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[2022] FCA 792
Federal Court of Australia
2019-09-27
Stewart J, Raper J
Original judgment source is linked above.
RAPER J: 1 This matter concerns an appeal from a decision of the former Federal Circuit Court of Australia, delivered ex tempore by the primary judge on 26 September 2019. On 6 July 2022, the first respondent (Minister) applied for the appeal to be dismissed (pursuant to rr 36.74(1)(c) and 36.74(1)(d) of the Federal Court Rules 2011 (Cth)) with costs on account of the appellant's failure to appear at either case management hearing held on 8 June 2022 and 6 July 2022 respectively. 2 The appellant's notice of appeal was filed on 22 October 2019. The appellant's name is recorded on the fourth page where he signed the notice of appeal. In addition, the appellant gives an address in the suburb of Villawood in Sydney, a mobile telephone number and an email address. In addition, the same details appear in the footer on the first page of the notice of appeal. Those details are provided, as required under rr 2.16, 11.01 and 36.01(4) of the Rules. 3 By operation of r 11.01(5) of the Rules, where a party is not represented by a lawyer and gives an email address, the effect is that the party agrees to receive documents by that address: see recent consideration of the same by Stewart J in: ALD19 v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 735 at [3]. 4 After the institution of the appellant's appeal in October 2019, on 10 February 2020, a Registrar of this Court made Directions for the preparation of the appeal. Those Directions were emailed to the parties on the same date. This email sought that the parties notify the Court by 17 February 2020 of the following: (a) who was expected to appear for each party; (b) any unavailable dates in the May 2020 period; (c) whether an interpreter was required and in what language; (d) whether it would be more appropriate for the matter to be listed in a different location; and (e) if any party had changed their contact details. 5 The appellant did not respond to that email dated 10 February 2020. That email, and the emails which were sent to the appellant, referred to hereafter, were also not returned undelivered. From that I infer that the email address is a valid email address, although it is not known whether the appellant checks it. It nevertheless remains the appellant's nominated email address for service as provided in his notice of appeal. 6 On 11 March 2020, the Minister responded to the email dated 10 February 2020 and the appellant was copied into that email. The Minister noted in that email that the appellant had requested a Tamil interpreter in the previous Federal Circuit Court proceedings. 7 On 14 October 2020, a Registrar of this Court issued a referral certificate for pro bono legal assistance pursuant to r 4.12 of the Rules. Senior and junior counsel subsequently accepted the referral as did a solicitor agreeing to act as instructing solicitor to counsel. 8 On 22 February 2021, the Court sent an email to the pro bono representatives enquiring as to whether they had had the opportunity to confirm with the appellant instructions to act for him in a pro bono capacity. On 24 February 2021, the junior counsel sent an email to the Court stating that to date that herself and the pro bono solicitor had been unable to contact the appellant. The pro bono solicitor had confirmed with junior counsel that the appellant had been released from detention and subsequently sought to correspond with the appellant by telephone, email and post at his last known contact details, without success. Junior counsel then stated that in these circumstances they could not regard themselves as instructed to act for the appellant. 9 On 7 March 2022, the Court sent an email to the Minister, copying in the pro bono solicitor and junior counsel, noting the Court was considering listing this matter in April-June 2022. The Court sought the parties to inform the Court as soon as possible, or by 4:00pm on 9 March 2022, of any unavailable dates in the April-June 2022 period, if a remote hearing was required, who was expected to appear for each party, if any party had changed their contact details, the expected duration of the hearing, and whether an interpreter was required. This email also included a link to download the Microsoft Teams program. The Minister replied on 9 March 2022. 10 On 8 March 2022, the Court re-sent the email dated 7 March 2022 to the appellant, copying in the Minister, the pro bono solicitor and junior counsel. The appellant did not respond to that email. 11 On 10 May 2022, the Court sent two emails to the practitioners (not the appellant) notifying them of the date of the listing of the first case management hearing. 12 On 27 May 2022, the Court sent a further email to the practitioners asking whether the appellant required a Tamil interpreter if he was legally represented. The appellant's solicitor sent an email to the Court advising that he had been unable to contact the appellant and sought to withdraw from the matter. The Court then sent a reply email to the practitioners confirming the matter was listed for case management on 8 June 2022 at 9:30am. 13 On 31 May 2022, the Court sent an email to the practitioners, noting that the Court had been unable to reach the appellant as the number was disconnected and asking the appellant's solicitor to confirm whether he would be attending the first case management hearing on 8 June 2022. 14 On 3 June 2022, the Court sent a further email to the practitioners asking the appellant's lawyer whether he would be attending the first case management hearing or to provide updated contact details for the appellant and including the Microsoft Teams details. 15 On 7 June 2022, the Court took a number of steps to attempt to contact the appellant, namely it sent an email to the appellant reminding him that the first case management hearing was listed for 8 June 2022 at 9:30am, providing the Microsoft Teams details, left a voicemail message with the appellant's lawyer and tried to contact the appellant by the phone number provided in the notice of appeal (which was disconnected).
Case management hearing - 8 June 2022 16 On 8 June 2022, the first case management hearing was held on Microsoft Teams with a Tamil interpreter present. 17 The Minister entered an appearance. The appellant did not enter an appearance. 18 The Court was informed of who was online, being the Minister's solicitor, the interpreter and another person (who did not identify themselves and despite being asked did not state that they were attending on the appellant's behalf). 19 During the course of the case management hearing, the Minister informed the Court that the last known contact details they held for the appellant were those in the notice of appeal. The Court proposed to adjourn the matter to a further case management hearing and asked the Minister to inform the Court at the next case management hearing if they knew whether the appellant was still in Australia and if they had further contact details for him. 20 Finally, the Minister foreshadowed that at the next case management hearing they would be seeking orders for the proceedings to be dismissed in default of appearance and orders as to costs. The Court stated it would write to the appellant notifying him of the case management hearing held on 8 June 2022 and the possible application the Minister would make in the event of the appellant's non-attendance at the next case management hearing. 21 On 8 June 2022, the Court sent an email to the parties attaching sealed orders of the same date and setting down the matter for a further case management hearing on 6 July 2022.
Further correspondence 22 On 10 June 2022, the Court sent an email to the parties (which was also sent by post to the address given by the appellant as his address for service in his notice of appeal), noting that there had been a case management hearing on 8 June 2022 and that no appearance was entered for the appellant. 23 On 28 June 2022, the Court sent an email to the parties (which was also sent by post to the address given by the appellant as his address for service in his notice of appeal), noting the appellant's lawyer had filed a notice of intention of ceasing to act, but not a notice of ceasing to act and sought that he do so promptly. The Court sought that the appellant file a notice of address for service, given the fact of his lawyer's ceasing to act, as soon as possible. In addition, the Court asked that the Minister forward this correspondence to the appellant given there had been some information technology issues in the Court regarding emails being sent to Gmail accounts going into spam folders of the recipients. 24 On 30 June 2022, the Minister responded to the Court's email dated 28 June 2022, confirming the Minister's last known contact details for the appellant were the same as those in the notice of appeal and that the Minister would forward to the appellant the Court's email dated 28 June 2022 as requested. 25 The Minister tendered at the hearing an email which the Minister had sent on 30 June 2022 to the appellant. This email is extracted below: We refer to the above matter and confirm that we act for the first respondent. Please see below an email from the Court, advising that your matter is listed for a further case management hearing on Wednesday 6 July 2022 at 2:30pm. Please note that as outlined below, the Court is experiencing IT difficulties sending emails to Gmail accounts. The Court has requested that you check your spam folder for any correspondence from the Court. (Emphasis in original). 26 On 4 July 2022, the Court sent an email to the parties advising that the case management hearing would be in person, providing the full street address of the Federal Court of Australia (FCA) in Sydney and also providing an alternative Microsoft Teams link in the event either party could not attend in person. 27 On 5 July 2022, the Court attempted to call the appellant three times but a message stated the number was not connected. On the same date, the Court sent an email to the parties notifying them of the exact Court Room in which the case management hearing would be held, together with again the full street address of the FCA in Sydney and the alternative Microsoft Teams link. 28 The Minister tendered at the hearing an email which the Minister had sent on 5 July 2022 to the appellant titled "Important information about your court proceedings - BJN19 - v - Minister & Anor NSD1719 of 2019". This email is extracted below: We refer to the above matter in which we act for the first respondent (Minister). On 28 June 2022, [pro bono solicitor] filed a notice of ceasing to act as your lawyer in these proceedings. This means that you presently do not have a lawyer to represent you in this matter. As explained to you in our email dated 30 June 2022 (copy attached), your matter is listed for a case management hearing before Justice Raper in person on Wednesday 6 July 2022 at 2:30pm, at the Federal Court of Australia, Sydney. The Court's address is 184 Phillip Street, Queens Square, Sydney NSW 2000. As you do not have a lawyer representing you in your proceedings, you are required to attend Court in person on this occasion. If you cannot attend the Court building on this date, the Court has also provided a Microsoft Teams link to appear by video (please see attached). If you do not attend the case management hearing, the Minister will seek orders from the court that your matter be dismissed pursuant to Rule 36.74(1)(c) and/or (d) of the Federal Court Rules 2011 (Cth) for a failure to attend a hearing relating to your appeal and/or a failure to prosecute the appeal. The Minister will also apply for an order that you pay his legal costs of the proceedings. If you do attend the case management hearing, the Minister intends to seek a hearing date for your appeal. (Emphasis in original).
Case management hearing - 6 July 2022 29 Court room 18B was allocated for the hearing. Its location was published on the Court's website from the afternoon on 5 July 2022 and remained published there on the date of the case management hearing being 6 July 2022. 30 The matter was called and there was no appearance by the appellant in person or on Microsoft Teams. The court officer called the pseudonym and given name and surname of the appellant outside the court room, as did the interpreter and there was still no appearance. The court officer then called the mobile number recorded on the notice of appeal and a message said that the phone number was not connected.
The applicable rule - Rule 36.74(1) - dismissal 31 Rule 36.74(1) provides that a respondent may apply to the court for an order that an appeal be dismissed where an appellant fails do a number of things including failing to "attend a hearing relating to the appeal" (r 36.74(1)(c)) or "prosecute the appeal" (r 36.74(1)(d)). In addition, sub-section (2) provides that an application under sub-rule (1) must be served on the appellant either at the address for service or personally. The Minister did not comply with this requirement and sought that I dispense with this requirement in the circumstances, pursuant to r 1.34. 32 I am prepared to dispense with the requirement of service under r 36.74(2) and to make orders dismissing the appeal on the basis of rr 36.74(1)(c) and 36.74(1)(d) for the following reasons. 33 As indicated by the above chronology, numerous attempts have been made to contact the appellant since 10 May 2022, by email, post and telephone by the Registry of this Court as to the listing of case management hearings. 34 In addition, on 10 June 2022, the Court emailed the appellant and foreshadowed the Minister's application for dismissal at the next case management hearing. 35 By the Minister's email dated 5 July 2022, extracted at paragraph [28] above, the Minister reaffirmed with the appellant, his intention to seek for the matter to be dismissed. 36 By reason of the communication by the Court on 10 June 2022 and the Minister's email dated 5 July 2022, in particular I am prepared to dispense with the requirement under r 36.74(2) but I am of the view that the preferable course would be for the Minister to so comply with the Rules and serve such an application. 37 Further, relevant both to dispensing with the requirement under r 36.74(2) but also as to why dismissal is warranted in the circumstances, it may be inferred from the appellant's lack of communication with the Court or the Minister's representatives over the period, or attempting to notify the Court of any change in contact details that the appellant does not intend to pursue his appeal. 38 Whilst I accept that dismissal of an appeal in this circumstances must not be done lightly, all parties have a responsibility to conduct their affairs before the Court with due despatch including by observance of their obligations if they are an appellant to prosecute their claim in a timely way, to provide and thereafter update their address for service, to respond to communications from the Court, and to attend the allocated date for the hearing of their matter. As recently observed by Stewart J, in ALD19 at [20] "[t]here is a limit to the extent that the court can be expected to mollycoddle a party, even one who is unrepresented". 39 However, given the fact that in early 2022 the Court was communicating with the appellant's pro-bono representatives (and not the appellant through his email address) and given the information technology problems experienced by the Court, I am concerned that there may be a bone fide reason or reasons as to the appellant's non-attendance. For this reason, I propose to dismiss the appeal but to give the appellant liberty to apply within 14 days to set that order aside for good cause. 40 In addition, the first respondent applies for his costs. I will make such an order as there is no apparent basis as to why they should not be made, but where again a consequence of the third order is that the appellant may have liberty to apply with respect to that order. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.
BJN19
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs