FEDERAL COURT OF AUSTRALIA SZOSP v Minister for Immigration and Citizenship [2011] FCA 558 Citation: SZOSP v Minister for Immigration and Citizenship [2011] FCA 558 Appeal from: SZOSP v Minister for Immigration & Anor [2011] FMCA 33 Parties: SZOSP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 137 of 2011 Judge: GREENWOOD J Date of judgment: 4 May 2011 Catchwords: PRACTICE AND PROCEDURE – consideration of an application to adjourn an appeal due to contended illness on the part of the appellant Date of hearing: 4 May 2011 Date of last submissions: 4 May 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 7 Solicitor for the Respondents: The Australian Government Solicitor, Ms E WarnerKnight IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 137 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOSP Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GREENWOOD J DATE OF ORDER: 4 MAY 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The hearing of the appeal be adjourned to 26 May 2011. 2. The costs of and incidental to the adjournment be the costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 137 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOSP Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GREENWOOD J DATE: 4 MAY 2011 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT 1 This matter is listed for hearing this morning. 2 The sequence of events which are relevant to the question is this: on 14 February 2011 the Federal Court Registry wrote to the appellant advising the appellant that the appeal would be listed for determination in the period 7 February 2011 to 4 March 2011 unless the appellant was otherwise advised about the listing of the appeal for hearing and determination. On 18 March 2011 the Federal Court wrote to the appellant and advised the appellant that the appeal would be heard and determined at 10.15am on 4 May 2011. On 3 May 2011, on the cusp of the actual hearing of the appeal, the appellant attended the chambers of a medical practitioner called Dr Alex Aristoff and presented to Dr Aristoff exhibiting certain medical manifestations of what is described in Dr Aristoff's certificate as "a severe headache, hypertension, and reaction to severe stress". 3 That reaction – hypertension and stress – is no doubt a function of the listing of and imminent determination of the appeal in which the appellant's rights and interests, according to her notice of appeal, would be dealt with. Dr Aristoff, in his certificate of 3 May 2011 says that the appellant is noted to have the matters I just mentioned, and that Dr Aristoff finds her unfit to attend court from 3 May 2011 until 31 May 2011. Dr Aristoff is to see the appellant again in the next few days and has prescribed medication to address what he described as her stress reactions: shaking and blood pressure of 140 over 100. Dr Aristoff saw the appellant at 12.19pm on 3 May 2011 which, as I say, is on the cusp of the hearing of the appeal. 4 This morning, Dr Aristoff appeared before the court by telephone to expand upon the observations in his certificate which, in his certificate, he said he would be happy to do. It seems to me that the proper course in all the circumstances is that the matter ought to be adjourned rather than dealt with, and I should add finally in this chronology of events that a member of the Federal Court registry Ms Dow, who speaks Mandarin, spoke to the applicant this morning in Mandarin, although I understand the appellant is conversant with the English language. However, Ms Dow spoke with the appellant in Mandarin and explained to her that her application for an adjournment would be opposed and the appellant was advised that the matter may be dealt with in her absence in any event. 5 However, it seems to me that little is to be lost in terms of the interest of justice by adjourning the matter briefly, which would enable the appellant to take the medication prescribed to her by Dr Aristoff which may have the effect of easing her sense of hypertension and thus enable her to be in a position to deal with the matter on the adjourned date. The matter will be dealt with on the adjourned date and the court will write to the appellant to advise the appellant that the matter has been adjourned until 2.15pm on 26 May 2011 - at which time the matters in issue will be finally determined. The adjournment is intended to give the appellant an opportunity to address, through the medication, the sense of hypertension which is manifest to Dr Aristoff. 6 However, it should be recognised that litigants before courts who are confronting circumstances where their rights and interests will be finally determined inevitably exhibit a sense of tension or anxiety which may manifest itself in the form of some headaches or hypertension or stress reaction. However, the business of the court must be dealt with, and the disposition of these controversies must occur with some degree of real expediency. The questions alive on the appeal, of course, are questions of law. There will be no oral evidence to be given by the appellant, and the appellant will be provided with the opportunity to sit and attend in court, and will be given an opportunity to make submissions in support of her appeal by sitting at the bar table. The environment of the court and the disposition of the appeal will be efficacious in terms of the full and complete hearing of the issues she wishes to ventilate. 7 The court already has the benefit of submissions in support of the appeal, and of course they can be spoken to by the appellant. The appellant has the benefit of the submissions of the respondent, and when the court writes to the appellant advising her of the adjourned date, the court will invite the appellant to place before the court any further submissions in response to anything the Minister has relied upon in the Minister's submissions. The question that now arises is the question of the costs thrown away by reason of the adjournment The first respondent contends that the appropriate order is that the costs of the adjournment be costs in the cause. An order in those terms will be made. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 4 May 2011