FEDERAL COURT OF AUSTRALIA

NABE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1410

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

N 1006 of 2002

ALLSOP J

11 NOVEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.                     The application be dismissed under Order 10 rule 3 of the Federal Court Rules.

2.                     The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     In this matter, the applicant, whose name appears on the application and who has been given the designation “NABE of 2002” so that the Court may comply with s 91X of the Migration Act 1958 (Cth) (the Act), filed an application on 26 September 2002 for review of a decision of the Refugee Review Tribunal.  The matter was given a return date before a Registrar of the Court on 17 October 2002. 

2                     On 3 October 2002 (and posted 4 October 2002) the respondent's solicitors, Messrs Blake Dawson Waldron, sent a letter to the applicant at the address given by him on his application, indicating that the matter had been set down for a directions hearing on 17 October 2002 at 2.15 pm.  The letter also indicated that it was important that the applicant attend Court at that time, and that should the applicant wish to discuss his case, Ms Grewal of Blake Dawson Waldron was available to discuss the matter, her telephone number being given. 

3                     On 17 October 2002, a solicitor employed by Blake Dawson Waldron appeared at the directions hearing before Deputy District Registrar Segal.  No appearance was made by the applicant on that occasion.

4                     On 18 October 2002, Ms Grewal sent a letter to the applicant identifying the orders that were made by Deputy District Registrar Segal on the previous day.  One of those orders was that the directions hearing be adjourned to 29 October 2002 at 9.30 am before me.  The letter indicated that the applicant or his representative must attend Court at that time.  The question of transfer to the Federal Magistrates Court was also raised by this letter.

5                     On 21 October 2002, Ms Grewal sent the same letter to Mr M Tyson, a barrister of Selborne Chambers.  Mr Tyson was not the ordinarily retained barrister on behalf of the applicant but the barrister assigned to the applicant through the Refugee Review Tribunal pilot scheme according to information provided by the Court to the Department of Immigration and Multicultural and Indigenous Affairs. 

6                     Ms Grewal appeared before me on 29 October 2002 and I had the matter called three times outside the Court on that day.  The call, of course, was for “Applicant NABE of 2002” by reason of the strictures of s 91X of the Act.

7                     After the hearing of 29 October 2002, Ms Grewal, on 31 October 2002, caused a letter to be sent to the applicant by courier.  The letter made clear to the applicant that he had failed to attend two direction hearings and that a notice of motion was to be heard today, 11 November 2002, at 2.15 pm to dismiss the application, explicitly and implicitly by reason of his failure to attend.  Also served with that letter was the notice of motion upon which Ms Grewal moves this afternoon and her affidavit of 29 October 2002.  The applicant was told in the letter that if neither he nor his legal representative appeared before the court this afternoon the notice of motion may be heard and an order may be made against him in his absence. 

8                     Ms Grewal has read two affidavits sworn by herself, being the affidavits of 29 October 2002 and 6 November 2002.  She has also tendered business records of Blake Dawson Waldron indicating that the courier was requested to serve the documents referred to in her affidavit of 6 November 2002, that request being made on 31 October 2002 and service being apparently made, by reference to the courier request form, on 31 October 2002.  I am satisfied that the records indicate that the applicant was served with the documentation on 31 October 2002 at his last known address, being the address which is given on the application. 

9                     In these circumstances, the applicant, having shown no apparent interest in his own case on three occasions, I think it appropriate to invoke O 10 r 3 upon which Ms Grewal relies, to dismiss the application. 

10                  Before formally making those orders, I should add that when the motion was called on for hearing today, I had the applicant called three times outside by his designated initials “NABE of 2002”.  I also had the Court officer examine the whole of the Court floor area on level 21.  There was no person on level 21 in the public areas.  In these circumstances, the question as to whether the respondent should obtain an order under O 10 r 3 in circumstances where I cannot call the applicant by name outside the Court, does not arise for consideration. 

11                  For the above reasons, I make orders in accordance with pars 1 and 2 of the notice of motion filed on 30 October 2002.

Associate:

Dated:              22 November 2002