DICKENS v DEAN

[2013] FCCA 838

FEDERAL CIRCUIT COURT OF AUSTRALIA

DICKENS v DEAN & ANOR [2013] FCCA 838

Catchwords:
INDUSTRIAL LAW – Small claim – no appearance by applicant at Court event – application dismissed for non appearance.

Legislation:

Fair Work Act 2009 (Cth), s.548
Federal Circuit Court Rules 2001 (Cth), r.13.03C

Applicant: BENJAMIN DICKENS

First Respondent: CAROLYN DEAN

Second Respondent: KEVIN DEAN

File Number: SYG 775 of 2013

Judgment of: Judge Nicholls

Hearing date: 26 June 2013

Date of Last Submission: 26 June 2013

Delivered at: Sydney

Delivered on: 26 June 2013

REPRESENTATION

Applicant: No Appearance

Appearing for the Respondents: Ms A Care (by telephone)

Solicitors for the Respondents: Coutts Solicitors and Conveyancers

ORDERS

1. The application made on 15 April 2013 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 775 of 2013

BENJAMIN DICKENS

Applicant

And

CAROLYN DEAN

First Respondent

KEVIN DEAN

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me an application made on 15 April 2013, pursuant to the Fair Work Act 2009 (Cth) (“the FWA”). The applicant elected to make that application under the small claims procedure provided for in s.548 of the FWA.

2. The matter was first before the Court on 8 May 2013. On that date, orders were made referring the matter for mediation, and listing the matter for further directions today. The applicant was present on that occasion and therefore had notice of the Court event today.

3. I am persuaded by the respondents, whose solicitor appeared today by telephone, that it is appropriate that the matter be dismissed today, pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

4. First, when the matter was called today, the applicant did not appear. As noted above, the applicant was put on notice of the Court event today at the previous Court event in this matter. The applicant has had, therefore, reasonable notice of the matter coming before the Court today.

5. There is no satisfactory explanation before the Court as to the applicant’s failure to attend Court today. I am aware of some communication from the applicant to the Court’s Registry. However, at its highest, that communication can be taken as a request, or an application, for an adjournment of the matter today due the applicant’s claimed inability to take time off work. There is no proposal for an alternative date, it is without any detail and without any satisfactory submission that time off will be made available to him by his current employer for a future court event (nor when that could be done). In light of this, is inappropriate for the Court to agree to any request for an adjournment, if indeed that is what the applicant was purporting to do with his ex parte communication. 

6. That leaves us in the position that the applicant’s explanation for his failure to attend today appears, at best, to be the difficulty with taking time off work. However, in the absence of any detail, or any particularity, I accept Ms Care’s submission (for the respondents) that, given that this is the applicant’s application, he needs to take steps, with some impulsion, to prosecute his own application.

7. I note also the respondents’ submissions from the bar table, that attempts by the parties to arrange a date and time for mediation have been unsuccessful. I accept what has fallen from the bar table from Ms Care that the respondents have used their best endeavours to facilitate a time for mediation. Therefore, in all, in the absence of any satisfactory explanation for the applicant’s failure to attend today, it is appropriate that I make the order that the respondents’ seek.

8. I do not need to revisit the earlier orders, because (as noted above) the order as to mediation has not been complied with. The order was that the parties attend mediation before 19 June 2013. That date has now past.

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

Associate: 

Date:  16 July 2013