SZDJA v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1. This is an application for an extension of time to file and serve an appeal against a judgment of a Federal Magistrate dated 17 September 2004. 2. When the matter was called on for hearing, there was no appearance by the applicant. I stood the matter down for 15 minutes until 2.30pm in case the applicant was unavoidably delayed. However, there is still no appearance. 3. Ms Rayment, for the Minister, asks me to dismiss the application for want of an appearance. 4. I am satisfied that the applicant was notified of today's hearing. The application for an extension of time was stamped by the Registry with a stamp stating that the date and time would be advised by the Registry. However, on 2 November 2004, the Appeals Support Officer of the court wrote to the applicant at the address for service given on the application, notifying him that the application had been listed for hearing before me today at 2.15 pm. 5. Accordingly, as I have said, I am satisfied that the applicant was notified of and ought to have been aware of the hearing date. 6. I am also satisfied that I have power to make the order sought by Ms Rayment. It seems to me that the power is to be found in either s 25(2B)(bb)(ii) of the Federal Court Act 1976 ("the Act"), or Order 35A rule 2(1)(f) and rule 3(1)(a) of the Federal Court Rules. 7. It has been necessary to refer to these rules because Order 52 rule 38A does not apply, the power conferred by that rule being limited to the case where a party is absent when an appeal is called on for hearing. Also, Order 32 rule 2 does not apply because that rule is only applicable when a proceeding is called on for trial. The definition of trial excludes interlocutory hearings. 8. Ms Rayment referred me to a recent matter of NASE v The Minister for Immigration and Multicultural and Indigenous Affairs, which was heard by Emmett J on 11 November 2004. In that case, I gather that his Honour exercised the power under s 25(2B)(bb)(ii) of the Act in a case where there was no appearance on an application for leave to appeal. Similar considerations apply in such a case, and I, therefore, take the view that there is sufficient power to make the order sought. 9. Accordingly, the order I will make is that the application for an extension of time filed on 21 October 2004 be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.