MZWNP v Minister for Immigration
[2005] FMCA 226
•1 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWNP v MINISTER FOR IMMIGRATION | [2005] FMCA 226 |
| PRACTICE AND PROCEDURE – Migration – dismissal for non-compliance with order pursuant to Rules 13.03(1) and (2) of the Federal Magistrates Court Rules 2001. |
| Applicant: | MZWNP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 822 of 2004 |
| Delivered on: | 1 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 1 March 2005 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Ms T Veschetti |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed pursuant to rule 13.03(1) and 13.03(2) of the Federal Magistrates Court Rules 2001.
The applicant shall pay the respondent's costs fixed in the sum of $6500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 822 of 2004
| MZWNP |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter by notice of motion, which was originally returnable on 22 February in 2005 the respondent seeks orders that the application be dismissed upon a number of bases but today has pursued the application based upon noncompliance with orders made by a registrar of the court on 20 October 2004 and has sought an order for dismissal pursuant to rule 13.03(1) and (2) of the Federal Magistrates Court Rules as a result of the applicant's failure to comply with orders 2 and 5 of the orders made by the registrar. Those orders made by the registrar were as follows:
(1)The applicant file and serve an amended application containing proper particulars of the grounds relied upon by 17 November 2004.
(2)The applicant file and serve contentions of fact and law by 24 November 2004.
It is clear from a perusal of the court file that the applicant, who has not appeared this day, has not complied with those orders. When the matter was before me on 22 February 2005 the respondent's representative, Mr Mosby, quite properly brought to the court's attention the potential for confusion in relation to the hearing date which arose as a result of an error in correspondence from the respondent to the applicant which would appear to be in conflict with the notice of listing. Having quite properly brought that matter to the attention of the court I decided then to adjourn the matter for further hearing this day and a notice of listing was forwarded by the court to the applicant at the last known address advising of this hearing.
To further ensure that the matter had properly been brought to the attention of the applicant the respondent appropriately has undertaken service of the notice of listing and has this day filed in court an affidavit sworn by Nenad Jevric confirming notification of today's hearing date to the applicant at the applicant's last known address. I am satisfied the applicant has received appropriate notice of the listing this day.
From a perusal of the file it is clear that the orders made on 20 October 2004 have not been complied with and I note that on that day a further order was made in the following terms:
(3)If an amended application is not filed in accordance with order 2 above the respondent has liberty to apply to the court to have the matter listed before a federal magistrate with the intention of making an application for summary dismissal of the proceeding as a consequence of the applicant's noncompliance with an order of the court.
In my view that order, combined with the other orders, which have clearly been the subject of noncompliance, justifies an order being made by the court in the type sought in the notice of motion that the application be dismissed with costs.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 1 March 2005
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