Federal Court Sets Aside Order Due to Lack of Notice

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [NAME] [2006] FCA 594 [APPELLANT] v [NAME] 2462 OF 2005 RARES J 15 MARCH 2006 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2462 OF 2005

BETWEEN: [APPELLANT]

APPLICANT

AND: [APPELLANT] FOR IMMIGRATION & [NAME] & [NAME] AFFAIRS

RESPONDENT

[APPELLANT] OF ORDER: 15 MARCH 2006

[APPELLANT]

THE COURT ORDERS THAT: The orders made on 1 March 2006 be set aside. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2462 OF 2005

[APPELLANT]

APPLICANT

AND: [APPELLANT] FOR IMMIGRATION & [NAME] & [NAME] AFFAIRS

RESPONDENT

JUDGE: RARES J

DATE: 15 MARCH 2006

PLACE: [APPELLANT] FOR

JUDGMENT (REVISED FROM THE TRANCRIPT) 1 In Taylor v Taylor (1979) 143 CLR 1 at 8 Gibbs J said that: 'A court, whether superior or inferior, has inherent power to set aside an order made against a [APPELLANT] who did not have a reasonable opportunity to appear and present his case.' 2 A like view was expressed by Mason J at 143 CLR at 16. He said: 'A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion, the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party (Craig v Kanssen [1943] KB 256 at 262-263) but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part.' 3 The other members of the court expressed a similar view. The question for my decision is whether I am satisfied that the explanation by the applicant for his non appearance on 1 March 2006 is such as comes within that rule. 4 The applicant has given evidence that he did not receive the letter from the court dated 23 February 2006 appointing 1 March 2006 as the date for the hearing of his application for leave to appeal. He made the telling point when re-examining himself that there was no reason, given his long, litigious history and his appearance on occasions when he has been involved in court proceedings, that he would on this occasion fail to attend had he known that the hearing was going to take place. He did give evidence that there was a problem with his [NAME], that it appeared to be broken, and that from time to time documents went missing. 5 Although I have some hesitation about the matter, particularly given the knowledge that the [NAME], to all appearances, appears unsatisfactory, I am satisfied that the applicant, through no fault of his own, did not have notice of the hearing on 1 March, and therefore I have jurisdiction and power to set aside my earlier orders. I think that is the appropriate course that I should adopt, having regard to the High Court's decision in Taylor v Taylor (1979) 143 CLR 1 is that the making of such an order flows ex debito justitae. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated: 22 May 2006

Applicant: [redacted]

Solicitor for the Respondent: [redacted]

Date of Hearing: 15 March 2006

Date of Judgment: 15 March 2006