Abraham v Attorney-General for the Commonwealth - [2004] FCA 411

FEDERAL COURT OF AUSTRALIA
Abraham v Attorney-General for the Commonwealth [2004] FCA 411
JEMAS ABRAHAM v ATTORNEY-GENERAL FOR THE COMMONWEALTH
No S7 of 2004
FINN J
ADELAIDE
6 APRIL 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 7 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:

JEMAS ABRAHAM
APPELLANT

AND:

ATTORNEY-GENERAL FOR THE COMMONWEALTH
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

6 APRIL 2004

WHERE MADE:

ADELAIDE

THE COURT DIRECTS THAT:
1.The appellant attend before the District Registrar at 10am on 13 April 2004 for the purpose of settling the appeal papers.
2.If the appellant fails to attend, the appeal be dismissed for failure to comply with this direction.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 7 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:

JEMAS ABRAHAM
APPELLANT

AND:

ATTORNEY-GENERAL FOR THE COMMONWEALTH
RESPONDENT

JUDGE:

FINN J

DATE:

6 APRIL 2004

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This matter has been set down for directions at the request of the District Registrar. The appellant, Mr Abraham, was unsuccessful in an application to have the respondent Attorney-General, pay him a sum of money which the Attorney-General had agreed to pay him pursuant to the Overseas Custody (Child Removal) Scheme.
The decision of Lander J in this matter was given on 15 December 2003. An appeal against his Honour’s orders was filed on 15 January 2004. It is fair to say that the grounds specified do not betray a possible error in his Honour’s reasoning other than the bare assertion that he erred by not granting the application. The matter was set down for hearing in the May Full Court list.
As the Report of Listing of 11 February 2004 indicates, Mr Abraham did not appear at the callover where this order was made. The District Registrar set the date of 11 March 2004 for the settling of the index of the Appeal Book. In communicating this to the appellant, she drew the requirements of O 52 r 26 of the Federal Court Rules to his attention. As it was apprehended that Mr Abraham may not attend the Court on that day for that purpose, a registry officer attempted unsuccessfully to ring him to confirm that he would attend. Apparently the registry had received information that he may be in Japan. The matter was re-listed before the District Registrar on 25 March 2004 and written notification of this was sent to Mr Abraham’s address for service of notices. Again Mr Abraham did not attend the re-scheduled appointment. In this state of affairs the matter was referred to me.
Mr Abraham has again failed to attend today. Given Mr Abraham’s lack of communication with the Court about his appeal and his whereabouts, it may well be futile to give yet a further direction that he attend to settle the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 411
Decision Date: 6 APRIL 2004

CaseChat Overview and Summary

The Federal Court of Australia dealt with an appeal by Jemas Abraham against the Attorney-General for the Commonwealth. Abraham had previously lost an application for payment under the Overseas Custody (Child Removal) Scheme, and he sought to appeal the decision. The appeal was set for hearing, but Abraham failed to attend the scheduled appointments, including one set by the District Registrar for settling the appeal papers. The court had to decide whether to grant a further direction for Abraham to attend and settle the appeal papers, and if his failure to comply would result in the dismissal of his appeal.

The legal issues before the court involved the procedural requirements of the Federal Court Rules and the circumstances under which an appeal may be dismissed for failure to comply with a court direction. Specifically, the court had to consider whether it was appropriate to give Abraham another opportunity to attend and settle the appeal papers, and whether his failure to comply with such a direction warranted the dismissal of his appeal. The court also had to weigh the exceptional nature of dismissing a matter for want of prosecution against the respondent's right to a timely resolution of the matter.

Justice Finn, who presided over the matter, decided that directing Abraham to attend and settle the appeal papers was the appropriate course of action. However, Finn J recognised that dismissing an appeal for failure to comply with a court direction was an exceptional remedy and should only be applied in special circumstances. Despite the weak grounds for the appeal and Abraham's apparent lack of commitment to prosecuting it, Finn J believed that a further direction was warranted to give Abraham a final opportunity to comply with the court's requirements. Nevertheless, if Abraham failed to attend the specified date, the appeal would be dismissed for non-compliance with the court's direction.

The court ordered that Abraham attend before the District Registrar on 13 April 2004 to settle the appeal papers. If Abraham failed to attend, the appeal would be dismissed for failure to comply with the court's direction. This decision was based on the exceptional circumstances of the case, Abraham's lack of communication with the court, and the need to provide a final opportunity for compliance before resorting to dismissal.

Orders