Boda v Department of Corrective Services - [2007] FMCA 2019

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BODA v DEPARTMENT OF CORRECTIVE SERVICES

[2007] FMCA 2019

HUMAN RIGHTS – Interlocutory dismissal of application for want of prosecution with due diligence.

Federal Magistrates Act 1999, s.17A
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)

National Mutual Life Association of Australasia Ltd & Ors v Grosvenor Hill (2001) 183 ALR 700
Protel Communications International Pty Ltd v Chen & Anor [2007] FMCA 1135

Applicant:

SAROLTA BODA

Respondent:

DEPARTMENT OF CORRECTIVE SERVICES

File Number:

SYG 3786 of 2006

Judgment of:

Driver FM

Hearing date:

3 December 2007

Delivered at:

Sydney

Delivered on:

3 December 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms T Anderson

Solicitors for the Respondent:

Department of Corrective Services

INTERLOCUTORY ORDERS

The application made to the Court on 18 December 2006, pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) be dismissed for want of prosecution.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2786 of 2006

SAROLTA BODA

Applicant

And

DEPARTMENT OF CORRECTIVE SERVICES

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me two interlocutory applications. The first is an application for an adjournment of the case, filed by Ms Boda on 15 November 2007. That is supported by an affidavit by Ms Boda, filed on the same day. Ms Boda was not required for cross‑examination on the affidavit. The adjournment application is also supported by an earlier application for an adjournment made by Ms Boda on 24 July 2007 and further documents relating to Ms Boda's health issues and legal representation concerns filed in Court on 30 April 2007. In addition, I have before me the original application filed under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) on 18 December 2006 and the documents filed with it.
On the other side, I have an interlocutory application by the respondent filed on 28 August 2007 seeking an order that the proceeding be dismissed. In support of that application is an affidavit by Allisar Katrib filed on 24 August 2007. Ms Katrib was not required for cross-examination.
The respondent has also filed written submissions on 30 November 2007 and also relies on two authorities, one of the Federal Court in National Mutual Life Association of Australasia Ltd & Ors v Grosvenor Hill (2001) 183 ALR 700 and of this Court in Protel Communications International Pty Ltd v Chen & Anor [2007] FMCA 1135. Copies of both decisions have been provided to me.
Ms Boda seeks an adjournment of the case for about six months to continue efforts to obtain legal representation. Ms Boda was originally represented by a solicitor, apparently funded by Legal Aid, but that assistance was withdrawn in March this year. I refer to a Notice of Intention to Cease to Act filed by the solicitor on 16 March 2007.
I made orders providing a simple timetable for the filing of further material in this matter on 12 February 2007. Nothing further was filed pursuant to those orders and in the light of Ms Boda's loss of legal representation and some health issues she had alerted me to, I adjourned the matter to 30 April 2007 and again on 12 June 2007. The matter came before me again on 12 June 2007 when it was further adjourned to 24 July 2007. On that day the respondent foreshadowed an application to seek summary dismissal of the principal application which was dealt with by procedural orders made by me on that day. The respondent's present application for summary dismissal flows from those orders.
The material before me and the oral submissions made by Ms Boda establishes that she has been unable to secure alternative legal representation. I also accept that Ms Boda suffers from health issues, both physical and psychological, and that she has difficulties in her family life which have inhibited her capacity to advance her case. Indeed, it appears from Ms Boda's own material, which I accept, that she is unable to progress this proceeding on her own. She would require legal representation which, to date, she has been unable to secure. For its part the respondent has become frustrated at the lack of progress in the matter and, in the light of that lack of progress, has sought summary dismissal on an interlocutory basis.
I accept, from the authorities of National Mutual Life Association and Protel Communications that this Court, like the Federal Court, has an inherent power based upon its ability to control its own proceedings to stay a proceeding or dismiss an application on the basis that there has been a want of prosecution with due diligence. As discussed with the parties during argument this morning, I do not think that Ms Boda can properly be accused of a default of complying with an order of the Court, or indeed with the rule of Court, for the purposes of rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
The original timetable reflected in my orders made on 12 February 2007 provided Ms Boda with the opportunity to file an amended application and additional material and she has not taken up that opportunity. There was no obligation on her to do so. In the absence of such additional material or an amended application, however, we are left in the position of having an application which probably should not proceed to a final hearing. The principal application is based upon a notice of termination issued by a delegate of the President of HREOC on 20 November 2006. That notes that Ms Boda asserts unlawful dismissal from her employment, ostensibly based upon allegations of misconduct. Those allegations relate to an incident in the workplace where Ms Boda allegedly threw a cup of coffee over a work colleague. Ms Boda asserted before HREOC, and continues to assert before the Court, that the incident was not properly investigated and that the coffee incident was an accident related to her carpal tunnel syndrome. There may or may not be substance to that assertion by Ms Boda. However, the dismissal from employment, which is acknowledged by the respondent, was not because of any disability. So there could be no claim of direct disability discrimination. To the extent that there might be a claim of indirect disability discrimination, HREOC considered that Ms Boda was not subject to any condition requirement or practice with which she was unable to comply.
Perhaps more importantly, the dismissal from employment has already been dealt with at a State level. Ms Boda instituted a proceeding in the New South Wales Government and Related Employees Tribunal which was later superseded by an unfair dismissal claim in the New South Wales Industrial Relations Commission. There was also a workers compensation claim. Those latter proceedings were settled on or about 27 March 2006 and the terms of the settlement are reflected in a document forming exhibit R1 which I have before me.
Importantly, the dismissal from employment was superseded by Ms Boda's resignation from her employment on medical grounds which the respondent accepted. Ms Boda now, in her oral submissions made today, disputes that that settlement was a achieved with her full understanding or consent. The fact is that a resolution was agreed upon between the representatives of Ms Boda and the respondent and it was put into effect. There is no longer any dismissal from employment with any effect.
The substantive application before the Court does not purport to challenge any other decision. This leads me to consider whether the Court should give judgment for the respondent pursuant to s.17A(2) of the Federal Magistrates Act1999 (Cth). On the basis of the material before the Court and the procedural history of the matter, I have very little confidence that Ms Boda would be able to put further material before the Court to establish a reasonable prospect of her succeeding in her substantive application as it is presently framed.
Nevertheless, the respondent's interlocutory application did not seek dismissal pursuant to s.17A, but rather dismissal on an interlocutory basis for want of prosecution. I have decided that it would be procedurally unfair to terminate the substantive application on any final basis pursuant to s.17A. Nevertheless, Ms Boda has been unable to progress her substantive application to date and, on her own application for an adjournment, would be unable to do so for another six months.
The matter has been before the Court for almost 12 months and Ms Boda has had a more than reasonable opportunity to deal with the state of her application and supporting material, notwithstanding her personal difficulties. In my view, nothing useful would be achieved by granting the further adjournment sought by Ms Boda. Her original legal representatives were unwilling to continue acting for her. She has been unable to secure alternative legal representation. I think it unlikely that she would be able to obtain legal representation to advance the claim that she has made to HREOC and this Court. If she has some other claim she wishes to make that would probably need to be put to HREOC before it could be pursued under the HREOC Act in this Court. I accept from Ms Boda's own material that she is unable to progress this case without legal representation because of her personal difficulties. I therefore accept the submissions by the respondent that there has been a lack of progress in this matter which is likely to continue and which should be dealt with on the basis of a failure to prosecute proceedings with due diligence.
Pursuant to the Court's inherent powers to control its own procedures, it is in the circumstances open to me to stay or dismiss the principal application because of that want of prosecution. I accept that an order in those terms would be interlocutory and if at some future time Ms Boda was able to persuade the Court that an interlocutory dismissal order should be set aside, the Court would be able to entertain and deal with such an application pursuant to r.16.05 of the Federal Magistrates Court Rules.
I order that the application made to the Court on 18 December 2006, pursuant to the HREOC Act, be dismissed for want of prosecution. I order that there be no order as to costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 4 December 2007