NACW v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1037

FEDERAL COURT OF AUSTRALIA

NACW v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1037

NACW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 573 OF 2003

WHITLAM J
5 SEPTEMBER 2003
SYDNEY

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

BETWEEN:	NACW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	5 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is refused with costs.

2.The Registrar refuse to accept any notice of motion filed by the appellant seeking an order under O 52 r 38(2) of the Federal Court Rules without the leave of a Judge first had and obtained.

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	N573 OF 2003

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

JUDGE:	WHITLAM J
DATE:	5 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant filed a notice of motion on 21 August 2003 seeking an order, the effect of which would be to set aside orders made by Hely J under O 52 r 38A of the Federal Court Rules dismissing his appeal.  Those orders were made on 15 July 2003.  The notice of motion was made returnable today at 2:15 pm.

2. The records of the Court show that a similar motion was filed on 22 July 2003 and made returnable on 5 August 2003.  The appellant did not appear on that date and he has not appeared today.  He indicated in correspondence to both the respondent’s solicitors and the Registry this morning that he would not appear and purported to withdraw his notice of motion.

3. On the face of it, it is apparent that the notice of motion made returnable today is an abuse of process and there is a reasonable apprehension from the tone of the correspondence annexed to the affidavit of Ms Stone, a solicitor of the respondent, filed in Court today, that the appellant will make a future application of a similar sort.  That application will also be an abuse of process.  I do not think that it is appropriate that such a notice of motion be accepted for filing unless leave of a Judge is first given.

4. Accordingly, the orders I make are:

   1.the application is refused with costs;

   2.the Registrar refuse to accept any notice of motion filed by the appellant seeking an order under O 52 r 38(2) without the leave of a Judge first had and obtained.

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

Associate:

Dated:             26 September 2003

The appellant did not appear.
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 September 2003
Date of Judgment:	5 September 2003