FEDERAL COURT OF AUSTRALIA

MZAAV v Minister for Immigration and Border Protection [2015] FCA 820

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the sum of $300.00.

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

REASONS FOR JUDGMENT

1    The application before the court in this proceeding is a most unusual one. On 8 May 2015, Middleton J ordered that the appellant’s then appeal from the Federal Circuit Court of Australia be dismissed. In doing that, his Honour exercised the power which arose under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r  36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). That is to say, his Honour dismissed the appeal in default of appearance by the appellant.

2    In his reasons published on 8 May 2015, Middleton J referred to a facsimile message which had been received by the Registrar and brought to his Honour’s attention. That message contained a memorandum of 7 May 2015 over the hand of a medical practitioner practising at 2 Melba Street, Epping, to the effect that the appellant was unfit for her normal work from 7 to 9 May 2015, inclusive. Having referred to that memorandum, Middleton J said:

I regard the communication made by the appellant as an application for an adjournment, but in my view that application should be rejected. The medical certificate and the signed note do not provide an adequate reason for the appellant’s absence from Court today. I do not know the nature of the illness and, in any event all that is stated is that the appellant is unfit for normal work. It does not state that there would be any difficulty, by reason of the appellant’s illness, for the appellant to attend today’s hearing.

3    In her affidavit in support of her application before the court today, the appellant said that she did not attend the hearing before Middleton J because she was unwell with a severe earache, from which she was experiencing pain and motion sickness from the action of walking. She said that she could not lift her head, and that it affected her neck and caused her to vomit. The explanation which the appellant gives for not informing the court of the details of her indisposition is that the medical practitioner advised her that it was normal in giving medical certificates to keep the medical details of the illness from which the person concerned was suffering confidential. It does appear as though the practitioner went no further than to provide a one-line certificate of the kind that is very commonly experienced in employment situations.

4    For whatever reason, the fact is that the appellant did have control of the nature and extent of the information that she had provided to the court on 8 May 2015. In this respect, the appellant was a litigant like any other. His Honour was not only entitled but obliged to act on the evidence which was before him. I can see nothing irregular or even exceptional in the view he took of that evidence.

5    Although it is unusual for a judge of the court to be asked to set aside a previous judgment made by a different judge in the exercise of the appellate jurisdiction, I accept that I do have power to make the order sought by the appellant under rule 39.05(a) of the rules of court. However, the essence of the appellant’s case today is that Middleton J ought to have been persuaded by the one-line medical certificate to which I have referred that her case then before him should be adjourned or deferred. The problem which the appellant faces needs only to be expressed in those terms for the difficulties confronting her to be obvious.

6    I have referred to the circumstances as unusual and the closest precedent for them, at least so far as my researches have disclosed, is one that arose as long ago as 1901 in the Victorian case of Barker v Wilson (1901) 27 VLR 36. In that matter, the Full Court of the Supreme Court of Victoria dismissed an appeal in default of appearance on behalf of the appellant. The circumstances giving rise to that default were most unhappy, it seems, in the sense that the legal representatives for the appellant appear to have taken the reasonable view that the appeal would not be reached that day and left the precincts of the court. The Full Court was later asked to vacate the order which it had made dismissing the appeal. Their Honours said:

The Court was at first going to strike the appeal out of the list, but counsel [for the respondent] adhering to his rights, the Court had to dismiss the appeal. All this was within the full knowledge of the Court, and it quite realized the effect of the order it was making. No one appeared for the appellant; nothing remained to be done except to obey the law, which was to give judgment for the party appearing against the party not appearing. The Court made no error, its officers did not deceive it, it was not misled, no mistake was made; it had tried to remedy the error of the appellant, but it made no error itself, acting strictly in accordance with the law upon facts which could not have been mistaken. It is now said that the facts now show that the Court made a mistake as to the matter. The Court, as to the contempt, may now be satisfied that no contempt was intended, but that is a matter outside the determination of the case. There was neither a misunderstanding nor an error in law, and the Court, having given judgment, has no right to interfere with the judgment it has given.

Notwithstanding what I presume to be the different position now available under the rules of court, the principles and the approach articulated by the Full Court in that matter could equally describe the circumstances which led to the dismissal of the appellant’s appeal by Middleton J.

7    It is true, as I say, that the appellant has now informed me of the circumstances which underlay her medical certificate. It may be that his Honour would have been moved by those circumstances to give her the adjournment for which he was then prepared to accept the appellant was applying, but the fact is that she made her own decision not to give his Honour more information than she did, and, although one may sympathise with her insofar as she proceeded in that way because of the indication which she received from her medical practitioner, that cannot be a matter for the Court. It was not a matter which his Honour, Middleton J, was under any obligation to note, and, regrettably perhaps, it does not change the circumstances confronting the appellant on the present occasion.

8    For those reasons, I take the view that the only order which can properly be made today is that the application be dismissed.

Associate:

Dated:    13 August 2015