Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145

FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1145

PRACTICE AND PROCEDURE – application to relist matter – where an order pursuant to O 32 r 2(1)(d) of the Federal Court Rules that the trial proceed in circumstances where the applicants did not appear.

Federal Court Rules, O 32 r 2(1)(d) STEPHEN OGHO AKPATA, FORTRESS AKPATA AND PRECIOUS AKPATA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SAD 84 of 2004 LANDER J 19 AUGUST 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 84 OF 2004

BETWEEN: STEPHEN OGHO AKPATA

FIRST APPLICANT

FORTRESS AKPATA

SECOND APPLICANT

PRECIOUS AKPATA

THIRD APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 19 AUGUST 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application to relist this matter is dismissed. 2. The applicants 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 SAD 84 OF 2004

BETWEEN: STEPHEN OGHO AKPATA

FIRST APPLICANT

FORTRESS AKPATA

SECOND APPLICANT

PRECIOUS AKPATA

THIRD APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE: 19 AUGUST 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application by the applicants to relist their originating application for further hearing. 2 I had notified the parties that I intended to deliver judgment in these proceedings this morning. I delayed delivering judgment in view of this application. 3 The trial in this matter was first listed for hearing on Thursday, 9 June 2005. 4 On 3 June 2005 the Registry received a letter from the first applicant in the following terms: 'I refer to the above matter and ask for an adjournment as the 9/6/05 is not convinent [sic] due to my circumstances. You will recall this matter was set down for hearing on the 10/2/05 but was adjourned on the application of the respondent as the acquired counsel was not available on that date. The Court faxed 1/6/05 for the matter but was adjourned by the Court due to the Judges [sic] schedule to 9.6.05. However this date is not convinient [sic] as stated above and respectfully ask that it be adjourned.' 5 The first applicant provided no further details. He did not deign to advise why the hearing date was inconvenient. No good reason was given for the grant of an adjournment. 6 On 6 June 2005 my Associate wrote to the first applicant in a letter which was sent by registered mail in the following terms: 'I advise that the Honourable Justice Lander has declined to adjourn this matter and confirm that it will remain listed for hearing at 1:00pm on Thursday 9 June 2005.' 7 I was not prepared, in the absence of any good reason, to adjourn the applicants' application for judicial review. When the matter was called on the first applicant did not appear. Indeed, none of the applicants appeared. 8 After I reserved my decision I was informed that it was likely the first applicant did not receive my Associate's letter of 6 June until 14 June 2005. In those circumstances, and in case the first applicant might have thought that the matter would not proceed on 9 June, the matter was re-listed for hearing on Wednesday 10 August 2005. 9 On 23 June 2005 my Associate wrote to the first applicant in the following terms: 'I refer to my letter dated 6 June 2005, sent by registered mail, in which you were advised that the Honourable Justice Lander declined to adjourn this matter and that it remained listed for hearing on 9 June 2005. Personal delivery of this letter was attempted by Australia Post on 8 June 2005, but it seems you were not at home and delivery was unable to be effected. From what I have been told by Australia Post, it appears that the letter was not picked up until after the hearing on 9 June 2005. Whilst you have made no attempt to contact the Court as to why you were not present on 9 June 2005, the matter will be re-listed for further hearing at 1:00pm on Wednesday 10 August 2005, at which time you may put any argument in support of your application.' 10 On 25 July 2005 my Associate received a message from the Registry to the effect that the first applicant had requested a copy of the decision of the Full Court of this Court in Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65. The Registry also reported that the first applicant had advised that he wished to have the hearing of this matter stayed until some time after the High Court handed down its decision in another matter brought by the first applicant. On that same day, my Associate responded to the first applicant's requests by a letter in the following terms: 'I refer to a message received by our chambers today that suggests that you would like the hearing of the above matter stayed until some time after the High Court hands down its decision in another matter that relates to you. I advise that if you wish to have the above proceedings stayed, you should make an application to do so to Justice Lander at the commencement of the hearing on Wednesday 10 August 2006 at 1:00pm. As requested, I enclose a copy of the decision of the Full Court of the Federal Court of Australia in Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65.' 11 A copy of this letter was sent to the respondent's solicitors. On 29 July 2005, the respondent wrote to my Associate in the following terms: 'We refer to your letter to Mr Akpata dated 25 July 2005. Thank you for sending a copy of this letter to us. We advise that in our view the High Court proceedings to which Mr Akpata is referring (A16 of 2004) are in no way related to the present application before the Honourable Justice Lander. The High Court proceedings are an application for writs of certiorari, mandamus and prohibition in relation to a Delegate's decision dated 7 November 1996 to refuse Mr Akpata a protection visa. The matter is before the High Court on 9 August 2005 to hear his application and the Minister's application to strike those proceedings out. We have written to Mr Akpata to advise that should he make an application to stay the Federal Court proceedings we will oppose this and file affidavit material supporting our contention that the two sets of proceedings are unrelated.' 12 Two days before the hearing, on 8 August 2005, the first applicant delivered a letter to the Registry which was addressed to me in the following terms: 'I refer to the letter of your associate Ms Belinda Culshaw of 25 July 2005 and wish to point out the following. 1. I ask for a stay of the proceedings or an adjournment pending my High Court matter.