Abraham v Attorney-General for the Commonwealth

REASONS FOR JUDGMENT 1 On 15 December 2003 a judge of the Court dismissed an application by the applicant against the respondent for orders that the respondent pay him certain sums of money which he claimed he was entitled to under the Overseas Custody (Child Removal) Scheme: Abraham v Attorney-General for the Commonwealth [2003] FCA 1566. 2 The applicant appealed from that decision on 15 January 2004. He then did not prosecute the appeal in the normal manner. He failed to attend on several occasions when appointments were made for the settling of the contents of the Appeal Book. On 6 April 2004 a judge of the Court directed the applicant (the then appellant) to attend before the District Registrar at 10 am on 13 April 2004 for the purpose of settling the appeal papers. It was also then ordered that, if the appellant failed to attend at that time, the appeal be dismissed for failure to comply with that direction: see Abraham v Attorney-General for the Commonwealth [2004] FCA 411. The order was made under O 52 r 38(1)(a) of the Federal Court Rules. 3 The applicant (the then appellant) did not appear at the time appointed for settling the appeal papers. By operation of the order of 6 April 2004, the appeal was therefore dismissed. 4 Now, some two years later, by motion of 26 April 2006 the applicant has applied in the appeal matter for orders that he recover the same costs which previously had been the subject of a decision at first instance of 15 December 2003. His motion has been treated as an application to re-instate the appeal. As the order dismissing the appeal has not been entered, that course of action is open to him: O 35 r 7(1) of the Rules. The applicant has filed two affidavits in support of the motion. They do not explain why he did not comply with the directions of the Court in respect of his appeal. They do not explain or indicate any basis upon which he has any prospect of succeeding on the appeal. The learned judge who made the order of 6 April 2004 indicated then that the notice of appeal did not 'suggest a case of any strength'. 5 The applicant has also not attended at the time listed for the hearing of his motion. 6 In those circumstances, even though the Court may be empowered to set aside the order of 6 April 2004 because it has not been formally entered, there is no basis upon which that power should be exercised in the applicant's favour. 7 If the motion is taken other than as an application to re-instate the appeal, and as a fresh application for the payment of the monies referred to, it must fail because the issue has already been decided adversely to the applicant in the decision referred to in [1] hereof. 8 Accordingly the motion of 26 April 2006 is dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.