Artinos v David Jones Limited
[2013] FMCA 175
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ARTINOS v DAVID JONES LIMITED & ORS | [2013] FMCA 175 |
| HUMAN RIGHTS – Practice & procedure – no appearance by applicant – medical certificate unsatisfactory – applicant’s application for adjournment of scheduled directions hearing refused – applicant ordered to pay costs thrown away by first respondent. |
| Federal Court Rules 2011 (Cth) |
| NALM v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2004) FCAFC 17 NAKX & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559 |
| Applicant: | MARIE ARTINOS |
| First Respondent: | DAVID JONES LIMITED |
| Second Respondent: | LOUISE HARRISON |
| Third Respondent: | BOBALAN SUBRAMANIAM |
| File Number: | SYG 1900 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 March 2013 |
| Date of Last Submission: | 1 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2013 |
REPRESENTATION
| No appearance by or on behalf of the applicant |
| Appearing for the Respondent: | Ms B Maynard |
| Solicitors for the Respondent: | Henry Davis York |
ORDERS
Orders 1, 2, 3 and 4 made on 19 November 2012 are vacated.
The applicant file and serve a fully particularised statement of claim of no more than 12 pages that complies with the Federal Court Rules 2011 (Cth) and the Federal Magistrates Court Rules 2001 (Cth), by 15 March 2013.
The applicant file and serve affidavits of service in respect of each of the second and third respondents by 15 March 2013.
The applicant pay the costs of the first respondent of today’s directions hearing of $300 within 28 days.
In the event that there is no affidavit of service filed in respect of the second and third respondents on the next occasion, and no order has been sought and made for substituted service, the proceeding against the second and third respondent’s will be dismissed forthwith.
The first respondent’s application in a case, filed on 25 February 2013, is set down for hearing on 15 April 2013 at 10:00am at Courtroom 12.1, Level 12, Terrace Tower, 80 William Street, Sydney, before me.
The matter is otherwise stood over for further directions on 15 April 2013 at 10:00am at Courtroom 12.1, Level 12, Terrace Tower, 80 William Street, Sydney, before me.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1900 of 2012
| MARIE ARTINOS |
Applicant
And
| DAVID JONES LIMITED |
First Respondent
| LOUISE HARRISON |
Second Respondent
| BOBALAN SUBRAMANIAM |
Third Respondent
REASONS FOR JUDGMENT
EX TEMPORE
By email to the Court dated 27 February 2013, the applicant requested an adjournment of today’s directions hearing for four to five weeks due to medical reasons. The medical certificate attached to that email is in the following terms:
“This is to certify that Ms Marie Artinos is unfit to attend court on Friday, 1 March 2013 inclusively due to medical reasons.
This certificate was completed on Tuesday, 26 February 2013.”
Plainly, the medical certificate makes no mention of any need for an extended adjournment and it makes no mention of the medical condition that prevents the applicant from attending Court today. It is not presented to the Court by way of evidence. It is simply a copy of a certificate sent through to the Court. The terms of that certificate do not enable the Court to identify what information was provided to the medical practitioner by the applicant, it refers only to being unfit to attend Court today.
Further, I note that the medical certificate was completed three days before the date of the scheduled directions hearing.
In NALM v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2004) FCAFC 17 where a medical certificate referred only to a “medical condition”, the Full Court of the Federal Court held that a reference only to a “medical condition” is insufficient to explain why an applicant is unable to participate effectively in a hearing.
In NAKX & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559 a medical certificate stated as follows:
“This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.”
Lindgren J held that the terms of the certificate were unsatisfactory as they did not address the critical question of whether and, if so, why the medical condition would prevent the applicant from travelling to the Court and participating effectively in the Court hearing.
Both NALM and NAKX were referred to in MZXQD v Minister for Immigration & Citizenship& Anor[2007] FMCA 1258 by Riethmuller FM in circumstances where the medical certificate presented before that Court did not disclose what medical condition the applicant may be suffering from, nor did it attest to any medical treatment.
In this case, I find that the certificate in its terms is wholly unsatisfactory and does not provide a sufficient reason to explain the applicant’s absence from today’s scheduled directions hearing.
Accordingly, the applicant’s application for an adjournment is refused.
The matter was last before the Court on 19 November 2012 and the following orders were made:
“1. The proceeding continue by way of pleadings.
2. The applicant file and serve a fully particularised statement of claim of no more than 12 pages that complies with the Federal Court Rules 2011 (Cth) and the Federal Magistrates Court Rules 2001 (Cth), by 14 December 2012.
3. The applicant file an affidavit of service in respect of the second and third named respondents by 21 December 2012.
4. Each of the respondents file and serve a defence by 1 February 2013.
5. The matter is stood over for further directions on 1 March 2013 at 10:00am at Courtroom 12.1, Level 12, Terrace Tower, 80 William Street, Sydney, before me.
NOTE A: The applicant has been given copies of: (i) the Federal Court Rules 2011 (Cth) rules relating to pleadings; (ii) r.2.01 of the Federal Magistrates Court Rules 2001 (Cth) relating to the requirements of documents; and (iii) the Federal Magistrates Court Rules 2001 (Cth) relating to the service of documents.”
The applicant has failed to comply with any of those orders. The applicant has filed a document that she has identified as “pleadings” together with two affidavits sworn/affirmed 10 December 2012 and 14 December 2012 respectively. Neither of those documents is capable of being identified as a statement of claim.
The solicitor for the first respondent, Ms Maynard, did not oppose the applicant being given one further opportunity to file and serve a statement of claim on the basis that if the applicant fails to comply with any further Court orders, the first respondent’s application in a case, filed on 25 February 2013, would be heard without further notice.
In the circumstances, I propose to give the applicant a further opportunity to file and serve a fully particularised statement of claim that complies with the rules of this Court. The juridical basis of her claims is unclear on the information that has presently been filed be her, and is voluminous and unstructured.
On the last occasion, I explained to the applicant that if she wished to continue to represent herself, she would need to ensure that she complied with the rules of the Court and the usual requirements of case presentation. The applicant was also given copies of: (i) the Federal Court Rules 2011 (Cth) rules relating to pleadings; (ii) r.2.01 of the Federal Magistrates Court Rules 2001 (Cth) relating to the requirements of documents; and (iii) the Federal Magistrates Court Rules 2001 (Cth) relating to the service of documents.
The first respondent sought an order that the applicant pay the costs of first respondent thrown away by today’s directions hearing. I am satisfied that, in the circumstances, the applicant should pay the costs of the first respondent thrown away by today’s directions hearing as a result of her non-attendance.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM.
Deputy Associate:
Date: 8 March 2013
0