SZMSY v Minister for Immigration & Anor [2009] FMCA 77 (5 February 2009)

Last Updated: 18 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSY v MINISTER OF IMMIGRATION & ANOR

[2009] FMCA 77

MIGRATION – Refugee Review Tribunal – practice and procedure – applicant’s application for leave to file a Notice of Discontinuance within 14 days of hearing date granted.

Applicant:

SZMSY

First Respondent:

MINISTER OF IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2373 of 2008

Judgment of:

Emmett FM

Hearing date:

5 February 2009

Date of Last Submission:

5 February 2009

Delivered at:

Sydney

Delivered on:

5 February 2009

REPRESENTATION

No appearance by or on behalf of the applicant

Counsel for the Respondent:

Mr Y. Shariff

Solicitors for the Respondent:

Mr J. Pinder, DLA Phillips Fox

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2373 of 2008

SYMSY

Applicant

And

MINISTER OF IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was set down for hearing by this Court on 7 October 2008 for final hearing today at 10.15am. The initiating application and supporting affidavit were filed on 12 September 2009. At the directions hearing on 7 October 2008 the applicant was given leave to file and serve an amended application and any additional evidence by way of affidavit by 18 November 2008. However, there has been no other document filed by or on behalf of the applicant in accordance with the directions made by this Court on 7 October 2008.
2. On 30 October 2008, the applicant received advice from a panel advisor of the NSW RRT Legal Advice Scheme.
3. On 3 February 2009, a notice of discontinuance was presented to the Registry of this Court and appears to have been signed by the applicant. I note, in particular, that the signature on the notice of discontinuance appears to be the same the signature of the applicant written in the presence of this Court on 7 October 2008 by the applicant. That signature is also similar to the applicant’s signature on the application filed 12 September 2008 and the affidavit in support also filed on 12 September 2008. I note that on the copy of the notice of discontinuance received by the Court it would appear that the document was faxed and it has the words at the top “From VK Solicitors” with a time of 1628. There has been no notice of appearance filed in respect of the applicant by any solicitors, let alone VK Solicitors.
4. I have been informed by counsel for the first respondent from the Bar table that his instructing solicitor, Mr Pinder, was contacted on
   3 February 2009 by a person claiming to represent the applicant and informing him that the applicant wished to discontinue his proceeding. I note that there was also a telephone call received from an unnamed person by my Deputy Associate on 3 February 2009 to the same effect.
5. No further contact has been received by the applicant or any person on his behalf since that time, either to the first respondent's solicitors or to the Court.
6. However, in light of the similarity of the signatures on the notice of discontinuance and the other documents signed by the applicant, I am prepared to accept that the applicant signed a notice of discontinuance presented to the registry on 3 February 2008 and wish to apply to the Court for leave to file the notice of discontinuance.
7. Leave is required because the notice of discontinuance was sought to be filed by the applicant within 14 days of the scheduled hearing. Counsel for the first respondent informed the Court that the first respondent does not oppose leave being granted to the applicant to file a notice of discontinuance.
8. Accordingly I grant leave to the applicant to file in Court the notice of discontinuance signed by the applicant, dated 3 February 2008 and initialled and dated by me.

ORDERS DELIVERED

RECORDED : NOT TRANSCRIBED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 9 February 2009