VAAE of 2001 v Minister for Immigration and Multicultural Affairs

[2002] FCA 918

FEDERAL COURT OF AUSTRALIA

VAAE of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 918

VAAE OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V1278 of 2001

WEINBERG J
19 JULY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1278 OF 2001

BETWEEN:	VAAE OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	19 JULY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Pursuant to O 10 r 8 and O 30 r 5 of the Federal Court Rules, the application be dismissed.

2.The applicant pay the respondent’s costs of the application, including the costs of the notice of motion before the Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1278 OF 2001

BETWEEN:	VAAE OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WEINBERG J
DATE:	19 JULY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court a notice of motion filed on behalf of the respondent Minister on 12 July 2002.  By that motion, the Minister seeks orders that the application be dismissed, and the applicant pay his costs.  The Minister moves for these orders on the basis that the applicant has failed to comply with the orders of the Court (O 10 r 7) and on the basis that he has not prosecuted the proceeding with due diligence (O 30 r 5). 

2. The notice of motion is supported by an affidavit affirmed by Ms Mira Yannicos, an employee solicitor with Blake Dawson Waldron, who acts for the Minister.  That affidavit sets out the unfortunate history of this matter. 

3. The application was originally filed on 19 December 2001.  It was wholly unparticularised.  From that time a series of attempts were made by Ms Yannicos to contact the applicant at the address provided for service.  Those attempts were unsuccessful. 

4. Ms Yannicos wrote to the applicant on 27 December 2001 stressing the importance of his attending the Court on the day fixed for directions.  On 15 January 2002 she followed up that letter with a telephone call.  However, the number provided could not be connected.  On 18 January she sent a second letter advising the applicant of the importance of his attending at the directions hearing which was fixed for 6 February.  On 1 February she sent a third letter to the same that effect.  On 5 February she followed up these letters with a telephone call but again could not be connected.

5. The applicant did not attend the Court at the directions hearing on 6 February.  Later that day Ms Yannicos wrote to him advising that the directions hearing had been adjourned to 18 February and that if he did not attend, the Minister would apply to have the application dismissed for want of prosecution. 

6. On 11 February Ms Yannicos received a telephone call from a solicitor at Erskine Roden and Associates, solicitors, who informed her that the applicant wished to continue to prosecute his case but that it was unclear whether or not that firm would act for him.  Ms Yannicos agreed to postpone any application to have the matter dismissed provided the applicant contacted her regarding its future progress.

7. On 12 February Ms Yannicos wrote to the applicant at his address for service, emphasising again the importance of his attendance at the directions hearing now fixed for 18 February. 

8. On 14 February the applicant telephoned Ms Yannicos confirming that he wished to proceed with his application, and that he would be representing himself at the directions hearing on 18 February.  He provided Ms Yannicos with his mobile telephone number.  On the same day, a friend of the applicant telephoned Ms Yannicos and indicated that the applicant was being assisted by a member of counsel who had agreed to review the merits of his case on a pro bono basis. 

9. On 18 February Mr Kim Harris of Zolis Lawyers appeared on behalf of the applicant at the directions hearing.  The Court ordered that the applicant provide further particulars of his claim, any supplementary documents, and an outline of contentions of fact and law on or before 18 March.  The applicant did not comply with those orders. 

10. On 20, 22, 25 and 27 March Ms Yannicos left urgent messages on the applicant’s mobile phone number asking him to contact her.  However, those messages were ignored. 

11. On 27 March Mr Harris provided Ms Yannicos with an address at which the applicant could supposedly be contacted.  On the same day Ms Yannicos finally managed to speak to the applicant on his mobile phone.  He told her that the member of counsel who had been approached to act for him had agreed to do so, subject to him being able to retain a solicitor who would provide instructions.  Ms Yannicos emphasised that the applicant must come to Court at the next directions hearing on 10 April.  She foreshadowed that the Minister would, on that day, seek dismissal of the application upon the basis that he had not complied with the orders of the Court regarding the filing of documents. 

12. On 27 March Ms Yannicos telephoned the member of counsel who had been nominated by the applicant as being willing to act for him.  Counsel indicated that he was expecting to be briefed, and to have a solicitor on the record, prior to the directions hearing on 10 April.  Ms Yannicos said that the Minister was proposing to move the Court to have the application dismissed. 

13. In a telephone conversation on 2 April the applicant told Ms Yannicos that Mr Harris would now be representing him.  On the same day Ms Yannicos telephoned Mr Harris who indicated the applicant had an appointment to see him later that week, with an interpreter, but that he had no instructions to brief the member of counsel with whom she had spoken.  There was also a discussion relating to the costs involved in filing a notice of motion, and the costs which might be ordered against the applicant if he were unsuccessful, or withdrew his application.  Mr Harris undertook to explain all this to the applicant.  Later that the same day Ms Yannicos telephoned the applicant again urging him to contact Mr Harris in order to progress the application. 

14. On 8 April, Ms Yannicos telephoned Mr Harris.  He told her that the applicant had promised to see him later that day.  There was a discussion regarding the Minister's costs to date.  Mr Harris informed Ms Yannicos that he intended to advise his client to discontinue the proceeding.

15. On 9 April, Mr Harris told Ms Yannicos that he had spoken to the applicant, and been instructed that he wished to continue to prosecute his case.  A new timetable for the filing of document was agreed.  That timetable included draft orders vacating the directions hearing of 10 April.  It required the applicant to file an amended application by 23 April, and a supplementary book of documents, if any, and contentions of fact and law by 7 May. 

16. On 13 May Ms Yannicos wrote to Ms Harris noting that the applicant had again failed to comply with the latest timetable.  She said:

    “Please advise by 4 pm Tuesday, 14 May 2002 if your client is intending to prosecute his case and if any contentions are forthcoming.  If we do not hear from you by 4 pm Tuesday, 14 May 2002 we may apply to dismiss your client's application with costs without further notice.” 

17. On the same day Ms Harris telephoned Ms Yannicos to advise that counsel had now been briefed and that the applicant's documents would be filed and served by the end of that week.  However, no such documents were filed and served.

18. Ms Yannicos left a number of telephone messages for Mr Harris, asking him to return her call.  However, she was advised by a person in his office that he was still waiting on further information, and that he was unable to finalise the contentions of fact and law. 

19. On 20 May Ms Yannicos prepared further draft consent orders varying the orders made on 9 April.  Those orders provided that the applicant would file an amended application, a supplementary book of documents, if any, and contentions of fact and law on or before 21 May.  On 24, 28, 29 May and on 3 June Ms Yannicos had a number of telephone conversations with Mr Harris.  She also left numerous messages regarding the applicant's overdue documents. 

20. On 4 June, after being contacted by the Court, Mr Harris telephoned Ms Yannicos to inform her that counsel had now advised that the application should be withdrawn and that he would advise his client accordingly. 

21. On 5 June Ms Yannicos wrote to Mr Harris enclosing draft consent orders dismissing the application with costs.  From that date onwards she repeatedly requested Mr Harris to arrange for those consent orders to be signed.  On a number of occasions he told her that the applicant had failed to meet him at pre-arranged times.

22. On 28 June Ms Yannicos wrote to Mr Harris yet again.  She asked him to provide signed consent orders dismissing the application, with costs, by no later than 2 July.  However, no signed consent orders were ever provided. 

23. On 10 July, at a mention before the Court of this matter, Ms Yannicos indicated that the Minister would now file a notice of motion and a supporting affidavit seeking to have the application dismissed, and that is the application which is presently before the Court.

24. It is clear from the affidavit of Ms Yannicos, and from the history of this matter, that the applicant has no intention whatever of prosecuting his application for review.  Manifestly, he has not “prosecuted the proceeding with due diligence”, within the meaning of that expression in O 30 r 5.  Moreover, he has repeatedly failed to comply with the orders of the Court, thereby giving rise to the operation of O 10 r 7. 

25. It is appropriate given the above that the application be dismissed, and that the applicant pay Minister’s costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:             19 July 2002

Counsel for the Applicant:	Mr K Harris
Solicitor for the Applicant:	Zolis Layers
Counsel for the Respondent:	Ms F McKenzie
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	19 July 2002
Date of Judgment:	19 July 2002