taxation Office, it is not considered, even on that assumption, that there was any requirement upon the solicitor to proffer advice. It is not considered that Mr Harding was deprived of any opportunity to have his case resolved by the District Court. The conduct of the solicitor can in no way be equated with the conduct of Mr Hussain in SZFDE . The submission that Mr Harding had a " counter-claim " or " cross demand " by reason of misrepresentation is also to be rejected. The " counter-claim " or " cross demand " relied upon by Mr Harding was said to be either: a claim for " misrepresentation ", namely a misrepresentation that Mr Harding had the benefit of a GST exemption issued by the Australian Taxation Office; or an action in the nature of judicial review to have the assessments or amended assessments upon which the District Court proceeded to enter judgment set aside and declared void. Each limb to the submission must be rejected.