This article will discuss costs order where proceedings have no reasonable prospect of success. Let’s first discuss what are costs orders under the Migration Act 1958. A court can issue a costs order directing one party to pay some or all of the legal fees incurred by the other party. This typically happens after the court has made the final judgment in the case.
Now let us read more about costs order where proceedings have no reasonable prospect of success.
Section 486E: Obligation Where There Is No Reasonable Prospect of Success
Section 486E of costs order where proceedings have no reasonable prospect of success prohibits encouraging migration litigation with low chances of success.
Key points:
1. Discourages pursuing unpromising cases: It aims to prevent people from being encouraged to start or continue migration cases in court when those cases are unlikely to succeed.
2. Applies to anyone advising or representing litigants. This includes lawyers, migration agents, and other individuals who provide guidance or support to people involved in migration litigation.
3. Two main conditions for the prohibition:
- No reasonable prospect of success: The person advising or representing the litigant must have formed the view that the migration litigation has little to no chance of winning.
- Either the advisor didn’t properly consider the likelihood of success, or there’s a motive for pursuing the litigation that isn’t aligned with the intended goals of the court process.
4. Not limited to hopeless cases: Even if a case isn’t completely hopeless or guaranteed to fail, it can still be considered to have “no reasonable prospect of success” under this section.
Overrides other obligations: The rule in Section 486E applies even if the advisor or representative has a duty to act in accordance with the client’s instructions or wishes. This means they have a responsibility to potentially advise against pursuing cases that fall under this section.
Section 486F and 486G: Costs Orders
Here are the key points of Section 486F of costs order where proceedings have no reasonable prospect of success
Key points:
1. Triggered by breaches of Section 486E: This section comes into play when a person acts in a way that violates the rules set out in Section 486E, which prohibits encouraging migration litigation with low chances of success.
2. Court can make various cost orders: If a breach of Section 486E is found, the court has the authority to make one or more of the following cost orders:
- Order the person who breached Section 486E to pay costs to another party involved in the litigation (other than the main litigant).
- Order the person to repay costs already paid by the litigant to another party.
In cases involving lawyers:
- Order that the lawyer forfeits their right to be paid for their services by the litigant.
- Order the lawyer to repay costs already paid to them by the litigant.
3. Consideration when litigation had no reasonable prospect of success: The court is obligated to consider making a cost order under this section if it concludes that the migration litigation had no realistic chance of succeeding.
4. Orders can be initiated by the court or parties: The court can make a cost order on its own initiative or upon the request of a party involved in the litigation.
5. Timing of orders: The decision on cost orders is made when the court is determining who should pay the overall costs of the litigation.
6. Litigants protected from additional costs: Importantly, a person who is directed to pay costs under a Section 486F order cannot then try to recover those costs from the litigant themselves.
Section 486G guarantees that a person who might be subject to a cost order has the right to present their case before the court makes such an order.
Section 486H: Limited Waiver of Legal Professional Privilege
Here are the key points of Section 486H of costs order where proceedings have no reasonable prospect of success
1. Context: This section applies when a court is considering whether to make a cost order under Section 486F, which empowers courts to manage costs and potentially penalise those who have breached Section 486E (prohibiting encouragement of unpromising migration litigation).
2. Limited waiver: A person who wants to argue against a Section 486F cost order can produce documents, records, or information that would normally have protection under legal professional privilege. This waiver is specifically limited to the purpose of arguing against the cost order.
3. Conditions for waiver:
- The person must be facing a potential cost order under Section 486F.
- The information they want to disclose would normally be subject to legal professional privilege.
- The disclosure is essential for their argument against the cost order.
4. Protection of privilege in other contexts: The waiver only applies to the specific proceedings related to the Section 486F cost order. The documents, records, or information remain protected by legal professional privilege for any other purposes or circumstances.
5. Court’s duty to protect privilege: The court is responsible for ensuring that the limited waiver doesn’t inadvertently undermine legal professional privilege in other contexts.
6. Voluntary waiver still possible: This section doesn’t prevent a person from voluntarily waiving their legal professional privilege in its entirety if they choose to do so.
Section 486I: Lawyer’s Certification
Here are the key points of Section 486I of costs order where proceedings have no reasonable prospect of success:
1. Mandatory certification: Lawyers have a legal obligation to provide a written certification that there are reasonable grounds to believe the migration litigation has a reasonable prospect of success. This is before they can file the initial documents to commence the litigation.
2. Refusal of uncertified cases: Courts need to reject any attempt to start migration litigation if the necessary certification is missing. This means cases cannot proceed without a lawyer’s written opinion on their chances of success.
3. Purpose: This section aims to:
- Discourage the pursuit of unpromising migration cases that are unlikely to succeed, potentially saving litigants from unnecessary costs and delays.
- Promote responsible and ethical conduct by lawyers in migration litigation matters.
- Filter out cases that lack merit at an early stage, helping to streamline the court system and conserve resources.
Section 486J: Part Does Not Limit Other Powers to Order Costs Against Third Parties
Here are the key points of Section 486J of costs order where proceedings have no reasonable prospect of success:
1. Specific focus on costs orders against third parties. This section addresses situations where the court might want to order someone who is not directly involved as a party in the litigation to pay costs.
2. Clarification: It clarifies that the specific provisions in this part of the Migration Act (Sections 486E to 486I) regarding costs orders in migration litigation don’t restrict any other powers the court might have to make such orders against third parties.
3. Preserves flexibility: It ensures that courts retain their discretion to hold third parties responsible for costs in appropriate cases, even in the context of migration litigation.
Section 486K: Definition of Migration Litigation
Section 486K of costs order where proceedings have no reasonable prospect of success defines “migration litigation”
1. Definition: It clarifies that “migration litigation” refers to any court proceeding that involves a dispute or challenge regarding a migration decision.
2. Scope: This definition applies to all the sections within this part of the Act (Sections 486E to 486J). This ensures consistency in how we understand the term apply it within these provisions.
3. Examples of migration decisions:
- Visa applications
- Australian citizenship applications
- Decisions related to detention or removal
- Refugee status determinations
- Protection visa grants; and
- Any other decisions made under the Migration Act
Importance of Seeking Migration Advice
Costs orders are complex and difficult to tackle without proper legal advice from migration lawyers. This is why it is important to seek migration advice from JB Solicitors who have expertise in providing the following:
1. Making informed decisions:
- Understanding cost order risks: You could face significant financial penalties if you lose a case and courts issue a cost order. JB Solicitors can explain the potential costs and help you minimise your exposure.
- Navigating legal requirements: There are specific rules surrounding cost orders in migration. JB Solicitors can ensure you comply with all regulations and procedures, avoiding dismissal or penalties.
2. Securing better outcomes:
- Negotiating favourable agreements: JB Solicitors can work with the opposing party or court to reach a more manageable cost arrangement.
- Peace of mind and confidence: Their experienced legal team can provide guidance and support throughout the process, reducing stress and uncertainty.
3. Investing in your future:
- Experienced and specialised: JB Solicitors has a proven track record of success in migration law and specific knowledge of cost orders.
- Transparent and client-focused: They prioritise clear communication and work with you to develop a cost-effective strategy.
Contact JB Solicitors to discuss your specific visa or migration situation and receive personalised legal advice.
