SZURV v Minister for Immigration
[2018] FCCA 412
•6 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZURV v MINISTER FOR IMMIGRATION | [2018] FCCA 412 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside orders made in the absence of the applicant – whether applicant has given sufficient explanation for non-appearance – whether application wold have merits if the orders set aside – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05(2)(a), 21.07 |
| Cases cited: BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 |
| Applicant: | SZURV |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2239 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 6 February 2018 |
| Date of Last Submission: | 6 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2018 |
REPRESENTATION
| No appearance by or on behalf of the applicant. |
| Solicitor for the Respondent: | Mr J C Hutton of Australian Government Solicitor |
ORDERS
The application in a case filed on 13 December 2017 is dismissed.
The applicant pay the respondent’s costs of the application in a case set in the amount of $900.
The matter be set down for hearing at 9.30 am on 23 February 2018 for the purpose of hearing submissions from the solicitor for the applicant as to why the Court should not make an order for costs, pursuant to r.21.07 of the Federal Circuit Court Rules 2001 (Cth) that the applicant’s solicitor be jointly and severally liable, with the applicant, to pay the costs ordered to be paid under order 2.
The applicant’s solicitor be given notice of the hearing, at 9.30 am on 23 February 2018 by the chambers of Judge Manousaridis providing a copy of these orders by email, by no later than 7 February 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2239 of 2016
| SZURV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
The matter was listed today for the hearing of an application in a case filed by the applicant on 13 December 2017. By that application in a case, the applicant is seeking an order that the orders I made on 27 October 2017 be set aside. The application is made pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), which provides that the Court may set aside a judgment or order after it has been entered if the judgment or order was made in the absence of the party.
I made the orders on 27 October 2017 in the absence of the applicant. I did so, however, not on the basis of r.13.03C of the FCC Rules but after, Mr Markus, who appeared for the first respondent, invited me to consider the merits of the applicant’s claims. I considered the merits and gave an ex tempore judgment on that occasion, which has subsequently been published. [1]
[1] SZURV & Minister for Immigration and Border Protection [2017] FCCA 2702
At 9.30 am, when the matter was due to be called, I was informed by my associate that there was no appearance by, or on behalf of, the applicant. I asked my associate to wait for a further five minutes, before I came on the bench. I came on the bench at 9.35. The matter was called, but there was no appearance by, or on behalf of, the applicant. Mr Hutton, who appears for the first respondent, applied for an order that the matter be dismissed, pursuant to r.13.03C(1) of the FCC Rules. I do not propose to dismiss the application in a case on that basis but, rather, on the merits, such as they are because, as will become apparent in a moment, there are no merits to the application in a case.
If the applicant had turned up and pursued his application in a case to set aside the orders I made on 27 October 2017, I would have had to consider the relevant principles that a Court must apply when dealing with such applications. For present purposes those principles were helpfully summarised by Ryan J in MZYEZ v Minister for Immigration and Citizen.[2] At paragraph 7 his Honour said:
In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the Court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application.
[2] [2010] FCA 530
I turn to the explanation for the non-appearance on 27 October 2017. With the application in a case there was filed an affidavit, sworn or made by the applicant’s solicitor, which purports to explain the failure of the applicant to appear. The explanation that is given is that the applicant did not put the solicitor in funds to enable the applicant to appear via solicitor or via counsel. To the extent this affidavit provides an explanation that explains why the applicant did not appear at the hearing, via his solicitor or counsel, it does not explain why the applicant did not appear. The solicitor deposes to his having informed the applicant of the hearing date by email. There would therefore have been no adequate explanation for the applicant’s non-appearance on 27 October 2017 if the application today went ahead.
I then turn to whether the applicant would have any reasonable prospects of success on his application if I were to set aside my orders. In that regard, the applicant’s solicitor in his affidavit accepts the applicant would have no prospects of succeeding on his substantive claim, because he accepted that any favourable adjudication of that claim is precluded by the decision of Burley J, in BVJ16 v Minister for Immigration and Border Protection.[3]
[3] [2017] FCA 1205
In the affidavit that the applicant’s solicitor filed, however, the applicant’s solicitor says the applicant “desires an adjudicated hearing of the matter, in lieu of the summary dismissal on 27 October 2017”. There are two things to say about that. First, the application was not summarily dismissed on 27 October 2017. It was decided on the merits, and by that, I mean, regard was had to written submissions, which had been filed on behalf of the applicant. The very issue the applicant says he desires to be adjudicated, if I were to set aside my orders on 27 October 2017 has, in fact, been adjudicated. Second, it was open to the applicant to appeal from the orders I made on 27 October 2017 to pursue, in a substantive appeal, that which he wishes to formally put before me, if I were to set aside my orders of 27 October 2017, namely that Burley J’s judgment in BVJ16 is wrong.
It is for those reasons that I propose to dismiss the application in a case that was filed by the applicant.
I next deal with costs. Mr Hutton has applied for an order for costs. I asked him what those costs are, and he said $900. That is, on the face of it, a reasonable amount, and I would be prepared to order that the applicant pay those costs. However, there is an issue regarding the conduct of the solicitor on the record in this proceeding, which is one which may invite the Court to consider whether an order for costs should be made also against the applicant’s solicitor.
The matters which may give rise to a Court considering whether to make an order for costs against the applicant’s solicitor are these. The applicant’s solicitor, while still on the record, did not appear at the hearing on 27 October 2017. That fact is adverted to in the applicant’s solicitor’s affidavit to which I have already referred. There is no real explanation in that affidavit why the applicant’s solicitor did not appear or provide a notice of withdrawal of acting. What is expressed there is a “regret” of “the discourtesy to the Court, of failing to indicate, by any means, that the applicant had become unrepresented”. What “regret” is intended to convey in that affidavit is not clear to me. In any event, there has been no appearance by the solicitor for the applicant today.
I propose, therefore, to make an order fixing a date on which the solicitor will appear before me to deal with the question of why I should not make an order for costs in the sum of $900. I do not expect there to be an appearance by, or on behalf of, the Minister, unless the Minister wishes to appear. I do not want to add to the Minister’s costs.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 22 February 2018
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