SZBXX v Minister for Immigration and Multicultural and Indigenous Affairs

4. If the applicant complies with order 2, this matter will be heard at 10.15 am on 24 March 2005 in Griffith. …' 4 Ultimately there was no compliance with the order, hence the judgment and hence this application. This application was made on 29 March 2005. There has been some attempt to explain the rather extraordinary delay which has taken place, but it is not a convincing explanation for that delay. 5 There are grounds for questioning the order which was made. In the first place, the arrangements for the hearing and the failed telephone hook-up did not provide any great confidence that the applicants were truly on notice of what might occur. Secondly, and more importantly, it seems to me that the foundation for the self-executing order is extremely doubtful. Rule 13.03 of the Federal Magistrates Court Rules, which is the most direct source of power which might justify such an order, was arguably not applicable in that case because the applicants had not failed to take a step required by the Rules or to comply with an order of the Court when the order was made. 6 I appreciate that an application was made to the learned Federal Magistrate to dismiss the proceedings as not disclosing a cause of action and I also note that there was an order that there be further particulars given. However, both the relief sought and the grounds which are included in the application are perfectly conventional, albeit lacking some particulars and, in my opinion, it could not have been said that there was no reasonable cause of action disclosed on the face of the pleading. I do not deal here with the wider question as to the making of self-executing orders and the power to do so. 7 However, if there be a defect in what occurred, it has been apparent since the service of these orders shortly after 25 March 2004. In my opinion, as the explanation for delay is less than satisfactory, the appropriate course for the applicants is to go back to the Federal Magistrates Court and convince that Court, after full consideration of the matter, that the orders should be set aside and the matter proceed on the merits. There is undoubtedly power to do so. In saying that, I appreciate that the Federal Magistrates Court will be able to take into account all relevant factors, including the earlier history of the matter. 8 Under the circumstances, I decline the application for extension of time and for leave. I make no order as to costs in the special circumstances of this case. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Solicitor for the Respondent: R White of Sparke Helmore