FEDERAL COURT OF AUSTRALIA

VOAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1505

Brown v Fraser (1896) 22 VLR 22 considered

Crotty v Clarke (1896) 22 VLR 594 considered

Adams v Cronin (Victorian Court of Appeal, 6 September 1996) considered

MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 considered

MZWFV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 923 considered

VOAQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 708 OF 2004

SUNDBERG J

26 OCTOBER 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The time within which the applicant may file the notice of motion purportedly filed on 27 June 2005 be extended to 27 June 2005 and the notice of motion be deemed to have been filed on that date.

2.                  The applicant’s motion notice of which is deemed to have been filed on 27 June 2005 be dismissed.

3.                  The applicant pay the respondent’s costs of the application for extension of time and motion.

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 application for an extension of the time within which to review a Registrar’s decision striking out the applicant’s proceeding for non‑appearance and for leave to review that decision with a view to having it set aside, has a complicated background.

2                     On 22 April 2003 the applicant lodged in this Court an application to review a decision of the Minister. The Court’s file does not disclose the nature of the decision. That application was transferred to the Federal Magistrates Court. On 27 May 2004 the Chief Federal Magistrate dismissed the application for non‑appearance by the applicant. On 7 June 2004 a notice of appeal from the dismissal was filed in this Court. The ground of appeal was that “the merits of this case have as yet not been heard”. At the first directions hearing on 6 August 2004 Mr Belbruno, a solicitor, appeared for the applicant. The report of listing does not record an appearance for the Minister. The matter was adjourned to 3 September 2004.

3                     On 17 August 2004 the Minister’s solicitors wrote to the applicant as follows:

“On 27 May 2004, Chief Federal Magistrate Bryant dismissed your application in proceeding no MZ485 of 2004 as a consequence of your failure to appear at the hearing. You have now filed an appeal against her decision.

Order 16, rule 5 of the Federal Magistrates’ Court Rules provides that where an order is made in the absence of a party, as occurred in your case, the court may vary or set aside that order. If a court is asked to set aside a judgment which has been entered in the absence of a party, it will consider:

1.                  Whether the applicant can satisfactorily explain his absence from the hearing; and

2.                  Whether the applicant can demonstrate that if the judgment is to be set aside and the application is to proceed, the applicant has an arguable case that the application will be successful.

In the circumstances, the judgment delivered by Chief Federal Magistrate Bryant is an interlocutory judgment and section [24(1A)] of the Federal Court Act provides that an appeal is not to be brought [from] a judgment of the Federal Magistrates’ Court that is an interlocutory judgment unless the court or a judge gives leave. You have not made an application for leave to appeal. In any event, we suggest that it would be more appropriate for you to make an application in the original proceeding (MZ485) for the judgment of Chief Federal Magistrate Bryant to be set aside in accordance with Order 16, rule 5 of the Federal Magistrates’ Court Rules and that the appeal which you have commenced in the Federal Court should be dismissed.

We enclose proposed minutes of consent orders. We are instructed that if this matter is dismissed prior to the first directions hearing on 3 September 2004, the Minister will not seek an order for costs against you. If the terms are acceptable to you, please sign the proposed minutes and return them to us by facsimile …. In the event that the orders are not agreed to, we may be instructed to ask the court to dismiss the appeal for the reasons set out above and to order that you pay the Minister’s costs of this proceeding.”

4                     At the directions hearing on 3 September 2004 Mr Belbruno again appeared for the applicant. On 8 September the Minister’s solicitors wrote to Mr Belbruno as follows:

“We refer to the directions hearing in this matter on 3 September 2004 and attach for your information a copy of our correspondence to the applicant dated 17 August 2004.

We consider that the applicant in the current proceeding is not able to proceed without leave because the decision made by Bryant CFM was interlocutory. We suggest that it would be appropriate for the applicant to agree to dismiss the current proceeding and to make an application to have the judgment of Bryant CFM set aside.”

Then followed a paragraph in the same terms as the concluding paragraph in the letter of 17 August.

5                     On 17 August 2004 Mr Belbruno filed in the Federal Magistrates Court a notice of appearance and an application for review of the Chief Federal Magistrate’s decision of 27 May 2004. On 23 September minutes of consent orders dated 16 September 2004 were faxed to the Court. They were signed by Mr Belbruno on behalf of the applicant and by the Minister’s solicitors, and recorded consent to an order that the application be dismissed with no order as to costs. On 1 November that consent order was made.

6                     On 20 December 2004 the applicant filed a notice of motion seeking an order that what he described as the consent order made on 16 September be set aside, and that he have “leave to appeal this matter”. In his affidavit in support he says he did not consent to the orders, and, rather surprisingly, that “the person” who signed them is not known to him. On 9 March 2005 minutes of consent orders were faxed to the Court. They recorded the parties’ agreement that the order of 1 November 2004 be set aside. The matter was listed for directions on 9 May. The applicant did not appear on that day, and the Registrar struck out the application on that ground.

7                     On 27 June the applicant filed three documents:

·                 an application for extension of time to file and serve an application for review of the Registrar’s decision

·                 a notice of motion for leave to review that decision, and to set aside the order of 9 May

·                 an affidavit in support, in which he says he was not aware of the 9 May hearing and had not been notified of it by the Court.

8                     The Court file does not contain the customary letter informing the applicant of the directions hearing on 9 May 2005. The application for an extension of time to review the Registrar’s decision was not opposed, and I will grant it. However the application for leave to review the decision, it being an interlocutory order, was opposed.

9                     If the Registrar’s order were set aside, the extant proceeding in this Court would be the “notice of appeal” from the Chief Federal Magistrate’s order dismissing, for want of appearance, the application in that court for review of the Minister’s decision. No leave has been obtained to mount that appeal. The other extant proceeding is the application in the Federal Magistrates Court made on 17 September 2004 to set aside the Chief Federal Magistrate’s order under Order 16 rule 5 of that Court’s Rules.

10                  The suggestion made in the Minister’s solicitors’ letters of 17 August (see [3]) and 8 September 2004 (see [4]) was soundly based, and was in fact acted on. A little less than a week after the second letter would have reached Mr Belbruno, the minutes of order proposed by the Minister’s solicitors were signed. They have since been set aside, but for present purposes nothing turns on that. One day after the signing of the minutes, Mr Belbruno acted on the solicitors’ suggestion. He filed an appearance in the Federal Magistrates Court stating that he “now acts on behalf of the Applicant”, and filed an application to set aside the Chief Federal Magistrate’s order. That was plainly the appropriate course to adopt: dispose of the proceeding in this Court and apply in the Federal Magistrates Court under Order 16 rule 5 of the Rules of that Court. Apart from the common sense of approaching the court that made the order of dismissal for non‑appearance in order to have it set aside, it may very much be doubted that this Court has jurisdiction to entertain an appeal against such an order. See Brown v Fraser (1896) 22 VLR 22; Crotty v Clarke (1896) 22 VLR 594; Adams v Cronin (Victorian Court of Appeal, 6 September 1996); MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 and MZWFV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 923. I need not decide that question, because the preferable course is for the applicant to pursue the Order 16 rule 5 application. In those circumstances, in the exercise of my discretion I will not grant leave to review the Registrar’s decision.

11                  Although the point was not raised by the applicant, there may be a question as to the power of the Registrar to make the order of 9 May 2005 striking out the application. See s 25(2B)(bb)(ii) of the Federal Court of Australia Act. In the absence of submissions on the issue, I will not decide the point. If the Registrar had power, what I have said at [10] applies. If the Registrar did not have power, and if that is a jurisdictional deficiency that deprives me of the discretion to refuse an extension of time or leave to review the decision, I would have refused leave to appeal from the Chief Federal Magistrate’s decision of 27 May 2004 and struck out the so‑called “notice of appeal” as incompetent. So the practical result would be the same whether or not the Registrar had power to strike out what he treated as an “application”.

Associate:

Dated:              26 October 2005