MLGWRN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 606

FEDERAL COURT OF AUSTRALIA

MLGWRN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 606 MLGWRN v Minister for Immigration and Multicultural and Indigenous AffAIRS VID 242 of 2005 CRENNAN J 12 MAY 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 242 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY REITHMULLER FM

BETWEEN: MLGWRN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CRENNAN J

DATE OF ORDER: 12 MAY 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. Applicant to pay the respondent's costs fixed in the sum of $1,300.00. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 242 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA CONSTITUTED BY REITHMULLER FM

BETWEEN: MLGWRN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CRENNAN J

DATE: 12 MAY 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant has filed a notice of appeal dated 29 March 2005 appealing from the whole of the decision of Reithmuller FM given on 10 March 2005. 2 It appears that prior to the hearing the applicant sent a letter to his Honour Reithmuller FM claiming to be unwell. At the hearing, his Honour dismissed the applicant's application for review of the decision of the Refugee Review Tribunal for non appearance (r 13.03A of the Federal Magistrates Court Rules 2001)and made the following orders: '1. The applicant's application filed 4 October 2004 be dismissed. 2. The applicant to pay the respondent's costs fixed in the sum of $5,800.00. 3. The applicant have liberty to apply within 14 days if her illness was significant/sufficient to prevent her attendance today.' 3 The applicant has now filed a notice of appeal seeking review of the whole of the Federal Magistrate's decision under s 39B of the Judiciary Act 1903 (Cth). The respondent has filed an amended notice of objection to competency on the ground that the more appropriate course for the applicant to follow would be to apply to the Federal Magistrates Court to set aside the orders which are the subject of this appeal, pursuant to O 16.05(2)(a) of the Federal Magistrates Court Rules. That amended notice of objection to competency also objects in the alternative, that no application for leave has been sought by the applicant in respect of what is an interlocutory judgment. 4 It is appropriate to treat the notice of appeal as incorporating an application for leave to appeal. The respondent did not object to this course being adopted. 5 The matter was fixed for hearing today. The applicant did not appear when the matter was called on for hearing. Given the history of the matter and the fact that the applicant was not present today when the matter was called on for hearing, I will make an order to dismiss the application pursuant to O 32 r 2.1(c) of the Federal CourtRules, which gives the Court power to dismiss the action if the party absent is the applicant. I note in that context the provisions of O 35 r 7, which empowers the Court, where an appropriate basis has been made out, to set aside an order which has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default. 6 Accordingly, the applicant's application is dismissed with an order that the applicant pay the respondent's costs, fixed in the sum of $1,300.00.