Applicant MZMAI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 761

FEDERAL COURT OF AUSTRALIA

Applicant MZMAI v Minister for Immigration & Multicultural & Indigenous  Affairs [2004] FCA 761

APPLICANT MZMAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO. V 1085 OF 2003

HEEREY J
1 JUNE 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	V1085 OF 2003

BETWEEN:	APPLICANT MZMAI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	1 JUNE 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The order made by Justice Marshall of 15 April 2004 dismissing the appeal for want of prosecution is revoked and the appeal is reinstated.

2.The applicant pay the respondent’s costs of this application and the costs thrown away.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	V1085 OF 2003

BETWEEN:	APPLICANT MZMAI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	1 JUNE 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. I have been asked to exercise the power under O 52 r 38(3) to revoke the order made by Marshall J on 15 April 2004 which dismissed the appeal for want of prosecution on the basis of O 52 r 38(1)(b). 

2. The Refugee Review Tribunal on 14 April 2003 affirmed the decision of a delegate of the Minister to refuse a protection visa.  The applicant filed a notice of appeal on 5 December 2003, that is within the prescribed time.  There was a consent order made on 30 January 2004 which required the applicant to file and serve submissions on 10 March and a hearing was fixed for 30 April.

3. The submissions were not filed in time and on 29 March Marshall J had the matter listed.  There were further directions given for submissions to be filed on 13 April 2004 “failing which the appeal shall stand dismissed for want of prosecution.”

4. The submissions were not filed on that date.  The matter was brought on again, and on 15 April his Honour made the order already mentioned. 

5. There is evidence of the explanation for that failure in the form of an affidavit from the applicant's husband, Angelo Albanese, who says he has supported his wife's migration litigation to the extent of $25,000 already.  However, in the last six months his business as a commission agent for Mobil had been terminated by that company and he was searching for another source of income.  He has now found a business to purchase, namely a service station, of which he took possession on 3 May.  He has provided now the sum of $3100 to the applicant's former solicitors to obtain possession of the file, and paid a further $1500 to the applicant's present solicitors for counsel and will provide a further amount of $2420 for the hearing. 

6. Counsel were not able to find any decision precisely on the point of O 52 r 38(3).  However, the concept of special circumstances in an analogous situation was dealt with by Branson J in Kabushiki Kaisha Universal v Aristocrat Leisure Industries Pty Ltd (1988) AIPC 91-396 at 37,127-37,128. I will not set out all that passage, but I find it helpful in the exercise of this question. I note also what was said by a Full Court in Van Reesema v Giameos (1979) 27 ALR 525 at 530 that the power to dismiss appeals for want of prosecution should not be lightly exercised.

7. I think I should exercise my discretion in favour of the applicant.  The applicant, unlike many litigants in this area, has demonstrated a commitment to pursuing her claim in a timely fashion.  Her appeal was lodged within time, as was the original application for review by the Tribunal.  There is an explanation as to why there was non-compliance with the orders already mentioned.  There has been some criticism of the plausibility of that explanation, but I see no reason to doubt the affidavit of the applicant's husband.  The delay is not extensive in point of time.  No prejudice is alleged, other than the general prejudice which would arise to the orderly administration of justice if orders are not complied with. 

8. I do not feel I should enter into any extended consideration of the merits of the proposed appeal, other than to say it is arguable but, like many of these cases, depends on a careful analysis of the reasons for judgment in the light of the authorities.  I take into account also the serious nature of these matters and the consequences for the applicant if she is not able to pursue her claims on the merits.  So for those reasons I will order that the order of 15 April 2004 be revoked.  I will direct that the outline of submissions filed on 17 May be treated as the submissions in the appeal. 

9. I will order that the applicant pay the respondent's costs of today and the costs thrown away.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             16 June 2004

Counsel for the Applicant:	Mr J Gibson
Solicitor for the Applicant:	Legal Aid Victoria
Counsel for the Respondent:	Dr S Donaghue
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 June 2004
Date of Judgment:	1 June 2004