SZEKW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1272

FEDERAL COURT OF AUSTRALIA

SZEKW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1272

SZEKW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 992 OF 2005

MADGWICK J
7 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 992 OF 2005

BETWEEN:

SZEKW
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

7 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as the second respondent.

2.It be noted that the second respondent submits to such orders as the Court finds fit, save as to costs.

3.The appeal be dismissed.

4.The appellant pay the first respondent’s costs of the appeal.

5.The entry of the above orders be stayed for 21 days and that the first respondent write to the appellant at Post Office Box 1181, Griffith, New South Wales 2680 and at Farm 535, McDonald Road, Bilbul, Griffith, New South Wales 2680 advising the appellant of all of the orders made today and of the provisions of O 52 r 38A(2)(a).  The letter is also to indicate that any application to set aside these orders, or any part of them, should be made by filing and serving on the first respondent notice to that effect on or before 28 September 2005.

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 992 OF 2005

BETWEEN:

SZEKW
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	7 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. In this matter I direct that the Refugee Review Tribunal (‘The Tribunal’) be joined as the second respondent and I note that the second respondent submits to such orders the Court may see fit to make except as to costs.

2. In relation to the substance of the matter, the appellant has failed to appear.  So has his solicitor who has purported to cease to act for the appellant without seeking the leave of the Court, and without actually notifying the appellant that he is ceasing to act for him.  However, it appears that the solicitor, on 17 August 2005, wrote to his client care of a post office box at Griffith, New South Wales, asking for instructions as to whether the matter was to proceed or not.  He had not had any response by 1 September 2005 when he irregularly filed a purported Notice of Ceasing to Act. 

3. Various questions might arise about the matter but the first respondent takes the view that there is at least a prospect that the appellant will not wish to pursue these proceedings further and has, in fact, by his silence to his solicitor, given an indication that that is the position.  Accordingly, the first respondent asks that the Court proceed to hear the appeal in the absence of the appellant under O 52 r 38A(1)(a) of the Federal Court Rules but on the basis that the appellant should be given every opportunity to seek to have that order set aside.

4. Having considered the matter, I think that that is an appropriate and constructive course to follow and I will accede to the first respondent’s proposal.  Accordingly I order that:

   1.The appeal be dismissed.

   2.The appellant pay the first respondent’s costs of the appeal.

   3.The entry of the foregoing orders is to be stayed for 21 days and the first respondent is to write to the appellant at Post Office Box 1181, Griffith, New South Wales 2680 and at Farm 535, MacDonald Road, Bilbul, Griffith, New South Wales 2680 advising him of the orders made today and of the provisions of O 52 r 38A(2)(e).  The letter is also to indicate that any application to set aside the orders or any of them should be made by filing and serving on the respondent notice to that effect on, or before, 28 September 2005.

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

Associate:

Dated:              September 2005

Solicitor for the Appellant:	There was no appearance from the appellant
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	7 September 2005
Date of Judgment:	7 September 2005