Veeva Enterprises Pty Ltd v Minister for Immigration and Anor
[2020] FCCA 2836
•16 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VEEVA ENTERPRISES PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2836 |
| Catchwords: MIGRATION – Failure by Applicant to comply with Rule 9.04 of the Federal Circuit Court Rules 2001 – commencement of proceedings otherwise than by a lawyer – application to dismiss proceeding by reason of applicant’s default in compliance with the Rules of Court – due service of application – no appearance by or on behalf of the Applicant at the hearing of the Application for Dismissal of the proceeding – no explanation for non-appearance by Applicant – Originating Application for Review dismissed. |
| Legislation: Migration Act 1958 (Cth), s. 140GB Federal Circuit Court Rules 2001 (Cth), rr. 9.04, 13.03A(1)(d), 13.03B(1)(a). Federal Circuit Court of Australia Act 1999 (Cth), s. 15. |
| Cases cited: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd BC9905791 [1999] FCA 1241. Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18. Anying Group Pty Limited v Wang [2012] FCA 702. |
| Applicant: | VEEVA ENTERPRISES PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 398 of 2020 |
| Judgment of: | Judge Egan |
| Hearing date: | 16 October 2020 |
| Date of Last Submission: | 16 October 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 16 October 2020 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitors for the First Respondent: | Ms Allen, Solicitor of Sparke Helmore |
ORDERS
The First Respondent’s Application in a Case filed on 26 August 2020 be granted.
The Originating Application for Review filed on 14 July 2020 be dismissed pursuant to the provisions of Rule 13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 398 of 2020
| VEEVA ENTERPRISES PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an Originating Application for Review filed on 14 July 2020, the Applicant company sought review of a decision of the Administrative Appeals Tribunal made on 10 June 2020. That decision affirmed a decision of a delegate to the Minster to not approve a nomination application made by the applicant pursuant to the provisions of s. 140GB of the Migration Act 1958 (Cth) (‘the Act’).
The proceeding commenced by the applicant was not started or carried on by a lawyer in breach of the provisions of r. 9.04 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). Rule 9.04 of the Rules provided as follows:
“Federal Circuit Court Rules 2001 – Rule 9.04
Corporation must be represented
Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.”
If an applicant fails to do any act required to be done by the Rules, such party is in default for the purposes of r. 13.03A(1)(d) of the Rules, which rule relevantly provided as follows:
“Federal Circuit Court Rules 2001 – Rule 13.03A
When a party is in default
(1) for rule 13.03B, an applicant is in default of the applicant fails to:
(a)…
…
(d) do any act required to be done by these Rules; or”
If an applicant is in default under r. 13.03A of the Rules, application may be made for an order that the relevant proceeding be dismissed pursuant to r. 13.03B(1)(a) of the Rules. Rule 13.03B(1)(a) relevantly provided as follows:
“Federal Circuit Court Rules 2001 – Rule 13.03B
Orders on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or”
On 26 August 2020, the First Respondent, by its lawyer, filed an application in a case seeking dismissal of the Originating Application for Review pursuant to the provisions of r. 13.03B(1)(a) of the Rules. Prior to the filing of that application in a case, no notice of address for service had been filed on behalf of the applicant by a lawyer.
The first respondent submitted to the Court that prior to the filing of the application in a case, the first respondent’s lawyers had given adequate notice to the applicant that should a notice of address for service not be filed by the applicant by close of business on 18 August 2020, application would be made for the dismissal of the Originating Application for Review, with costs, by reason of the applicant’s non-compliance with the provisions of r. 9.04 of the Rules. [1]
[1] Paragraph 5 of Affidavit of Cody Allen filed on 26 August 2020 and Annexure CNA-1 to the
Affidavit of Cody Allen filed on 26 August 2020.
The first respondent’s lawyers gave further notice to the applicant that should a notice of address for service not be filed by the applicant by midday on 26 August 2020, application would be made for the dismissal of the Originating Application for Review, with costs, by reason of the applicant’s non-compliance with the provisions of r. 9.04 of the Rules. [2]
[2] Paragraph 6 of Affidavit of Cody Allen filed on 26 August 2020 and Annexure CNA-2 to the
Affidavit of Cody Allen filed on 26 August 2020.
Ms Allen deposed, at paragraph [7] of her affidavit, that no notice of address for service had been filed on behalf of the applicant by a lawyer as at 26 August 2020.
Upon the filing of the application in a case, the hearing of that application was listed for 16 October 2020 at 9:45am before this Court.
After the filing of each of the application in a case and the affidavit of Ms Allen, the lawyers for the first respondent sent an email to the applicant (at the applicant’s nominated email address) on 27 August 2020 attaching, by way of service, the application in a case for dismissal of the proceeding, together with the affidavit of Ms Allen. [3]
[3] Paragraph 3 of the Affidavit of Jake Kyranis filed on 4 September 2020, and Annexure JTK-1
thereto.
On 8 October 2020, an email was sent by Judge’s Chambers to the applicant’s nominated email address and to the first respondent advising the parties that the hearing of the application in a case listed for 16 October 2020 at 9:45am was to proceed by telephone. [4]
[4] Exhibit 1.
On 12 October 2020, the first respondent’s lawyers sent an email to the applicant at its nominated email address attaching the first respondent’s submissions in support of the application in a case. [5]
[5] Exhibit 3.
On 16 October 2020, the first respondent’s lawyers sent an email to the applicant’s nominated email address attaching copies of the following cases which were intended to be relied upon at the hearing of the application in a case: [6]
a)Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd BC9905791 [1999] FCA 1241;
b)Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18;
c)Anying Group Pty Limited v Wang [2012] FCA 702.
[6] Exhibit 4.
When the matter was called shortly after 9:45am, there was no appearance by or on behalf of the applicant. The Court was advised by the associate that an attempt had been made by him at 9:45am to telephone the applicant on the nominated mobile telephone number for the applicant as set out in the Originating Application for Review, but that the call was not answered. The associate then called the matter three times in the precincts of the Court, but no one appeared on behalf of the applicant.
On display in the foyer of the Court building there was today displayed for public examination a list of matters for hearing. This matter appeared on page 2 of such list. [7]
[7] Exhibit 2.
In the light of there being no appearance by or on behalf of the applicant, Ms Allen made application for dismissal of the proceeding pursuant to the provisions of r. 13.03B(1)(a) of the Rules.
The Court noted that despite having been given notice on at least three (3) occasions of the first respondent’s intention to seek dismissal of the proceeding should the applicant not cause a notice of address for service to be filed on its behalf by a lawyer, the applicant failed to do so. The Court further noted that there was no appearance by the applicant at the hearing before the Court, nor any explanation for such non-appearance, notwithstanding that service of the application in a case had been effected upon it.
In the absence of any appearance on behalf of the applicant, the Court infers that the applicant has no interest in pursuing its Originating Application for Review of the decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 10 June 2020.
The Court has a wide discretion in circumstances such as the present to make orders which are appropriate and in the interests of the administration of justice pursuant to the provisions of s. 15 of the Federal Circuit Court of Australia Act 1999 (Cth). This is a circumstance where the first respondent has clearly put the applicant on notice of its intention to make application for the dismissal of the proceeding should the applicant’s default not be remedied.
In the exercise of the Court’s discretion, the first respondent is entitled to the relief sought in the application in a case.
The Originating Application for Review is dismissed.
The Court will hear the first respondent on the question of costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 16 October 2020.
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