SZBFW v Minister for Immigration
[2004] FMCA 437
•12 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBFW v MINISTER FOR IMMIGRATION | [2004] FMCA 437 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of application for non appearance. PRACTICE AND PROCEDURE – Consideration of the operation of rules 10.01 and 13.03A in the case of the non appearance of a party on an interlocutory application. |
Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)
| Applicant: | SZBFW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1641 of 2003 |
| Delivered on: | 12 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 12 July 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
No appearance by or on behalf of the applicant
| Solicitors for the Respondent: | Mr A Markus Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed for default of appearance, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1641 of 2003
| SZBFW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This matter came before me on an interlocutory application by the Minister filed on 4 February 2004 seeking the summary dismissal of the principal application filed on 18 August 2003 pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The Minister asserts that the principal application discloses no cause of action. There was no appearance on behalf of the principal applicant when the matter was called at 11.16am and 11.31am. An attempt to contact the principal applicant by telephone was unsuccessful as the telephone number given by the principal applicant had been disconnected.
There is no explanation for the non attendance of the principal applicant today. Exhibits R1 and R2 establish to my satisfaction that the principal applicant should have been aware of today's hearing. There is no explanation as to her non appearance. In the circumstances, I have decided that I should dismiss the application for judicial review filed on 18 August 2003 in default of appearance by the applicant.
The only question in my mind is as to which is the more appropriate rule to proceed under. The application for judicial review has previously come before a registrar on 30 October 2003. That was the first court date for that proceeding. Rule 13.03A deals with default of appearance of a party at a hearing other than the first court date. Mr Markus raised with me the question of whether the applicant referred to in paragraph (c) of that rule is the principal applicant, that is the applicant on the judicial review application, or the interlocutory applicant, that is the Minister. In my view, the intention of the rule is that the applicant referred to in paragraph (c) is the principal applicant. This is on the basis that rule 13.03A and rule 10.01 (dealing with the first court date) refer to a “proceeding” and the intention of both rules is that there is only one proceeding, even though there may be more than one interlocutory application during the proceeding, as well as the originating process. The assumption, in my view, in the rules is that the applicant referred to in paragraph (c) of rule 13.03A is the applicant on the originating process in the proceeding.
The alternative way to approach the matter is to assume that this is the first court date on the Minister's application, which is the interlocutory application filed on 4 February 2004, that was before me today. On that basis, rule 10.01 would be available. Rule 10.01(2)(c) would enable me to either make the orders sought in that application or to dismiss the principal application in the absence of appearance by the principal applicant.
On balance, in my view, the preferable course is to proceed under rule 13.03A(c) of the Federal Magistrates Court Rules. I note that commonly matters such as this are dealt with on behalf of the Minister by notice of motion pursuant to the Federal Court Rules. That is a procedure which makes clearer the issues to which I have referred and which is probably the preferable way of proceeding, even though not strictly in compliance with the rules of this Court.
I will order, pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules, that the application for judicial review filed on 18 August 2003 be dismissed.
As to costs, Mr Markus has sought an order fixed in the sum of $1,800 on a party/party basis. In my view, on that basis, an order fixed in the sum of $1,500 would be adequate and I will so order.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 July 2004
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