Naed v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 198

FEDERAL COURT OF AUSTRALIA

NAED v  Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 198

NAED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1201 OF 2002

ALLSOP J
10 FEBRUARY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1201 of 2002

BETWEEN:	NAED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	10 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent's 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 1201 of 2002

BETWEEN:	NAED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	10 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter an application was filed in the Registry in Sydney on 13 November 2002.  Fees were waived.  A return date for first directions was inscribed on the court process as 2.15 pm on 5 December 2002.

2. The applicant gave an address for service as 23 Melbourne Street, “St John Park, New South Wales, 2176”.  The application was typed as was the identification of the applicant's name and the address for service.

3. On 5 December 2002 there was no appearance before the Registrar by the applicant.  Thereafter the Minister, through the solicitors retained by him, sent to the applicant at the nominated address for service, correspondence informing the applicant of orders made and of her non attendance.  Included in the letter was a notification that the matter had been stood over until 19 December 2002.

4. I should add that on 3 December 2002 the respondent Minister had sent to the applicant at the address for service on the application, notification of various agencies who might give legal assistance to the applicant. 

5. Before the matter came before the Court again, the Minister's solicitors received the notification letter back marked, "return to sender - unknown at that address".  Prior to the further directions hearing, Mr Higgins a solicitor at Clayton Utz, acting for the Minister, spoke to the case officer at the Department and was told that the address on the application was the address which the Department had for the applicant and that the Department had no telephone number.

6. On 18 December, Mr Higgins received back marked, "return to sender", the letter which he had sent informing the applicant of agencies to whom the applicant may turn for legal advice.  This letter which was returned had marked on it in hand an alternative possible address which could be attempted.  On 19 December the matter was called on again before Registrar Kavallaris.  The applicant did not attend.  Registrar Kavallaris made various orders for preparation of the matter for trial.

7. On 7 January 2003 a letter setting out the orders was sent to the applicant, both at the address named on the application and at the address suggested by whoever returned the second of the letters returned to Mr Higgins and marked, "return to sender".

8. On 13 January Mr Higgins received back the letter that had been sent out on 7 January to the alternative address marked, "return to sender".  At this point the Minister, perhaps unsurprisingly, sought to file a motion in this Court dismissing the application under O 10 r 3(2) or O 30 r 5(1)(a).

9. That notice of motion was filed on 30 January and is before me now.  In preparation for the hearing of that notice of motion the Minister, Mr Higgins, engaged a Mr Greg, a licensed commercial sub-agent, to serve the applicant with the notice of motion and Mr Higgins’ affidavit.  The two page affidavit of attempted service by Mr Greg details his attendance at Melbourne Road, St Johns Park, attempting to find lot 23 and number 23, asking people at a complex of 14 townhouses, which may well have been lot 23, whether they knew the applicant.  He records his attempts in the two page affidavit.

10. I accept that Mr Greg and Clayton Utz and through them the Minister, have made all possible attempts to locate the applicant.  The applicant has put an address for service on her application which makes it impossible for the Minister reasonably to find her whereabouts.  This may or may not be intentional.  In any event, she has exhibited no interest whatsoever in her own application before this Court.

11. In all the circumstances, I think that the Minister is entitled to an order dismissing the proceedings, under both O 10 r 3 sub-rule (2), and O 30 r 5 sub-rule (1)(a) for failure to attend a directions hearing and for want of prosecution, respectively; and I so order.  The costs of the notice of motion and the proceedings generally will be paid by the applicant to the Minister.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            10 February 2003

No appearance of the Applicant
Counsel for the Respondent:	R Higgins
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 February 2003
Date of Judgment:	10 February 2003