In Cahuas Riojas [2007] VCAT 2178 (16.11.07), the Victorian Civil and Administrative Appeals Tribunal (VCAT) found a solicitor negligent for not having ensured that an application for ministerial discretion was actually posted. Here’s what happened:
- It was apparent from the evidence of MrCahuas and Ms W [the solicitor] that they discussed several possible courses of action, including the possibility that Mr Cahuas could leave Australia and then seek a new visa to enable him to return.
- It is common ground that they decided on the best course of action. They decided to seek ministerial intervention, and pending a decision on ministerial intervention to seek a bridging visa with a condition allowing Mr. Cahuas to work in Australia.
- It also is common ground that the appropriate applications were prepared. A copy of a letter from Ms W to Minister Ruddock dated 14 July 2003, seeking ministerial intervention, is in evidence. The letter refers to 18 letters in support, said to be “attached”. There is no dispute between MrCahuas and Ms W as to preparation of the applications.
THE ALLEGED NEGLIGENCE OR FAILURE TO FOLLOW INSTRUCTIONS:
- MrCahuas ascertained in October 2005 that DIMIA had no record of the applications prepared by Ms W. It was accepted by Ms W at this hearing that the applications were not received by the Minister or by DIMIA.
- The copy of the letter to the Minister dated 14 July 2003 is marked “BY REGISTERED POST”, but Ms W could not produce a postal receipt for the letter. She could not produce a file note recording the sending of the letter. She had no recollection of the posting of the letter. She said that she might have given the letter to Mr Cahuas so that he could post the letter to the Minister. In other words, Ms W cannot explain how the letter to the Minister and the application for a bridging visa were not received by the Minister or by DIMIA.
- On 9 July 2003, shortly prior to the preparation of the letter to the Minister, Ms W sent a letter to MrCahuas confirming her instructions. The work to be done was described in the letter as “Preparation & Lodgement of Ministerial Request and associated written submissions” [italics added by me]. I conclude that Ms W was responsible for lodging the applications. I am not satisfied that there was a variation of this instruction, for example to provide that Mr Cahuas would lodge the applications.
- An inability to prove lodgement of the applications might have had a disastrous outcome for MrCahuas, namely a demand that he leave Australia. Fortunately, that did not happen. However, I find that Ms W failed to comply with her instructions by not recording lodgement of the applications in a way that would have provided, if proof became necessary, strong evidence of lodgement.
- It is common ground that between July 2003 and October 2005 Ms W did not receive any response from the Minister or from DIMIA. I am satisfied that she sought to explain this fact to MrCahuas on several occasions by saying, in substance, that these things take time. She also sought at this hearing to justify her lack of enquiry by saying that Mr Cahuas continued to remain in Australia, and that the grounds for his applications improved with the passage of time. That might have been so, but I am satisfied that she did not seek instructions from Mr Cahuas as to whether enquiry should be made, bearing in mind that enquiry might have caused the Minister or DIMIA to make a decision unfavourable to Mr. Cahuas earlier than might have been the case in the absence of enquiry.
- I find that Ms W was negligent in allowing well over two years to pass without seeking instructions from MrCahuas as to whether enquiry should be made as to the progress of the applications. Enquiry would have revealed that the applications had not been received, and probably would have led to lodgement of new applications.
- Ms W appeared to accept during this hearing that she should have kept a proper record of lodgement, and should have discussed with MrCahuas whether to make an enquiry, although she appeared reluctant to accept that her omissions amounted to negligence or a failure to follow instructions.
In the end VCAT awarded the client $883.25 compensation in a curious decision about psychological injuries caused by the delay but was nevertheless required to pay the solicitor’s bill. Ultimately the client was successful in obtaining permanent residence through another adviser and VCAT found that the work done by the solicitor was of benefit to the client in obtaining that permanent residence as her work was used by the other solicitor.
But the case is illustrative of the need to have systems not just to record what is done but to ensure that what was meant to be done was done. One inference to be drawn from this case is that for some reason the ministerial decision letter simply was not sent. Most law firms have a mail register to record important mail that has been sent. In this case the solicitor should have ensured that the registered post receipt was sighted by her. Using any number of current computer programs with diaries she should have put a note in that diary to check the following day that she sighted the receipt.