Alade v Consumer Trader and Tenancy Tribunal

[2012] FMCA 1131

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALADE v CONSUMER TRADER & TENANCY TRIBUNAL & ANOR [2012] FMCA 1131

HUMAN RIGHTS – Non-appearance of applicant.

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Federal Magistrates Court Rules2001 (Cth), s.13.03C

Applicant: OLUDARE SAMSON ALADE

First Respondent: CONSUMER TRADER & TENANCY TRIBUNAL

Second Respondent: NSW LAND & HOUSING CORPORATION

File Number: SYG 2024 of 2012

Judgment of: Barnes FM

Hearing date: 19 November 2012

Delivered at: Sydney

Delivered on: 19 November 2012

REPRESENTATION

Applicant: No appearance

First Respondent: No appearance

Counsel for the Second Respondent: Mr Gardiner

Solicitors for the Second Respondent: Housing NSW

ORDERS

1. The name of the second respondent be amended to NSW Land and Housing Corporation.

2. There being no appearance by the applicant the application of 18 September 2012 is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2024 of 2012

OLUDARE SAMSON ALADE

Applicant

And

CONSUMER TRADER & TENANCY TRIBUNAL

First Respondent

NSW LAND AND HOUSING CORPORATION

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter was commenced as an application alleging unlawful discrimination under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) filed on 18 September 2012.

2. The application names two respondents, the Consumer Trader and Tenancy Tribunal (described as CTTT) and Housing New South Wales Corporation.  When the matter came before the Court on 26 October 2012 there was an appearance for the second respondent.  It was indicated that the second respondent should properly be referred to as the NSW Land and Housing Corporation.  I will make an order changing the name of the second respondent.  There has been no appearance for the first respondent, but there is no evidence from the applicant as to whether or not he had served the first respondent. 

3. Not surprisingly, in circumstances where there was no evidence that the applicant had lodged any complaint with the Australian Human Rights Commission, the second respondent sought to proceed by way of an application in a case seeking summary dismissal of the proceedings.  

4. On 26 October 2012 I ordered that any application in a case seeking summary dismissal be filed by close of business on 29 October 2012.  I also made orders for the applicant to file and serve any affidavit evidence and any amended application in response to such an application in a case by 12 November 2012.  I listed the foreshadowed application in a case for hearing before me today at 2.15 pm.  I ordered that service of the application in a case on the applicant be effected by email to the applicant at a specified email address.  I note that on 26 October 2012 the applicant had the assistance of a hearing loop and also a Yoruba interpreter as requested.

5. The application in a case was filed by the second respondent on 29 October 2012.  There is also evidence before the Court in the form of an affidavit of Nathan John Cureton, the solicitor for the second respondent, attesting to service on 29 October 2012 on the applicant of the application in a case by email to the email address specified in the orders made on the last occasion and also service on 2 November 2010 of an affidavit filed by the second respondent which stated that the second respondent was not aware of any complaint having been made to the Australian Human Rights Commission by the applicant.

6. The applicant did not file affidavit evidence or any amended application. He was not present today at the time when the matter was listed for hearing. Nor is he present now some 30 minutes later. In these circumstances, after a consideration of the alternatives, counsel for the second respondent sought that the applicant’s application be dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth) on the basis that the applicant was absent from the hearing.

7. There is no evidence before the Court in explanation of the applicant’s absence today.  He was informed of the hearing date, time and place on 26 October 2012, in the orders made on that day and by the application in a case served on him on 29 October 2012. 

8. I am satisfied that the applicant was on notice of the hearing. In these circumstances, in the absence of any explanation from the applicant for his failure to appear, I consider it is appropriate to dismiss his application for non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules. It will not be necessary to make orders in relation to the second respondent’s application in a case.

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

Date:  28 November 2012