SZAAS v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 742

FEDERAL COURT OF AUSTRALIA

SZAAS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 742

SZAAS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 399 of 2003

BRANSON J
15 JULY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 399 of 2003

BETWEEN:	SZAAS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	15 JULY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion be dismissed

2.The applicant pay the respondent’s costs of the notice of motion.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 399 of 2003

BETWEEN:	SZAAS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	15 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By a notice of motion dated 11 June 2003 the applicant has indicated that he seeks an order under O 52 r 38(A) of the Federal Court Rules.  It may be assumed that the applicant seeks an order setting aside an order made by Hill J on 5 May 2003.  His Honour on that day dismissed the applicant’s appeal from a decision of a Federal Magistrate.  In fact his Honour did not proceed under O 52 r 38(A); he proceeded under O 52 r 38.  It was not open to his Honour to proceed under O 52 r 38(A) as that rule is concerned with an absence of a party when an appeal is called on for hearing.  His Honour’s order was made at a directions hearing.  It may be assumed to have been prompted by the failure of the applicant to appear at that directions hearing.  The applicant had on an earlier occasion failed to appear at a directions hearing before his Honour.  It appears that his Honour formed the view that the applicant had no genuine intention of prosecuting his appeal to the Court.

2. It is far from clear that an application by motion to a judge of this Court is an appropriate way for the applicant to seek relief from the order made by Hill J on 5 May 2003 (see Bailey v Marinoff (1971) 125 CLR 529). However, the respondent has not filed a notice of objection to competency. I have not had the assistance of submissions on the competency of the notice of motion.

3. The applicant has again failed to attend before the Court today.  The Court records disclose that the applicant has been advised that his notice of motion was listed for hearing today.  A message to this effect was left for him following a telephone call between an officer of the Court and a person who answered a telephone call made to the telephone number given by the applicant on his notice of motion.  Further a letter dated 10 July 2003 was sent to him at the address given on his notice of motion by express post confirming the date and the time of the hearing.

4. The appropriate order in the circumstances, in my view, is that the notice of motion be dismissed.  I so order.  The applicant is to pay the respondent’s costs of the notice of motion.

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

Associate:

Dated:             17 July 2003

Counsel for the Applicant:	The Applicant did not appear
Counsel for the Respondent:	Mr Grimm
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	15 July 2003
Date of Judgment:	15 July 2003