NAXT v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 268

FEDERAL COURT OF AUSTRALIA

NAXT v Minister For Immigration And Multicultural And Indigenous Affairs

[2004] FCAFC 268

MIGRATION - no issue of principle

NAXT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N400 of 2004

NORTH, DOWSETT & CONTI JJ
20 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N400 OF 2004

BETWEEN:	NAXT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	NORTH, DOWSETT & CONTI JJ
DATE OF ORDER:	20 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed with 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	N400 OF 2004

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

JUDGES:	NORTH, DOWSETT & CONTI JJ
DATE:	20 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The respondent asks the Court to act under O 52 r 38A(1)(c) and to make orders dismissing the appeal in the absence of the appellant.  Mr Bromwich, counsel for the respondent, relies on evidence to establish that the appellant was notified of the hearing of the appeal.  I briefly deal with that evidence.

2. The appellant notified the Court by a notice dated 20 May 2004 of his change of address.  His new address is stated as 9/54 Williams Street, Granville, New South Wales, 2142 and the form states that his postal address is the same. 

3. On the Court file is a copy letter from the Court to the appellant, dated 28 May 2004, which notifies him that his appeal has been listed for hearing on Friday 20 August 2004 at 10.15 am.

4. Mr Allat, a solicitor employed by the Australian Government Solicitor, the respondent’s solicitor, gave evidence to this Court today that, on 2 June 2004, he caused a letter to be sent to the appellant at the above address, save that it was addressed to ‘William’ rather than ‘Williams’ Street.  That letter advised the appellant that appeal books had been prepared and stated:

   ‘Could you please telephone Murray Allat to arrange for a time to attend this office to sign the appeal books.’

5. Although Mr Allat cannot recall whether he saw the appellant at his office, the appellant apparently did attend the office of the Australian Government Solicitor as requested, and signed the certificate of correctness which appears at page 207 of the appeal book.  On 3 June 2004, Mr Allat caused a further letter to be sent to the appellant at the same address as the letter dated 2 June 2004. The letter of 3 June 2004 stated that the date for the hearing of the appeal was 20 August 2004 at 10.15 am, and with it was enclosed a copy of a letter from the Court dated 27 May 2004 to the respondent advising the respondent of the date of listing of the appeal.

6. On 12 August 2004, Mr Allat caused to be sent to the appellant a further letter enclosing the respondent's submissions, list of authorities and chronology.  The submissions, the original of which are on the Court file, state that the appeal is for hearing on 20 August 2004. 

7. The above evidence strongly suggests that the appellant was given a number of notifications of the date of hearing and, in respect of at least one of those notifications, appears to have responded by attending the office of the Australian Government Solicitor to sign the certificate of correctness.  It follows that there is a high probability that the appellant was aware of today's hearing. 

8. The appellant was called outside the Court and did not appear. If it is necessary to establish under the rule that the appellant was notified of the hearing date, the evidence before the Court sufficiently establishes the fact.  It is therefore appropriate to make an order under O52 r 38A that the appeal is dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Dowsett and Conti.

Associate:

Dated:             6 October 2004

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Mr RJ Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 August 2004
Date of Judgment:	20 August 2003