The Federal Court of Australia in CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1242 has held that barristers engaged on a limited ‘direct access’ brief are not required to comply with r 4.03 of the Federal Court Rules 2011 (Cth) (“FCR”). Rule 4.03 provides that, if a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party in the proceeding, the lawyer must file and serve a notice of acting, in accordance with Form 4.

Background

The proceeding before the Court was an appeal by a non-English speaking person in a migration matter. The appellant’s notice of appeal suggested that the appellant was self-represented at the time the appeal was commenced and no notice of acting by any lawyer was filed after that time. In the meantime, acting on the basis that the appellant was and continued to be unrepresented, the Court arranged for an accredited interpreter to attend at the hearing of the appeal at public expense. In addition, orders for case management of the appeal were made which included orders that the appeal book be filed by the respondent if the appellant was not represented by a lawyer. The appellant filed a list of authorities and an outline of submissions to which a draft Amended Notice of Appeal was annexed but, while the list of authorities and submissions indicated that they had been prepared by counsel, the draft Amended Notice of Appeal did not include at the foot of the document details of any lawyer representing the appellant. No notification of any kind was given to the Court that a lawyer would present oral argument on behalf of the appellant at the hearing. When counsel appeared for the appellant at the hearing, the Court of its own initiative raised the question of whether r 4.03 of the FCR applied to counsel in the circumstances. The question of the application of r 4.03 to the appellant’s counsel then came to be separately addressed on an interlocutory basis, with leave being granted to the New South Wales Bar Association to intervene in the proceedings and to make submissions on the question.

Decision

The question was dealt with by Charlesworth J who concluded that r 4.03, properly construed, did not impose an obligation on the appellant’s counsel to file and serve a notice of acting. In coming to this conclusion, her Honour accepted the following submissions of the Bar Association “notwithstanding the disruptive case management issues” for the Court’s processes (at [84]-[87]):

• Having regard to its wider context, the purpose of r 4.03 was to inform the Court and other parties of a change in the party’s status, after the commencement of a proceeding, from that of a person who was not represented by a lawyer with general authority to act, to that of a person who was so represented.
• Accordingly, the FCR regulating the content of a notice of appeal or originating application imposed no obligation upon a party to identify that he or she was represented by a lawyer, unless the party was “represented by a lawyer who has general authority to act for that party” within the meaning of r 11.01(2) of the FCR (dealing with an address for service), in which case the party’s address for service had to be that of the lawyer.
• It followed that the FCR made no provision for the filing of a notice of acting by a lawyer appointed by a party after the proceeding had commenced if that lawyer did not have a general authority to act.

Her Honour went on to say as follows (at [92]-[95]):

• If the relevant rules of the FCR were intended to oblige a party to disclose that they had directly appointed a lawyer with other than a general authority to act, the rules and forms would have made express provision both for the identification of such a lawyer and for the nature and scope of the limitation on the lawyer’s retainer to be notified to the Court but the relevant rules and forms made no such provision.
• Therefore, a barrister directly appointed by a party for the purpose of making oral and written submissions on the party’s behalf at a hearing did not need to be identified on the process by which proceedings were commenced. It followed that r 4.05 of the FCR (dealing with termination of a retainer by a lawyer) should not be construed so as to require the filing of a notice of ceasing to act by a person retained from the outset as a barrister on a limited direct access brief.
• Rule 4.03 had to be construed so as to operate harmoniously with the foregoing scheme. There being no obligation on a party to disclose the appointment of a direct access barrister at the commencement of a proceeding, r 4.03 should not be construed to impose an obligation upon a direct access barrister to file a notice of acting if he or she was appointed after the proceedings were commenced.
• The FCR was premised on an assumption that a party would either be unrepresented or represented by a lawyer with general authority to act but neither of these cases applied to the appellant. No provision was made to accommodate what seemed to be an increasing trend in the migration practice area whereby parties directly appointed a barrister for limited tasks without the intermediary of an instructing solicitor and without notifying the Court. If the non-disclosure of the retainer was potentially disruptive of the Court’s processes, the disruption was to be avoided firstly by the barrister observing the usual courtesies and standards ordinarily expected of a practitioner in his or her dealings with a court and, failing that, by the Court exercising its express and implied powers to manage its own proceedings.

Her Honour made it clear that her reasons were limited to direct access barristers and were not to be taken as suggesting that a barrister retained in the conventional way by a party’s solicitor having a general authority to act was required to file a notice of acting, that obligation belonging to the party’s solicitor (at [4]; see also [45]).

The decision overcame a potential constitutional issue – that of whether there was any inconsistency, within the meaning of s 109 of the Constitution, between r 4.03 of the FCR and the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), in particular, r 13 of those Rules which prohibits barristers from, amongst other things, filing (other than filing in court) or serving any process of any court, a notice of acting being a process of court (see [36]-[41]) .

However, her Honour did say that the finding that r 4.03 did not impose an obligation on a direct access barrister to file and serve a notice of acting did not mean that such a barrister could not or should not be required by an order of the Court to disclose the fact of his or her engagement by other means nor that other rules of the Court ought not be construed so as to impose obligations directly upon such a barrister (at [42]).

Her Honour further said that, under r 2.16 of the FCR, which requires a document filed in a proceeding to, amongst other things, contain the name of any lawyer responsible for the preparation of the document at the foot of the front page of the document, the lawyer’s name had to be identified in the footer of the document, irrespective of the capacity in which the lawyer was engaged, because to represent such a document as having been prepared by a self-represented party would be apt to mislead the Court (at [100]).

A majority of the New South Wales Court of Appeal in Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150 (“Pentelow”) has held that the so-called ‘Chorley exception’, a rule of practice which entitles a self-represented litigant who is a solicitor to recover professional costs, applied to a barrister who personally undertook legal work in her own litigation although legally represented in the litigation.

Chorley exception

The Chorley exception was introduced by London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 and is an exception to the rule that a self-represented litigant is not entitled to professional costs for acting for himself or herself in legal proceedings. The Chorley exception, to the effect that a self-represented solicitor was entitled to his or her professional costs, came to be applied in Australia, most notably, in the High Court’s decision of Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47 (“Guss”). Guss has been accepted as binding authority in most Australian jurisdictions (see, for example, Coshott v Spencer [2017] NSWCA 118 (“Coshott”) and Soia v Bennett [2014] WASCA 27; (2014) 46 WAR 301).

Nevertheless, there have been some judges who have raised doubts about the application of the exception. In Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 (“Cachia”) (a case in which a self-represented litigant unsuccessfully claimed costs based upon the fees charged by him as a self-employed consulting engineer), a majority of the High Court of Australia described the exception as “somewhat anomalous”, as having a “somewhat dubious” and “unconvincing” justification for its existence, and as being “limited and questionable”.  Judges in some other cases, usually after referring to the observations made in Cachia, have expressed views that, had authority not constrained them, they would not have found the solicitor litigant entitled to recover his or her professional costs.

As to whether the Chorley exception applied or extended to barristers, there have been some judges who have been prepared to apply the exception, or, at least, to assume that it applied, to self-represented barristers, while other judges have refused to so apply it. In particular, in South Australia, where legal practitioners are admitted as barristers and solicitors, the Full Court of the Supreme Court of South Australia in Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd [2004] SASC 161 (“Hartford Holdings”) refused to apply the exception to a legal practitioner who had undertaken work in his own litigation as if he had been retained as counsel. Referring to Cachia, the Full Court said that the exception should not be extended unless the High Court determined otherwise.

It was against this background that the New South Wales Court of Appeal came to decide Pentelow.

The facts in Pentelow

In Pentelow, a barrister had sued a firm of solicitors for unpaid fees. The barrister was legally represented in the proceedings by solicitors and senior counsel but had undertaken certain legal work on her own behalf including drawing initiating process and affidavit evidence, perusing correspondence from senior counsel, advising senior counsel and representing herself at directions hearings. The barrister was ultimately successful in the proceedings and received a costs order in her favour. The barrister then claimed costs for the legal work which she had personally undertaken in the proceedings but these were disallowed by a costs assessor and, on appeal, by a Review Panel on the grounds that she had not been self-represented and that the Chorley exception did not apply to barristers. The District Court dismissed an appeal by the barrister and the barrister sought judicial review of the District Court decision.

Court of Appeal’s decision

The Court of Appeal (Beazley ACJ and Macfarlan JA, Meagher JA dissenting) decided that it was consistent, as a matter of principle, with the Chorley exception that:

• a self-represented barrister was entitled to recover costs for legal work; and
• a barrister who was legally represented in his or her own proceedings was entitled to recover costs for legal work he or she had undertaken for the purpose of those proceedings.

Therefore, the Court concluded that the barrister in question, although legally represented in the proceedings, was entitled, as a matter of principle, to claim costs for the legal work which she had personally undertaken in the proceedings. However, the Court also found that, whether the costs she claimed would be allowable or allowed, was a matter for costs assessment.

Majority’s reasoning

After determining that the underlying rationale for the Chorley exception was that the work of solicitors could be quantified (unlike that of lay persons), and after reviewing the authorities, Beazley ACJ (Macfarlan JA agreeing) made observations to the following effect (at [90]-[98]):

• There was a significant degree of commonality in the work of barristers and solicitors which included, relevantly, the preparation of court documents and preparing legal advices. Accordingly, the fact that barristers and solicitors were registered on different rolls and their conduct was governed by the rules of different associations did not provide a principled basis upon which to reject the application of the Chorley exception to legal work undertaken by a self-represented litigant who was a barrister. This was particularly so when it was appreciated that the rationale of the Chorley exception was not based on the type of work solicitors undertook, per se, but, rather, was based on the fact that the work undertaken could be quantified.
• At the time that Chorley was decided, costs were the subject of taxation by court officers, based upon costs scales for items of work specified in the relevant schedule. That was also the position when Guss, Cachia and Hartford Holdings were decided and the position in New South Wales until legislation in New South Wales removed the costs scales in favour of a system of costs assessment by costs assessors who were legal practitioners. Solicitors’ legal costs were now generally charged and assessed on a time costing basis, by reference to what was fair and reasonable.
• Under the former system of taxation of costs, barristers’ fees were treated as a disbursement in a solicitor’s bill of costs and the common law position, that a barrister could not sue to recover fees because no contract existed between the barrister and the instructing solicitor, continued. However, that position was changed by legislation so that a barrister could enter into a contract for the provision of legal services and sue and be sued on it. Barristers’ fees could now be the subject of assessment. Therefore, while there might have been a question as to whether a barrister would have been entitled to costs in a regime where quantification of costs was by reference to costs scales, this was no longer the case because the basis upon which costs were assessed had changed radically.
• The following matters all pointed in favour of the Chorley exception applying where the self-represented litigant was a barrister:
  • the definition of “costs” in s 3 of the Civil Procedure Act 2005 (NSW) [which did not confine “costs” to “costs payable” but defined this as “costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration”];
  • the Court of Appeal’s decision in Coshott, in which it was determined that the Chorley exception continued to apply in New South Wales to a self-represented solicitor [and that ss 3 and 98 (which grants power to the court to award costs) of the Civil Procedure Act did not, as a matter of statutory construction, require a different outcome]; and
  • the significant commonality in the work that could be performed by solicitors and barristers.
• There was nothing in the High Court’s decision in Guss which prohibited the application of the Chorley exception to work undertaken by a self-represented litigant who was a barrister. There appeared to be no difference in principle where a barrister engaged legal representation but personally undertook certain legal work which could otherwise have been done by the legal representatives. In fact, in Guss, the appellant was a self-represented solicitor who had briefed counsel to appear. Thus, there was nothing in Guss which indicated that the principle was limited to a case where the solicitor undertook all of the legal work. That approach had already been taken in Australia in Hawthorn Cuppaidge & Badgery v Channell (1992) 2 Qd R 488 [a case in which a firm of solicitors, although retaining other solicitors to appear for them in their own litigation, were found to be entitled to recover professional costs for the legal work which they had undertaken themselves.]
• The High Court’s obiter observations in Cachia had no direct application to the circumstances of the present case and the Court was not circumscribed by those observations.
• Having regard to the significant commonality of work undertaken by barristers and solicitors and to the costs assessment scheme, what was involved was an application of existing High Court authority to similar circumstances as arose in Guss. Whether that was so or whether the application of the Chorley exception to barristers was a permissible application of the principle was, of course, a matter ultimately for the High Court, as was the continued application of the exception itself.

Beazley ACJ then concluded as follows (at [115]-[118]):

• The Chorley exception applied to barristers.
• The case involved an application of the Chorley exception to the facts and was not an extension of it. The barrister did not seek a departure from any previous decision of the High Court but, rather, sought a determination as to whether the Chorley exception applied to barristers in circumstances where she was not a self-represented litigant but undertook legal work in the litigation in which she was represented.
• Given that there were cases in other common law jurisdictions where the Chorley exception had been applied to barristers, as well as Australian decisions where the rule had been applied, and where there was no decision of an Australian intermediate appellate court directly contrary to the proposition, it was appropriate for the Court of Appeal to consider whether the exception ought to be applied in the circumstances that existed in the present case. In doing so, the Court of Appeal would not be acting contrary to the statements of the High Court in Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 [that it was for the High Court alone to determine whether one of its previous decisions should be departed from or overruled] and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [that it was not for an intermediate court of appeal to effect changes to well-established principle].
• However, given the contentious and unresolved question of the application of the exception at all and the extent of its application, it was apparent that the question would eventually need to be resolved either by the High Court or by legislation, as had occurred in some other jurisdictions.

Dissenting judgment

Meagher JA, dissenting, made observations to the following effect (at [138]-[141]):

• The extension of the Chorley exception to barristers was not supported in terms by either Guss or Coshott, both of which referred exclusively to solicitors appearing in person. Therefore, the question before the Court had to be decided at the level of principle. Whether any remaining distinction between solicitors and barristers in New South Wales could rationally be material to the awarding of costs to them as litigants in person was a false issue. Assuming that statutory reform permitting barristers to sue for fees and subjecting those fees to assessment had removed any such distinction, it did not follow that the Chorley exception should be extended to barristers.
• The majority in Cachia described the Chorley exception as “somewhat anomalous” and “limited and questionable” and differentiated it from the basis upon which costs were usually awarded, namely, as an indemnity for legal costs actually incurred. The majority also observed that the “costs” for which then r 23(2) of the Supreme Court Rules 1970 (NSW) provided were confined to money paid or liabilities incurred for professional legal services. Those points applied a fortiori where the relevant source of power was in terms limited to costs that were “payable” [as set out in the definition of “costs” in s 3 of the Civil Procedure Act]. The application of the Chorley exception with respect to solicitors under s 98 of the Civil Procedure Act did not rest on any recognised principle or policy.
• More significantly, the barrister’s argument in this case resembled the primary submission for the appellant in Cachia which drew an inference from the absence of any reason for distinguishing between a lay person and a solicitor who acted for himself or herself to support the claim that the value of a lay person’s time should also be recoverable as costs. The majority in Cachia rejected that submission as false reasoning on the basis that it was not possible to reason by way of the exception that litigants in person were treated unequally and then to conclude that the very basis upon which costs were ordinarily awarded should be abandoned so that the exception became the rule.
• The barrister’s argument adopted a milder form of that “false reasoning” by merely substituting a barrister providing services to herself for the lay litigant doing the same. It did not point to any substantial reason to trench further upon the plain language of legislation conferring power to order costs, which itself reflected the general conception of costs in Anglo-Australian law as awarded by way of indemnity or partial indemnity for professional legal costs actually incurred in the conduct of litigation. If the Chorley exception was to survive, it could only do so as an undesirable anomaly that should not be permitted where its application was not covered by authority.

The question of whether there had been a valid exercise of an option for the purchase of certain real property was recently addressed by Slattery J of the Supreme Court of New South Wales in Hills Central Pty Limited v Hagerty & Ors [2018] NSWSC 789. The plaintiff had purported to exercise the option by delivering option exercise documents which had included a notice of exercise of the option and copies of the contract but the contract had not specified any completion date. The covering letter enclosing the documents had, however, requested that the defendants insert, on the front page of the contract, a completion date of 192 days from the date of the contract. There was a clause in the option deed containing a mechanism for the calculation of the completion date which provided that the completion date was to be specified on the front page of the contract. On a proper construction of this clause, the completion date should have been 42 days from the date of the contract and, accordingly, the date which the plaintiff had requested be inserted into the contract was an incorrect date. The defendants claimed that the option had not been exercised in accordance with the option deed and that the option had lapsed.

Slattery J observed that the applicable legal principles to determine whether there had been a valid exercise of an option had been summarised in Prudential Assurance Co Limited v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677 and that this summary had been widely adopted (at [34]). The summarised principles were as follows. References to the cases have been omitted.

• The primary rule was that the purported exercise of the option had to clearly and unequivocally express the fact that the intention was to exercise the option.
• It was not necessary for the effective exercise of an option that terminology conforming precisely to the terms of the option should be used.
• The appropriate question to be asked was what anybody who received the letter, subsequently said to amount to the exercise of the option, would fairly have understood to be the meaning of it, in all the circumstances of its receipt. Thus, the consideration which would govern the meaning to be ascribed to the letter was not to be judged in isolation, weighing only the words used, but was to be judged against the background of the dealings between the parties.
• A notice which misstated the terms of the option which it purported to exercise could amount, depending on the circumstances, to an unqualified and unconditional exercise of the option. However, if the grantee of the option set out an erroneous understanding of it and then purported to exercise the option as so understood, the exercise would, generally speaking, be ineffective.
• Every case depended ultimately upon its own facts and the proper construction of the document which was in dispute.

Slattery J went on to say that while some cases had stated that the effective exercise of an option required “strict” or “exact” adherence to the method prescribed in the instrument creating the option, other cases were authority for the proposition that only “compliance” was required, with a fair reading of the contractual requirement being understood and given effect. Nevertheless, his Honour said that the option needed always to be construed to identify what the requirements for compliance were in each case (at [35]-[37]).

His Honour also observed that the option deed was a commercial contract and that the approach to construing such a contract involved determining the meaning of the terms of the contract by having regard to what a reasonable businessperson would have understood the terms to mean, a task which required a consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract (at [38]-[40]).

After analysing the option deed, Slattery J found, in substance, as follows:

• The requirements for the valid exercise of the option did not include the requirement for the completion date to be specified on the front page of the contract. The specification of the completion date did not have to occur upon the exercise of the option but could take place later.
• The request in the covering letter to insert an incorrect date into the contract did not amount to a counter-offer because the option could be exercised without the completion date being specified in the contract and the request was just that, a request which could be ignored by the defendants without offence or adverse legal consequences. The request did not contradict the validity of the mechanism to find the correct completion date as there was no insistence by the plaintiff upon an incorrect date as a condition of acceptance of its offer.
• Although there was a request to insert an incorrect date, the conduct of the plaintiff as a whole made it clear that the plaintiff intended to exercise the option and this must have been clear to the defendants.

Accordingly, his Honour concluded that the option for the purchase of the property had been validly exercised.

Introduction

The High Court of Australia sitting as the Court of Disputed Returns in Re Gallagher [2018] HCA 17 has provided further details about the “constitutional imperative”, the implicit qualification or exception to the operation of s 44(i) of the Commonwealth Constitution which renders a citizen of a foreign power incapable of being chosen or of sitting as a senator or a member of the House of Representatives. The constitutional imperative was described in Re Canavan [2017] HCA 45; (2017) 91 ALJR 1209; (2017) 349 ALR 534.

Background

The background to Re Gallagher was that KG had held British citizenship by reason of her father having been born in England and had taken steps to renounce her British citizenship under the relevant British law.  She had, on 20 April 2016, submitted to the Secretary of State at the British Home Office a completed form of declaration of renunciation of her British citizenship, various accompanying documents and her credit card details for the payment of the relevant fee. Her credit card had been debited with the fee on 6 May 2016. On 31 May 2016, KG had lodged her nomination as a candidate for election to the Senate in the federal election to be held on 2 July 2016. On 20 July 2016, KG had been notified by the Home Office that further (identified) documents were required in order to demonstrate to the Secretary of State that she was a British citizen. KG had replied the same day providing further documents and, on 16 August 2016, the declaration of renunciation had been registered. In the meantime, on 2 August 2016, KG had been returned as a senator for the Australian Capital Territory.

In December 2017, the Senate had resolved to refer to the High Court, sitting as the Court of Disputed Returns, questions which included whether, by reason of s 44(i) of the Constitution, there was a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which KG had been returned.

The issue

It was not in issue that, at the time of her nomination for election as a senator (the date of nomination being the commencement of the process of being chosen to which s 44(i) of the Constitution applies) and subsequent to the time she was returned as elected as a senator, KG had been a British citizen and so was a citizen of a foreign power within the meaning of s 44(i). What was in issue was whether the constitutional imperative which had been referred to in Re Canavan had been engaged such that KG was capable of being chosen as a senator notwithstanding that she had been a British citizen during the process of being chosen. Re Canavan had said as follows:

• s 44(i) was subject to an implicit exception arising from the constitutional imperative underlying it, that an Australian citizen not be irremediably prevented by foreign law from participation in representative government.
• Where it could be shown that the person had taken all steps that were reasonably required by the foreign law to renounce his or her foreign citizenship and within his or her power, the constitutional imperative was engaged.

(For a summary of Re Canavan, see K Ottesen, “Commonwealth parliamentarians disqualified by reason of s 44(i) of the Constitution”, 13 November 2017.)

KG’s submissions

KG submitted that, by 20 April 2016, when she had submitted her declaration of renunciation, or at the latest by 6 May 2016, when her credit card had been debited with the relevant fee, she had taken all steps required by the relevant British law that were within her power to divest herself of her British citizenship and that it was only by reason of matters which were beyond her control that she did not cease to be a British citizen before the date of her nomination as a candidate for the Senate – those matters being the time and manner in which the Secretary of State chose to cause the declaration of renunciation to be registered. Accordingly, it was said that the ability of the Secretary of State to choose the time and manner in which to perform this function under the British law was an irremediable impediment to KG’s participation in the 2016 election, with the result that the constitutional imperative was engaged, entitling her to participate in the election (at [19]).

Court’s decision

The Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) unanimously found that the constitutional imperative had not been engaged and, accordingly, answered the referred question by saying that there was a vacancy in the representation for the Australian Capital Territory in the Senate for the place for which KG was returned.

Court’s reasoning

A joint judgment of Kiefel CJ, Bell, Keane, Nettle and Gordon JJ (“Joint Judgment”) explained the constitutional imperative in the following way (at [23]-[36]):

• In the context of s 44(i), the concern of the constitutional imperative was that an Australian citizen might forever be unable to participate in elections because a foreign law prevented that person from divesting himself or herself of the foreign citizenship which, if s 44(i) were to apply in its terms, would disqualify that person from nomination. Thus, s 44(i) was subject to an implicit qualification or exception which gave effect to the constitutional imperative in circumstances where it could be said that the purpose of s 44(i) was met. The qualification extended only so far as was necessary to give effect to the textual and structural features which supported it, and the qualification operated in its own terms.
• Re Canavan indicated that two circumstances had to be present for s 44(i) to be read as subject to the qualification. The first, which arose from the terms of the constitutional imperative, was that a foreign law operated irremediably to prevent an Australian citizen from participation in representative government. The second was that that person had taken all steps reasonably required by the foreign law which were within his or her power to divest him or herself of the foreign nationality.
• A foreign law would not “irremediably prevent” an Australian citizen from renouncing the foreign citizenship simply by requiring that particular steps be taken to achieve it. For a foreign law to meet this description, it had to present something of an insurmountable obstacle, such as a requirement with which compliance was not possible (for example, a requirement that the acts of renunciation take place in the territory of the foreign power where the person’s presence within that territory involved risk to the person). The operation of the foreign law and its effect were to be viewed objectively.
• The “test” for the engagement of the constitutional imperative was not contained in the second circumstance that the person have taken all steps that were reasonably required by the foreign law which were within his or her power to renounce his or her foreign citizenship. Both of the circumstances referred to in Re Canavan had to be present for the qualification to apply. There needed to be a foreign law which operated to irremediably prevent an Australian citizen from participation in representative government and in every case it was necessary that all steps reasonably required which were able to be taken towards renunciation were taken under that same foreign law.
• All reasonable steps had to be taken even though the foreign law would in any event operate to prevent renunciation being achieved because of the concerns of s 44(i) that so long as a person’s duty or allegiance remained under foreign law, there would be an impediment to unqualified allegiance to Australia. It was not until it was manifest that a person had done all he or she could towards renunciation that the qualification should apply.
• KG’s submissions in relation to s 44(i) were based upon a constitutional imperative which was different or wider in its operation than that referred to in Re Canavan. The constitutional imperative referred to in Re Canavan did not require that s 44(i) be read so that its effects were more generally ameliorated so as to ensure the ability of foreign citizens to nominate. What it required was much more limited – it was that an Australian citizen not be irremediably prevented by foreign law from participation in representative government.
• The constitutional imperative, and the qualification which it informed and of which it formed part, was concerned with how foreign law operated with respect to a renunciation of the status of foreign citizen. A law regarding citizenship and its renunciation might operate by reference to requirements of individuals. It might give powers, including discretions, to and impose duties on officials, including with respect to decision-making.

The Joint Judgment concluded that the constitutional imperative was not engaged in the case of KG for the following reasons (at [37]-[39]; see also [21]-[22]):

• There was no aspect of the relevant British law which operated to irremediably prevent KG from nominating for an election. No requirement of the British law was onerous, the procedure for renunciation was simple and there was never any doubt that a decision to register the declaration of renunciation would be made – the only issue was as to the timing of the registration of the declaration.
• There was no support in Re Canavan for KG’s submission that, because she had done all that was required of her by British law and which was within her power to do, everything that occurred thereafter under British law which prevented her nomination was to be regarded as an irremediable impediment. It was not sufficient for the qualification in s 44(i) to apply for a person to have made reasonable efforts to renounce the foreign citizenship.
• British law did not operate to irremediably prevent a person from achieving renunciation of British citizenship merely because a decision might not be provided in time for a person’s nomination. The qualification to s 44(i) was not engaged by a foreign law which presented an obstacle to a particular individual being able to nominate for a particular election.

In their separate judgments, Gageler and Edelman JJ agreed with the reasons given in the Joint Judgment (at [41] and [69]) but gave further reasons for reaching the same conclusion as the Joint Judgment.

The New South Wales Court of Appeal (Leeming JA, White JA and Barrett AJA) in Pi v Zhou (No 4) [2018] NSWCA 87 has dismissed an application for an extension of time within which to review a decision of Payne JA dismissing proceedings for failure to comply with an order to provide security for costs of an appeal.

Payne JA had, pursuant to r 51.50(2A) of the Uniform Civil Procedure Rules 2005 (NSW), dismissed the applicant’s proceedings for an extension of time to appeal from a decision of a single judge of the Supreme Court by reason of the applicant’s failure to provide the security for costs which had been ordered. Payne JA had further held that, even assuming that r 51.50(2A) did not apply, the Court had inherent jurisdiction to dismiss the proceedings for failure to comply with an order to provide security for costs. [For a summary of Payne JA’s decision in Pi v Zhou (No 3) [2017] NSWCA 224, see K Ottesen, “Proceedings dismissed for failure to pay security for costs” 10 October 2017].

In dismissing the application for an extension of time within which to review Payne JA’s decision, the Court of Appeal made the following points (at [13]-[15]):

• There was nothing supplied by the applicant which had come close to identifying any error by Payne JA in dismissing the appeal following a lengthy delay and the failure to provide the security which had been ordered and confirmed on review, and which could not be challenged before Payne JA.
• Even if there were to be an extension of time, and reviewable error was to be found in Payne JA’s decision, the result would be that the original application for an extension of time to appeal from the orders which had been made in 2015 would continue to be stayed pending the provision of the security which had been ordered in 2016 by a single judge of appeal and confirmed in 2017 by three members of the Court of Appeal. There was nothing to suggest that the security would be provided, while in the meantime the costs incurred by the respondents would have increased.
• The applicant still had no intention of providing the security ordered. He had not sought special leave to appeal from the orders of the three members of the Court of Appeal that he provide the security but instead had sought to re-ventilate an issue which had been decided against him. He had pointed to no material change of circumstances since security for costs was ordered and to no error on the part of Payne JA. No basis had been made out to interfere with the order for security for costs which had been made by the Court of Appeal in 2017.