NAMT v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 900

FEDERAL COURT OF AUSTRALIA

NAMT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 900

NAMT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 2299 of 2003

ALLSOP J
9 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2299 of 2003

BETWEEN:	NAMT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	9 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed pursuant to Order 52, rule 38A (1) (c) of the Federal Court Rules.
2. The appellant pay the respondent’s costs fixed at the sum of $1,500.00

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 2299 of 2003

BETWEEN:	NAMT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	9 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter has been called on for hearing of the appeal today.  The appellant has not appeared.  The respondent has read an affidavit of Sharon Elizabeth Hanstein sworn 7 July 2004, which discloses that the appellant has left the country, having gone back to Latvia and left no forwarding address.  The respondent’s solicitors have received no correspondence from the appellant or had any communication with him since the directions hearing in this matter on 3 February 2004.  It would appear that the appeal is not to be pressed and an order is sought under Order 52, rule 38A(1)(c) of the Federal Court Rules which is in the following terms:

   1) If a party is absent when an appeal is called on for hearing, the Court may:

   …
       (c) if the absent party is an appellant or cross-appellant, dismiss the appeal
          or cross-appeal;

2. By reason of the power in that rule and the evidence before me, I dismiss the appeal under Order 52, rule 38A(1)(c) and I order that the appellant pay the respondent's costs of the appeal.

3. There is evidence before me in the form of exhibit 1, that the solicitor-client costs in relation to this matter are over $2,000.00.  That appears to be a sum that is reasonable in all the circumstances for the bringing on of the matter to an appeal, although there was some notice that there would in all likelihood be no appearance for the appellant today.  I therefore think it appropriate to fix an amount of costs to be paid.  In circumstances where the appellant has apparently abandoned the appeal and, without indication to any party, left the country without any apparent regard for the procedure upon which he himself has embarked I think it appropriate to accede to the submission of Mr Cramer for the respondent and fix the costs at $1,500.00.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             12 July 2004

Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 July 2004
Date of Judgment:	9 July 2004