FEDERAL COURT OF AUSTRALIA

BZACE v Minister for Immigration and Citizenship (No 2) [2013] FCA 95

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 11 December 2012 be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the said interlocutory application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1     On 22 November 2012, I made the following orders: (1) the appeal be dismissed, pursuant to rule 36.72(5) of the Federal Court Rules 2011 (Cth); (2) the appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement: BZACE v Minister for Immigration and Citizenship (2012) FCA 1303. The said orders were entered on 4 December 2012.

2    The applicant issued an interlocutory application dated 6 December 2012. That application is supported by an affidavit of the applicant, sworn on the same date. The application and affidavit were filed on 11 December 2012.

3    In his interlocutory application, the applicant sought the following orders:

1.    An Order to set aside the order dated 22 November 2012 by the Federal Court Justice Besanko.

2.    An order that no action is taken to remove the applicants from Australia while the detention is pending;

3.    An order for costs and any further order this honourable court may deem appropriate.

4    In his affidavit, the applicant said, relevantly:

I filed Judicial review application before the Federal Magistrate. Honourable FM dismissed my application on motion date. I was not represented by any barrister or solicitor. I appealed to the Federal court, but the Hon judge dismissed my case without giving me the opportunity to appear in the court. I was not aware of hearing date. The Court also failed to consider that the Tribunal decision was an improper exercise of the power conferred by an enactment in pursuance of which it was purported to be made. The decision was fundamentally influenced by not receiving evidence from me in the court.

5    Rule 39.05 of the Federal Court Rules 2011 provides as follows:

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

6    That Rule gives this Court the power to vary or set aside the orders made on 22 November 2012 in appropriate circumstances. The applicant has not appeared this morning. He was notified of the hearing date this morning by letter from the District Registrar of the Court, dated 9 January 2013. He has a history of non-attendance, as my reasons for judgment delivered on 22 November 2012 make clear. Inquiries have been made of the registry, and the applicant has made no attempt to contact the registry this morning.

7    The first respondent applies for an order that the applicant’s interlocutory application be dismissed, and that the applicant pay the first respondent’s costs of the application. His counsel has referred me to rule 17.04 and rule 5.23 of the Federal Court Rules (2011). I am satisfied that I have the power to make an order that the interlocutory application be dismissed. In addition, I think it is appropriate in the circumstances to exercise the power.

Associate:

Dated:    18 February 2013