ACK16 v Minister for Immigration and Border Protection

In ACK16 v Minister for Immigration and Border Protection, the applicant, ACK16, sought to appeal against the Federal Circuit Court's refusal to set aside an order dismissing an application for non-appearance and subsequently sought leave to appeal under s 39B of the Judiciary Act 1903 (Cth). The primary issue before the court was whether the Federal Circuit Court had misapplied its discretion in refusing to reinstate the appeal. The case hinged on the principles governing applications for reinstatement outlined by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, which include considering whether there was a reasonable excuse for the absence, the prejudice to the other party, and whether the applicant has a reasonably arguable prospect of success on the substantive application.

The court found that the Federal Circuit Court had not misapplied its discretion. The primary judge considered the three factors outlined in MZYEZ, and the court found that the Federal Circuit Court's decision was not unreasonable or plainly unjust. The court also noted that even if there was a reasonable excuse for the absence, the Court will not exercise its discretion in the party's favour if there is little or no prospect of that party's succeeding on the substantive claim. The court concluded that the Federal Circuit Court's decision was correct and dismissed the application for leave to appeal. The court further noted that the principles controlling a discretion whether or not to reinstate a proceeding are not identical to the principles going to whether leave to appeal from an interlocutory judgment ought to be granted. However, the court did not perceive that the application of those requirements would result in any different outcome in this case.

The court allowed the appeal and dismissed the application for leave to appeal. The court ordered that the application be dismissed on the basis only that the application in VID 98 of 2018 was allowed. The court further ordered that unless there is a consent minute on costs, the applicant file written submissions on costs not exceeding two pages within seven days, the first respondent file written submissions on costs not exceeding two pages within a further seven days, the applicant file written submissions in reply within a further seven days, and costs be determined on the papers.