NACW v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 822

FEDERAL COURT OF AUSTRALIA

NACW v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 822

Federal Court Rules Order 52 rule 38A(2)

NACW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 573 OF 2003

HELY J
5 AUGUST 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 573 OF 2003

BETWEEN:	NACW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	5 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 573 OF 2003

BETWEEN:	NACW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	5 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 15 July 2003 I made an order dismissing the appeal in this matter with costs.  The circumstances in which I made that order appear from a brief judgment which I delivered on that date.  By notice of motion filed on 22 July 2003 the applicant seeks to set aside the order under Order 52 rule 38A(2) of the Federal Court Rules (‘the Rules’).  That motion was supported by an affidavit the applicant filed on 22 July 2003 asserting that the applicant's failures to appear on the dates fixed for the hearing of the appeal were due to mechanical problems with his motor vehicle and his inability to secure a seat on a Countrylink train service, or on a bus service.

2. The motion was made returnable before me at 9.30 am this morning.  Exhibit 1 consists of facsimile transmission sent by the respondent’s solicitors to the applicant on 22 July 2003, and a certified letter posted to the applicant on 23 July 2003 informing him that the matter had been listed for hearing at 9.30 am this morning and that he was required to attend in person on this occasion.  When the matter was called on at 9.30 am the applicant failed to appear.  I decided to stand the matter down for fifteen minutes in case he had been delayed in arrival.  When the matter was called on for hearing again at 9.45 am the applicant again failed to appear.

3. I was informed by Ms Hanstein, the solicitor for the respondent, that in the intervening period the applicant had been contacted by telephone, and that Mrs Ali, the interpreter, who was here this morning spoke to him on that occasion.  In the course of that conversation the applicant informed Mrs Ali that he had received the letter, although there appears to be some assertion that he did not receive the fax.  In those circumstances, I am satisfied that the applicant was aware that his motion was listed for hearing this morning.  If he chooses, once again, not to appear that is a matter for him.

4. In the circumstances I propose to accede to the respondent's submission that the motion should be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             6 August 2003

No appearance by the applicant
Mrs F Ali (Punjabi interpreter)
Counsel for the Respondent:	Ms S Hanstein
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 August 2003
Date of Judgment:	5 August 2003