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New ruling could impact future initiative for pro bono
A new ruling by the Federal Court has caused some confusion for pro bono lawyers and could cause some to think twice about representing clients on a pro bono basis.
Tony Zhang
In the case, a non-citizen (i.e. visa applicant) had won a judicial review application at the Federal Circuit Court (FCCA) and was awarded legal costs.
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As the non-citizen was represented on a pro bono basis (no win, no fee), those costs would usually be effectively paid to his lawyers.
However, court documents reveal the minister appealed the FCCA’s decision to the Federal Court and applied to the Federal Court for a stay order relating to that costs order.
This has created a strange process in which the minister could effectively appeal the process constantly. As a result, pro bono lawyers acting on the case won’t be paid until all appeal avenues have been exhausted.
Sergio Zanotti Stagliorio told Lawyers Weekly he was surprised at the decision.
“In summary, the lawyers for the non-citizen will only be paid if and when the matter is won by the non-citizen at the Federal Court,” he said.
“In theory, even if the non-citizen wins at the Federal Court, the [minister] could appeal it to the [Full Court] of the Federal Court of Australia (FCAFC) and apply for a stay order again, although the FCAFC would not be bound by the FCA’s decision on whether a stay should be granted.
“If the [minister] loses at the FCAFC but the High Court (HCA) grants the [minister] special leave to appeal the FCAFC’s decision, the [minister] could apply for a stay order again, although the FCAFC would not be bound by the FCAFC’s decision on whether a stay should be granted.
“In theory, if the FCA’s decision is extrapolated all the way up to the HCA, lawyers for non-citizens might only be paid until and if all appeal avenues have been exhausted by the [minister].”
Lawyers Weekly understands the Federal Court inferred, based on the fact that the non-citizen was represented on a pro bono basis and some other factors, that he would not have the money to pay the [minister’s] legal costs if the [minister] is ultimately successful on appeal at the FCA, despite the absence of direct evidence regarding the non-citizen's financial position.
That inference justified the grant of a stay order as applied for by the [minister].
Until now, lawyers working for migrants on a pro bono basis have usually been paid for their work by means of the costs order awarded by the Federal Circuit Court in their client’s favour, whether or not the [minister] appeals to the Federal Court and eventually wins on appeal.
However, the current decision may create uncertainty for pro bono lawyers, especially in migration work.
“I believe lawyers will be thinking twice before representing clients on a [pro Bono] basis in court proceedings as a result of this decision, unless it’s overturned…” Mr Stagliorio said.
“One would wonder whether this decision could be followed by other courts in other jurisdictions dealing with other matters (non-migration matters) and have the same effect of discouraging [pro Bono] work in court proceedings more generally…”
