Maleknia v University of Sydney

[2016] NSWCA 108

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Maleknia v University of Sydney [2016] NSWCA 108
Hearing dates:	2 May 2016
Date of orders:	02 May 2016
Decision date:	02 May 2016
Before:	Barrett AJA
Decision:	(1) I order that the proceedings instituted by Dr Maleknia in the Court of Appeal be dismissed. (2) I order that Dr Maleknia pay the costs of the University of Sydney of the appeal and of the notice of motion determined today. (3) I note that there is an application outstanding for a lump sum costs order. That matter is remitted to the Registrar’s list on 9 May 2016 so that it may then be dealt with as appropriate.
Catchwords:	PROCEDURE – dismissal without hearing – proceedings in Court of Appeal in respect of decision of Fair Work Commission – no jurisdiction in Court of appeal – dismissal ordered
Legislation Cited:	Fair Work Act 2009 (Cth)
Category:	Procedural and other rulings
Parties:	University of Sydney (Applicant) Simin Maleknia (Respondent)
Representation:	Counsel: Ms J Wright (Applicant) No appearance of Respondent   Solicitors: University of Sydney, Office of General Counsel (Applicant) Respondent (Self-represented)
File Number(s):	CA 2015/361705
Decision under appeal	Court or tribunal: Fair Work Commission Citation: Dr Simin Maleknia v University of Sydney [2015] FWC 5304 Date of Decision: 8 September 2015 Before: SDP Drake File Number(s): U2014/5331 and C2014/7228

Judgment

1. HIS HONOUR: Dr Maleknia, a former employee of the University of Sydney, has purported to commence proceedings in the Court of Appeal in respect of a decision of the Fair Work Commission, an industrial tribunal constituted under a law of the Commonwealth, namely, the Fair Work Act 2009 (Cth).

2. The University maintains that the Court of Appeal has no jurisdiction in the matter and, on 10 March 2016, filed a notice of motion seeking an order that the proceedings instituted by Dr Maleknia be dismissed as incompetent.

3. When the matter came before me on 4 April 2016, the University was ready to proceed with its motion but Dr Maleknia applied for an adjournment to enable her to obtain legal advice or legal representation. I granted the adjournment of four weeks that she sought, that is until today, and made the costs order indicated by the circumstances, namely, that Dr Maleknia pay the University’s costs of that day and the costs thrown away by reason of the adjournment.

4. When the matter was called on today, there was no appearance by or on behalf of Dr Maleknia but there was among the papers in the Court file an affidavit sent by her to the Registrar this morning deposing to illness from which she says she is suffering plus two letters and a certificate from a Dr Nayanar as to her condition. Dr Maleknia said in the communication of this morning that she wished to have a further adjournment to a date, it seems, beyond 24 June 2016.

5. The University opposed any further adjournment and did so on very cogent grounds. First, there is no indication that Dr Maleknia has in fact obtained legal advice or legal representation which was the purpose of the earlier adjournment. Indeed, she says that she has not, citing her health. Second, there was no indication by Dr Maleknia when she was in court four weeks ago arguing her position that she suffered from any of the illnesses to which the medical letters refer.

6. In those circumstances, and bearing in mind a significant point about to be mentioned, I declined to adjourn the hearing of the University’s motion today. The legal representative of the University proceeded to make her case in support of the proposition that the Court of Appeal proceedings instituted by Dr Maleknia should be dismissed out of hand as disclosing no reasonably arguable cause of action.

7. That leads to the significant point to which I have referred, namely, that, as the written submissions filed on behalf of the University make clear, Dr Maleknia’s case is manifestly and irretrievably hopeless.

8. The Fair Work Act contains provisions concerning appeals from orders and decisions of the Fair Work Commission. Neither the Supreme Court of New South Wales nor the Court of Appeal of that Court plays any part in that appeal regime, nor is there any other statutory provision creating such an avenue of appeal. Because rights of appeal are entirely a matter of statute and no statute creates the right of appeal that Dr Maleknia considers herself to have, this Court is simply unable to assist her.

9. I order that the proceedings instituted by Dr Maleknia in the Court of Appeal be dismissed. I order that Dr Maleknia pay the costs of the University of Sydney of the appeal and of the notice of motion determined today.

[Application for gross sum costs]

10. I note that there is an application outstanding for a lump sum costs order. That matter is remitted to the Registrar’s list on 9 May 2016 so that it may then be dealt with as appropriate.

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Decision last updated: 12 May 2016