FEDERAL COURT OF AUSTRALIA

SZDMP v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 234

SZDMP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 893 OF 2005

BLACK CJ, FINKELSTEIN AND ALLSOP JJ

14 NOVEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) for the appellant’s failure to attend the hearing of the appeal.

2. The appellant pay the respondent’s costs of the appeal and of the Notice of Motion.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BLACK CJ:

1                     This appeal against the summary dismissal of the appellant’s application for judicial review comes before the Full Court pursuant to leave to appeal granted by Branson J on 23 June 2005 (SZDMP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 883) and following a determination I made as Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth).

2                     The Notice of Appeal contains two grounds. The first is that the order for summary dismissal made by the Federal Magistrate on 16 May 2005 (SZDMP v Minister for Immigration (No 2) [2005] FMCA 649) was made in breach of s 13 of the Federal Magistrates Act 1999 (Cth) in that the Federal Magistrate did not have power to make a decision or to give judgment (a) in Chambers; and (b) without an oral hearing. The second ground is that, by giving judgment in Chambers and without having an oral hearing, the appellant was denied procedural fairness.

3                     Also before the Court is a Notice of Motion filed by the respondent on 27 October 2005, seeking an order that the appeal be dismissed pursuant to s 25(2B)(ba) of the Federal Court of Australia Act 1976 for want of prosecution and/or pursuant to s 25(2B)(bb) of the Act for failure to comply with a direction of the Court. The order is sought on the ground that the appellant has failed to file and serve an appeal book. It appears that neither the appellant’s pro bono counsel, nor the respondent’s solicitors, has been able to contact the appellant or anyone acting on his behalf since at least 18 August 2005. In these circumstances counsel returned his brief to appear and advised that, in the absence of instructions from the appellant, he was unable to appear at the hearing of the appeal.

4                     When the matter was called on for hearing before us there was no appearance for the appellant and Mr Beech-Jones of Counsel, who appeared for the respondent, submitted that the appeal should be dismissed for the appellant’s failure to attend the hearing: the Federal Court of Australia Act 1976, s 25(2B)(bb)(ii).

5                     In her reasons for granting the appellant leave to appeal, Branson J outlined the history of the proceeding. It is unnecessary for me to repeat that history here since the present appeal is concerned only with the orders made by the Federal Magistrate on 8 March 2005 and subsequently on 16 May 2005. The third order made on 8 March 2005 was to the effect that if the appellant did not comply with the first order – which required him to file an amended application giving complete particulars of each ground of review being relied upon and any evidence upon which the applicant proposes to rely by 8 April 2005 – “the matter will be dealt with in Chambers by [the] Federal Magistrate … for summary dismissal.”

6                     Although the appellant did file an amended application on 8 April 2005, that document was not on the court file when it was searched by the respondent’s solicitors on 12 April 2005. The solicitors then wrote to the Deputy Associate to the Federal Magistrate on the assumption that an amended application had not been filed and that the appellant was thus in default of the orders made on 8 March 2005. By that letter, the respondent’s solicitors sought orders that would, in effect, dismiss the proceedings. On 16 May 2005, the Federal Magistrate made orders in Chambers dismissing the application with costs. The relevant order reads:

The application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court dated 8 March 2005.

This was done without providing an opportunity for the appellant to be heard.

7                     Branson J concluded her reasons for granting the appellant leave to appeal with these observations:

In my view it is far from clear that either s 13 of the Federal Magistrates Act 1999 (Cth) (‘the Act’) or rule 13.03 of the Rules authorised the procedure adopted by the Federal Magistrates Court in this matter. In particular it is not obvious that either the Act or the Rules authorised

(a) the informal application made to the Federal Magistrate by the letter from the respondent’s solicitor dated 12 April 2005;

(b) the dismissal of the applicant’s amended application filed on 8 April 2005 without his being heard in opposition to that course; or

(c) the making of an order bringing the proceeding to an end, and the publication of reasons for judgment in respect of that order, in Chambers.

The importance of the issues identified by Branson J concerning procedures adopted by the Federal Magistrates Court, particularly when hearing and determining proceedings brought by self-represented applicants, was such as to warrant this appeal being heard by a Full Court.

8                     Since the appellant has not appeared to prosecute to his appeal despite having been given notice of the time and place of the hearing (and I note the affidavit evidence to that effect) and has given no explanation for his failure to appear, the appeal should be dismissed with costs pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) for the appellant’s failure to attend the hearing.

9                     The course adopted by the Federal Magistrate was nevertheless the subject of submissions by counsel for the Respondent and it is desirable that something be said about the procedure adopted in this case.

10                  The orders made by the Federal Magistrate included the order, mentioned earlier (at [6]), that the proceedings be dismissed for “failing to comply with the orders of the Court dated 8 March 2005”. On its face, this order would seem to have been founded on a mistake because the appellant did in fact file an amended application on 8 March 2005. The appellant could therefore have applied to the Federal Magistrate to have the order set aside. The Federal Magistrate’s reasons, however, disclose that he accepted that the appellant had filed his amended application within time ([2005] FMCA 649 at [10]). On what basis, then, could the order for dismissal be supported?

11                  In his reasons, the Federal Magistrate stated (at [14]):

The amended application did not disclose any cause of action and, in the absence of any particularisation, evidence or transcript details, would not succeed if the matter proceeded to a final hearing.

That conclusion necessarily involves an assessment of the appellant’s purported compliance with the first order made on 8 March 2005.

12                  Had the third order made on 8 March 2005 been properly “self-executing” or “self-operating”, not only would there have been no need for the Federal Magistrate to evaluate compliance with the first order, but it would not have been necessary for the matter to be returned to his Honour for further adjudication; the proceeding would have stood dismissed pursuant to the orders made on 8 March 2005. I refer to what I said in a case heard at the same time as this one – NBGI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 233 – about self-executing orders.

13                  An order in the terms of the first order made by the Federal Magistrate could not be said to be unambiguous, nor expressed with such clarity and precision that the appellant, particularly as he was self-represented, would have no doubt whatsoever as to what was required to be in his amended application to avoid it being summarily dismissed. In these circumstances, it was wrong to dismiss the appellant’s application without giving him proper notice and an opportunity to be heard in opposition to that course. Moreover, formal application should have been made to the Court. The letter sent by the respondent’s solicitors to the Federal Magistrate’s Chambers was an impermissible informality in these circumstances.

14                  It remains only to say that to the extent the Federal Magistrate’s reasons could be read as supporting the order for dismissal on the grounds that the amended application did not disclose any reasonable cause of action or any basis for the application, the case should have been dealt with explicitly on that footing. The order made did not reflect any such reasoning.

15                  As I have noted, however, the application made by counsel for the respondent that the appeal be dismissed for the appellant’s failure to attend the hearing should be granted and the appeal should be dismissed, with costs.

Associate:

Dated: 22 December 2005

REASONS FOR JUDGMENT

FINKELSTEIN J:

16                  I agree in the reasons of the Chief Justice and with the orders he proposes.

Associate:

Dated: 22 December 2005

REASONS FOR JUDGMENT

ALLSOP J:

17                  I agree in the reasons of the Chief Justice and with the orders that he proposes. I would repeat what I have said in my separate reasons in NBGI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 233.

Associate:

Dated: 22 December 2005