Case: MZWXD v Minister for Immigration &amp; Anor [2005] FMCA 1972
Outcome: referred to
This is the first directions hearing in relation to a proceeding instituted by notice of appeal, filed on 2 December 2005. In that notice of appeal, the appellant purports to appeal from a judgment of a federal magistrate, given on 9 November 2005. The learned federal magistrate's reasons for judgment, which were given orally at the time the order was made, have been published subsequently. See MZWXD v Minister for Immigration &amp; Anor [2005] FMCA 1972. They make it clear that the appellant's application to the Federal Magistrates Court was dismissed by reason of his failure to appear when it was called on for hearing. 2 The dismissal was pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 . It was therefore clearly a dismissal that did not constitute a final judgment. The federal magistrate's reasons for judgment make it clear that his Honour did not consider the merits of the appellant's application to that court. His Honour granted leave to join the Refugee Review Tribunal as the second respondent to the proceeding in that court, a step which is plainly necessary in light of the relief that the appellant sought. His Honour also expressly dismissed the application pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 , and ordered the appellant to pay the costs of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, which his Honour fixed at $6000. 3 Because the judgment of the court from which the purported appeal is brought is not a final judgment, it is clear that leave to appeal is required by s 24(1)(d) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth). There has been no application for leave to appeal, and the time fixed by O 52 r 10(2A)(b) of the Federal Court Rules for the making of such an application has expired. 4 If the appellant were to seek leave to appeal, it would be necessary for him to apply to enlarge the time within which to make such an application. If he were to do so, it is highly likely that the response of the Court would be that he had open to him the option of returning to the Federal Magistrates Court, and applying to set aside the judgment given on 9 November 2005. If he could provide an adequate explanation of his failure to appear on that date, and could convince the Federal Magistrates Court that he had an arguable chance of success, then he would no doubt have the benefit of having that judgment set aside and being able to proceed in the Federal Magistrates Court. If he were unsuccessful, it would still be open to him to seek leave to appeal from the refusal by the Federal Magistrates Court to set aside the judgment. Such an application for leave to appeal would come to this Court and, if successful, would allow the appellant to appeal from that refusal to set aside the judgment. 5 Apart from filing his notice of appeal, and an affidavit in which he claims to be waiting for important medical documents to submit to the Federal Magistrates Court and says that he needs a chance for that court to again consider his application, the appellant has provided no material that would assist in relation to any enlargement of time or the merits of his appeal. He has failed to appear at this first directions hearing today. 6 When the case was called on and he did not appear, I stood it over and invited my associate to endeavour to make contact with the appellant by telephone. I am advised by my associate that she made such contact and was told that the appellant is unwell, has a medical certificate which he will send to the Court, and is unable to travel from Robinvale, where he currently is. 7 In the circumstances, I can see no point in adjourning the directions hearing today. To adjourn it would only be to increase the costs of the proceeding which, as I see it, the appellant will inevitably be ordered to pay. He will inevitably be ordered to pay because his appeal will have to be dismissed, unless he applies for leave to appeal, and of course unless he first applies for an enlargement of time to seek leave to appeal. As I have said, if he were to make such an application, it would very likely be unsuccessful because he would be told that he had open to him the option of returning to the Federal Magistrates Court and seeking to have the judgment of that court, given on 9 November 2005, set aside. In the circumstances, if nothing else, it would be kinder to the appellant to dismiss his purported appeal today.