NAQB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 562

FEDERAL COURT OF AUSTRALIA

NAQB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 562 PRACTICE AND PROCEDURE – default judgment by Federal Magistrate – leave to appeal not granted where application to set aside judgment not made to Federal Magistrate's Court

Federal Magistrates Court Rules 2001(Cth) r 13.03 Federal Court Act 1976 (Cth) s 24(1)A APPLICANT NAQB OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 117 OF 2003 GYLES J SYDNEY 21 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 117 OF 2003

BETWEEN: APPLICANT NAQB OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 21 MAY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The proceeding be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 117 OF 2003

BETWEEN: APPLICANT NAQB OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 21 MAY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The history of this matter is as follows. The purported appellant ("the appellant"), was an applicant for a protection visa. Upon refusal of that visa he applied for review to the Refugee Review Tribunal ("the Tribunal"). On 15 May 2002 the Tribunal wrote to the appellant advising that it had considered all the papers relevant to his application but it was unable to make a favourable decision on that information alone. It invited the appellant to give oral evidence and present arguments at a hearing on 11 June 2002. On 3 June 2002 the appellant advised the Tribunal in writing that he did not wish to give oral evidence and would like the Tribunal to proceed to make a decision "on the papers". The Tribunal dealt with the matter on that basis and by a decision dated 12 June 2002 affirmed the refusal to grant a visa. 2 By a document dated 29 July, and filed on 31 July, 2002 the appellant sought a review of the decision in this court without stating any grounds which accorded with those grounds which are available for a review of such a decision. His affidavit effectively carried the matter no further in that respect. 3 On 3 September 2002, Jacobson J made an order transferring the proceedings to the Federal Magistrate's Court. The matter was fixed for hearing for 3 December 2002 and the Federal Magistrate's Court file reveals that on that date there was no appearance for the then applicant and counsel for the Minister did appear. On that date the hearing was aborted and the matter was listed for final hearing at 2.15pm on 28 January 2003. The following orders were then made: '1. The applicant is to pay the respondent's costs thrown away by reason of the adjournment of today's hearing fixed at $685, to be paid within 28 days of entry of these orders. 2. The applicant is to provide particulars of the lack of good faith asserted in paragraph 4 of his submissions 26 November 2002 within 28 days of entry of these orders. 3. In default of compliance with orders 1 and 2 by the due date the application will be dismissed pursuant to r 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) with costs.' 4 On 16 January 2003, in chambers, Federal Magistrate Driver directed that the resumed hearing date of 28 January 2003 be vacated. The following orders were made: '1. The application is dismissed for default in accordance with to [sic] r 13.03(2)(b) of the Federal Court Magistrates Rules 2001 (Cth); noting the applicant's failure to comply with orders 1 and 2 made on 3 December 2002. 2. The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $2,000.' It was noted that the costs order was in addition to the costs order made on 3 December 2002. 5 It is not immediately clear to me how the facts as to default were ascertained. 6 By a purported notice of appeal dated 13 February 2003, filed on 14 February 2003, the appellant purported to appeal from a judgment said to have been given on 28 January 2003. The first ground was that a: 'Single judge of the Federal Magistrates Court In his Honors Judgment delivered on the 28th January 2003 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903.' 7 The second ground referred to the authorities of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, High Court decisions of 8 August 2002. 8 The matter has been set down for hearing in the appellate jurisdiction before me as a single judge pursuant to a direction of the Chief Justice. The respondent's outline of submissions raises a threshold question as to whether the appeal can lie in the absence of leave as the orders made were interlocutory. It is plainly correct that the order was interlocutory and s 24(1)A of the Federal Court Act 1976 (Cth) means that leave is required. 9 The history of the matter to which I have referred leaves little room for any argument in favour of a grant of leave. The appellant has consistently failed to take part in proceedings relevant to his case and his failure to attend before the Tribunal when invited in itself would make it unlikely that any leave would be granted. More fundamentally, however, in my opinion, the notion that there is an appeal to this court from an order of the kind made here is misconceived. The Federal Magistrates Court Rules provide, by virtue of r 16.05(ii)(c), that the court may vary or set aside an interlocutory judgment. That rule is particularly appropriate where what amounts to a default judgment has been signed, particularly a default judgment under a rule such as r 13.03. The primary recourse in such a case should be to the primary court where reasons can be put forward as to why the default order should be set aside rather than have the appellate jurisdiction of this court engaged. Thus, even if an application for leave was before me, which there is not, I would not grant it. Without wishing in any way to encourage or discourage the appellant, his recourse, if any, in the first instance, at least, is to apply to the Federal Magistrates Court to set aside the default order. 10 I note, however, that this matter was raised for the first time, so far as I am concerned, by submissions from counsel for the respondent which were received in the court on 16 May 2003 and although the incompetence of the appeal is squarely raised and relevant matters which would tend against the grant of leave are raised, the point which occurs to me as the most fundamental point was not then clearly taken. There was no objection to competency. I mention this to indicate that it has led to a great waste of time that the point was not raised at the first available opportunity. The Minister after all is a respondent in case after case after case and the Department should be diligent to ensure that the waste of both the time of the court and the costs which are incurred in dealing with incompetent appeals are avoided. 11 In this matter, for the reasons to which I have referred, the appeal is plainly incompetent and even if there had been an application for leave it would have been refused. There is no such application formally before me in any event. Under those circumstances there is ample power to dismiss the proceeding and I will do so. 12 Costs are sought on behalf of the Minister either by direct application of O 52 r 18 of the Federal Court Rules or by analogy with it. I think that the failure of the Minister to take the point of competence at the first opportunity should deprive the Minister of costs. Notwithstanding, shall I say, the cavalier approach of the appellant to the proceedings generally, he is unrepresented and the way these rules work is not necessarily crystal clear. Therefore, I do not think it is appropriate to order that a small proportion of costs be paid, that is costs up to the first mention date. 13 The order of the court is proceeding dismissed. There is no order as to costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.