Garlett v State of Western Australia

[2024] FedCFamC2G 698

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Garlett v State of Western Australia [2024] FedCFamC2G 698

File number(s):	PEG 105 of 2022
Judgment of:	JUDGE CAMERON
Date of judgment:	7 May 2024
Catchwords:	PRACTICE & PROCEDURE – Application for dismissal – Non-appearance of the applicant.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Division:	General
Number of paragraphs:	6
Date of hearing:	7 May 2024
Place:	Perth
Counsel for the Applicants:	No appearance by or on behalf of the applicants
Counsel for the Respondent:	Ms Keighery and Ms Walsh

ORDERS

PEG 105 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GLENYS GARLETT

First Applicant

AILEEN GARLETT

Second Applicant

AND:

STATE OF WESTERN AUSTRALIA - WESTERN AUSTRALIAN POLICE

Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	7 MAY 2024

THE COURT ORDERS THAT:

1.Pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the matter be dismissed.

2.The first applicant pay the respondent’s costs fixed in the amount of $18,859.38.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Cameron

INTRODUCTION

1. This proceeding has been on foot now for almost two years and the first applicant, Ms Garlett, has appeared before the Court more than once. She did not, however, appear last week when the matter was listed for directions at the request of the respondent following its concern at, amongst other things, her failure to file written submissions as ordered by the Court. 

2. When the matter was first called on this morning at 10:15 am, it was called outside the court and there was no appearance by or on behalf of the first applicant.  In the event that she was simply running late, I stood the matter down to 10:45 am.  During the adjournment, my associate called the matter on levels 2, 4, 6 and 7 of this building.  We are currently sitting in a courtroom on level 6.  Following the adjournment, the matter was called outside the court one more time, and there was no appearance by or on behalf of the first applicant.  In the circumstances, the respondent has sought dismissal of the matter by reason of Ms Garlett’s non-attendance.

3. I should note that I have referred only to the first applicant because the common understanding is that the second applicant, being the first applicant's mother, is deceased.  In those circumstances, it would appear that her action has abated, there being no rule in this Court that deals with the death of a party.  However, I am unfamiliar with the laws of succession in Western Australia and it may be that they may include some provision which maintains the action, notwithstanding that nobody has sought to pursue it since the apparent death of the second applicant.  Not being confident, absent detailed argument, that that aspect of the proceeding has abated, I will treat the second applicant’s claim as being on foot for the purposes of the present application.

   CONSIDERATION

4. Rule 13.06 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provides relevantly:

   13.06 Default of appearance of a party

   (1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:

   …

   (c)if the absent party is an applicant—dismiss the application;

   …

5. Subject to the common understanding that the second applicant has died, the absence of the applicants has not been explained. I should also note that my associate made enquiries of the registry during the adjournment and was advised that no contact had been made which might have explained that absence. In the circumstances, and given the time which has been devoted to the matter and the expense to which the respondent has undoubtedly been put, I consider it appropriate that the application be dismissed pursuant to r 13.06(1)(c) of the Rules.

   CONCLUSION

6. The application will be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       2 August 2024