FEDERAL COURT OF AUSTRALIA

SZBXX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 823

PRACTICE AND PROCEDURE– application for extension of time in which to file and serve an application for leave to appeal and for leave to appeal a self executing order of the Federal Magistrates Court – query as to basis for self executing order – unsatisfactory explanation for long delay – application should be made to Federal Magistrates Court to set aside order – application dismissed.

Federal Magistrates Court Rules, r 13.03

SZBXX AND SZBXY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 477 OF 2005

GYLES J

8 JUNE 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The applicants’ application for extension of time in which to file and serve an application for leave to appeal and for leave to appeal be dismissed.

2.         No order is made as to costs.

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

REASONS FOR JUDGMENT

1                     This application requires an extension of time for an application for leave to appeal and then seeks leave to appeal.  The judgment in question was the result of a self-executing order made by a Federal Magistrate.  The order was made on 25 March 2004.

2                     The respondent Minister had filed a motion seeking to have the proceeding dismissed on the basis that no arguable cause of action was disclosed.  There had been no directions hearing at that stage.  The time for the hearing of the motion was changed on various occasions. There was evidence before the learned Federal Magistrate that there had been communication with the applicants regarding these events, albeit by post.  The transcript reveals that apparently there had been some inchoate or unsuccessful arrangements to have the matter heard by telephone, the applicants being in Griffith, New South Wales. 

3                     The learned Federal Magistrate elected to proceed, did not strike out the matter for non-appearance, and proceeded to hear the motion of the Minister on the merits and dismissed it.  However, orders were made on that occasion as follows:

‘…

2.      The applicants are to file and serve on the respondent an amended application, setting out each ground of review relied upon and particulars of any facts or circumstances relied upon in support of each ground of review no later than 28 days after the applicants receive advice under the Minister’s pilot advice scheme, should they choose to participate in it, or in any event, no later than 30 November 2004.

3.      In default of compliance with order 2, unless the application is discontinued beforehand, the application is dismissed by force of this order with costs fixed in the sum of $2,000.

4.      If the applicant complies with order 2, this matter will be heard at 10.15 am on 24 March 2005 in Griffith. …’

4                     Ultimately there was no compliance with the order, hence the judgment and hence this application.  This application was made on 29 March 2005.  There has been some attempt to explain the rather extraordinary delay which has taken place, but it is not a convincing explanation for that delay. 

5                     There are grounds for questioning the order which was made.  In the first place, the arrangements for the hearing and the failed telephone hook-up did not provide any great confidence that the applicants were truly on notice of what might occur.  Secondly, and more importantly, it seems to me that the foundation for the self-executing order is extremely doubtful.  Rule 13.03 of the Federal Magistrates Court Rules, which is the most direct source of power which might justify such an order, was arguably not applicable in that case because the applicants had not failed to take a step required by the Rules or to comply with an order of the Court when the order was made. 

6                     I appreciate that an application was made to the learned Federal Magistrate to dismiss the proceedings as not disclosing a cause of action and I also note that there was an order that there be further particulars given.  However, both the relief sought and the grounds which are included in the application are perfectly conventional, albeit lacking some particulars and, in my opinion, it could not have been said that there was no reasonable cause of action disclosed on the face of the pleading.  I do not deal here with the wider question as to the making of self-executing orders and the power to do so. 

7                     However, if there be a defect in what occurred, it has been apparent since the service of these orders shortly after 25 March 2004.  In my opinion, as the explanation for delay is less than satisfactory, the appropriate course for the applicants is to go back to the Federal Magistrates Court and convince that Court, after full consideration of the matter, that the orders should be set aside and the matter proceed on the merits.  There is undoubtedly power to do so.  In saying that, I appreciate that the Federal Magistrates Court will be able to take into account all relevant factors, including the earlier history of the matter. 

8                     Under the circumstances, I decline the application for extension of time and for leave.  I make no order as to costs in the special circumstances of this case.

Associate:

Dated:              21 June 2005