FEDERAL COURT OF AUSTRALIA

NACW v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 728

MIGRATION – appeal – protection visa refused – non-appearance of appellant

PRACTICE AND PROCEDURE – parties – non-appearance of party

Federal Court Rules Order 52 r 38A( c), 52 r 38A(2)

NACW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 573 OF 2003

HELY J

15 JULY 2003

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal should be dismissed with costs.

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

1                     This matter was fixed for hearing on 10 July 2003 by directions which I gave on 26 May 2003.  One of those directions was that the appellant should file and serve an outline of submissions on or before five clear working days prior to the hearing date.  That direction has not been complied with.  When the matter was called on for hearing on 10 July 2003 the appellant did not appear.  He sent a facsimile to the Court and to the respondent's solicitors at 7.05 am on 10 July 2003 indicating that his inability to appear on that occasion was the result of a his vehicle breaking down.  The appellant lives in Woolgoolga, which is a country town near Coffs Harbour.  The matter was adjourned until today and notice of that adjournment was given to the appellant by facsimile transmission and express post on 10 July 2003.  The facsimile transmission was made to the telephone number provided by the appellant to the Court in his fax of 10 July 2003.

2                     In addition, on 14 July 2003 Ms Stone, a solicitor in the employ of the respondent's solicitors, spoke to the appellant by telephone.  A conversation occurred to the following effect:

‘Ms Stone:       I am calling from Blake Dawson Waldron about your immigration case.  Are you aware that  your hearing is listed in Sydney tomorrow at 10.15 am?

Appellant:       Yes, I know about the hearing.

Ms Stone:        How are you travelling to Court for tomorrow's hearing?

Appellant:       I am driving down.’

3                     This morning the appellant again did not appear.  He sent another fax to the Court and to the respondent's solicitors at 6.57 am on 15 July 2003 indicating that he was unable to appear because he had not been able to secure a seat on a train or bus because of congestion due to the school holidays.

4                     The respondent opposes a further adjournment of the appeal and submits that an order should be made under Order 52 r 38A(c) of the Federal Court Rules dismissing the appeal.  If such an order is made, Order 52A r 38A(2) enables the Court to set it aside on motion.  One of the issues which would arise on such a motion is whether the appellant had satisfactorily explained his failure to appear on both 10 July 2003 and this morning.

5                     In the circumstances I think it is appropriate that an order should be made dismissing the appeal.  Accordingly, I dismiss the appeal under Order 52 r 38A.  I direct that the respondent's solicitors provide the appellant with a copy of these reasons and notify the appellant of the dismissal of the appeal and of the terms of Order 58 r 38A(2).  Whether the appellant seeks to make an application to set aside this order is, of course, a matter for him and he would have to show cause why such an order should be made.

6                     The appeal should be dismissed with costs including reserved costs.

Associate:

Dated:              16 July 2003