SZLBD v Minister for Immigration and Citizenship

[2008] FCA 643

FEDERAL COURT OF AUSTRALIA

SZLBD v Minister for Immigration and Citizenship [2008] FCA 643

Federal Court of Australia Act1976 (Cth) s 25(2B)(bb)(ii)

SZLBD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 252 OF 2008

LOGAN J

6 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 252 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	6 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant is to pay the costs of and incidental to the hearing of the appeal, including reserve costs and costs thrown away by today, to be taxed.

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 252 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	6 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was listed for the hearing of the appeal at 2.15 pm today.  I delayed coming in for a short time upon receiving advice by my Associate that the Appellant was not either in the hearing room or in the precincts of the court, and that inquiries were in train with a view to contacting the Appellant.  Upon my coming into Court, there was still no appearance by or on behalf of the Appellant.  It was intimated to me though, that there had been a successful attempt to contact the Appellant using the mobile telephone contact number which is specified in the notice of appeal and that the interpreter had effected such contact by phone.

2. It seemed to me in those circumstances that it was appropriate that evidence be given of that contact.  To that end, the interpreter was called.  She related in evidence her having telephoned the mobile telephone number specified in the notice of appeal.  She further related that the person with whom she spoke said to her that he was not aware of the case being listed today.  He said that he had provided a post office box for the dispatch of correspondence in relation to the appeal.  The nature of the conversation that the interpreter had with the person with whom she spoke is such that I am quite satisfied that it was the Appellant who was the other party to the telephone conversation.

3. There is nothing on the court file which would indicate that the Appellant’s address for service is anything other than that specified in the notice of appeal.  It is to that address that the notice of appeal listing was sent by the Court.  Further, it is also to that address that on two occasions correspondence has been sent by the solicitors for the First Respondent.  That correspondence does also indicate the date of hearing of the appeal.  I respectfully commend the solicitors for the First Respondent for engaging in that practice of sending such correspondence. 

4. The address specified in the notice of appeal is also evident in the application for fee waiver and accompanying statement of financial circumstances.  In light of the above, I am satisfied that the notice of listing has been sent to the address for service as specified by the appellant.  He has not appeared today. 

5. The Federal Court of Australia Act1976 (Cth), by s 25(2B)(bb)(ii) provides that a single judge or a Full Court may make an order that an appeal to the court be dismissed for failure of the appellant to attend a hearing relating to the appeal. It seems to me that a factual foundation for the exercise of the power conferred by this particular provision is present in this case. It will be for the Appellant, if he is so minded, to make an application for the reinstatement of the appeal, providing in so doing, he gives a reasonable and acceptable explanation in respect of his failure to attend today.

6. There has also been raised a question as to whether or not costs in respect of today’s appearance on behalf of the First Respondent, and other incidental costs which may be thrown away, ought to be fixed.  It was evident that the First Respondent was in a position, had the appeal proper been dismissed, to file and read an affidavit which in accordance with the practice direction, gave particulars and also an estimate as to what the appeal costs were.  The First Respondent was not in a position to prove the prior service of such affidavit upon the Appellant.  In those circumstances, it does not seem to me to be procedurally fair to proceed to fix costs without the extending of an opportunity to be heard in relation to the quantum of the costs to the Appellant.

7. In the result and an intimation of a disposition of the kind I have described having been given to Counsel for the Respondent, an application for the fixing of costs was not pressed.  The orders which I make, therefore, are as follows:

   1.The appeal is dismissed.

   2.The Appellant is to pay the costs of an incidental to the hearing of the appeal, including reserve costs and costs thrown away by today, to be taxed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        12 May 2008

Counsel for the Appellant:	No appearance by the Appellant
Counsel for the Respondents:	Mr Cleary
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	6 May 2008
Date of Judgment:	6 May 2008