Firew v Auburn Hospital (Auburn Community Health Centre)
[2004] FCA 574
•8 APRIL 2004
FEDERAL COURT OF AUSTRALIA
Firew v Auburn Hospital (Auburn Community Health Centre) [2004] FCA 574
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Federal Court of Australia Act 1976 (Cth) s 25(1A)Federal Court Rules (Cth) O 52 r 38A(1)(c), O 52 r 38A(2), O 80
Firew v Busways Trust & Ors [2003] FMCA 193 cited
SENTAYEHU FIREW v AUBURN HOSPITAL (AUBURN COMMUNITY HEALTH CENTRE) AND IVECO (TRUCKS) AUSTRALIA PTY LTD
V 441 of 2003GRAY J
8 APRIL 2004
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 441 of 2003
BETWEEN:
SENTAYEHU FIREW
APPLICANTAND:
AUBURN HOSPITAL (AUBURN COMMUNITY HEALTH CENTRE)
FIRST RESPONDENTIVECO (TRUCKS) AUSTRALIA PTY LTD
SECOND RESPONDENTJUDGE:
GRAY J
DATE OF ORDER:
8 APRIL 2004
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT the appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 441 of 2003
BETWEEN:
SENTAYEHU FIREW
APPLICANTAND:
AUBURN HOSPITAL (AUBURN COMMUNITY HEALTH CENTRE)
FIRST RESPONDENTIVECO (TRUCKS) AUSTRALIA PTY LTD
SECOND RESPONDENT
JUDGE:
GRAY J
DATE:
8 APRIL 2004
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This proceeding is an appeal from a judgment of a Federal Magistrate, delivered on 16 May 2003. See Firew v Busways Trust & Ors [2003] FMCA 193. In substance the Federal Magistrate declined to deal with an application made pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’) against two parties. The two parties are designated in the proceeding as Auburn Hospital (Auburn Community Health Centre), and Iveco (Trucks) Australia Pty Ltd respectively. I understand that the party named as the first respondent regards itself as misdescribed in the title to the proceeding and is correctly described as Western Sydney Area Health Service.
The notice of appeal was filed in this Court on 5 June 2003. The Chief Justice made a determination pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal should be heard and determined by a single judge.
I note that, at a directions hearing early in the piece, the appellant also had an application for leave to appeal against another aspect of the Federal Magistrate’s judgment, in which the Federal Magistrate had ordered a change in the title to the proceeding in that court in respect of another party or other parties. After I had explained at the directions hearing to the appellant the true implications of that order, the appellant consented to the dismissal of his application for leave to appeal. It may be that leave to appeal was also required in respect of this appeal but I do not propose to embark on that question at the present time.
At the first directions hearing, I indicated that I was prepared to grant a certificate pursuant to O 80 of the Federal Court Rules, referring the appellant to counsel for representation generally. Counsel to whom the appellant was referred subsequently discharged the referral.
Subsequently, at an appointment with the registrar to settle the index to the appeal book in this proceeding, the appellant did not attend. I understand that he also did not attend at the trial of the proceeding in the Federal Magistrates Court and my understanding in that respect was confirmed by counsel for the respondents today.
The Court file shows that two separate letters were posted to the appellant, on 4 March 2004 and 30 March 2004 respectively, at his address shown in the Court’s records. The second letter was sent because of a typographical error in the address shown in the first one. Two letters were transposed in the name of the suburb.
When the appeal was called on this morning, the appellant failed to appear, even though called outside the courtroom.
Order 52 r 38A(1)(c) of the Federal Court Rules provides that, if a party is absent when an appeal is called on for hearing, the Court may, if the absent party is an appellant, dismiss the appeal. Order 52 r 38A(2) provides that, if an order is made under subr (1)(c), the Court may, on motion by the party against whom the order is made, set aside or vary the order and give directions for the further conduct of the appeal. Counsel for the respondents has suggested that I exercise the discretion given by O 52 r 38A(1)(c) to dismiss the appeal on the ground of the absence of the appellant. It seems appropriate that I should do that. The fact that the appellant has been absent on two previous occasions, one involving a step in this appeal and the other in a related proceeding in the Federal Magistrates Court, suggests that he does not wish to proceed with the litigation. The safeguard provided by O 52 r 38A(2) gives me confidence that, if the appellant had intended to prosecute his appeal but has been prevented from doing so by some mishap, then the situation can be rectified on application by him.
As a consequence, although there are matters that trouble me about the substance of the appeal, I do not propose to enter upon the merits of it. I propose to dismiss it for non-appearance by the appellant.
I raised with counsel for the respondents the question whether an order for costs was sought. There is no doubt that an order for costs would potentially have a deleterious effect on the appellant’s state of health, which is revealed by the material filed in the Court to be less than satisfactory. After discussion between counsel for the respondents and me, and after counsel for the respondents had sought specific instructions, the application for an order for costs was not pressed. Accordingly I will make no order for costs.
The order that I make, therefore, will be that the appeal be dismissed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 7 May 2004
Counsel for the Appellant: The Appellant did not appear Counsel for the Respondents: T Jacobs Solicitor for the First Respondent: Frances Allpress Solicitor for the Second Respondent: Blake Dawson Waldron Date of Hearing: 8 April 2004 Date of Judgment: 8 April 2004