Gudipudi v Minister for Immigration and Multicultural Affairs

[2001] FCA 1438

FEDERAL COURT OF AUSTRALIA

Gudipudi v Minister for Immigration and Multicultural Affairs [2001] FCA 1438

TIRUMALARAO GUDIPUDI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V303 of 2001

WEINBERG J
12 OCTOBER 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V303 OF 2001

BETWEEN:	TIRUMALARAO GUDIPUDI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WEINBERG J
DATE OF ORDER:	12 OCTOBER 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s cost.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V303 of 2001

BETWEEN:	TIRUMALARAO GUDIPUDI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WEINBERG J
DATE:	12 OCTOBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court a notice of motion filed on 9 October 2001 on behalf of the respondent seeking orders that this application be dismissed.  The respondent invokes O 10 r 7 of the Federal Court Rules which relevantly provides as follows:

   “(1)     Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice:

   (a)if the party in default is an applicant — for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding;

   …

   (2)      The Court may make an order of the kind mentioned in subrule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just.

   …”

2. The respondent’s motion is supported by an affidavit affirmed by Jacqueline Anne Davis.  Ms Davis is a solicitor in the employ of the Australian Government Solicitor who has the care and conduct of this matter on the respondent's behalf. 

3. Ms Davis deposes that the applicant is a citizen of India who applied for a Student (Temporary (Class TU)) visa on 25 July 2000.  The application was refused by a delegate of the Minister on 19 September 2000.  On 23 October 2000 the applicant filed an application for review of that decision with the Migration Review Tribunal (“the Tribunal”).  On 30 March 2001 the Tribunal affirmed the initial decision.

4. On 27 April 2001 the applicant, who was then represented by a firm of solicitors, filed an application for an order of review in this Court.  On 5 June 2001 proposed minutes of consent orders, duly signed on behalf of each party, were faxed to the Court.  On 6 June 2001 I made orders in accordance with the proposed minutes.  I ordered, inter alia, that the applicant file and serve his contentions of fact and law by 13 July 2001. 

5. On 1 August 2001 the applicant's solicitors wrote to Ms Davis enclosing, by way of service, a copy of a notice informing her that they no longer acted on behalf of the applicant.  As a result of receiving this notice, on 8 August 2001 Ms Davis wrote to the applicant at his last known address requesting that he ensure that he made arrangements to file and serve contentions of fact and law immediately.  She enclosed a copy of the sealed orders of this Court dated 6 June 2001.  Ms Davis also advised the applicant that if he either failed to comply with the terms of my orders or failed to contact her within 14 days the respondent would apply to the Court pursuant to O 10 r 7 of the Rules to have the application dismissed with costs.

6. There was no response to Ms Davis’ letter of 8 August 2001.  On 17 September 2001 she telephoned Telstra directory assistance and obtained a telephone number for T. Gudipudi in East Brunswick.  The telephone number provided to her was [phone].  On 17 September 2001 she telephoned that number.  She spoke to a male person who identified himself as "Reddy".  She identified herself by name and said that she was a solicitor working for the Australian Government Solicitor.  She asked to speak to the applicant.  She was told that Mr Gudipudi was not home.  She told “Reddy” that it was important that she contact the applicant regarding his application to the Court.  “Reddy” confirmed that he was aware that Mr Gudipudi had instituted proceedings regarding his visa status and agreed that he would tell Mr Gudipudi to ring Ms Davis as soon as possible.  She provided him with a telephone contact number.  “Reddy” also  confirmed that Mr Gudipudi lived at 5/171 Barkly Street, East Brunswick. 

7. On 18 September 2001 Ms Davis again wrote to the applicant.  She asked him to telephone or otherwise contact her immediately to discuss his intentions as to the further progress of this matter.  She advised the applicant of the respondent's intention to move to have the application dismissed if he failed to contact her within seven days. 

8. On 8 October 2001 Ms Davis wrote yet again to the applicant advising him that the respondent would move to have the application dismissed when the matter was next mentioned before the Court on 12 October 2001 because of the applicant’s failure to comply with the Court’s orders.  She advised the applicant that this course would involve the respondent in incurring additional costs.  She requested him to contact her urgently, and certainly prior to 12 noon on 9 October 2001.  She said that if the applicant failed to contact her by that time she would proceed to file and serve a notice of motion and supporting affidavit.

9. At approximately 5.00 pm on 8 October 2001 Ms Davis caused a copy of that letter to be couriered to the applicant's address in Barkly Street, East Brunswick.  She later caused inquiries to be made and was informed by the courier company that the letter was delivered at 5.40 pm that evening. 

10. Ms Davis deposed that she had not had any contact with the applicant since 1 August 2001.  She had not received his contentions of fact and law and she sought to have the application dismissed pursuant to O 10 r 7.

11. On the morning of 12 October 2001 the application was called on for directions and hearing of notice of motion.  The applicant did not appear.  Ms Davis was given leave to file an affidavit of service of the notice of motion which made it clear that the applicant had knowledge of the nature of the respondent’s application to this Court. 

12. It is clear that the applicant has failed to comply with the orders which I made on 6 June 2001.  No explanation has been proffered to the Court for what appears to be a wilful disregard on the part of the applicant of his obligations to ensure that his application may be heard in a timely and efficient manner.  The applicant has had many opportunities to establish contact with Ms Davis, or the Court, to explain any difficulties which might be preventing him from complying with his obligations.  In my view the respondent has demonstrated that the only appropriate course to adopt in relation to this proceeding is to order that it be dismissed. 

13. I should add that I have taken the precaution of reading the Tribunal’s reasons for decision in order to determine whether there might be some type of reviewable error in those reasons.  I am unable to discern such error. 

14. In all the circumstances it seems to me that the respondent is entitled to the relief which he seeks. I propose to make orders accordingly. 

15. The orders of the Court are:

    1.        That the application be dismissed.

    2.        That the  applicant pay the respondent's costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:             12 October 2001

No appearance for the applicant
Solicitor for the Respondent:	Ms J Davis
Australian Government Solicitor
Date of Hearing:	12 October 2001
Date of Judgment:	12 October 2001