FEDERAL CIRCUIT COURT OF AUSTRALIA
| COB16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 152 |
| Catchwords: PRACTICE & PROCEDURE – Application in a case to set aside a notice of discontinuance – whether the power to set aside is enlivened – no power to set aside – application in a case dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477 Federal Circuit Court Rules 2001 (Cth), r.16.05 |
| First Applicant: | COB16 |
| Second Applicant: | COC16 |
| Third Applicant: | COD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2449 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 22 November 2017, 5 December 2017, and 15 December 2017 |
| Date of Last Submission: | 15 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Teoh |
| Solicitors for the Applicant: | Weighbridge Lawyers |
| Solicitors for the Respondents: | Mr J McGovern of Clayton Utz |
ORDERS
The Application in a Case made on 23 October 2017 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $3,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2449 of 2016
| COB16 |
First Applicant
| COC16 |
Second Applicant
| COD16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an Application in a Case (“AIC”) made on 23 October 2017 that, in effect, seeks that the Notice of Discontinuance (“NOD”) filed by the applicants in this matter on 27 January 2017, and orders made by the Court on 1 February 2017, be set aside pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
The background to the AIC is as follows.
An application was made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 9 September 2016, which sought an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 27 June 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to…
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- Case
- [2018] FCCA 152
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether it possessed the power to set aside a notice of discontinuance that had been filed by the applicant. This question arose in the context of the applicant's attempt to revive their application for an extension of time after having previously discontinued it.
Judge Nicholls determined that the Court did not have the inherent or statutory power to set aside a notice of discontinuance once it had been validly filed. The Court reasoned that the filing of a notice of discontinuance brings the proceeding to an end, and there is no provision in the relevant rules or legislation that permits a party to unilaterally withdraw a discontinuance. Consequently, the application to set aside the notice of discontinuance was dismissed.
Orders
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Decision
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