FEDERAL COURT OF AUSTRALIA

SZCEX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 280

SZCEX AND SZCEY v Minister for Immigration and Multicultural and Indigenous Affairs

N 1877 of 2004

JACOBSON J

10 MARCH 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The application is to be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.         The applicants are to pay the costs of the respondents, fixed pursuant to Order 62, r 42c, in the amount of $900.00.

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

REASONS FOR JUDGMENT

1.                       This is an application for leave to appeal against the orders and judgment of Federal Magistrate Raphael dated 3 December 2004.  On that date the learned Magistrate dismissed an application made pursuant to rule 16.05 of the Federal Magistrates Court Rules that an order made by the Magistrate on 10 September 2004 pursuant to rule 13.03(2)(b) be set aside. 

2.                       When the matter was called on for hearing at 2.15 pm today there was no appearance by the applicant. 

3.                       Mr White, solicitor for the respondent, informed me that he had spoken to the applicant on the telephone at 1.50pm today with the assistance of the interpreter.  Mr White told me, and I accept, that the applicant informed Mr White that he was on the way to court but that he was running a bit late and would be here at around 2.30.  Mr White also informed me, and I accept, that the interpreter told the applicant in the telephone conversation that the appointed time for hearing was 2.15 pm.

4.                       I am satisfied by reason of the conversation to which I have referred that the applicant was aware of today's hearing.  I am also satisfied that the applicant was notified of the hearing by a notice of listing sent to him from the Federal Court Registry.  Initially, the applicant was informed in a letter dated 3 February 2005 of the listing but that letter was sent to 4/6‑8 Coolah Street, Griffith, New South Wales, whereas the address for service of the applicant shown on the application for leave to appeal is 3/6-8 Coolah Street, Griffith. 

5.                       Nevertheless on 14 February 2005 a further letter from the Registry was sent to the applicant at 3/6-8 Collah Street, Griffith which, as I have said, is the address for service stated in the application for leave to appeal.

6.                       I stood the matter down to 2.30pm and indeed have waited until 2.45pm, that is to say half an hour after the appointed time of hearing, but there is still no appearance.  I am satisfied that I have power to make the order sought by the respondent. 

7.                       It seems to me that the power is to be found in either section 25(2B)(bb)(ii) of the Federal Court Act 1976 (“the Act”) or order 35A, rule 2(1)(f) and rule 3(1)(a) of the Federal Court Rules. 

8.                       It has been necessary to refer to these rules because order 52, rule 38A does not apply; the power conferred by that rule being limited to the case where a party is absent when an appeal is called on for hearing.  Order 32, rule 2 does not apply because that rule is only applicable when a proceeding is called on for trial.  The definition of trial excludes interlocutory hearings. 

9.                       I dealt with a similar application in SZDJA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1499.  The power to make the order is, as I have said, contained in the section or the rules set out above.  I note that a similar approach has been taken by other judges of this court; see for example SZATD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1559 per Whitlam J.

10.                   Accordingly the order I will make is that the application be dismissed.  I order the applicant to pay the respondent's costs of the application fixed pursuant to the rules at $900.

Associate:

Dated:              21 March 2005