SZKOF v Minister for Immigration and Citizenship

[2008] FCA 333

FEDERAL COURT OF AUSTRALIA

SZKOF v Minister for Immigration and Citizenship [2008] FCA 333

SZKOF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2102 OF 2007

GRAHAM J
28 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2102 OF 2007

BETWEEN:

SZKOF
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	28 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that the application for an extension of time to file and serve a Notice of Appeal be dismissed.

2.Grants leave to the first respondent to file in Court an affidavit of Miriam Mafessanti sworn 27 February 2008.

3.Orders that the applicant pay the respondent Minister’s costs fixed in the sum of $1,050.00.

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 2102 OF 2007

BETWEEN:

SZKOF
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	28 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the name of the applicant has been called outside the Court three times, as has the pseudonym ‘SZKOF’ by which the applicant is known for the purposes of these proceedings.  She has failed to appear.

2. The application before the Court is an application for an extension of time to file and serve a Notice of Appeal from a judgment of Scarlett FM of 25 September 2007 ([2007] FMCA 1590).

3. Order 52 rule 15 of the Federal Court Rules relevantly provided:

   ‘15(2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve notice of appeal.

   (3) An application for leave under subrule (2) must:

   (a)be in accordance with Form 54A …’

4. Form 54A of the Federal Court Forms does not itself make any provision for the inclusion in the application of an address for service, however, Order 41 rule 3 does call for the provision of an address by a party filing a document. 

5. Relevantly, Order 41 rule 3 provides:

   ‘3(1) A document prepared by a party for use in the Court shall have a horizontal line drawn at the foot of the first page below which shall be shown:

   (a) the party on whose behalf the document is filed, the name, address, telephone number … of the solicitor for the party …

   (2)Where a party preparing a document for use in the Court is not represented by a solicitor, paragraph 1(a) does not apply but instead the name and address for service of the party, and, if applicable, his or her telephone number, facsimile number and email address, must be shown.’

6. Order 41 rule 3(2) does not require the relevant information to be provided below a horizontal line at the bottom of the first page of the relevant document, however, it is common practice for that to occur.  In this case, there is a horizontal line across the bottom of the application filed 24 October 2007, below which appear the words, partly in typed form and partly in manuscript form:

   ‘Filed by applicant [the name of the applicant then follows]
   [street address of the applicant]
   Campsie NSW 2194’

7. The reason for the provision of this detail in these reasons is that the application when filed was endorsed by the Court in respect of the time and date of hearing of the application, ‘Date and time to be advised by the registry’.

8. There is a letter on the Court’s file from the National Appeals Registrar to the applicant at the address for service nominated on her application form informing her that her application will be heard before me at 10.15 am today, in this place, namely the Law Courts building, Queens Square, Sydney.  There is also on the Court file a letter apparently sent by the applicant to the National Appeals Registrar giving the same address as her address for service in her application, stating:

   ‘I am writing to you regarding my case.
   I will appear before the Federal Court myself.
   I need a Mandarin interpreter.’

9. There is indeed a Mandarin interpreter who has kindly made herself available to assist but there is no applicant whom she may assist.

10. There is additional evidence indicating that the applicant was notified of the time and place for hearing of her application.  There are two letters from Clayton Utz to the applicant, one sent by Express Post and the other apparently sent by courier, which indicate that the matter will be heard before the Court today at 10.15 am, in this building, nominating myself as the presiding judge.

11. It is now 11.15 am and there has still been no attendance before the Court by the applicant.

12. There are, in the Federal Court of Australia Act 1976 (Cth) (‘the Act’) and in the Federal Court Rules (‘the Rules’), various provisions dealing with the non-attendance of a person such as the applicant. The present application is one which is before the Court in the exercise of its appellate jurisdiction, albeit there has not as yet been any appeal instituted. Section 25(2)(b) of the Act provides for applications such as that presently before the court to be heard and determined by a single judge or by a Full Court. Section 25(2B) provides that a single judge or a Full Court may:

    ‘…
    (bb)     make an order that an appeal to the Court be dismissed for:

    (i)        failure to comply with a direction of the Court; or

    (ii)failure of the appellant to attend a hearing relating to the appeal; or

    …’

13. As I have earlier observed, there is no appeal presently before the Court.  The application is for an extension of time within which to institute an appeal.  In my opinion, s 25(2B)(bb) has no application in the circumstances.

14. There is another provision in Order 52 rule 38 of the Rules which empowers the Court to deal with an appeal in a certain way in the event that when the appeal is called on for hearing, a party is absent.  Once again, the observation that I would make is that there is no appeal presently before the court and that rule has no immediate application.

15. I have also been helpfully directed by Ms Mafessanti, the solicitor for the respondent Minister, to Order 35A which deals with orders or judgments on default.  Relevantly, Order 35A rule 2(1) provides:

    ‘2(1)    For this Order, an applicant is in default if the applicant:

    …

    (f)       fails to prosecute the proceeding with due diligence.’

16. Then in Order 35A rule 3(1)(a) provision is made for the course which the Court may take where an applicant is in default for failing to prosecute a proceeding with due diligence.  Order 35A rule 3(1) relevantly provides:

    ‘3(1)    If an applicant is in default, the Court may order that:

    (a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

    …’

17. It seems to me that the failure of the applicant to appear today falls within the expression, ‘fails to prosecute the proceeding with due diligence’ within the meaning of Order 35A rule 2(1)(f).  Whilst there are various powers available to the Court in circumstances of default, such as has occurred, it seems to me that the application should be dismissed. 

18. Whilst I should not embark on a consideration of the matter on the merits and do not propose to do so, I have had the advantage of reading the carefully expressed reasons for judgment of the learned Federal Magistrate to which the application relates.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        12 March 2008

The Applicant did not appear.
Solicitor for the First Respondent:	M Mafessanti of Clayton Utz
The Second Respondent filed a submitting appearance.
Date of Hearing:	28 February 2008
Date of Judgment:	28 February 2008