FEDERAL COURT OF AUSTRALIA

NAOU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 406

APPLICANT NAOU OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No N 956 of 2002

SPENDER, RYAN, WHITLAM JJ

SYDNEY

4 DECEMBER 2002

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal on an indemnity basis.

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

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a decision of Wilcox J dismissing an application for review of a decision of the Refugee Review Tribunal on the basis that the appellant failed to appear at two successive directions hearings.

2                     The respondent filed an affidavit which recounts the history of this matter.  The appellant has failed to appear before the Court on numerous occasions.  He did not attend the first directions hearing before Wilcox J on 13 August 2002, which was stood over to 27 August 2002.  The appellant also failed to attend on that day, notwithstanding that he had been given notice of each of those hearings.  The application was consequently dismissed by Wilcox J pursuant to O 10 r 3(2) of the Federal Court Rules.

3                     The appellant has filed a notice of appeal from Wilcox J’s decision.  Despite being informed by the respondent that he should instead make an application to the primary judge pursuant to O 35 r 7, he has not done so.  He did not appear at the callover of his appeal before Sackville J on 30 October 2002, nor at the resumed settling of the appeal index before Registrar Quilter on 18 November, 2002, despite being given notice that his attendance was required on each of these dates.

4                     As counsel for the respondent has noted in his written submissions, Wilcox J’s decision is interlocutory so leave to appeal is required: Minogue v Williams (2000) 60 ALD 366.  The appeal is therefore incompetent, leave neither having been sought nor granted pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  If leave to appeal were to be granted, it is plain that the appeal must nevertheless be dismissed.  There is absolutely no basis upon which to suggest that there is any error in the discretion exercised by Wilcox J in dismissing the appeal for want of prosecution and want of appearance.

5                     In the circumstances the appeal must be dismissed.  Having regard to the history of the matter, and in the light of the request by the respondent that costs be assessed on an indemnity basis, it seems that this is an appropriate case where indemnity costs ought be granted.  The resources, not only of the respondent and of his legal representatives but also of the Court, have been wantonly wasted.  Consequently the appeal is dismissed and the appellant is to pay the costs of the respondent on an indemnity basis.

Associate:

Dated:              11 December 2002