Huluba, D. v Minister for Immigration & Ethnic Affairs

[1994] FCA 799

JUDGMENT No. ...... 7WJ , ..,,..,,,, , 9~ , ,.

NOT FOR DISTRIBUTION

FEDERAL COURT OF AUS-IA	1
NEW SOUTH WALES DISTRICT REGISTRY)	No. 529 of 1993
GENERAL DIVISION	1

BETWEEN :
DANIEL HULUBA

Applicant

AND :

MINISTER FOR IMMIGRATION

FEDERAL COURT OF h ETHNIC AFFAIRS

AUSTRALIA

PRINCIPAL

REGISTRY Respondent

CO-:	SACKVILLE J.
PLACE :	SYDNEY
DATE :	FRIDAY, 28 OCTOBER 1994

FOR -NT

HIS HONOUR: In this matter there is a notice of motion that has been filed by leave of the Court today. That notice of motion is filed on behalf of the applicant in the proceedings. The notice of motion seeks to vacate the hearing date which is set down for next Wednesday, 2 November 1994. It also asks that the matter be re-listed for hearing on what is described as the next "calendar of the Court".

In support of the notice of motion, Mr Icao who appears on behalf of the applicant, has read an affidavit sworn by the applicant. That affidavit indicates that his previous solicitor, M r Muir,	costs of pursuing the application. It appears that Mr Muir filed	ceased to represent him by reason of his inability to meet the
a notice of ceasing to act on 26 October 1994. The affidavit indicates that the applicant is mainly relying on support from friends in Australia. It also indicates that he has engaged the services of his current solicitors on a pro bono basis. The affidavit further indicates that all records are with Mr Muir, the former solicitor, and that Mr Muir has apparently not released custody of those records.
The history of the matter indicates that it was originally set down for hearing on 11 February 1994 in accordance with short minutes of order that were made by consent on 22 October 1993. On 24 December 1993 consent orders were entered in the Court that involved a fresh timetable. By implication the orders contemplated that the date for hearing previously set down could be vacated. The matter was listed before the Court for a directions hearing on 14 April 1994. At that time a further timetable was directed that involved the applicant filing and serving affidavits by 5 May 1994, and the respondent filing affidavits in response by 19 May 1994. Leave was grantedto the parties to obtain a hearing date.
respondent, that the respondent had acquiesced in the delay in I was told by MS Noonan, who appeared on behalf of the
setting the matter down for a fresh hearing because of an application made by the applicant under certain concessional provisions apparently available to him. That application was duly lodged. However it was refused on 22 July 1994.
I resume the Court chronology. This indicates that on 1
September 1994 further directions were given for a timetable by consent. These involved the applicant filing and serving affidavits by 15 September 1994 and a reply by the respondent by
29 September 1994. Again the parties were given leave to
approach the Registrar for a date for hearing. In consequence of that leave it appears that the date of 2 November 1994 was fixed.
As far as I can ascertain nothinq further took place by way of preparation for the hearing in this case until the change of solicitors and the consequential notice by Mr Muir that he ceased to act in the proceedings. MS Noonan advised me from the bar table that the respondent's representatives had made telephone calls on a number of occasions to ascertain when the evidence was to be forthcoming.
I have indicated that, if this matter involved ordinary civil litigation, my inclination would be to require it to proceed on the allotted day. The orderly disposition of litigation before the Court is a matter of very considerable importance. It is not
open to the parties to litigation simply to ignore directions that have been given in order to meet either their own
convenience or difficulties of which the Court is unaware and in respect of which no advice is provided to the Court.
However, this is a matter involving immigration issues. The consequence of the litigation may be that the applicant will be required to leave the country. I have been advised, although there is no evidence of it, that in all probability the applicant holds a bridging visa pending the outcome of these proceedings. I have also been advised that the respondent has given an undertaking not to deport the applicant untll the termination of the proceedings.
Having regard to the fact that the proceedings have not previously had a hearing date vacated on the application of the applicant, albeit with some reluctance I am disposed to grant the application to vacate the hearing date. I do so on the basis that the matter will need to be prepared for trial. A short timetable should be entered into. MS Noonan has assisted in this respect by offering to provide documents within the possession of the respondent that bear upon the application and that offer, I have no doubt, will be taken up by the solicitors now acting for the applicant.
I should make it abundantly clear that it is expected that the applicant will abide by the directions that the Court gives. If there is a failure to comply without good and sufficient reason being shown to the Court the applicant can expect that a hearing
date that is designated will go ahead, even if the case is not ready to proceed. There is a limit even in immigration matters as to the extent to which proceedings can be prolonged and
hearing dates vacated.
RECORDED : NOT TRANSCRIBED

An application has been made by MS Noonan on behalf of the

respondent for the costs of today and the costs thrown away by the vacation of the hearing. Mr Icao has pointed out to me, quite properly, that the affidavit evidence indicates that the applicant is unemployed and therefore has very limited, if any, resources. However, this is a matter that goes more to the enforceability and utility of any order, rather than whether the order ought to be made in the first place. The proceedings have been vacated in consequence of an application by the applicant. There has been a clear non-compliance over a period of time with orders of the Court. In these circumstances it is appropriate that the applicant pay the costs of the proceedings today and the costs thrown away by reason of the vacation of the hearing date, and I so order.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate: [-A&

Dated: 1 ~ovember, 1994

Heard:	28 October 1994
Place:	Sydney
Decision:	28 October 1994
Appearances:	M r Jesse Icao, Belen Oag, Solicitor, for the
applicant.
MS J Noonan of The Australian Government Solicitor appeared for the respondent.