SZKPE v Minister for Immigration and Citizenship (No 2)

[2008] FCA 921

FEDERAL COURT OF AUSTRALIA

SZKPE v Minister for Immigration and Citizenship (No 2) [2008] FCA 921

SZKPE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2210 OF 2007

GRAHAM J
26 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2210 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKPE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	26 MAY 2008
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that the appellant pay the respondent Minister’s costs of the appeal fixed in the amount of $1,740.

2.Makes no order as to costs in respect of the Notice of Motion filed 11 April 2008.

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 2210 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKPE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	26 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter presently before the Court is a Notice of Motion filed 11 April 2008 in which the first respondent seeks an order that the appellant pay the first respondent’s costs of the appeal which was disposed of on 26 February 2008. On that occasion, I ordered that the appeal be dismissed for the failure of the appellant to attend the hearing of the appeal at courtroom 14B, level 14, 80 William Street, Sydney at 10.15 am on 26 February 2008 in accordance with s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). In my reasons for judgment of 26 February 2008, I said:

   ‘5        The appellant was notified, according to the solicitor for the respondent Minister, of the appeal having been fixed for hearing today in this Court but at the court premises in Queens Square, Sydney.  Due to the excessive number of matters listed for hearing today and the limited number of available courts, the matter was allocated for hearing at a court located at 80 William Street, Sydney. 

   6         I am satisfied that on 18 February 2008, that is to say some eight days ago, a letter was hand-delivered to the appellant’s address for service in Hurstville, drawing to her attention the fact that the hearing would take place in courtroom 14B on level 14 of 80 William Street, Sydney, which is the place at which the hearing is presently proceeding.

   7         I have not been asked to proceed with the hearing of the matter under Order 52 rule 38A(1)(d) of the Federal Court Rules. Rather, I have been asked to deal with the matter in accordance with s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). That section which deals with the exercise by the Court of its appellate jurisdiction, includes a provision to the effect that a single judge may, in a matter such as this, make an order that the appeal be dismissed for failure of the appellant to attend a hearing relating to the appeal.

   8         I trust that the reason for the appellant’s absence is other than a misunderstanding on her part as to the venue at which the hearing is to take place.  It is perhaps difficult when persons in the position of the appellant are sent communications solely in the English language advising of the relevant venue for hearing, when there have been earlier hearings concerning that person at which an interpreter from the Mandarin into the English language and vice-versa has been required.’

2. It was unfortunate that no communication was apparently had by the Court with the appellant informing her that the matter had been reallocated for hearing to 80 William Street, Sydney, in circumstances where the Court had previously informed the appellant that the hearing would take place in the Court’s premises in Queens Square, Sydney. However, I was satisfied on the evidence advanced by the respondent Minister on 26 February 2008 that on 18 February 2008, a letter had been hand delivered to the appellant’s address for service in Hurstville drawing her attention to the fact that the hearing would take place at 80 William Street, Sydney. In the circumstances, I was prepared to make the order sought under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). No order for costs was sought at the time on behalf of the respondent Minister, and I must say that I was minded to the view that this failure to make an application for costs was deliberate in the peculiar circumstances of the case.

3. However, it was apparently an oversight on the part of the solicitor then appearing in the matter and an application for an order for costs has now been made by the respondent Minister in accordance with Order 62 rule 3 of the Federal Court Rules.  I am satisfied that the Notice of Motion seeking the order for costs was served upon the appellant by the posting on 11 April 2008 of a letter directed to the appellant at her address for service which was apparently accompanied by a copy of the current Notice of Motion and affidavit in support.  The appellant’s name has been called three times outside the Court, as has the pseudonym by which she is known for the purposes of these proceedings, namely ‘SZKPE’, and, once again, she has not appeared.  In the circumstances, it seems to me reasonable that an order for the payment of the Minister’s costs of the appeal should be made and that the amount of the costs should be fixed in the sum proposed in the affidavit of Therese Quinn affirmed 11 April 2008, namely $1,740.00.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       18 June 2008

The Appellant failed to appear
Solicitor for the First Respondent:	P Nandagopal of DLA Phillips Fox
The Second Respondent filed a submitting appearance

Date of Hearing:	26 May 2008
Date of Judgment:	26 May 2008