Case: Muaby v Minister for Immigration &amp; Multicultural Affairs (Unreported, Federal Court of Australia, Wilcox J, 20 August 1998)
Outcome: discussed
The problems faced by unrepresented litigants have of course long been recognised: eg, Managing Justice: A Review of the Federal Civil Justice Scheme (Australian Law Reform Commission, Report No 89, 2000) at [5.147] [5.157]. Indeed, regrettably, it would appear that little may have changed in a period extending over a decade since the inception of that inquiry. In Muaby v Minister for Immigration &amp; Multicultural Affairs (Unreported, Federal Court of Australia, Wilcox J, 20 August 1998), Wilcox J observed: The number of applications filed in the New South Wales District Registry for judicial review of decisions of the Refugee Review Tribunal is running this year at a rate more than twice that of last year. It is the experience of my colleagues, as well as myself, that a large proportion of these matters are commenced by a stereotyped form of application that is uninformative and bears little relationship to what the applicant says at the hearing. It seems the filing of an application for review has become an almost routine reaction to the receipt of an adverse decision from the Tribunal. The solution is not to deny a right of judicial review. Experience shows a small proportion of cases have merit, in the sense the Court is satisfied the Tribunal fell into an error of law or failed to observe proper procedures or the like. In my view, the better course is to establish a system whereby people whose applications are refused have assured access to proper interpretation services and independent legal advice. If that were done, the number of applications for judicial review would substantially decrease. Those that proceeded would be better focussed and the grounds of review more helpfully stated. If applicants cannot afford legal advice, as is ordinarily the case, it ought to be provided out of public funds. The cost of doing this would be considerably less than the costs incurred by the Minister under the present system, in instructing a solicitor (and usually briefing counsel) to resist all applications, a substantial number of which have no merit and are ill-prepared. That is to say nothing about the desirability of relieving the Court from the burden of finding hearing dates for cases that should not be in the list at all. The difficulty, it is respectfully considered, is not to be answered merely by the provision of greater access to legal advice. Challenges to decisions of the Refugee Review Tribunal may not be motivated in all cases by a careful consideration of the relevant legal principles and an assessment of the prospects of success. Those challenges, it is suspected, may in some cases be driven more by a determination to remain in Australia for as long as possible, whatever may be the ultimate prospects of success in the courts. And even more disturbing is the potential that some challenges may be pursued by unrepresented litigants who have been given ill-considered advice as to their prospects. 42 The problems posed by unrepresented litigants are not theirs alone. The unrepresented litigant also presents this Court with peculiar problems, and those problems are not helped by repeated applications being brought with grounds of review or appeal which have little, if any, correlation with the facts of a particular case. 43 An Affidavit filed in the proceedings sought a fixed costs order in the sum of $2,400, in the event that the appeal was dismissed. The estimate as to costs did not include such additional costs as would necessarily be incurred by reason of the Court seeking the further assistance of Counsel for the Minister on a number of issues raised during the course of the hearing. Such additional costs were estimated in oral evidence to be a further $750, 75% of which was sought to be added to the fixed costs order otherwise sought -- namely, a further sum of approximately $560.