FEDERAL COURT OF AUSTRALIA

SZEMP v Minister for Immigration & Multicultural Affairs [2006] FCA 860

SZEMP v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD1226 OF 2005

EMMETT J

8 FEBRUARY 2006

SYDNEY

THE COURT:

1.          Orders that the notice of motion of 25 October 2005 be dismissed.

2.          Orders the appellant to pay the respondent’s costs of that notice of motion

3.          Orders that the costs ordered on 9 September 2005 and 12 October 2005 and the costs ordered today be fixed in the aggregate of $3,900.

4.          Directs that these orders not be taken out prior to 15 February 2006 and that the order fixing the amount of the costs be stayed until that day.

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

REASONS FOR JUDGMENT

1                     On 9 September 2005, I ordered that an appeal from the Federal Magistrates Court to this Court be dismissed for want of appearance by the appellant on the first directions day.  I ordered the appellant to pay the respondent’s costs of the proceeding.

2                     By notice of motion, filed on 30 September 2005, the appellant sought an order that the orders of 9 September 2005 be set aside. The basis for that application was said to be that the appellant was unaware of the date fixed for hearing.  When that motion came on for hearing on 12 October 2005 there was, again, no appearance by the appellant and I ordered that the motion be dismissed with costs.  The appellant then filed a further notice of motion on 25 October 2005, seeking reinstatement of the appeal. That motion was fixed for hearing on 14 December 2005.  On that day the motion was adjourned to today without objection from the respondent, by reason of the appellant’s indisposition.

3                     There is evidence before me that the appellant departed Australia on 20 December 2005, on the basis of a bridging visa that does not entitle him to re-enter Australia.  It is not surprising, therefore, that when the motion was called on for hearing today there was, once again, no appearance for the appellant.  In those circumstances the respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), has asked that the motion be dismissed with costs.  I consider that it is appropriate to do so.  The Minister has asked that the Court fix the costs of the two motions in the sum of $3,700. I would be disposed to fix the costs in a lump sum, in order to avoid incurring additional costs. 

4                     However, there is nothing before me at the moment to indicate the basis upon which the sum of $3,700 was arrived at.  I therefore propose to invite the Minister, if so disposed, to furnish such information as she is advised as to the basis of that estimate. If I am persuaded as to the estimate, I will order that the costs be fixed in that sum. I will make provisional orders to that effect and direct that the orders not be taken out for seven days.

Associate:

Dated:              5 July 2006