FEDERAL COURT OF AUSTRALIA

SZKLJ v Minister for Immigration and Citizenship [2008] FCA 644

Federal Court of Australia Act 1976 s 25(2B)(bb)(ii)

SZKLJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

nsd 257 of 2008

LOGAN J

7 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The hearing of the appeal be adjourned until the August sittings of the Full Court, or such earlier date as the Court may fix.

2.                  The costs of today’s hearing be reserved.

3.                  On the giving of the notice of the adjournment of the appeal, the District Registrar is to send an accompanying letter advising the appellant that :

a.                   an opportunity to be heard in respect of the costs of today will be extended to him on the adjourned date of the hearing of the appeal,

b.                  he should provide such evidence as he is able at that time in regard to why he was not able to attend today’s hearing, and

c.                   he is in jeopardy of an adverse costs order for today’s hearing and that depending on the veracity of his explanation costs may be awarded against him on an indemnity basis.

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

REASONS FOR JUDGMENT

1                     When this matter was called on for hearing today, there was no appearance by or on behalf of the Appellant.  That contingency looming as an increasingly likely prospect as the hour approached 10.15, an endeavour was made to contact the Appellant, using for that purpose, the mobile telephone number specified in the appeal notice.  That particular task was undertaken by the interpreter appointed for assistance of the court and those present, including the Appellant, Ms Mi.  As it transpired, and as Ms Mi deposed in oral evidence which she gave, it proved possible to contact the Appellant at that mobile telephone number.  Ms Mi’s evidence was such that I am quite satisfied that it was the Appellant with whom she spoke, and further, that the Appellant was aware, via his receipt of the Court’s listing notice, together with a series of letters, very properly sent by the solicitors or the First Respondent Minister.

2                     The Appellant said to Ms Mi that he was unable to attend today because he was sick.  I am not in a position to verify the accuracy, or otherwise, of that statement as to the Appellant’s health.  It does though, on its face, and if accepted, offer an explanation for the Appellant’s non‑attendance today.  An application has been made for the Court to exercise the power conferred by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).  That provision empowers the court to dismiss an appeal if there is a failure of an Appellant to attend a hearing relating to the appeal.  Were there to be no apparent reason for the non‑attendance of an Appellant, and were it apparent that notice of the appeal hearing had been given to the address specified for service, I should unhesitatingly exercise that power to dismiss an appeal. 

3                     The difficulty though, is that there is, at least prime facie, an explanation of which I am aware, which may serve to explain an absence and certainly would if regarded as credible.  In these circumstances, it seems to me that it would not be an appropriate exercise of the summary dismissal power conferred by s 25(2B)(bb)(ii) just to dismiss the appeal.  Rather, the course I propose to take is to adjourn the hearing of the appeal to a date to be fixed in the August sittings of the Full Court, or such earlier date as the court may appoint. 

4                     There remains a question as to the costs of today.  Because it is possible that this explanation, as apparently given to the interpreter, may not be ultimately regarded as credible, or at least because there is perhaps an interrogative note about it, it seems to me that the appropriate course in the interests of justice, is to reserve today’s costs, thereby affording the Appellant an opportunity to be heard in relation to the costs of today. 

5                     The further direction that I make, though, is designed to put the Appellant on notice that he may be in jeopardy in respect of the costs today and may be in jeopardy to the extent of an award of indemnity costs in respect of today.  So that I direct that on the giving of notice of the listing, the District Registrar send an accompanying letter advising the Appellant that an opportunity to be heard in respect of the costs of today will be extended to him on the adjourned date of the hearing of the appeal and that he should provide such evidence as he is able at that time in relation to why he was not able to attend on today’s date.  The letter should further state that he is in jeopardy of an adverse costs order in respect of today and that depending on the view taken of the voracity of his explanation for his absence, the costs may be awarded on an indemnity basis.  I make orders accordingly. 

Associate:

Dated:         12 May 2008