FEDERAL COURT OF AUSTRALIA

SZWCA v Minister for Immigration and Border Protection (No 1) [2015] FCA 1388

Citation:	SZWCA v Minister for Immigration and Border Protection (No 1) [2015] FCA 1388	
		
Parties:	SZWCA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION	
		
File number(s):	NSD 1036 of 2015	
		
Judge(s):	GRIFFITHS J	
		
Date of judgment:	4 December 2015	
		
Catchwords:	PRACTICE AND PROCEDURE – application for an adjournment	
		
Date of hearing:	4 November 2015	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords 	
		
Number of paragraphs:	10	

Solicitor for the Applicant:	Ms V Tannous of McKellars Lawyers appeared as agent for the applicant	
		
Solicitor for the Respondent:	Mr A Markus, Australian Government Solicitor	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 1036 of 2015	

BETWEEN:	SZWCA
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent

JUDGE:	GRIFFITHS J	
DATE OF ORDER:	4 December 2015	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	The application for adjournment be dismissed.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 1036 of 2015	

BETWEEN:	SZWCA
Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent

JUDGE:	GRIFFITHS J	
DATE:	4 December 2015	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
1		When this matter was called for hearing today on the substantive application for judicial review, the applicant was here in person.  Mr Markus announced his appearance for the Minister.  Ms Violet Tannous from MacKellars Lawyers announced her appearance as “agent” for the applicant.  Ms Tannous told the Court that she was instructed to make an application for the hearing to be adjourned.  Ms Tannous emphasised that she did not have instructions in respect of the substantive application.  
2		Ms Tannous explained to the Court that she had only received instructions at 5.00pm yesterday to make the adjournment request.  She said that her instructions had come from a Mr Kang.  Ms Tannous did not provide any affidavit in support of the request for an adjournment.  She asked that the matter be adjourned for four weeks.  She made submissions in support of the application in which she drew attention to the following.  I reiterate that none of these matters were supported by any affidavit evidence.  
3		Ms Tannous submitted that the appellant is in detention and has experienced difficulty in briefing counsel to appear for her in the substantive proceeding.  Reference was also made to the difficulties presented by the applicant’s language in communicating with counsel.  She said it was the applicant’s intention to brief counsel to appear for her.  Ms Tannous also indicated that some written submissions had been prepared by some unknown person in support of the applicant’s substantive proceeding but that they had not been reviewed by counsel.  They had not been included in the appeal book, but she said that it was the appellant’s intention to brief counsel to review and settle that outline of submissions. 
4		The application was opposed by the Minister.  Emphasis was given to the fact that there was no affidavit evidence in support of the application.  Mr Markus also drew attention to the fact that the application is remarkably similar to events which occurred in the Federal Circuit Court of Australia where an application for an adjournment was made at the last moment at the commencement of the substantive hearing.  A different solicitor appeared on that occasion on behalf of the applicant with instructions only to make the adjournment application and do no more.  Mr Markus also submitted that there was no evidence before the Court to indicate that the position would be any different in four weeks’ time. He accepted that the applicant is currently in detention but no explanation has been forthcoming as to why steps have not been taken since these proceeding have commenced to brief counsel.  Mr Markus also drew attention to the fact that it was apparent that sufficient resources were available for the applicant to have caused somebody unknown to have prepared the outline of written submissions.  
5		There is considerable force in what Mr Markus has put to the Court and for the following reasons I would refuse the application for an adjournment.  
6		These proceedings were commenced on 2 September 2015, some three months ago.  When they were commenced, the originating application indicated that the applicant was represented by a Jagath Maddumage Don, whose firm was said to be Skylane Worldwide Enterprise Pty Ltd.  Thus the applicant has had some legal representation, it would appear.  
7		Orders were made on 29 September 2015 for the filing of submissions and the matter was listed for hearing.  The applicant has had more than two months’ notice that the hearing was scheduled to proceed today.  On 29 September 2015 there was no appearance by the applicant and Mr Don, her solicitor it would appear, made no appearance on that day.  I made directions on that day that Mr Markus forward to Mr Don and the applicant in detention a copy of the orders.  I am satisfied that that part of the directions was carried out.
8		On 26 November 2015 and in circumstances where the applicant had not complied with the directions relating to filing of her written submissions, the Registry wrote to both Mr Don and the applicant drawing their attention to the fact that she was in default, asking that the default be remedied promptly, and confirming that the hearing would proceed today.  The applicant therefore was reminded by that communication of those matters and of the fact that the hearing would go on today. 
9		It is unexplained how it is that with a solicitor having been involved since the initiation of the proceeding on the 2 September 2015 that appropriate steps have not been taken in the intervening 3 months period to brief counsel, if that indeed is the applicant’s wishes.  I am also troubled by the fact that as Mr Markus has pointed out, the application is made in remarkably similar circumstances to the unsuccessful application made before Judge Smith in the proceeding below.  It is particularly troubling that in the current matter no affidavit evidence has been provided to the Court which offers a satisfactory explanation for the delay, particularly in circumstances where Ms Tannous has informed the Court that there exist draft written submissions.  Their date is unknown to the Court but there is no satisfactory explanation as to why appropriate steps were not taken to develop or further those submissions in the way that the applicant says she wishes to do.  I also accept Mr Markus’ submissions that there is nothing before the Court to give it any confidence that the position would be any different even if the adjournment for four weeks was granted.
10		For all those reasons, the application for an adjournment is refused.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.	

Associate: 

Dated:	4 November 2015