NAEX v Minister for Immigration and Multicultural Affairs

[2003] FCA 184

FEDERAL COURT OF AUSTRALIA

NAEX v Minister for Immigration & Multicultural Affairs [2003] FCA 184

NAEX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1272 OF 2002

MADGWICK J
6 FEBRUARY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1272 OF 2002

BETWEEN:	NAEX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	6 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.In accordance with O 32 r 2(1)(c) the application is dismissed.

2.The applicant to 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	N1272 OF 2002

BETWEEN:	NAEX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	6 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter, when the proceeding was called on for trial, the applicant was absent.  In fact, the applicant has been deported to Shanghai in the Peoples Republic of China.  It is very unlikely that he would wish to persist with this application.  It would appear to have little chance of success, to say the least of it.

2. An application was made to dismiss the proceeding as hopeless but, in accordance with principle, the applicant would be entitled to have notice of such a strike-out application and he had no such notice. 

3. I think the preferable course is to dismiss the proceeding under O 32 r 2(1)(c).  This will have the effect that the court could, if thought fit, set aside that order pursuant to O 35 r 7(2)(a). 

4. Accordingly, I so order and the applicant is to pay the respondent's costs.

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

Associate:
Dated:            24 February 2003

No appearance by the Applicant.
Solicitor for the Respondent:	Mr Higgins of Clayton Utz
Date of Hearing:	6 February 2003
Date of Judgment:	6 February 2003