FEDERAL COURT OF AUSTRALIA

EEP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 793

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;

3.    at the addresses recorded on the notice of appeal filed on 1 April 2020.

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

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

REASONS FOR JUDGMENT

RAPER J:

1    In this matter the appellant appeals from a decision of the former Federal Circuit Court of Australia, delivered ex tempore by the primary judge on 25 March 2020. On 6 July 2022, the first respondent (Minister) applied for the appeal to be dismissed, pursuant to rr 36.74(1)(c) and 36.74(1)(d) of the Federal Court Rules 2011 (Cth), with costs on account of the appellant’s failure to appear at both case management hearings on 8 June 2022 and 6 July 2022.

2    The notice of appeal was filed on 1 April 2020 and recorded the appellant’s name, residential address in South Australia, email address and mobile phone number.

3    By operation of r 11.01(5) of the Rules, where a party is not represented by a lawyer and gives an email address, the party agrees to receive documents by that address: see per Stewart J in: ALD19 v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 735 at [3].

4    In April 2020, the Court communicated on a number of occasions by email with the appellant, using the address from the notice of appeal. On 17 April 2020, the appellant provided his bank details. The Court then replied to the appellant attaching a sealed copy of his notice of appeal and a Court receipt for the filing fee. This is the last occasion upon which there was any communication from the appellant.

5    On 6 May 2020, a Registrar of this Court made Directions for the preparation of the appeal. Those Directions were emailed to the parties on the same date and sought that the parties notify the Court by 13 May 2020 of the following:

(a)    who was expected to appear for each party;

(b)    any unavailable dates in the July-August 2020 period (if a hearing could be accommodated during this period);

(c)    the expected duration of the hearing;

(d)    whether an interpreter was required and in what language;

(e)    whether it would be more appropriate for the matter to be listed in a different location; and

(f)    if any party had changed their contact details.

6    The appellant did not respond to that email dated 6 May 2020. 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 as provided in his notice of appeal. 

7    On 19 May 2020, the Minister responded to the email dated 6 May 2020 and the appellant was copied into that email.

8    The Directions dated 6 May 2020 included that the Minister prepare an appeal book if the appellant was not represented by a lawyer. On 22 May 2020, the appeal book was filed.

9    At the hearing before me on 6 July 2022, the Minister tendered an email sent to the appellant’s nominated email address dated 22 May 2020 enclosing a letter of the same date stating:

We enclose, by way of service, a copy of the Appeal Book in this matter which was filed in the Federal Court of Australia on 22 May 2020.

If you have any queries, please contact us.

10    The Minister’s letter states it was sent by “email and express post” and the Minister provided the Courier request with the box labelled “Express Post” ticked, together with the express post envelope, both stating the appellant’s full name and address as provided in his notice of appeal.

11    The Minister’s legal representative stated they did not receive any notification that the appellant had received the letter and the appeal book sent by express post, however, noted that “[s]ometimes, in matters like this, we do receive the – the express post envelope back, ‘Return to Sender’, but that doesn’t appear to have happened in this case.”

12    Nothing thereafter happened with the matter until March 2022.

13    On 7 March 2022, the Court sent an email to the parties noting the Court was considering listing this matter in April-June 2022. The Court sought the parties to inform the Court as soon as possible, or by 4:00pm on 9 March 2022 of any unavailable dates in the April-June 2022 period, if a remote hearing was required, who was expected to appear for each party, if any party had changed their contact details, the expected duration of the hearing, and whether an interpreter was required. This email also included a link to download the Microsoft Teams program. The appellant did not respond to that email.

14    On 12 May 2022, the Court sent an email to the parties (including the appellant) notifying them that the first case management hearing was listed for 8 June 2022 at 10:30am, via Microsoft Teams and a link would be sent through closer to the hearing. The email also asked that if the appellant wished to attend Court instead of appearing online, that he notify the Court by return email. The appellant did not respond.

15    On 31 May 2022, at 11:56am, the Court attempted to call the appellant but were unable to reach him.

16    On 1 June 2022, the Court sent an email to the parties (including the appellant) stating they attempted to call the appellant on 31 May 2022 but were unable to reach him and sought confirmation “as a matter of urgency” as to whether the appellant would be attending the first case management hearing (providing the date and time of that hearing).

17    On 3 June 2022, the Court sent an email to the parties (including the appellant) noting there had been a number of attempts to contact the appellant which had been unsuccessful and asked the Minister if he held alternative contact details for the appellant. In that email, the Court reiterated that the first case management hearing on 8 June 2022 at 10:30am would proceed on Microsoft Teams and provided the link and details to join via that platform.

18    On 6 June 2022, the Minister responded to the email dated 3 June 2022, stating that he did not hold alternative contact details for the appellant. The Court then sent the parties a further email containing the Microsoft Teams link for the next day’s case management hearing.

Case management hearing on 8 June 2022

19    On 8 June 2022, the first case management hearing was held on Microsoft Teams with a Tamil interpreter present. The Minister entered an appearance. The appellant did not enter an appearance (in Court nor online), nor was there anyone else online that stated they were appearing on behalf of the appellant.

20    During the course of the case management hearing, the Minister’s legal representative informed the Court that:

(a)    to date they had not had any contact with the appellant.

(b)    they had sent an email to the appellant on 6 June 2022 notifying him that the matter was listed for a case management hearing on 8 June 2022 and in the event of non-attendance they would seek that the matter be dismissed with costs. There was no bounce back on the email. This email is extracted below:

Dear Sir

We act for the first respondent (Minister) in these proceedings and refer to the Court's email below.

Your matter is listed for a case management hearing on Wednesday, 8 June 2022 at 10:30am before Justice Raper. The Court has provided you with the details for how to attend Court using Microsoft Teams below.

If you do not appear at the case management hearing, we are instructed to seek for your matter to be dismissed under rules 35.32(c) and/or (d) of the Federal Court Rules 2011 (Cth) for failure to appear at a hearing in relation to your application and/or want of prosecution and an order for you pay the Minister's legal costs.

Please note that the Minister may also rely on this email in support of any such application at the case management hearing.

Please do not hesitate to contact me if you have any queries in relation to the above.

(Emphasis in original).

(c)    They attempted to call the mobile listed on the notice of appeal on 7 June 2022 but were unable to get through, it rung out but there was no voicemail.

21    The Minister’s legal representative stated the last contact details held by the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs were from August 2018, predating the notice of appeal filed in these proceedings.

22    The Minister was not aware of whether the appellant was still in Australia, only noting the appellant’s last address for service was in South Australia.

23    The Minister foreshadowed that at the next case management hearing they would be seeking orders for the proceedings to be dismissed for want of prosecution and/or non-attendance at hearings and orders as to costs. The Court asked that the Minister notify the appellant of its intention in this regard, in plain English, setting out the parts of the Rules they will rely upon and the evidence in support of the dismissal application.

Correspondence attempting to reach the appellant in between the two case management hearings

24    On 8 June 2022, the Court sent an email to the parties attaching sealed orders of the same date and setting down the matter for a further case management hearing on 6 July 2022.

25    On 10 June 2022, the Court sent an email to the parties (which was also sent by post to the address given by the appellant as his address for service in his notice of appeal), noting that there had been a case management hearing on 8 June 2022 and that no appearance was entered for the appellant. The Court sought that the appellant attend the next case management hearing or otherwise contact the Court if he would not be attending. This email is extracted in full below:

Dear Parties,

I refer to the above matter.

The Court notes that a case management hearing was heard on Wednesday 8 June 2022 in this matter at 10:30am. No appearance was entered for the appellant.

This matter has been set down for a further case management hearing on 6 July 2022 in the afternoon (time to be confirmed). The matter will be listed on Microsoft Teams but it can be conducted in person if that is the preference of any party.

In the event that the appellant does not attend, the Minister’s legal representative has foreshadowed that she will be seeking that the Court dismiss these proceedings and require the appellant to pay the Minister’s costs.

The Court urges the appellant to seek legal assistance.

The Court also requires that the appellant attend the next case management hearing on Wednesday 6 July 2022.

If the appellant is not able to attend for any reason on Wednesday 6 July 2022, could he please inform the Court as soon as possible.

(Emphasis in original).

26    On 4 July 2022, the Court sent an email to the parties advising that the case management hearing would be in person, providing the full street address of the Federal Court of Australia (FCA) in Sydney and also providing an alternative Microsoft Teams link in the event either party could not attend in person.

27    On 5 July 2022, the Court attempted to call the appellant twice but received no response. On the same date, the Court sent an email to the parties notifying them of the exact Court Room in which the case management hearing would be held, together with again the full street address of the FCA in Sydney and the alternative Microsoft Teams link and dial in details.

28    The Minister tendered an email titled “EEP18 - v - Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor NSD377 of 2020 Important information about your court proceedings” showing that at 10:58am on 5 July 2022, the Minister’s solicitors emailed the appellant at his nominated email address stating as follows:

We refer to the above matter in which we act for the first respondent (Minister).

This matter is listed for a case management hearing before Justice Raper in person on Wednesday 6 July 2022 at 2:30pm, at the Federal Court of Australia, Sydney. The Court's address is 184 Phillip Street, Queens Square, Sydney NSW 2000. You are required to attend Court in person on this occasion.

If you cannot attend the Court building on this date; the Court has also provided a Microsoft Teams link to appear by video (please see attached).

If you do not attend the case management hearing, the Minister will seek orders from the Court that your matter be dismissed pursuant to rule 36.74(1)(c) and/or (d) of the Federal Court Rules 2011 (Cth) for failure to attend a hearing relating to your appeal and/or failure to prosecute the appeal. The Minister will also apply for an order that you pay his legal costs of the proceedings.

If you do attend the case management hearing, the Minister intends to seek a hearing date for your appeal.

Please disregard our letter dated 4 July 2022 sent to you by email yesterday.

(Emphasis in original).

29    The Minister tendered the letter referred to in the above extracted correspondence, dated 4 July 2022, which had only referred to the listing being in person and not the availability to attend by the Microsoft Teams link.

Case management hearing on 6 July 2022

30    The matter was heard in Court Room 18B. The location had been published on the Court’s website from the afternoon on 5 July 2022 and remained there on 6 July 2022. The matter was called and there was no appearance by the appellant in person or on Microsoft Teams. The court officer then called the matter number, pseudonym and the given name and surname of the appellant outside the court room. The Tamil interpreter present repeated the same outside the court room in Tamil. The Tamil interpreter then interpreted in Tamil, “the court is asking is there anyone appearing online who is EEP18 or appearing for the appellant in this matter” in order to ensure that the same could be heard online. There was no response. The only other person on the Microsoft Teams link was the solicitor for the Minister with carriage of the matter, observing the proceedings.

31    The court officer then called the mobile number recorded on the notice of appeal through the Microsoft Teams link. The phone rang out and there was a voicemail message but no response.

The applicable rule - Rule 36.74(1) – dismissal

32    Rule 36.74(1) provides that a Minister may apply to the court for an order that an appeal be dismissed where an appellant fails to, inter alia, “attend a hearing relating to the appeal” (r 36.74(1)(c)) or “prosecute the appeal” (r 36.74(1)(d)).

33    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. In this case, the Minister did not comply with this requirement and sought for the sub-rule to be dispensed with pursuant to r 1.34.

34    It is accepted that the dismissal of an appeal has serious consequences and dismissal under either of these grounds is to be done cautiously.

35    For the reasons which follow, I will dispense with the requirement of service under r 36.74(2) and make orders dismissing the appeal on the basis of rr 36.74(1)(c) and 36.74(1)(d) for the following reasons.

36    The appellant has not responded to any communications from the Court since 17 April 2020.

37    Numerous attempts have been made to contact the appellant since 12 May 2022, by email, post and telephone as to the listing of case management hearings. In addition, on 10 June 2022, the Court warned the appellant of the possible consequences of his appeal being dismissed if the appellant failed to appear at the next case management hearing.

38    The Minister has communicated by correspondence sent by email on 7 June 2022, 4 July 2022 (sent also by express post) and 5 July 2022 of the respective case management hearings and set out that he would be seeking orders that the matter be dismissed (including stating reliance on rr 35.32(c) and/or (d) and 36.74(1)(c) and/or (d) of the Rules) and that the appellant pay the Minister’s legal costs of the proceedings. These attempts are particularly relevant to my consideration as to why the case warranted dispensing with the requirement under rule 36.74(2) – which should ordinarily be done.

39    It may be inferred from the appellant’s lack of communication with the Court or the Minister’s representatives over the period, or by failing to notify the Court of any change in contact details that the appellant does not intend to pursue his appeal. The appellant did originally communicate with the Court via his email address, there has been no bounce-back communications from that address and the appellant has not informed the Court or the Minister of any alternative means of communication.

40    All parties have a responsibility to conduct their affairs before the Court with due despatch including adherence with their obligations, in the case of an appellant, to prosecute their claim in a timely way, to provide and thereafter update their address for service, to respond to communications from the Court, and to attend the allocated date for the hearing of their matter. As recently observed by Stewart J, in ALD19 at [20], “[t]here is a limit to the extent that the court can be expected to mollycoddle a party, even one who is unrepresented”.

41    For these reasons, I am satisfied that the appeal should be dismissed under rr 36.74(1)(c) and (d).

42    However, I do give the appellant liberty to apply within 14 days to set that order aside for good cause.

43    As recently observed by this Court in ALD19 at [22] and the authority thereafter cited, for which I agree, the Court may retain its jurisdiction to further deal with the matter by the granting of a limited liberty to apply.

44    The Minister has sought the costs of the proceeding where this order also will be subject to appellant’s liberty to apply.

Associate:

Dated:    7 July 2022