MALEKNIA v University of Sydney

[2016] FCCA 1050

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALEKNIA v UNIVERSITY OF SYDNEY [2016] FCCA 1050

Catchwords:
INDUSTRIAL LAW – Unfair dismissal – application for adjournment on medical grounds – applicant aware of hearing date – no appearance by or on behalf of the applicant – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

Legislation:

Fair Work Act 2009 (Cth), s.566

Federal Circuit Court of Australia Act 1999 (Cth), s.88Q

Applicant: SIMIN MALEKNIA

Respondent: UNIVERSITY OF SYDNEY

File Number: SYG 1331 of 2015

Judgment of: Judge Street

Hearing date: 4 May 2016

Date of Last Submission: 4 May 2016

Delivered at: Sydney

Delivered on: 4 May 2016

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Ms J Wright
University of Sydney

ORDERS

1. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. Leave to the respondent to move for an order under Part 6B of the Federal Circuit Court of Australia Act 1999 on 14 days’ notice to the applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1331 of 2015

SIMIN MALEKNIA

Applicant

And

UNIVERSITY OF SYDNEY

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction conferred by s.566 of the Fair Work Act 2009.  The application has been the subject of a considerable number of interlocutory orders in respect of a summary dismissal application of the application brought by the applicant that was fixed to be heard today.  The matter has been called and the applicant has not appeared and the applicant has sent a series of correspondence to the Court seeking to advance alternative bases on which the hearing date should be vacated. 

2. The applicant failed to appear in Court on the last occasion, on 18 March 2016.  No explanation was given by the applicant in respect of that failure.  The applicant filed on 1 May, an application in a case together with an affidavit seeking an adjournment of the proceedings.  That affidavit identified the applicant was clearly aware of the proceedings fixed for today.  The applicant has not come before the Court to move on that application. 

3. The Court notes that on the face of the application, it does not satisfactorily explain why the applicant would not be able to participate in the nature of the hearing that had been fixed for today.  The medical report did not identify any background medical history in respect of the applicant, identify the nature of her medical condition or any understanding by the practitioner of the nature of the proceedings or the history of the communications by the applicant in endeavouring to avoid the matter proceeding to hearing in respect of this summary dismissal application. The interests of the administration of justice did not justify any adjournment.

4. The proceedings initially were commenced against three respondents. The applicant discontinued proceedings against two of the respondents. The remaining respondent has moved for the application to be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.  I am satisfied that this is an appropriate case in which to exercise the powers under r.13.03(C)(1)(c).  I am satisfied that the applicant was well aware of the hearing date.

5. I should note, however, that this was an application in respect of which the summary dismissal application identified a history in relation to the proceedings before this court as well as proceedings in the Fair Work Commission and proceedings in the New South Wales Supreme Court, all of which would have enlivened the Court’s powers under part 6B of the Federal Circuit Court of Australia Act 1999. 

6. It suffices to say that the applicant filed a 180 page alleged application and a 600 page affidavit and made allegations of conduct and alleged contraventions that would have enlivened consideration of an application under s.88Q of the Federal Circuit Court of Australia Act 1999. In these circumstances, I propose to grant leave to the respondent to move for an order under part 6B on 14 days’ notice to the applicant.

7. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001

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

Date: 18 May 2016