Awv18 v Minister for Home Affairs

[2019] FCA 1202

FEDERAL COURT OF AUSTRALIA

AWV18 v Minister for Home Affairs [2019] FCA 1202

Appeal from:	AWV18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 687
File number:	WAD 122 of 2019
Judge:	DERRINGTON J
Date of judgment:	31 July 2019
Catchwords:	PRACTICE AND PROCEDURE – appeals – application for adjournment – one week prior to hearing – hearing set down months earlier – desire to seek legal representation – no evidence adjournment will assist preparation for appeal hearing – application refused
Date of hearing:	31 July 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Appellants:	The appellants appeared in person
Solicitor for the First Respondent:	Ms E Tattersall of Sparke Helmore

ORDERS

WAD 122 of 2019

BETWEEN:

AWV18

First Appellant

AWW18

Second Appellant

AWX18 (and others named in the Schedule)

Third Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSSESSMENT AUTHORITY

Second Respondent

JUDGE:	DERRINGTON J
DATE OF ORDER:	31 JULY 2019

THE COURT ORDERS THAT:

1.The appellants’ application to adjourn the hearing of the appeal is dismissed.

2.The first and second appellants are to pay the first respondent’s costs of the application, to be taxed or agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

1. The applicants, who are six in number, apply this afternoon for an adjournment of an appeal which is set down for hearing in a week’s time.  The appeal was commenced by a notice of appeal filed on or about 11 March 2019.  The notice of appeal is not drawn by lawyers and, although contains some statements which suggest that a lawyer has had a hand in drafting, it, of itself, does not identify in a proper way any relevant grounds of appeal.  There are vague assertions, but there are no properly specified or particular grounds.

2. Orders were made by Registrar McCormick on 6 May 2019 in the usual form and, in particular, requiring the preparation of an appeal book and the filing and serving of written outlines of submissions.  The appellants’ submissions were to be filed within 10 business days before the hearing date.  They have not been filed.  That said, the Minister’s legal representatives have filed submissions on his behalf.

3. I am told from the Bar table by the appellants that the reason for the adjournment is that a barrister was engaged to prepare and argue the appeal but he has since informed that he is unable to do so.  That barrister was apparently engaged through the firm AUM Legal.  That firm appeared for the appellants before the Federal Circuit Court, but, today, there is no filed document indicating that they have been engaged on the appeal.  However, I am also told from the Bar table that they are assisting in various ways in the appeal, and it also appears that today the appellants have been given advice as to what issues they should raise for the purposes of seeking an adjournment.

4. Ms Tattersall for the Minister submitted that there is no evidence before the Court to suggest that even if an adjournment were granted, the appellants would be in any better position to prepare and present their case when the matter is eventually heard.  There is much force in that submission.  In fact, there is no evidence at all today before the Court although I have accepted some statements from the Bar table as being indicative of the reasons why the adjournment of the appeal is required.

5. Whilst I have sympathy for all of the appellants, they have not produced today any sufficient evidence to found a reason why the appeal, which is set down for next week, ought be adjourned.  It must be remembered that the appeal has been on foot for some time and directions made for its expeditious hearing.  The absence of any suggestion that an adjournment might afford them an opportunity to more properly advance their case is, I think, significant.  In those circumstances, I have no real choice but to exercise the discretion which I have to refuse the application for the adjournment.

6. In this matter, the Minister asks for an order for costs of the application to adjourn.  Again, whilst I am sympathetic to the position of the appellants, the application has been made and the Minister opposed it and successfully.  In the result, an order should be made that the first and second appellants pay the Minister’s costs of the application to be taxed or as agreed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.

Associate:       

Dated:       31 July 2019

SCHEDULE OF PARTIES

WAD 122 of 2019
Appellants
Fourth Appellant:	AWY18
Fifth Appellant:	AWZ18
Sixth Appellant:	AXA 18