Deshi Bazaar Pty Ltd v Minister for Immigration

[2017] FCCA 299

FEDERAL CIRCUIT COURT OF AUSTRALIA

DESHI BAZAAR PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 299

Catchwords:
MIGRATION – Judicial review – applicant failed to appear.

Legislation:

Federal Circuit Court Rules 2001, rr.9.04, 13.03(1)(c), 44.12

Cases cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Applicant: DESHI BAZAAR PTY LTD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2159 of 2015

Judgment of: Judge Harland

Hearing date: 17 February 2017

Date of Last Submission: 17 February 2017

Delivered at: Melbourne

Delivered on: 17 February 2017

REPRESENTATION

The Applicant: No Appearance

Counsel for the Respondents: Ms Koya

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed 21 September 2015 be dismissed for non-appearance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,936.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2159 of 2015

DESHI BAZAAR PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was listed for a show-cause hearing this afternoon pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”). The applicant is a corporation and therefore, pursuant to r.9.04 of the Federal Circuit Court Rules, must be legally represented unless the corporation successfully seeks leave of the Court to appear unrepresented.  The applicant has been on notice that its competency to bring the application has been an issue since the first respondent filed its response on 5 October 2015.  The matter was first listed for directions and directions made by Registrar Ryan on 2 March 2016 requiring the applicant to file any amended application with additional grounds for review and affidavits by 4 April 2016.  The matter was listed for a hearing as to its competency on 12 June 2016. 

3. The application was originally listed for a competency hearing on 12 June 2016 at 11.30 before me, but that was subsequently relisted to 9 September 2016.  By consent, I made orders on 9 September 2016 adjourning the matter to today and ordering the applicant to file any amended application and affidavits by 10 October 2016.  On that occasion the applicant had a lawyer, but that lawyer has not ever filed a notice of appearance or any documents.  The applicant has not filed any documents in compliance with the two sets of orders made since filing his application for judicial review on 21 September 2015. 

4. The applicant wrote to the first respondent on 9 February 2017 seeking a postponement of today’s hearing, stating that his solicitor had advised him the day before that he would no longer be acting for him, therefore he was at a disadvantage.  The first respondent wrote back to the applicant opposing the adjournment.  The first respondent also made inquiries of chambers as to whether or not the applicant had in fact been represented in the proceedings, and it is apparent from the electronic file that the applicant’s lawyer in fact never filed any documents, as I referred to above. 

5. This matter has been on foot for many months.  The applicant has had ample opportunity to prepare his case.  He has failed to comply with orders on two occasions for filing material and has been on notice of the need to do so.  Despite being informed that the first respondent opposes the adjournment, when the director of the applicant company was called, there was no appearance.  It is now 2.23pm.  The matter was listed at 2.15pm.  I will treat the letter to the respondent as an application for adjournment, but I will refuse that application.  I refer to the High Court of Australia decision of Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 and the case-management principles that were discussed in that case.

6. This case has been listed for many months.  The matter has already been adjourned once at the applicant’s request in order for him to properly prepare his case.  He has failed to do so.  Procedural fairness requires the applicant to be given an opportunity to be heard.  It is not an opportunity to be heard at a time that is convenient to the applicant.  Rather, the applicant is required to comply with Court rules and a time-table.  He has had ample opportunity to participate in the proceedings. 

7. I further note, having read the Court Book and the application, the application itself does not disclose any grounds for judicial review. Rather, it seems to merely seek a merits review. I dismiss the application for nonappearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules.

8. The first respondent seeks costs both the costs reserved by me on the 9 September 2016 in the sum of $330 and costs today in accordance with the scale for a show-cause hearing of $3,606.  The first respondent is entitled to those costs, and I will order that the applicant pay the first respondent’s costs in the sum of $3,936.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 22 February 2017