Van Met Duong v Minister for Immigration and Multicultural Affairs

[2000] FCA 1792

FEDERAL COURT OF AUSTRALIA

Van Met Duong v Minister for Immigration & Multicultural Affairs [2000] FCA 1792

VAN MET DUONG  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 910 of 2000

RYAN, SUNDBERG & EMMETT JJ
SYDNEY
30 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	N 910 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VAN MET DUONG Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	RYAN, SUNDBERG and EMMETT JJ
DATE OF ORDER:	30 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal, such costs to be taxed in default of agreement.

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 WALESDISTRICT REGISTRY	N 910 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VAN MET DUONG Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	RYAN, SUNDBERG and EMMETT JJ
DATE:	30 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. In this matter the appellant instituted by a notice of appeal filed on 22 August 1999 an appeal against a judgment of a Judge of the Court given on 1 August 2000.  The notice of appeal recited under the heading, Grounds, “These will be advised.”  At a callover conducted by Beaumont J on 6 September 2000 it was directed that the appellant was to file an amended notice of appeal by 15 September 2000.

2. We infer that his Honour contemplated that the amended notice of appeal would supply the deficiency to which we have just referred by furnishing grounds of appeal.  Notwithstanding his Honour’s order, no grounds were supplied.  The matter came on for directions before Emmett J, a member of this Full Court, but subsequently there was still no attempt to supply grounds of appeal until a document containing what purported to be three grounds of appeal was filed yesterday afternoon.

3. There were also filed written submissions on behalf of the appellant seeking to support those grounds of appeal.  In the meantime, the respondent had taken out a motion on notice dated 16 November 2000 seeking that the appeal be dismissed and that the appellant pay the respondent's costs.  In an affidavit in support of that motion, Mr Allatt, of the Australian Government Solicitor, deposed to the history of the matter and included in his affidavit was this paragraph:

   Subsequently an appeal book index has been settled before a Registrar of the Court.  On 14 November 2000, an employee of Searle and Associates, solicitors for the appellant, attended upon my office to have verified the appeal book for printing.  Contained in the draft appeal book was the notice of appeal filed on 22 August 2000.  No amended appeal has been filed disclosing any grounds of appeal.

4. This morning oral application has been made on behalf of the appellant to amend the notice of appeal by supplying the grounds set out in the draft document which, as we have said, was filed yesterday.  That application is opposed by the respondent.  By way of conceding the difficulties faced by the respondent in the absence of properly furnished grounds of appeal, an application has now been made on behalf of the appellant for an adjournment of the present application to enable him to put on evidence, as we understood it, to explain the failure until yesterday or today to attempt to supply the deficiency in respect of grounds of appeal.

5. The Court has come to a unanimous view that the deficiencies in the evidence in support of the application for leave to amend the notice of appeal are such that the adjournment should not be granted.  We have had the opportunity of reading the proposed grounds of appeal and the written submissions in support of those grounds, and have, as well, of course, read the reasons for the judgment sought to be appealed from. 

6. The Court is of the unanimous view that there is no substance in any of the proposed grounds.  Accordingly, we are fortified in the view that we take that the adjournment sought by Mr Goldberg should not be granted but that the motion of the respondent should be acceded to and the appeal should be dismissed.  The order of the Court therefore is that the appeal be dismissed and the appellant pay the respondent's costs to be taxed in default of agreement.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated:            30 November 2000

Counsel for the Appellant:	Mr C Goldberg
Solicitor for the Appellant:	Searle & Associates
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 November 2000
Date of Judgment:	30 November 2000