MZWIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 185 (10 February 2005)

Last Updated: 4 March 2005

FEDERAL COURT OF AUSTRALIA

MZWIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 185

Brown v Fraser (1896) 22 VLR 22 cited
Crotty v Clarke (1896) 22 VLR 594 cited
Adams v Cronin (Victorian Court of Appeal, 6 September 1996) cited















MZWIK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V44 of 2005


SUNDBERG J
10 FEBRUARY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V44 OF 2005

BETWEEN:	MZWIK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	10 FEBRUARY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Any application for an adjournment be dismissed.
2. Leave to appeal be refused.
3. An extension of time in which to file and serve a notice of appeal be refused.
4. The applicant pay the respondent’s costs of the applications.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V44 OF 2005

BETWEEN:	MZWIK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	10 FEBRUARY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 Before I came into court this morning my associate handed me a document that had been faxed to the court by the applicant. It said:

"This letter is to inform you that I will not be able to attend the hearing of the Federal Court of Australia today (Thursday, 10 February 2005) at 2.15 pm as I am unwell. Attached is a medical certificate."

The attached medical certificate simply says that:

"The applicant attended this clinic because of a ‘medical condition’. I concluded by reason of this condition that he is unable to attend work from 10 February to 11 February."

The first thing to notice is that the letter does not seek an adjournment. The second thing is that the medical certificate is quite unspecific. A "medical condition" tells the court nothing as to the seriousness of the condition, what it is, whether it is inherently likely to prevent the applicant going to court. There may be conditions that preclude someone attending work, whatever work might be, but do not preclude the person attending court. I do not accept the medical certificate. I think it is a worthless medical certificate. If the applicant's letter is intended to, by implication, seek an adjournment, the adjournment is refused.

2 The applicant seeks leave to appeal from the decision of the Federal Magistrates Court given on 21 December 2004. He also seeks extension of time in which to file and serve a notice of appeal. The grounds in the draft notice of appeal are:

"1. His Honour erred in law in not finding that the Applicant grounds of review were made out and granting the appropriate relief.
2. His Honour should have held that the Applicant grounds of review were made out and granting the appropriate relief."

The Magistrate’s order recorded that there was no appearance for the applicant, and the application was dismissed.

3 In his affidavit in support of the application for leave and an extension of time the applicant says that the Magistrate

"dismissed my application without considering my case properly and failed to consider my letter sent to the Court on 13 December 2004."

The proper course for the applicant to have pursued was to apply to the Magistrates Court to set aside the order of 21 December 2004. It may very seriously be doubted whether the Court can entertain an appeal from such a decision. See, for example, Brown v Fraser (1896) 22 VLR 22, Crotty v Clarke (1896) 22 VLR 594 and Adams v Cronin (Unreported, Supreme Court of Victoria - Court of Appeal, 6 September 1996).

4 Notwithstanding the doubt I have as to the propriety of the course taken by the applicant, because he is a litigant in person, I propose to take a course analogous to that adopted in Adams v Cronin and consider whether there is sufficient merit in the appeal to justify the grant of leave to appeal and an extension of time.

5 The applicant was informed of the hearing date in the Magistrates Court. On 13 December 2004 he wrote to the Registrar noting the hearing date, and said he was unable to retain a barrister on 21 December 2004 "due to Christmas holidays" and asked for the case to be relisted after 30 January 2005. By letter dated 17 December 2004 the Registrar rejected the request, and confirmed the hearing date. The applicant simply failed to attend. No excuse was offered, and an appeal from the order the Court made in default of appearance has no prospect of success.

6 The application for leave to appeal and for an extension of time are dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 10 February 2005

There was no appearance for the applicant.

Counsel for the Respondent:	S Weavers
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 February 2005
Date of Judgment:	10 February 2005