Hu v Department of Immigration

[2009] FMCA 998

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU v DEPARTMENT OF IMMIGRATION & ANOR [2009] FMCA 998

ADMINISTRATIVE LAW – Default in compliance with Court orders.

Applicant: YUAN YUAN HU

First Respondent: DEPARTMENT OF IMMIGRATION & CITIZENSHIP

Second Respondent: THE OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY

File Number: BRG 531 of 2009

Judgment of: Wilson FM

Hearing date: 2 October 2009

Date of Last Submission: 2 October 2009

Delivered at: Brisbane

Delivered on: 2 October 2009

REPRESENTATION

Counsel for the Applicant: N/A

The Applicant in person: Mr Hu

Counsel for the Respondent: N/A

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the respondents file and serve a response and supporting affidavit no later than 23 October 2009.

2. That if respondents or either of them wishes to make an application in a case, it be filed and served together with a supporting affidavit no later than 23 October 2009, and made returnable at 10.00am 20 November 2009.

3. That any further material to be relied upon by the applicant be filed and served no later than 6 November 2009.

4. That costs of today are reserved.

5. If no interlocutory application is brought by the respondents pursuant to these orders the matter will be allocated a final hearing date on 20 November 2009 in the Federal Magistrates Court of Australia at Brisbane.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 531 of 2009

YUAN YUAN HU

Applicant

And

DEPARTMENT OF IMMIGRATION & CITIZENSHIP

First Respondent

THE OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant seeks judicial review of a decision of the Migration Agents Registration Authority.  That application was filed on 13 August 2009.  When the matter came before the court on 4 September 2009 an order was made that the applicant, in effect, particularise the decision or decisions that he sought to challenge and the grounds upon which he sought to do so.  The applicant complied with that order by filing three affidavits on 7 September 2009.  The respondents were ordered to file and serve a response and supporting affidavit by no later than 25 September 2009, and if they wished to bring an application in a case, that such application be made returnable today.

2. The respondents have not complied with the orders made on 4 September 2009.  Mr Yuile, who appears on behalf of the respondents, has informed the court that due to a reorganisation of the second respondent, there has been some difficulty in obtaining instructions, and, in view of the novel nature of the applicant’s claim, the second respondent has proceeded cautiously in respect of it.  Be that as it may, the conduct of the second respondent ought not unduly delay the applicant in the prosecution of his litigation. 

3. The two options available to me today are to allow the respondents further time to put on their response and supporting affidavit and to bring any interlocutory application that they may be advised to bring, or to make default orders in favour of the applicant.

4. I am not prepared to shut out the respondents from defending the proceedings, given that their delay has been neither excessive nor contumelious.  Another possibility is to set the matter down for final hearing on a date next available to the court.  However, in reality that will not be until the new calendar year.  In practical terms, therefore, not being prepared to summarily deal with the applicant’s claim, the choices are between setting the matter down for a default final hearing today or allowing the respondents some further time to put their house in order.  It seems to me that the orderly disposition of the litigation favours the second of those alternatives.  If a final hearing of the matter is not necessary, then there is no point in the court allocating a date for it.

5. The matter ought not be allowed, however, to drag on unnecessarily.  The applicants are only one week late in the delivery of their material.  Mr Yuile seeks further time in which to file material.  I will allow such time. 

6. I will make a notation that if no interlocutory application is brought by the respondents pursuant to these orders, the matter will be allocated a final hearing date on 20 November next.  The matter is adjourned to 20 November at 10 am.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate:  Lynnette Chin

Date:  8 October 2009