FEDERAL COURT OF AUSTRALIA Applicant A231 of 2003 v Refugee Review Tribunal [2004] FCA 373 APPLICANT A231 OF 2003 v REFUGEE REVIEW TRIBUNAL AND SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 777 OF 2003 LANDER J ADELAIDE 22 MARCH 2004 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 777 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A231 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: LANDER J DATE OF ORDER: 22 MARCH 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicant's application for the issue of the constitutional writs is dismissed. 2. The applicant to pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 777 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A231 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: LANDER J DATE: 22 MARCH 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 12 June 2003 the applicant brought proceedings in the High Court of Australia seeking the issue of the constitutional writs in relation to a decision of the Refugee Review Tribunal made on 4 October 2000. The matter was remitted by the High Court to this Court for hearing. 2 The matter first came on before me on 3 November 2003, when I made the following orders: '3. The applicant file and serve: a. a statement of contentions of relevant facts and law setting out: i. if the applicant has previously sought judicial review of the Refugee Review Tribunal decision the subject of this application, the reasons why the application should not be dismissed; and ii. if the applicant requires an extension of time within which to file this application, the reasons why an extension of time should be granted; and iii. particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought. b. any affidavits in support of any of the contentions in para 3(a) which the applicant intends to rely on at the hearing on or before 15 December 2003. … 5. In the event that order 3 is not complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.' 3 I adjourned the further hearing of the matter until 22 December 2003. However, the matter came on before me again on 18 December when, at the request of the applicant's then solicitor, I made an order extending the time within which the applicant had to comply with par 3 of my orders until 8 January 2004. At the same time, I made an order in the following terms: '2. In the event that order 3 of my order of 3 November 2003, as extended by paragraph 1 of these orders, is not complied with by 8 January 2004, the applicant will be called upon at the adjourned directions hearing to be held on 19 February 2004 at 9.00am to show cause why the matter should not stand dismissed.' 4 The matter came on before me again on 19 February 2004. At that time, the applicant's then solicitor indicated that he would be filing a notice that he had ceased to act as the applicant's solicitor. In those circumstances, I made the following orders: '1. Further extend the time within which the applicant has to comply with my order of 3 November 2003 until 4 March 2004. 2. Direct Mr Patel, at the time he serves on the applicant a notice of intention to file and serve a notice of change of solicitors, pursuant to O 45 r 7 to advise the applicant that: 2.1 I have extended the time within which the applicant has to comply with paragraph 3 of my orders of 3 November 2003 until 4 March 2004; and 2.2 The further hearing of the applicant's application is adjourned until 22 March 2004 at 9.00am. 3. The parties and solicitors are at liberty to apply. 4. Adjourn the directions hearing until 22 March 2004 at 9.00am.' 5 On 17 March, Jenny Wu, a part-time secretary employed by the applicant's former solicitor, deposed to having sent to the applicant a letter of 1 March 2004 advising the applicant of the former solicitor's withdrawal as the applicant's solicitor. The letter was in the following terms: 'We refer to (sic) you to our letter of the 8th January 2004 in which we sought evidence from you indicating that there was a real chance of persecution if you returned to India, as you have failed to provide such evidence we have on the 19th February 2004 withdrawn from the case. We herewith enclose a copy of the court order, which has extended the time for you to file statement of contentions of law and fact to the 04.03.04. The case is adjourned to the 22nd March 2004 at 9 am. Please note that your application will be dismissed if you fail to appear on the 22nd March 2004.' 6 On 16 March 2004 my associate also wrote to the applicant advising him that he should attend today on his application. He has been called in the precincts of the Court, but has not appeared. In those circumstances, Ms Reed, counsel for the respondents, has sought to have the proceedings dismissed. The applicant has not complied with my orders of 3 November 2003, 18 December 2003 or 19 February 2004. He has apparently not instructed his solicitor as required. 7 The applicant, in my opinion, has evidenced an intention not to prosecute these proceedings. In my opinion, the applicant's proceedings should be dismissed for his failure to comply with my orders and for his failure to prosecute these proceedings diligently. In those circumstances, I make the following orders: 1. The applicant's application for the issue of the constitutional writs is dismissed. 2. The applicant to pay the respondents' costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 31 March 2004 Counsel for the Applicant: The Applicant did not appear Counsel for the First and Second Respondents: Ms E Reed Solicitor for the First and Second Respondents: Australian Government Solicitor Date of Hearing: 22 March 2004 Date of Judgment: 22 March 2004