Subodh Shrestha v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 330

FEDERAL COURT OF AUSTRALIA

Subodh Shrestha v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 330

MIGRATION – appeal from consent order by Federal Magistrates Court dismissing a proceeding challenging Migration Review Tribunal decision – abuse of process – application of O 20 r 2 of Federal Court Rules – inherent powers of the Court – appeal dismissed

COURTS – dismissal of appeal to Federal Court as abuse of process – O 20 r 2 of Federal Court Rules – inherent power of Court

Federal Court Rules, O 20 r 2(1)(a), O 20 r 2(1)(c)

SUBODH SHRESTHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 3 OF 2005

GYLES J
9 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 3 OF 2005

BETWEEN:	SUBODH SHRESTHA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	9 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent Minister’s costs of the motion and of the proceeding.

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	NSD 3 OF 2005

BETWEEN:	SUBODH SHRESTHA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	9 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal is from an order made by consent.  When the matter first came before me on 8 February last, the solicitor for the Minister indicated that on that basis it would be suggested that the matter should be struck out or dismissed.  On that day I granted leave to make any motion returnable before me today.  A motion has been filed supported by an affidavit seeking dismissal of the proceeding pursuant to O 20 r 2(1)(a) and O 20 r 2(1)(c) of the Federal Court Rules.

2. The respondent to the motion and the appellant in the proceeding has filed no evidence on this motion.  He is unrepresented.  He has said that he wished for more time to obtain some legal advice.  He has provided no explanation for the failure to obtain legal advice before today and has provided no basis upon which it could be concluded that there is any realistic chance of that being obtained in the near future.  An adjournment is simply not appropriate in circumstances such as this.

3. It is apparent on the face of the matter, that absent some very special circumstances, the appeal must fail because of the consensual nature of the order below.  On its face there is no reasonable cause of action and the proceeding is an abuse of the process of the Federal Court of Australia. 

4. I am not satisfied that O 20 r 2(1)(a) has any application to appeal.  It is arguable that O 20 r 2(1)(c) does relate to any abuse of the process of the Court.  That is a good description of the present appeal in the absence of any supporting material.  It is also my opinion that the inherent powers of the Court are such as to enable a summary order of dismissal to be made. 

5. I therefore dismiss the appeal and order that the appellant pay the respondent Minister's costs of the motion and of the proceeding.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             31 March 2005

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 March 2005
Date of Judgment:	9 March 2005