Vittoriano v Minister for Immigration

[2016] FCCA 1199

FEDERAL CIRCUIT COURT OF AUSTRALIA

VITTORIANO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1199

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE AND PROCEDURE – no appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 44.12

Applicant: FRANCESCO VITTORIANO

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1597 of 2014

Judgment of: Judge Emmett

Hearing date: 18 May 2016

Date of Last Submission: 18 May 2016

Delivered at: Sydney

Delivered on: 18 May 2016

REPRESENTATION

No appearance by or on behalf of the applicant.

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: Sparke Helmore Lawyers

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1597 of 2014

FRANCESCO VITTORIANO

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 12 June 2014, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing.

2. On 26 August 2014, the matter first came before me for a First Court Date. On that occasion, the applicant was represented by his solicitor, Mr Jethro Horowitz of Sweeney Tiggemann Solicitors. A Notice of Address for Service was filed in Court by Mr Horowitz. On that occasion, the matter was set down for a show cause hearing pursuant to r.44.12 of the Rules on 2 September 2014. By consent of both parties, that hearing was rescheduled to 13 November 2014.

3. On 13 November 2014, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. The matter was set down for final hearing for today.

4. On 12 May 2016, the applicant’s solicitor, Mr David Sweeney, contacted the Court via email. That email correspondence was tendered by the first respondent and marked ‘Exhibit 1R’. In Exhibit 1R, Mr Sweeney stated that he has been unable to communicate by phone, mail or email with the applicant for some time; that he did not know the applicant’s address; and, for those reasons he has no instructions to take any further steps in the proceeding. Mr Sweeney also stated that the applicant was served with a ‘Notice of Intention of Ceasing to Act’ on Facebook Messenger.  For the sake of completeness, I set out the contents of Exhibit 1R in full, as follows:

   “We have been acting for Francesco Vittoriano in this matter.

   It is listed for hearing before Her Honour on 18 May 2016.

   We have been unable to communicate by phone, mail, or email, with the Mr Vittoriano [sic] for some time. We don’t know his address. Accordingly we needed to withdraw from this matter months ago and took steps to do so.

   Because I had Facebook contact with Mr Vittoriano I [sic], on 23.2.2016, served him with a Notice of Intention Cease to Act [sic] by Facebook messenger. A copy of this document is attached. He replied on the same day and we exchanged several Facebook messages.

   On 10 March 2016 we concurrently attempted to file with the online Registry the Notice of Intention to Cease to Act and the Notice of Ceasing to Act. On 11 March 2016 I received an email from [email protected] asking me to remove the Notice of Ceasing to Act from the lodgment on the grounds there needed to be a 7 day delay between the filing of the two documents. That email was overlooked. On 23 March 2016 [email protected] emailed me again, this time to advise that the lodgment had been rejected on account of “Information requested not received”. That email was also overlooked. I sincerely regret and apologise for my oversights. I can’t say with certainty why it happened. That said I probably believed both emails were confirmatory of activity that I was aware of, rather than evidence of fresh information that was being provided to me.

   The Respondent’s solicitors were served with an unsealed copy of the Notice of Ceasing to Act on 1 April 2016.

   In the circumstances would you please ask Her Honour to me/my firm leave [sic], in Chambers, to withdraw from acting for Mr Vittoriano.

   I am not instructed, and I am unaware of anything my firm can do to assist the Court when the matter is heard.”

5. Counsel for the first respondent, Mr Greg Johnson, also tendered a letter dated 11 May 2016, to the applicant from the solicitor for the first respondent, addressed to the applicant’s only known address for service in Australia. That letter was marked ‘Exhibit 2R’.

6. Exhibit 2R informed the applicant of the date, time, and location of today’s scheduled hearing. It further informed the applicant that if the applicant did not attend today’s hearing, then his matter may be dismissed with costs.

7. The matter was set down for hearing today at 10.15am. It is now 10:27am. The matter has been called at least twice outside, the last occasion being less than five minutes ago.

8. There has been no communication received from or on behalf of the applicant, either by the Court or the first respondent’s solicitor, seeking an adjournment of today’s hearing, or for any other reason.

9. In the circumstances, I am satisfied that the applicant is aware of today's scheduled hearing and, for whatever reason, has chosen not to attend.

10. I am satisfied that the orders sought by the first respondent are appropriate.

11. Accordingly, the proceeding before this Court, commenced by way of application filed on 12 June 2014, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules by reason of the failure of the applicant to appear at today’s scheduled hearing.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 23 May 2016