CRA16 v Minister for Immigration and Border Protection

[2019] FCA 274

FEDERAL COURT OF AUSTRALIA

CRA16 v Minister for Immigration and Border Protection [2019] FCA 274

Appeal from:	CRA16 v Minister for Immigration [2018] FCCA 2877
File number:	WAD 472 of 2018
Judge:	MARKOVIC J
Date of judgment:	27 February 2019
Legislation:	Federal Court Rules 2011 (Cth) r 36.75(1)(a)(i)
Date of hearing:	27 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:	5
Counsel for the Appellant:	The Appellant did not appear
Counsel for the First Respondent:	Ms R Graycar
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

WAD 472 of 2018

BETWEEN:

CRA16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	27 FEBRUARY 2019

THE COURT ORDERS THAT:

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

2.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 matter was listed for hearing today at 10.15 am.  Upon the matter being called, including three times outside the courtroom, there was no appearance on behalf of or by the appellant.  Accordingly, I adjourned the proceeding for 10 minutes to enable the appellant to attend in the event that he was running late.  At 10.31 am, when the hearing resumed, there was still no appearance by or on behalf of the appellant. 

2. There is evidence before me, in the form of a letter dated 20 February 2019, from the solicitors for the first respondent, the Australian Government Solicitor, to the appellant which I was informed by counsel for the first respondent was sent by express post.  This letter states that the appeal was listed for hearing at 10.15 am on 27 February 2019 and provides the address of the Court.  That letter enclosed, by way of service, a copy of the first respondent’s submissions and concluded as follows:

   Please note, should you or a lawyer acting on your behalf fail to appear on the above date, orders may be sought that your appeal be dismissed with costs, without further notice.

3. I was also informed by the counsel appearing for the first respondent that both the appellant and the first respondent were informed of today’s hearing date by email dated 14 January 2019 from the Court, which was, in the case of the appellant, sent to the email address which appears on page one of his notice of appeal. 

4. In light of the appellant’s failure to appear at the hearing, the first respondent made an application for the appeal to be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) (Rules).  Rule 36.75(1)(a)(i) relevantly provides that if the appellant is absent when an appeal is called on for hearing the opposing party may apply to the Court for an order that the appeal be dismissed.

5. I am satisfied that the appellant was notified of the date and time for hearing today. As he has failed to appear, I will make the order sought by the first respondent and will dismiss the appeal pursuant to r 36.75(1)(a)(i) of the Rules. The first respondent has also sought an order that the appellant pay his costs. I will also make an order to that effect.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate:

Dated:       1 March 2019