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
APPELLANTAND:
ATTORNEY-GENERAL FOR THE COMMONWEALTH
RESPONDENTJUDGE:
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
APPELLANTAND:
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…
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- Case
- [2004] FCA 411
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: FINN J
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