FEDERAL COURT OF AUSTRALIA

SZLZN v Minister for Immigration and Citizenship [2009] FCA 73

MIGRATION – application for extension of time to file and serve notice of appeal from an order of the Federal Magistrates Court 

Held: application dismissed

Federal Court Rules

SZLZN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1693 of 2008

JAGOT J

9 FEBRUARY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The application filed on 28 October 2008 is dismissed.

2.                  The applicant pay the first respondent’s costs fixed in the sum of $1,500.

3.                  The exhibits are returned.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application for an extension of time to file and serve a notice of appeal under Order 52 of the Federal Court Rules.  The application was filed on 28 October 2008 in respect of a decision of the Federal Magistrates Court given on 12 September 2008.

2                     On 30 January 2009, subsequent to the filing of the notice of appeal, the applicant forwarded a letter to the solicitors for the first respondent, with a copy to the Court, stating, amongst other things, that the applicant “would like to withdraw my case”, and was waiting for a reply from the Court.  The letter indicated that the applicant did not “believe in this hearing” so was “unable to attend the hearing”.  The solicitors for the first respondent wrote to the applicant on 4 February 2009 stating that the solicitors noted the applicant’s wish to withdraw from the proceedings and that, in order to do so, it would be necessary for either a notice of discontinuance to be filed or for consent orders to be executed.  The letter advised that if one or other of these courses was not taken, then the first respondent would seek orders that the matter be dismissed with the applicant to pay the first respondent’s legal costs of the proceedings (estimated to be in the sum of $1,500).

3                     The matter was called for hearing this morning and the applicant did not appear.  The first respondent seeks an order that the application be dismissed pursuant to Order 35A r 2(1)(f) of the Federal Court Rules, namely, that the applicant has failed to prosecute the proceedings with due diligence with the consequence that the applicant is in default, and so that the Court may dismiss the proceedings under Order 35 r 3(1)(a).

4                     In circumstances where: - (i) the applicant has communicated to both the first respondent and the Court that the applicant would like to withdraw his case, and (ii) there has been no response to the letter from the solicitors for the first respondent, taken together with the applicant’s failure to appear this morning, I am satisfied that the applicant is in default by failing to prosecute these proceedings with due diligence; in short, by reason of the failure to appear.  Further, that the appropriate course in all of these circumstances is that the application be dismissed.

5                     I have also read the affidavit of Bernadette Marie Rayment sworn on 9 February 2009.  On the basis of that affidavit, I am satisfied that I should make an order for costs in the first respondent’s favour fixed in the amount of $1,500 and I so order, and I also make an order that the exhibits be returned.

Associate:

Dated:         9 February 2009