Federal Court of Australia

ALD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 735

ORDERS

THE COURT ORDERS THAT:

1.    Subject to order 3, the appeal be dismissed with costs.

2.    The first respondent forthwith serve a copy of these orders on the appellant

(a)    by email, and

(b)    physically

       at the addresses recorded on the notice of appeal filed on 16 October 2019.

3.    The appellant have liberty to apply, within 14 days of these orders being served in accordance with order 2(b), to vary or set aside order 1 for good cause.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

STEWART J:

1    This proceeding is an appeal from a decision of what was then the Federal Circuit Court of Australia in September 2019. In the case management hearing before me today, the first respondent (Minister) applies for the appeal to be dismissed with costs on account of the appellant’s failure to appear. The application arises in the following context.

2    The notice of appeal was filed on 16 October 2019. Although it is filed in the name of a pseudonym given to the appellant, it also records the appellant’s given name and surname. Beneath the appellant’s names is a physical address in Homebush North in the Sydney area, a mobile telephone number and an email address. Those details appear below a horizontal line at the foot of the first page of the notice of appeal. Those details are on the face of it given in compliance with r 2.16 of the Federal Court Rules 2011.

3    It is to be noted that r 36.01(4) provides that the notice of appeal must include the appellant’s address for service. “Address for service” is defined in the dictionary in Sch 1 of the Rules as “for a person in a proceeding – see rule 11.01”. Rule 11.01(5) provides that if a party is not represented by a lawyer and they provide an email address, the party agrees to receive documents at the email address. It follows that by filing a notice of appeal in the form in which the appellant did, which is to say by including his email address, the appellant agreed to receive documents in the proceeding at that email address.

4    As mentioned, the appeal was instituted back in October 2019. On 21 October 2019, a registrar of the Court made orders for the preparation of the appeal, including that the Minister prepare an appeal book if the appellant is not represented by a lawyer. As the appellant was and remains unrepresented, the Minister was required to prepare an appeal book. That was done and on 20 November 2019, the appeal book and the orders of 21 October 2019 were served on the appellant at the physical address in Homebush North.

5    The matter was thereafter delayed pending the determination of cases before the High Court of Australia and before this Court which raised materially the same or a similar issue to one of the issues in the appeal. That is whether the primary judge’s failure to publish written reasons but rather to make the unrevised transcript of the oral reasons available to the parties was a proper exercise of judicial power or procedurally unfair. The decision of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 was delivered on 4 March 2021 and the decisions in this Court in BGB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 11 and BFN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 12 were delivered on 18 January 2022. Those decisions are against the appellant on the point in question which may explain why he has not pursued the appeal. As will be seen, he has not been in contact with the Minister or the Court since 2019.

6    On 16 March 2022, the Registry emailed the parties advising that the Court was considering listing the matter for the hearing of the appeal between May and July 2022 and asking the parties, amongst other things, to confirm their availability. The Registry requested a response by 18 March 2022. No response was received from the appellant to that communication, or any of the communications thereafter. That email, and the emails to the appellant referred to hereafter, were also not returned undelivered. From that I infer that the email address is a valid email address, although it is not known whether the appellant checks it. It nevertheless remains the appellant’s nominated email address for service.

7    On 13 May 2022, my Associate emailed the parties advising that the matter had been docketed to me and requested available dates for a case management hearing. There having been no communication from the appellant, I did that because I wished to avoid unnecessarily listing the matter for final hearing.

8    Between 30 May 2022 and 3 June 2022, the Registry made a number of attempts to contact the appellant by mobile telephone using the mobile number recorded on the notice of appeal. Those attempts were unsuccessful.

9    On 6 June 2022, my Associate asked the Minister’s solicitors by email whether the Minister has any updated contact details for the appellant, or any updates with regard to the appellant’s circumstances more generally. The Minister’s solicitors responded to say that the contact details for the appellant on the notice of appeal are the same as those held by their client, and that the appellant has not departed Australia.

10    On 8 June 2022, my Associate followed up with a further email to the parties noting that I proposed to list the matter for case management hearing on either 22 or 24 June 2022 and also stating the following:

The Court notes that in the light of the appellant’s lack of response to the Court’s enquiries by email and telephone over a period of time, if the appellant does not attend the case management hearing, the Court may consider any application by the respondent to dismiss the appeal pursuant to r 36.74 of the Federal Court Rules 2011.

11    On 10 June 2022, my Associate emailed the parties advising that the matter was listed for case management at 9:30am today, which is to say 22 June 2022, and repeated the comment with regard to the willingness of the Court to consider an application by the Minister to dismiss the appeal if the appellant does not appear at the case management hearing.

12    On 17 June 2022, my Associate emailed the parties again, this time providing a Microsoft Teams link and again indicating the date and time of the case management hearing.

13    On 21 June 2022, which is to say yesterday, my Associate again emailed the parties advising that I would be sitting in court conducting the hearing in person at 9:30am today and stating that the parties could appear in person or by the Microsoft Teams link previously given.

14    The Minister has tendered an email showing that at 8:01am today (i.e., 22 June 2022), the Minister’s solicitors emailed the appellant at his nominated email address stating as follows:

Relevantly, as noted in the email chain, your matter is listed for a case management hearing today, Wednesday 22 June 2022 at 9:30am. If you do not attend the case management hearing, either personally or by legal representative, we are instructed to seek to have your matter dismissed with costs. A link to join the case management hearing via Microsoft Teams is set out below. Alternatively, you may attend the case management hearing in person at the Federal Court of Australia, 184 Phillip Street, Sydney in Court Room 18D.

15    The court room allocated for the hearing, i.e., 18D, was published in the usual way on the Court’s website from yesterday afternoon and continued to be published there this morning.

16    When the matter was called this morning, there was no appearance by the appellant in person or on Microsoft Teams. The court officer called the pseudonym and given name and surname of the appellant outside the court room and there was still no appearance. The court officer then called the mobile number recorded on the notice of appeal and the phone rang through to voicemail. The voicemail recording which invited a message to be left was in English and it gave the appellant’s name. From that I infer that the telephone number of the appellant is still in use and that he understands enough English to have been able to understand from the emails that he was sent that the appeal was listed for a case management hearing today.

17    Rule 36.74(1) of the Rules provides that a respondent may apply to the court for an order that an appeal be dismissed for a failure by the appellant to do any one of four different things, including “attend a hearing relating to the appeal” (r 36.74(1)(c)). Today’s case management hearing is such a hearing.

18    Rule 36.74(2) provides that an application under sub-rule (1) must be served on the appellant either at the address for service or personally. The purpose of sub-rule (2) is obviously to ensure that the appellant has notice of an application for such a dismissal of an appeal on account of their default. Although the Minister did not serve notice of such an application until the email from his solicitors to the appellant today at 8:01am, which in the normal course would obviously be inadequate notice, I am satisfied in this case that the notice is sufficient. That is for the following reasons.

19    First, the appellant has on a number of occasions since 8 June 2022 had notice by emails from my Associate that the Court would consider such an application if made by the Minister at today’s hearing.

20    Secondly, the appellant’s lack of communication with the Court or the Minister’s solicitors over a period of several years including no response at all to recent emails or telephone calls would indicate that the appellant likely has no interest in pursuing the appeal. To prolong matters at this stage by requiring further service of an application, with a period of time to pass before another hearing, is unjustified. I am conscious that it is a serious matter to dismiss an appeal for default whether that default be by failure to prosecute the appeal or, as in this case, failure to appear at a hearing relating to the appeal. Still, it is a party’s responsibility to ensure that their address for service as formally recorded in their relevant court process is up to date and to regularly check for service at that address. There is a limit to the extent that the court can be expected to mollycoddle a party, even one who is unrepresented.

21    On that basis, I am satisfied that the appeal should be dismissed under r 36.74(1)(c).

22    Nevertheless, there has been no service at the appellant’s nominated physical address of notice of today’s hearing, and the possibility exists there is some good explanation for why the appellant has not got notice of today’s hearing, has not been answering his phone, or could otherwise not attend. For that reason, I propose to dismiss the appeal but to give the appellant liberty to apply within 14 days to set that order aside for good cause. The retention of the Court’s jurisdiction to further deal with the matter by the granting of a limited liberty to apply means that the order to dismiss the appeal, once entered, will not be beyond the reach of the Court to vary it or set it aside. See Bailey v Marinoff [1971] HCA 49; 125 CLR 529 at 530 per Barwick J, 531-532 per Menzies J, 535 per Walsh J, Owen J agreeing, and 539 per Gibbs J (in dissent).

23    The Minister has sought the costs of the proceeding. There does not appear to be any reason why he should not have those costs, so I will make an order accordingly, but that order will also be subject to the liberty to apply.

Associate:

Dated:    23 June 2022