NAJX v Minister for Immigration
[2003] FMCA 533
•24 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAJX v MINISTER FOR IMMIGRATION | [2003] FMCA 533 |
| PRACTICE AND PROCEDURE – MIGRATION – Application for vacation of orders dismissing the principal application with costs in default of appearance by the applicant at trial – application refused. |
Federal Magistrates Court Rules 2001 (Cth)
| Applicant: | NAJX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ579 of 2003 |
| Delivered on: | 24 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 24 November 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
No appearance by the applicant
| Solicitors for the Respondent: | Ms A Houlton Sparke Helmore |
ORDERS
The application filed on 6 November 2003 seeking the vacation of orders made on 9 October 2003 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application filed on 6 November 2003, fixed in the sum of $500
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ579 of 2003
| NAJX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application filed on 6 November 2003 seeking the vacation of orders made by me on 9 October 2003, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) pursuant to Order 32, rule 2(1)(c) of the Federal Court Rules and also ordering the applicant to pay the respondent's costs and disbursements, fixed in the sum of $3,000.
Annexed to the present application is a short affidavit by the applicant in which he states, relevantly, that on the date fixed for the hearing of his principal application, he was sick. The applicant states that he received a telephone call from the Federal Magistrates Court; he said he was sick and unable to attend the hearing. In the above circumstances, he seeks an opportunity to give oral evidence before the Court. It is unclear whether the request to give oral evidence relates to the hearing of the present application or the principal application, or, possibly, both.
There was no appearance by the applicant when the present matter was called on for hearing at 2.18pm and again at 2.22pm. I have decided to proceed to hear the present application in the absence of the applicant, noting that he was made aware of today's hearing by letter dated 11 November, 2003 from the Court to the applicant at the address for service shown in his application filed on 6 November 2003.
The present application is opposed by the Minister who relies upon the affidavit of Althea Jane Houlton made on 24 November 2003 and filed in court pursuant to leave this afternoon. In her affidavit, Ms Houlton deposes as to facts and circumstances leading up to the hearing on 9 October 2003. This includes reference to three directions hearings in the principal proceedings. The applicant failed to attend the first two, but did attend the third directions hearing.
In paragraph 15 of her affidavit, Ms Houlton deposes as to a telephone conversation between herself and a man identifying himself as the applicant. I was told the substance of this conversation on 9 October, 2003 by Mr Lloyd, who appeared on that day for the Minister.
I accepted on the basis of what I had been told that the applicant had claimed illness in a telephone conversation with Mr Lloyd's instructing solicitor, Ms Houlton, and that he referred in particular to a sore leg joint. He was warned by Ms Houlton that if he failed to attend the hearing on 9 October 2003 he could expect that the Minister would apply for the dismissal of his application.
I am not aware of any telephone conversation between the applicant and the Court on the day of the hearing on 9 October 2003. When there was no appearance by the applicant I adjourned briefly so that an attempt could be made to contact him on the telephone number he had given. That attempt was unsuccessful. In those circumstances, I considered it appropriate to dismiss the principal application for default of appearance pursuant to the Federal Court Rules. Having regard to the affidavit of Ms Houlton, I confirm my view that the dismissal of the principal application in default of appearance by the applicant was appropriate.
There is nothing in the application and supporting affidavit filed by the applicant on 6 November 2003 which persuades me that I should vacate the orders I made on 9 October 2003. Although the applicant may well have been suffering from a sore leg on that day, he was well aware that he should make some attempt to attend court or at least contact the Court to seek an adjournment. He could have attended by telephone. He had attended a previous directions hearing by telephone.
There is no reliable evidence before me of any attempt by the applicant on 9 October 2003 to contact the Court to explain the circumstances and to seek an adjournment. The short statement in his affidavit in the present application is entirely insufficient to persuade me that I should grant the relief he seeks.
I will therefore dismiss the present application with costs. In that regard, I note that Ms Houlton has sought an order for costs fixed in the sum of $500. That is a modest amount and I agree that the sum is appropriate.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 November 2003
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