Applicant A211/2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 65

FEDERAL COURT OF AUSTRALIA

Applicant A211/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 65

APPLICANT A211/2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No SAD 218 of 2004

FINN J
ADELAIDE
3 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 218 OF 2004

BETWEEN:	APPLICANT A211/2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	3 FEBRUARY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

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	SAD 218 OF 2004

BETWEEN:	APPLICANT A211/2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	3 FEBRUARY 2005
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1. This is an appeal from a decision of Mead FM made on 17 September 2004.  The Chief Justice has directed that the appellate jurisdiction of the court be exercised by a single judge in this matter. 

2. It is apparent from the decision of the federal magistrate that the appellant is seeking to relitigate the issue determined adversely to her in the matter NAJV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 169.

3. The primary decision of Mead FM was that because of res judicata, no reasonable cause of action was disclosed in relation to the claim of relief before her and the action was dismissed upon that basis.  This said the federal magistrate did advert to the matter which was to have been raised in this proceeding, i.e. the lack of procedural fairness, and held that the factual circumstances relied upon to establish that claim were the same as those agitated in NAJV.

4. I had given directions before the hearing in this matter that the applicant file and serve a Statement of Facts, Issues and Contentions and that the applicant appear for the hearing.  Neither of these directions have been complied with, notwithstanding subsequent communications with the applicant by my associate for the purposes of securing compliance.  The applicant has not appeared at the hearing today. 

5. In these circumstances the respondent has asked me to exercise my jurisdiction to make an order under s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) dismissing the appeal.

6. There clearly has been a failure to comply with a direction of the court and a failure of the applicant to attend.  If there was any reasonable ground for entertaining the view that an appealable error existed in the decision of the magistrate, I would be reluctant to proceed as requested.  As I am satisfied that there is not, and as the non-compliance with the directions to file a Statement of Facts, Issues and Contentions and to appear at the hearing is a knowing noncompliance, I accede to the application.

7. The order of the court will be that the appeal be dismissed with costs.

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:             9 February 2005

The Applicant did not appear.
Counsel for the Respondent:	Mr K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 February 2005
Date of Judgment:	3 February 2005