Zhang v Secretary, Department of Employment [2018] FCA 200

FEDERAL COURT OF AUSTRALIA

Zhang v Secretary, Department of Employment [2018] FCA 200 File number: NSD 1503 of 2017

Judge: PERRY J

Date of judgment: 21 February 2018

Catchwords: PRACTICE AND PROCEDURE – application to dismiss proceedings under rule 5.23 of the Federal Court Rules 2011 (Cth) for failure to prosecute and attend hearings – where applicant has taken no active steps to prosecute proceedings – where applicant failed to attend prior directions hearing – application dismissed in whole

Legislation: Federal Court Rules 2011 (Cth) rr 5.23, 5.22

Date of hearing: 21 February 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 12

Counsel for the Applicant: The Applicant did not appear

Solicitor for the Respondents: Ms M Donald of Sparke Helmore Lawyers

ORDERS NSD 1503 of 2017

BETWEEN: ZONG DE ZHANG Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: PERRY J DATE OF ORDER: 21 FEBRUARY 2018

THE COURT ORDERS THAT:

1. The matter be dismissed in whole for default pursuant to rule 5.23 of the Federal Court Rules 2011 (Cth). 2. The applicant is to pay the respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

PERRY J: 1 On 31 August 2017, the applicant filed an application for an extension of time within which to appeal a decision of the second respondent, the Administrative Appeals Tribunals (the Tribunal), given on 28 October 2015. Pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), by that decision the Tribunal dismissed the application for review of a decision by an authorised review officer relating to social security and unemployment payments. The application for review was dismissed on the ground that the decision by the authorised review officer was not reviewable by the Tribunal. 2 The Tribunal has submitted to any order the Court may make in the proceedings save as to costs. 3 The matter was called on for directions this morning but there was no appearance by the applicant, despite the matter being called outside the courtroom three times. The first respondent applied under rule 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) (the FCR) for the proceeding to be dismissed in whole immediately, on the ground that the applicant was in default as defined in FCR rules 5.22(c) and (d). Rule 5.22 provides that: A party is in default if the party fails to: (a) do an act required to be done, or do and act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 4 In support of that application the first respondent relied upon the affidavit of Bernadette Marie Rayment, solicitor, sworn on 19 February 2018 which annexes correspondence between the first respondent and the applicant. 5 I agree that the application should be dismissed on these grounds for the following reasons. 6 This matter was called on for directions on 22 November 2017 but the applicant failed to attend. Orders were made on that date setting a timetable for preparation of the matter for hearing and affording, among other things, the applicant leave to file and serve any amended originating application for relief, together with any further evidence by way of affidavit, by 14 February 2018. No documents have been filed by the applicant pursuant to that leave, or otherwise save for the originating application and supporting documents. 7 On 8 December 2017, the solicitors for the first respondent wrote to the applicant by express post to a post-office box enclosing a copy of the orders made on 22 November 2017. The letter also sought confirmation that the applicant intended to proceed with the application, given his non-attendance at the directions hearing and lack of response to correspondence from the first respondent's solicitors dated 4 October 2017. The letter further advised that: If you do not wish to proceed with this application, it is important that you advise the Court without delay. This will ensure that the Court and the parties do not incur unnecessary costs, which you might be liable to pay. We kindly ask that you contact us on the details below before close of business on 18 December 2017. If we do not hear from you by that date, we will apply to the Court for an order pursuant to rule 5.23 of the Federal Court Rules 2001 (Cth) that your application be dismissed. If your application is dismissed, the Secretary may seek an order that you pay her costs of the application. 8 I infer that the Registry would also have forwarded a copy of the orders made on 22 November 2017 to the applicant in the ordinary course. 9 The solicitors for the first respondent wrote again to the applicant on 15 February 2018 by express post to the address for service given by the applicant on his application for an extension of time. The letter advised that: This matter is listed for Directions Hearing before Justice Perry on 21 February 2018 at 9:30 am at the Federal Court of Australia, Queens Square, Sydney, NSW 2000. You are required to attend court on this occasion. If you do not attend on this occasion, the respondent will seek orders from the court that your matter be dismissed and that you pay the Secretary's legal costs of the proceedings. A copy of the court's email is enclosed. 10 On 19 February 2018, the Registry sent an email to the respondents, but not Mr Zhang, noting that the matter was listed for directions on 21 February 2018 at 9:30 am. However, I again infer that the Registry would have forwarded a notice advising of the directions hearing to Mr Zhang in the ordinary course. 11 In circumstances where the applicant has not taken any active step since commencing the proceeding, has not attended either of the directions hearings, and has not made any contact with the first respondent in response to correspondence from the first respondent, I am satisfied that the application should be dismissed under FCR rule 5.23 on the grounds that the applicant has failed to attend hearings and to prosecute the proceeding with due diligence. An order should also be made that the applicant is to pay the respondent's costs as agreed or assessed. 12 I note that in coming to this decision, I have taken into account that the applicant is entitled to apply to have the proceedings reinstated under rule 39.05 of the Federal Court Rules, should he so wish. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.