FEDERAL COURT OF AUSTRALIA

SZNCX v Minister for Immigration and Citizenship [2009] FCA 1348

Aon Risk Services Australia Ltd v Australian National University (2009) 83 ALJR 951

SZNCX and SZNCY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 773 of 2009

REEVES J

11 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The application for adjournment of the appeal hearing is refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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EX TEMPORE REASONS FOR JUDGMENT

(CORRECTED FROM TRANSCRIPT)

1                          This is an application to adjourn this appeal hearing made by the female appellant by telephone this morning, 11 November 2009.  She initially sought an indefinite adjournment but, when pressed, limited that to about one month.  The basis upon which she seeks an adjournment of this appeal hearing is that she is too ill to attend the hearing, and to properly put her case, even by telephone.

2                          The critical issue on an application for an adjournment of this kind is the competing prejudice that will be suffered by the parties if the adjournment is either granted, or not granted.

3                          The applicant’s prejudice is, as I have just indicated, that she says she is too ill to attend the hearing, even by telephone, and she adds that she is even too ill to instruct her husband to allow him to attend on her behalf.  In that regard, I note that the appellant’s husband is present in person and is assisted by an interpreter.  It is also worthy of note that her husband is a joint appellant in this appeal. 

4                          The female appellant submitted a medical certificate to the Court last week.  The certificate was dated 5 November 2009 and was completed by a Dr Chrishan Than.  It was submitted in support of an application that she made last week to have this appeal hearing adjourned.  The certificate states that the female appellant is:  ... 21 weeks pregnant.  This is her first pregnancy and she has been suffering from nausea, vomiting and dizziness.  She has been a patient of mine for last six months.

5                          When this matter came on for hearing on the morning of Monday, 9 November 2009, I agreed to allow the appellant to appear by telephone.  After hearing from her, I agreed to adjourn the matter to today, on the basis that the medical certificate she had submitted did not indicate that she was too ill to attend court, and that if she wished to make an application for adjournment on that basis, she should obtain a medical certificate to that effect before the matter proceeded today.  I also indicated that, even if such a medical certificate were produced, I may consider allowing her husband to attend the hearing on her behalf, either in person, or by telephone. 

6                          On Monday, 9 November 2009, after the hearing, the female appellant submitted a further medical certificate attached to a letter.  The letter stated: 

Now I feel different kinds of anxious, physically and mentally not well.  Most of the time I feel vomiting and back pain and also I have low pressure.  Today I saw doctor, so I am submitting medical certificate. 

            [Errors in original]

7                          The medical certificate attached was completed by the same doctor.  The first paragraph of it is to the same effect as the previous medical certificate, but this new certificate added:  She also very anxious and not well enough to attend the court hearing.  

8                          There are two obvious problems with this medical certificate.  First, it does not say that the female appellant is too ill to attend the hearing by telephone.  Secondly, based upon it, I do not accept that the appellant is too ill to instruct her husband to appear on her behalf.

9                          Ms Francois, for the Minister, has said that the prejudice the Minister will suffer is the delay and costs to the public of a further adjourned hearing, particularly where any costs order is not likely to be recoverable from the appellants.  Ms Francois also pointed to the recent decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 83 ALJR 951 and relied on the observations in that decision that allow me to take account of the effect an adjournment may have on the Court’s resources and on other litigants.  Finally, Ms Francois submitted that nothing was to be gained by an adjournment because this appeal was plainly hopeless. 

10                        I consider that the matter should not be adjourned.  I am not satisfied that the female appellant is too ill to attend this hearing by telephone.  Even if I were so satisfied, I am certainly not satisfied that the female appellant is so ill that she could not, between last Monday and today, have instructed her husband so that he could appear on her behalf. 

11                        The issues on this appeal are limited to questions of law, and this Court is not permitted to examine the merits of the appellant’s application before the Tribunal.  Both appellants are unrepresented before me.  However, they have already submitted an outline of written submissions.  Based upon my reading of those written submissions, I do not consider they are likely to provide much assistance in addressing the legal issues that arise on this appeal.  For these reasons, I refuse the application to adjourn this appeal hearing. 

Associate:

Dated:  18 November 2009