BDU18 v Minister for Home Affairs

[2019] FCA 284

FEDERAL COURT OF AUSTRALIA

BDU18 v Minister for Home Affairs [2019] FCA 284

Appeal from:

BDU18 v Minister for Home Affairs [2018] FCCA 2521

File number:

NSD 1778 of 2018

Judge:

MARKOVIC J

Date of judgment:

28 February 2019

Legislation:

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)

Date of hearing:

28 February 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

6

Counsel for the Appellant:

The Appellant did not appear

Solicitor for the First Respondent:

Ms C Saunders of DLA Piper Australia

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1778 of 2018

BETWEEN:

BDU18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	28 FEBRUARY 2019

THE COURT ORDERS THAT:

1.Grant leave to the first respondent to file in Court the affidavit of Kim Mai Nguyen affirmed 26 February 2019 with a copy to be filed electronically by 4.00 pm on 1 March 2019.

2.Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) the appeal be dismissed.

3.The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1. This appeal was listed for hearing before me today at 2.15 pm. When the matter was called on for hearing, including three times outside the courtroom, there was no appearance by or on behalf of the appellant. Accordingly, the first respondent seeks an order, pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), that the appeal be dismissed. The first respondent relies on an affidavit affirmed by Kim Mai Nguyen on 26 February 2019.

2. Ms Nguyen’s evidence is that on 21 February 2019 she caused a letter dated 21 February 2019 (21 February Letter), enclosing by way of service a sealed copy of the first respondent’s written submissions and list of authorities, to be served on the appellant at his address for service included in the appellant’s notice of appeal filed on 24 September 2018 (Notice of Appeal), which is an address in Wentworthville (Wentworthville Address), by courier.  In her affidavit Ms Nguyen also gave evidence that on 21 February 2019 she caused a sealed copy of the first respondent’s written submissions to be served by email on the appellant at the email address included both on the front page and under the heading “Appellant’s address” in the Notice of Appeal (21 February Email).

3. It appears, based on an email dated 6 November 2018 and sent from the email address included in the Notice of Appeal to the first respondent’s solicitors, that the appellant no longer resides at the Wentworthville Address.  In that email, which was before me in evidence, a person who signed off as “Thileephan. 0” wrote:

   Hi, I’m not the person. My name thileephan puvanenthirarasapuvanenthirarasa, He’s stay with me [at the Wentworthville Address] to 29/10/2018 then I don’t know he’s where’s, please remove my mail or contact my no [mobile phone number included].

4. The solicitor for the first respondent informed the Court from the bar table that they had attempted unsuccessfully to contact the appellant by telephone since November 2018, and that the appellant had not provided any different or new address to the first respondent.  In those circumstances, the only address available to the first respondent for service of the first respondent’s submissions is the address for service included in the Notice of Appeal, being the Wentworthville Address, and the email address also included by the appellant in his Notice of Appeal. 

5. I am satisfied that the first respondent has served his submissions and attempted to contact the appellant at the contact addresses provided by him.  I am also satisfied that the first respondent attempted to put the appellant on notice that if he did not appear at the time allocated for hearing of his appeal, the first respondent would make the application that he now makes to have the appeal dismissed.  In the 21 February Letter the appellant was informed that if he did not attend the first respondent “may seek to have the matter dismissed (with costs) for non-appearance”.  In the 21 February Email the first respondent’s solicitors once again notified the appellant that if he did not attend, they “may seek to have the matter dismissed (with costs) for non-appearance”.

6. In light of the matters set out above I will make the orders sought by the first respondent.

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

Associate:

Dated:       11 March 2019