Auelua v Culture Kings Sydney Pty Ltd

[2017] FCCA 229

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUELUA v CULTURE KINGS SYDNEY PTY LTD & ORS [2017] FCCA 229

Catchwords:
PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant at scheduled hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: MONA AUELUA

First Respondent: CULTURE KINGS SYDNEY PTY LTD T/A CULTURE KINGS

Third Respondent: TAHNEE BEARD

File Number: SYG 2479 of 2015

Judgment of: Judge Emmett

Hearing date: 10 February 2017

Date of Last Submission: 10 February 2017

Delivered at: Sydney

Delivered on: 10 February 2017

REPRESENTATION

No appearance by or on behalf of the Applicant.

Counsel for the Respondents: Mr Christopher Taylor

Solicitors for the Respondents: Vanweir Legal

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2479 of 2015

MONA AUELUA

Applicant

And

CULTURE KINGS SYDNEY PTY LTD T/A CULTURE KINGS

First Respondent

TAHNEE BEARD

Third Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The respondents seek an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 9 September 2015, be dismissed by reason of the failure of the applicant to appear at today’s scheduled hearing. 

2. In support, counsel for the respondents, Mr Christopher Taylor, tendered a letter dated 1 August 2016, which is marked Exhibit 1R. Exhibit 1R was sent to the applicant at the address for service provided by the applicant in her initiating application, filed on 9 September 2015. Exhibit 1R refers to the service of documents pursuant to an Order made by me on 27 July 2016. The documents include a copy of the Orders made on 27 July 2016, which is in the following terms:

   “1. Paragraphs 6(g), (h), (i) of the Statement of the Claim filed on 27 November 2015 are struck out insofar as they make unparticularised allegations against the second, fourth and fifth respondents.

   2. There being no other allegations against the second, fourth and fifth respondents, the proceeding against each of those persons is dismissed.

   3. The first and third respondents file and serve evidence and submissions in support of the Applications in a Case filed on 12 May 2016 and 14 July 2016, by 26 August 2016.

   4. The applicant file and serve any evidence and submissions in response by 20 January 2017.

   5. The Applications in a Case referred to in Order 3 are stood over for hearing on 10 February 2017 at 10.00am before me.

   6. In the event that the applicant fails to appear or be represented on 10 February 2017, the proceeding before this Court commenced by way of application filed on 9 September 2015 may be dismissed forthwith without further notice.

   7. The first and third respondents to serve a copy of this Order upon the applicant forthwith.”

3. Mr Taylor also read the affidavit of Emily Louise Middleton Weir, affirmed 17 August 2016, deposing to the service on the applicant of the documents referred to on the Orders made on 27 July 2016.

4. In particular, Ms Weir referred to Order 4, which required the applicant to file and serve any evidence and submissions in response by 20 January 2017.  Ms Weir deposed that no submission has been received by the respondents and no evidence has been filed by the applicant in the matter.

5. There has been no communication received, either by the respondents or the Court, from the applicant seeking an adjournment of today’s hearing or for any other reason. However, I am satisfied that the applicant is aware of today’s hearing, and for whatever reason, has chosen not to attend. 

6. In the circumstances, I am satisfied that it is appropriate to make the orders sought by the first respondent.

7. Accordingly, the proceeding before this Court, commenced by way of application filed on 9 September 2015, should be dismissed with costs pursuant to r.13.03C(1)(c) of the Rules, by reason of the failure of the applicant to attend today’s scheduled hearing.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  17 February 2017