SZKOF v Minister for Immigration and Citizenship [2008] FCA 333

SZKOF v Minister for Immigration and Citizenship [2008] FCA 333

The applicant was notified of the time and place of the hearing but failed to appear. That failure fell within 'fails to prosecute the proceeding with due diligence' in Order 35A rule 2(1)(f), and the Court exercised its power under Order 35A rule 3(1)(a) to dismiss the application for an extension of time.

Jurisdiction
Australia
Judgment Date
28 February 2008
Procedural Posture
Application for an Extension of Time to File and Serve a Notice of Appeal / Application Dismissed After the Applicant Failed to Appear
Outcome
Application for an extension of time to file and serve a Notice of Appeal dismissed.
Legal Topics
['extension of Time to Appeal' 'failure to Appear' 'default Judgment or Orders' 'failure to Prosecute With Due Diligence']
['immigration' 'refugee Law' 'civil Procedure' 'appellate Procedure'] ['extension of Time to Appeal' 'failure to Appear' 'default Judgment or Orders' 'failure to Prosecute With Due Diligence']

Case Brief

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Procedural Posture

Application for an Extension of Time to File and Serve a Notice of Appeal / Application Dismissed After the Applicant Failed to Appear

Legal Issues

  1. 1 ["Whether the applicant's non-attendance at the hearing, despite notice of the time and place, constituted a failure to prosecute the proceeding with due diligence." 'Whether the Court should dismiss the application for an extension of time to file and serve a Notice of Appeal.']

Ratio Decidendi

The applicant was notified of the time and place of the hearing but failed to appear. That failure fell within 'fails to prosecute the proceeding with due diligence' in Order 35A rule 2(1)(f), and the Court exercised its power under Order 35A rule 3(1)(a) to dismiss the application for an extension of time.

Court Disposition

Application for an extension of time to file and serve a Notice of Appeal dismissed.

Orders

  • ['The application for an extension of time to file and serve a Notice of Appeal be dismissed.' 'Leave granted to the first respondent to file in Court an affidavit of Miriam Mafessanti sworn 27 February 2008.' "The applicant pay the respondent Minister's costs fixed in the sum of $1,050.00."]