FEDERAL COURT OF AUSTRALIA

Marcelo v Minister for Immigration & Multicultural Affairs

[2001] FCA 449

MILAGROS MARCELO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 106 OF 2001

GYLES J

SYDNEY

19 APRIL 2001

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant pay the costs of the respondent.

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

REASONS FOR JUDGMENT (EX TEMPORE)

1                     In this matter the history is set out in an affidavit of Mr Cureton of 19 April 2001 and service of communications has been established by affidavits from a process server.  On its face, it is a straightforward matter for the application of O 10, r 3(2) having in mind the failure of the applicant in the case to appear as detailed in that evidence.

2                     My concern lies in the fact that the second directions hearing was listed before the Registrar at 2.15 pm on 15 March 2001 but, for reasons which I cannot ascertain, and which the solicitor for the respondent is unable to assist with, that matter was not listed on that day and it was listed for directions before me on 29 March 2001.  I am satisfied however that, notwithstanding that circumstance, appropriate notice has been given to the applicant as to the directions hearing today and there is no explanation for non-appearance.  It is not the first time and it is therefore a matter appropriate for an order to be made under O 10, r 3(2).

3                     The solicitor for the respondent indicated that notice would be given pursuant to O 35, r 7.  I dismiss this application and I order the applicant to pay the costs of the respondent.

Associate:

Dated:              23 April 2001