SZESC v Minister for Immigration
[2005] FMCA 1986
•1 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZESC v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1986 |
| MIGRATION – Review of decision by Refugee Review Tribunal – application to dismiss on the basis of non-appearance of the applicant – invalid notice of ceasing to act filed by applicant’s solicitor – applicant’s failure to appear. |
| Applicant: | SZESC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3358 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 December 2005 |
| Date of Last Submission: | 1 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 December 2005 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Counsel for the Respondent: | Ms S. Mason |
| Solicitors for the Respondent: | Ms A. Alex, Phillips Fox |
ORDERS
That the applications before this Court are dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $5000.00.
FEDERAL MAGISTRATES |
SYG 3358 of 2004
| SZESC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
An application is made by the First Respondent for the proceeding before this Court to be dismissed pursuant to r.13.03A(c) of the Federal Magistrates Court Rules, where the Applicant has failed to appear at the final hearing of this matter.
The Applicant filed in this Court on 17 November 2004 and filed an amended application on 26 April 2005 (“Amended Application”).
On 29 November 2004, Orders were made, by consent, that this matter be set down for hearing on 2 December 2005.
On 27 September 2005, my Chambers wrote to the legal representatives of each of the parties informing them that the hearing of the matter would take place today, 1 December 2005 at 10.15 am. The letter to the Applicant was sent to his legal representative, as identified on his Amended Application, at the address identified on that document.
On 30 September 2005, the First Respondent's solicitor wrote to the Applicant's solicitor, again at the address identified on the Amended Application, informing him of the new hearing date.
The First Respondent read the affidavit of Kate Fuller, sworn
1 December 2005, deposing to the fact that, at approximately 9.05am this morning, she received a telephone call from the Applicant advising her that he will not appear in Court for the hearing this morning. In respect of the affidavit of Kate Fuller of 1 December 2005, paragraphs 3 and 4 of that affidavit were rejected by me as not being in proper form and therefore I have not had regard to their contents in these reasons. In those circumstances, I am satisfied that the Applicant was aware of the hearing today.
On 28 November 2005, the Applicant's solicitor purported to file a Notice of Ceasing to Act. I note that that the Notice of Ceasing to Act does not comply with r.9.03 of the Federal Magistrates Court Rules in two significant respects. First, it was not filed not less than seven days before the hearing, in which case, leave of this Court is required before the Applicant's solicitor is entitled to cease to act. Secondly, it does not state that, if the Applicant does not appoint another lawyer or file and serve a notice of address for service within seven days, the party may not be served with documents in the proceeding, that being sub-r.(3)(b).
It is of great concern to this Court that a solicitor of this State would conduct himself in such fashion. However, the Applicant has failed to appear.
I am satisfied that the Applicant is aware of the proceeding and there has been no document received from the Applicant or communication to this Court as to any explanation as to why he is not before the Court today. Whilst leave has not been granted to the Applicant’s solicitor to withdraw from the matter in accordance with the rules, that solicitor is not present before the Court today and neither is the Applicant. In those circumstances, I am not satisfied that, in the interest of justice, I can proceed to deal with the matter on a final basis.
Accordingly, pursuant to r.13.03A(c) of the Federal Magistrates Court Rules, the application filed by the Applicant in this Court is dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 31 January 2006
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