SZDID v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 737

FEDERAL COURT OF AUSTRALIA

SZDID v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 737 SZDID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 260 of 2005 ALLSOP J 3 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 260 of 2005

BETWEEN: SZDID

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 3 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: (1) The application for leave to appeal filed 22 February 2005 be treated as an application for an extension of time for filing and serving an application for leave to appeal and as an application for leave to appeal. (2) The application so treated be dismissed. (3) The applicant pay the respondent's costs of the application. 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 NSD 260 of 2005

BETWEEN: SZDID

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 3 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The application before me is an application for leave to appeal from orders made by a Federal Magistrate on 4 February 2005. The orders were interlocutory in nature being made under Rule 13.03(2)(b) of the Federal Magistrates Court Rules. The Federal Magistrate dismissed the applicant's application which had been made under s 39B of the Judiciary Act 1903 (Cth) for failure to comply with an order of the Court. The context of how the matter came to be before the Federal Magistrates Court on that day is explained in the affidavit of Mr Markus affirmed on 4 May 2005, which is read in this application by the respondent. 2 After the filing of the initial application in the Federal Magistrates Court, a Registrar made an order that the applicant file and serve an amended application setting out in full particulars of the grounds relied upon, together with affidavit material to be relied upon. No such material was filed. The order of the Court was not complied with. The orders made by the Registrar gave leave to the respondent to relist the matter for the failure to comply with that order. That was done by sending notification to the applicant that an order would be sought dismissing the application for non-compliance. There was material before the Federal Magistrate on which he could conclude that the material had been sent to the address provided in the litigation for service. 3 The applicant attended the hearing before the Federal Magistrate. No amended application and no affidavit was sought to be filed out of time by the applicant on that day. The applicant indicated that a friend had had the responsibility of drafting the amended application and that she needed more time because of the failure of her friend to deal with the matter. On hearing the representative of the Minister, the learned Federal Magistrate exercised the power available to him under Rule 13.03(2)(b) which had been enlivened. In all the circumstances that were before him, apparently what the Federal Magistrate viewed as an inadequate explanation for the failure to comply, the Federal Magistrate made the orders that he did. In my view, on the face of the material before me, that was a course of action which was open to the Federal Magistrate and which does not appear to have been infected with any error. Dealing with the matter in this way does not, of course, deal with the matter on the merits. If a properly particularised application were now to be filed, the orders of the Federal Magistrate and my orders today would not prevent that matter moving forward, subject to any application that the Minister may make. 4 For the above reasons, I propose to make the following orders: (1) The application for leave to appeal filed 22 February 2005 be treated as an application for an extension of time for filing and serving an application for leave to appeal and as an application for leave to appeal. (2) The application so treated be dismissed. (3) The applicant pay the respondent's costs of the application. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.