NAGP and NAGQ v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is a motion pursuant to O 52 r 38A(2) to set aside an order of Stone J of 6 April 2004 that this appeal be dismissed with costs. That order was made in circumstances where the applicants had not appeared on that date as they were obliged to do. 2 Pursuant to O 52 r 38A the judge had a choice. The course that her Honour adopted was to proceed with the hearing pursuant to r 38A(1)(d), and to deal with the case on the merits. Her Honour examined the judgment of the learned Federal Magistrate, taking into account the reasons of the Tribunal, and concluded that the learned Federal Magistrate was correct in not detecting error on the part of the Tribunal. Her Honour in effect agreed with the reasons of the learned Federal Magistrate. 3 In circumstances such as the present, the first barrier that the applicants must overcome is the necessity to demonstrate that the failure to appear was not the fault of the applicants themselves. The case has been left in an unsatisfactory situation on this point. The evidence of the applicant who has appeared confirms that he was aware that the hearing of the case was at 10.15 am on 6 April, as indeed it was. He claims that he was unable to locate the hearing on the noticeboard, and that the inquiries that he made at the Registry led to him being given information, the substance of which was that there was nothing in the system about the case. He has not been cross-examined, and no evidence has been led on the part of the respondent. This is not satisfactory. I should know at least whether the matter was properly listed. I do, of course, recognise that, with the method of identification by initials instead of names, there is fertile ground for misunderstanding. I am satisfied that a proper explanation for non-attendance has been given. 4 The second barrier to be overcome by the applicants - namely, showing that they have a properly arguable case - is more substantial. The initial difficulty that the applicants encounter is that the notice of appeal to this Court from the Federal Magistrates Court simply discloses no proper ground of appeal at all. No doubt because of that, the Court ordered, on 4 February last, that the applicants were to file and serve an amended notice of appeal on or before 27 February, and were to file and serve an outline of submissions on or before five working days prior to the hearing date. Neither of those orders was complied with. Thus, no proper ground of appeal was ever filed in this appeal before it was disposed of. 5 Furthermore, as the argument in writing that I have marked Exhibit 1 on the present proceedings reveals, there was nothing of substance that either applicant was able to add to elucidate the issue as to whether there was any proper ground of appeal. All that was available was the learned Magistrate's decision and the decision of the Tribunal. Her Honour gave proper consideration to those decisions. If a judge of the Court takes the course of acting pursuant to O 52 r 38A(d), that is not to be lightly set aside in circumstances where there is no further elucidation of any ground of appeal. There has been no further elucidation here. The motion is dismissed. The applicants are to pay the costs of the respondent. Exhibit 1 will be retained with the papers. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.