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

1. 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. 

2. 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. 

3. 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. 

4. 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 appeal papers.  Nonetheless, that is the course I intend taking and it is one in my view which ought to be taken in fairness to the respondent in this matter.  Accordingly I will direct that the appellant attend before the District Registrar at 10am on 13 April 2004 for the purpose of settling the appeal papers. 

5. I recognise it is exceptional for the court to dismiss a matter for want of prosecution under O 52 r 38(1)(a):  see Van Reesema v Giameos (1979) 27 ALR 525. Equally, it is only in special circumstances that the court will direct that an appeal be dismissed for failure to comply with a direction of the court. As to the latter, I note that a single Judge is empowered by s 25(2B)(bb) of the Federal Court of Australia Act 1976 to make such an order. 

6. The course I propose to take in this matter, as I have indicated, is to direct that Mr Abraham attend the settling of the appeal papers and that if he fails so to attend that his appeal be dismissed for failure to comply with this direction.  He has taken no steps to prosecute this appeal other than to lodge a notice of appeal.  He has not notified the Court either of any change in his address for service or of any reasons that reasonably have prevented him from complying with the Court’s Rules.

7. Given that his notice of appeal does not suggest a case of any strength, that he has seemed for all practical purposes to put his appeal aside until it suits his own convenience and that the matter has been listed for hearing, an order of the kind noted above, is in my view, appropriate in the circumstances. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             6 April 2004

Counsel for the Appellant:	The Appellant did not appear.
Counsel for the Respondent:	The Respondent, with consent, did not appear.
Date of Hearing:	6 April 2004
Date of Judgment:	6 April 2004