Hawwash, R F v Minister for Immigration and Multicultural Affairs

[1998] FCA 995

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 98 of 1998

BETWEEN:	R F HAWWASH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	29 JULY 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

The application in this matter was filed on 16 February 1998.  It was handwritten and clearly inadequate in form.  The respondent filed an appearance on 26 February and in early March when the matter came on for directions before Lehane J an order was made that an amended application be filed.

On 5 May 1998 the firm of solicitors representing the applicant filed a notice of appearance and on 7 May an amended application was filed.  On 22 June Lehane J made orders that were to lead to the trial of this matter.  The applicant’s solicitors did not file any material in furtherance of the orders made.  Indeed it was only yesterday that the respondents filed the basic documentation necessary for the conduct of a hearing and this material was material that one would properly have expected to have been filed on behalf of the applicant.

On 6 July the applicant’s solicitors were notified the matter was listed for hearing.  On the evidence before me on 23 July the applicant was contacted by his then solicitors only to be informed that the solicitors had on 17 July filed a notice of ceasing to act.  On the material before me it was on that day, 23 July, that the applicant was first appraised he no longer had legal representation.  It is unnecessary for me to inquire into the sequence of events leading to that cessation of acting.  What is the case is that it has left the applicant in a position where as a matter of basic fairness to him it would be inappropriate to expect him to proceed to a hearing today.

He has indicated that he is unprepared to prosecute his application in that he does not comprehend fully the grounds that exist in the amended application.  He has also indicated that he intends to apply for legal aid in that matter.  I would not be optimistic given the nature of the case put in the application that a legal aid application will be successful and I consider it likely that the applicant will find it necessary either to engage legal assistance on his own account or alternatively to prosecute the application himself.

Nonetheless he needs to be given time at least to prepare himself for a hearing in this matter in the event of legal assistance not being forthcoming.  It is indeed regrettable that the course should be taken of adjourning a matter that has been set down for hearing.  I do not consider that any other course can be taken in the circumstances.  An adjournment does seem to me to be called for as a matter of basic fairness to the applicant irrespective of the merits of his application.

Accordingly I will adjourn the hearing of this application and notify the Chief Justice’s executive assistant for the matter to be set down at a future date for hearing.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated: 17 August 1998

Applicant appeared in person
Solicitor for the Respondent:	Mr G Peek, Australian Government Solicitor
Date of Hearing:	29 July 1998
Date of Judgment:	29 July 1998