FEDERAL COURT OF AUSTRALIA

SZKUZ v Minister for Immigration and Citizenship [2008] FCA 227

Federal Court of Australia Act 1976 (Cth), s 25(2B)

Federal Court Rules, Order 52, rule 38A

SZKUZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD2321 OF 2007

LOGAN J

3 MARCH 2008

BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed on the basis of the non attendance of the Appellant.

2.                  The Appellant pay the First Respondent’s costs of, and incidental to the appeal, to be taxed if not agreed.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Magistrate.  It was listed in the Sydney list for hearing not before 11.30 am.  Upon coming into court shortly after that time, and calling the case on, there was then no appearance by, or on behalf of the Appellant.  I had delayed coming in at 11.30 am, to enable some telephonic communication to be attempted at the telephone number which had been given to the court by the Appellant.  Suffice it to say, that bore no success.  There was an appearance on behalf of the First Respondent, the Minister.  I then stood the case down until twelve noon and, in that interval, directed the making of a further attempt at telephonic communication with the number given by the appellant. 

2                     I also directed inquiries to be made of the Registry, to see if there was some alternative number.  There was no alternative number and the result of telephonic communication was that a number disconnected report was given. I then asked for the case to be called on, formally, three times and there was no appearance by, or on behalf of, the Appellant.  In those circumstances there are, it seems to me, two courses open.  One is to act pursuant to O 52 r 38A, which provides for various orders that may be made if a party is absent when an appeal is called on for hearing, one of which is to proceed with the hearing, either generally, or in relation to any claim for relief in the appeal.  To adopt that latter course does have the advantage that the court may set aside, or vary, any order made after said proceeding. 

3                     An alternative is offered by this Court’s governing statute itself; in s 25 subs (2B)(bb)(ii), one finds that a single judge, or a full court may make an order that an appeal to the court be dismissed for failure of the appellant to attend at a hearing relating to the appeal.  I note that there is power in paragraph (bc) to vary or set aside an order made under paragraph (bb), so perhaps that provides a basis upon which an order of dismissal for absence of attendance would be set aside, or varied for good cause on an Appellant’s application.  In any event, of those two particular courses, the submission for the First Respondent is that, dismissal on the basis of the statutory provision for making an order in respect of a failure to attend at the hearing, rather than that provided for under O 52 r 38A(1)(d) ought to be followed.  It seems to me, that that is a convenient course to take in this case. 

Associate:

Dated:                  5 March 2008