FEDERAL COURT OF AUSTRALIA

SZAHT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1803

SZAHT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR

NSD 1195 of 2005

ALLSOP J

9 DECEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

(1)     the appeal be dismissed;

(2)     the appellant pay the first respondent's costs;

(3)     any application to set aside these orders is to be made by the filing of a notice of motion together with supporting affidavit material explaining why the Court should set aside the dismissal of the appeal given the failure of the appellant to attend on the date fixed for hearing.

THE COURT DIRECTS THAT:

(4)     the solicitors for the first respondent provide a letter to the appellant at his last known address to be dispatched no later than midday Monday, 12 December 2005 indicating the making of these orders in the absence of the appellant.

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 appeal was set down for hearing in the presence of the appellant on 15 September 2005.  I made orders which identified that the matter would be listed for hearing today.  At that stage a decision had not been made by the Chief Justice as to whether one judge or three judges should hear the appeal.  Submissions were filed by the appellant on 8 September as to whether the matter should be heard by one judge or three judges.  After that, on 14 September, the Acting Chief Justice made a direction under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the matter should be heard by a single judge exercising the appellate jurisdiction of the Court.

2                     The matter has been called on for hearing today.  The matter was called three times outside by the Court Officer.  There is no appearance by the appellant.  Mr Reilly instructs me that his instructors have had no information from the appellant.  In those circumstances Mr Reilly requests that I exercise the power under s 25(2B)(bb)(ii).  In the circumstances that I have identified that is an appropriate order.  I make orders:

(1)     dismissing the appeal;

(2)     that the appellant pay the first respondent's costs;

(3)     that any application to set aside these orders is to be made by the filing of a notice of motion together with supporting affidavit material explaining why the court should set aside the dismissal of the appeal given the failure of the appellant to attend on the date fixed for hearing.

(4)     I direct the solicitors for the first respondent to provide a letter to the appellant at his last known address to be dispatched no later than midday Monday, 12 December 2005 indicating the making of these orders in the absence of the appellant.

3                     I make those orders and that direction.

Associate:

Dated:              12 December 2005