FEDERAL COURT OF AUSTRALIA Applicant A220 of 2003 v Refugee Review Tribunal [2004] FCA 379 APPLICANT A220 OF 2003 v REFUGEE REVIEW TRIBUNAL AND SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 769 OF 2003 LANDER J ADELAIDE 22 MARCH 2004 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 769 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A220 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 constitutional writs be dismissed. 2. The applicant to pay the respondent's 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 769 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A220 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 30 May 2003 the applicant brought proceedings in the High Court of Australia seeking the issue of constitutional writs directed to the Refugee Review Tribunal in relation to a decision of that Tribunal dated 1 December 1995. The matter was remitted by the High Court to this Court and, on 3 November 2003, I made the following relevant 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 his 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.' 2 I adjourned the directions hearing until 22 December 2003 and made a further order. '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 The matter came on again before me on 18 December 2003 and, at that time, I extended the time within which the applicant had to comply with par 3 of my order of 3 November 2003 until 15 March 2004. I made a further relevant order: '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 15 March 2004, the applicant will be called upon at the adjourned directions hearing to be held on 22 March 2004 at 9.00am to show cause why the matter should not stand dismissed.' 4 The matter came on for hearing before me again this morning. There was no appearance by the applicant. On 18 March 2004, Jacqueline Chan, who is a legal secretary employed by the applicant's former solicitor, Mr Patel, filed an affidavit in which she deposed that she was instructed by Mr Patel to post a letter to the applicant notifying him of Mr Patel's intention to withdraw. The letter to which she referred was exhibited to her affidavit. It is dated 10 March 2004 and states: 'We refer to our letter of the 22nd December 2003 in which we notified you of the Court order which required us to file Statement of Contentions of Law and Facts before the 15.03.2004. As we haven't received any evidence requested in our above letter which would indicate that if you were to return to India now you would suffer persecution because of your previous association with the militancy. In the circumstances, as indicated to you in our said letter, we shall withdraw from the proceedings. We once again remind you that your matter is listed at 9:00 am on the 22nd March 2004 for direction hearing. If you fail to attend the direction hearing, your application will be dismissed with costs.' 5 I am also informed that the Court wrote to Applicant A220 on 12 March in the following terms: 'I refer to the above matter and confirm that it has been relisted before Justice Lander at the below listed time and date: Time: 9.00 am Date: Monday 22 March 2004 Place: Level 9 25 Grenfell Street Adelaide We have been informed that Mr Girish Patel no longer acts for you in this matter and ask you to advise the court if you are attending this hearing in person. If you cannot attend in person you may attend by telephone, but we do need a telephone number on which the court can contact you on that date. The court also needs to know if you require an interpreter to assist you on that day. If you do, please contact the court on the telephone number shown above with the language you require. If you have any queries regarding this matter please contact this Registry on the telephone number shown above.' 6 There can be no doubt that Applicant A220 had adequate notice of the hearing today. The Registry advises me that this morning Applicant A220 rang and told the Registry that he had a matter in court this morning. He told the Registry that he received the letter from Mr Patel last Friday advising him that Mr Patel no longer acts for him. The message was to the effect that he would be asking for an adjournment so that he can get another lawyer. 7 There can be no doubt that Applicant A220, as I have said, had adequate notice of the hearing today. He was told by both his former solicitor and by the Court that he should attend today. Indeed, he was warned by his former solicitor that if he did not attend it was likely that his application would be dismissed with costs. There has been no explanation proffered to me why Applicant A220 has not complied with my order first made on 3 November 2003 and extended on 18 December 2003. 8 There has been no explanation proffered as to why, as Mr Patel indicates in his letter, he has failed to instruct him since 22 December 2003. 9 There is no reason, in my opinion, why this matter should be adjourned and, in my opinion, the matter ought to be dismissed. I order that the applicant's application for the issue of the constitutional writs be dismissed upon the ground that the applicant has failed to comply with my orders and failed to prosecute the matter. The applicant to pay the respondents' costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 1 April 2004 Counsel for the Applicant: The Applicant did not appear Counsel for the First and Second Respondents: E Reed Solicitor for the First and Second Respondents: Australian Government Solicitor Date of Hearing: 22 March 2004 Date of Judgment: 22 March 2004