ELIEZER v Co as It Italian Association of Assistance

[2015] FCCA 2651

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELIEZER v CO AS IT ITALIAN ASSOCIATION OF ASSISTANCE & ANOR [2015] FCCA 2651

Catchwords:
PRACTICE AND PROCEDURE – Failure to appear – applicant claimed she was unable to attend hearing – whether applicant provided appropriate medical evidence of inability to attend – non-compliance with orders of the Court – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, rr.13.03A, 13.03B, 13.03C(1)(c)

Applicant: SUPRIYA ELIEZER

First Respondent: CO AS IT ITALIAN ASSOCIATION OF ASSISTANCE T/A ITALIAN BILINGUAL SCHOOL

Second Respondent: ROBERT RUGGERI

File Number: SYG 2428 of 2014

Judgment of: Judge Street

Hearing date: 25 September 2015

Date of Last Submission: 25 September 2015

Delivered at: Sydney

Delivered on: 25 September 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Counsel for the Respondents: Ms P Thew

Solicitors for the Respondents: Lee & Lyons Lawyers

ORDERS

1. The proceedings are dismissed pursuant to rr.13.03B and 13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The Applicant is to pay the costs of the Respondent as taxed or agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2428 of 2014

SUPRIYA ELIEZER

Applicant

And

CO AS IT ITALIAN ASSOCIATION OF ASSISTANCE T/A ITALIAN BILINGUAL SCHOOL

First Respondent

ROBERT RUGGERI

Second Respondent

REASONS FOR JUDGMENT

1. These are proceedings in the Court’s jurisdiction under the Australian Human Rights Commission Act 1986. A judge of the Court made orders on 21 July 2015 for the filing of affidavit evidence by the applicant. The applicant was the subject of communications from the respondent seeking to have the matter relisted for the failure to comply with the Court orders. The applicant was clearly aware of the relisting today and has failed to appear, the matter having been called outside the Court.

2. An email from the applicant sent at 4.58 pm yesterday suggests that the applicant was unwell and would not be able to attend Court. In response to that email, the applicant was informed that the matter remained listed and that the applicant was required to attend or provide medical evidence as to the inability to attend the hearing. The applicant, in response to the request by the first respondent about the failure to comply with the directions, has asserted that the respondents have been badgering the applicant over trivial matters.

3. Orders of the Court are of considerable importance and parties are expected to comply with those orders. If there is a difficulty with compliance the proper course is for the parties to approach the Court for appropriate relief. I am satisfied that the applicant was well aware of the proceedings that were listed for a directions hearing today, in respect of the non-compliance by the applicant with orders of the Court.

4. I am not satisfied that the explanation by the applicant that she was unwell without any further material is an adequate explanation for the applicant’s failure to attend in relation to the directions hearing.  It is not the position that the applicant had to attend an all-day hearing.

5. I am satisfied that there has been a deliberate noncompliance with an order of the Court by the applicant within r.13.03A. The communication from the applicant suggests that the applicant did not wish to file any further evidence at this stage and identified reliance on her affidavit filed on 13 October 2015. It is clear from the affidavit of 13 October 2015 that it is not capable of supporting the application. Further, the reference by the applicant to “at this stage” is clearly the applicant seeking to preserve the position to serve further material, notwithstanding the non-compliance with the Court’s order.

6. It is not appropriate for a party to disregard a Court order without explanation in circumstances where it is clear that the party intends to provide further material, as would necessarily have to be the case in the present proceedings. In those circumstances, I consider this is also a matter falling within r.13.03B and that the appropriate course for default of compliance is to dismiss the proceedings.

7. The first respondent has made an oral application for the proceedings to be dismissed for want of compliance with the Court order and for default of appearance. I am satisfied that the applicant was well aware of the listing of the matter before the Court today and there is no satisfactory explanation of the applicant’s failure to appear and no satisfactory explanation for the failure to comply with the Court’s orders. In these circumstances, I am of the view that proceedings should be dismissed under r.13.03C(1)(c) for the failure of the applicant to appear and also under r.13.03B.

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

Associate: 

Date:  9 October 2015