FEDERAL COURT OF AUSTRALIA
Clark v Minister for Immigration and Border Protection [2017] FCA 622
File number: QUD 165 of 2017 Judge: REEVES J Date of judgment: 11 May 2017 Legislation: Federal Court Rules 2011 (Cth) Date of hearing: 11 May 2017 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 3 Counsel for the Applicant: The Applicant did not appear Counsel for the Respondent: Mr M Hickey Solicitor for the Respondent: Clayton Utz ORDERS
QUD 165 of 2017 BETWEEN: ALBERT WILLIAM HECTOR GEORGE CLARK
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
REEVES J
DATE OF ORDER:
11 MAY 2017
THE COURT ORDERS THAT:
1.Under r 5.23(1)(b) of the Federal Court Rules 2011 (Cth), the whole of the proceeding is dismissed.
2.The applicant is to pay the respondent’s costs of the proceeding, to be agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
REEVES J:
This matter was listed for a case management hearing on Thursday, 27 April 2017. Arrangements were made for the applicant, Mr Clark, to appear by videoconference facility from the Christmas Island detention centre where he is presently detained. On that occasion, there was no appearance by Mr Clark. My associate was subsequently informed by Border Force officers that Mr Clark refused to leave his cell and attend the hearing. The matter was therefore adjourned to 11 May 2017.
On that date, the same arrangements were made for Mr Clark to appear by videoconference facility from the Christmas Island detention centre. However, when the matter was called on, I was informed by Leading Border Force officer, Mr Jamie Mark Beck, that Mr Clark had again refused to leave his cell and attend the hearing. I adjourned briefly and I asked Mr Beck to inform Mr Clark that if he did not attend the hearing, his application would be dismissed in default of his appearance. On resuming the hearing, I was informed by Mr Beck that that information had been communicated to Mr Clark and that he still refused to attend the hearing.
Accordingly, I find that Mr Clark is in default under r 5.22(c) of the Federal Court Rules 2011 (Cth) by failing to attend this hearing. Further, on the application of the Minister, the respondent, I order that this proceeding be dismissed under r 5.23(1)(b)(i). I also order that Mr Clark pay the Minister’s costs of the proceeding, to be agreed or taxed.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 31 May 2017
- AGLC
- Clark v Minister for Immigration and Border Protection [2017] FCA 622
- Case
- [2017] FCA 622
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to decide was whether Mr. Clark's repeated refusal to attend the hearing constituted a default under the Federal Court Rules 2011. Specifically, the court needed to assess whether the applicant's non-attendance justified the dismissal of his application and the imposition of costs against him. The court also needed to determine if the dismissal and costs order complied with the provisions of the Federal Court Rules.
Justice Reeves concluded that Mr. Clark's refusal to attend the hearing constituted a default under rule 5.22(c) of the Federal Court Rules 2011. The judge noted that despite attempts to facilitate Mr. Clark's participation in the hearing, he had consistently refused to leave his cell and attend. Consequently, the court dismissed the proceeding under rule 5.23(1)(b)(i) and ordered Mr. Clark to pay the Minister's costs of the proceeding, to be agreed or taxed. Justice Reeves' decision was based on the procedural rules of the Federal Court and the applicant's failure to comply with a fundamental requirement to appear at his scheduled hearing.
The final orders of the court included the dismissal of the whole proceeding and a direction that Mr. Clark pay the respondent’s costs of the proceeding, to be agreed or taxed. The court's decision was made in accordance with the Federal Court Rules, reflecting the procedural consequences of Mr. Clark's non-attendance at the scheduled hearings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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