LUNA-FERRANDIZ v Miss Kitty

[2019] FCCA 666

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUNA-FERRANDIZ v MISS KITTY & ANOR [2019] FCCA 666

Catchwords:
PRACTICE AND PROCEDURE – No steps taken in litigation – no appearances – order for dismissal.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 570

Federal Circuit Court Rules 2001 (Cth), rr.13.03, 13.12, 16.05

Applicant: DIANA LUNA-FERRANDIZ

First Respondent: MISS KITTY PTY LTD T/AS PRETTY KITTY BRAZILIAN WAX SPECIALISTS
ACN 161 408 840

Second Respondent: DEANA PILEGGI

File Number: PEG 264 of 2017

Judgment of: Judge Antoni Lucev

Hearing date: 15 March 2019

Date of Last Submission 15 March 2019

Delivered at: Perth

Delivered on: 15 March 2019

REPRESENTATION

For the Applicant: No appearance

For the Respondents: No appearance

ORDERS

1. Pursuant to:

   (a)rule 13.12 of the Federal Circuit Court Rules 2001 (Cth); and

   (b)rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth),

   the application be dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 264 of 2017

DIANA LUNA-FERRANDIZ

Applicant

And

MISS KITTY PTY LTD T/AS PRETTY KITTY BRAZILIAN WAX SPECIALISTS (ACN 161 408 840)

First Respondent

DEANA PILEGGI

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Subsequently Edited)

1. This is an application in relation to an alleged termination of employment contrary to s.340 of the Fair Work Act 2009 (Cth) (“FW Act”).  It is unnecessary for present purposes to go into the detail of the application. 

2. An order was made on 27 June 2017 by this Court directing the first and second respondents to file and serve a response and for the matter to be referred to mediation.  A response was duly filed by the first and second respondents in accordance with that order, opposing the application and denying the claims made by the applicant.  The matter went to mediation on 12 September 2017 but was not able to be resolved.  There was a further order of the Court on 24 November 2017 setting the matter down for two days of hearing in September 2018.  On 1 December 2017 the respondents’ solicitor withdrew from the record and on 2 March 2018 the Court made orders adjourning the application sine die.  On 14 March 2019 the applicant’s solicitor withdrew from the record. 

3. The Court observes that, save for a letter sent by the Court on 25 February 2019 and the withdrawal of the applicant’s solicitor on 14 March 2019, there has been no progress or action on this matter by either party since it was adjourned sine die by reason of the order of 2 March 2018.

4. The Court’s letter sent to the parties on 25 February 2019 referred to the orders made on 2 March 2018 and then indicated that, pursuant to r.13.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), the Court was permitted to dismiss a proceeding on its own initiative if a party had not taken a step in the proceeding for six months unless a party to the proceeding satisfies the Court that the proceeding should not be dismissed, and the matter was listed for today to give the parties an opportunity to put any relevant submissions to the Court in that regard.

5. The Court notes that, the matter having been called outside the Court today, there is no appearance by either party and no explanation for that non-appearance. In addition to r.13.12 of the FCC Rules, the Court notes that rule 13.03C(1)(c), allows the Court to dismiss a matter for non-appearance. In the circumstances, the Court proposes to make orders in the following terms:

   a)that pursuant to:

   i)rule 13.12 of the FCC Rules; and

   ii)rule 13.03C(1)(c) of the FCC Rules,

   the application be dismissed.

6. In the circumstances and bearing in mind that such an order would be consistent with the overall intent of s.570 of the FW Act, there will be a further order that there be no order as to costs.

1. There will be orders, accordingly, and the Court further notes that if either party is aggrieved by the orders that have been made it is open to them to make an application setting aside the orders just made pursuant to r.16.05(2)(a), of the FCC Rules.

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

Date:  26 March 2019