MCGANN v The Spot Realty Pty Ltd
[2010] FMCA 946
•26 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCGANN v THE SPOT REALTY PTY LTD | [2010] FMCA 946 |
| INDUSTRIAL LAW – FAIR WORK – Non-appearance by the parties or legal representatives of the parties – whether matter should be dismissed for non-appearance. |
| Applicant: | PATRICK MCGANN |
| Respondent: | THE SPOT REALTY PTY LTD |
| File Number: | SYG 750 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 26 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Mr D Rutherford, Craig Lynch and Associates (No appearance) |
| Respondent: | No appearance |
ORDERS
There being no appearance by either party the matter is adjourned for mention before me at 9.30 am on Thursday 9 December 2010.
THE COURT NOTES THAT:
Unless there is an attendance in person either by the parties or their legal representatives the matter may be dismissed on 9 December 2010 for nonappearance pursuant to the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 750 of 2010
| PATRICK MCGANN |
Applicant
And
| THE SPOT REALTY PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter was commenced by application on 7 April 2010, purportedly within the court’s small claim jurisdiction under the Fair Work Act 2009 (Cth), although it is apparent that the applicant also sought to assert a breach of contract.
In light of the particular circumstances of the claim I gave leave for the applicant to be legally represented. In addition, bearing in mind the quantum of this claim, I have given leave to the solicitor for the applicant to appear at past directions hearings by way of telephone link.
The parties attended mediation on 17 September 2010. Chambers were advised that the matter was settled at mediation.
The matter was listed for directions on 19 November 2010. The court received a letter from the solicitor for the applicant dated 17 November 2010 advising that a settlement had been reached at the mediation, that terms of settlement were agreed and signed but that the respondent had not yet paid the agreed amount so the applicant had not yet filed a notice of discontinuance. It was requested that this be addressed at the hearing on 19 November 2010.
The solicitor for the applicant sought, once again, to participate by way of telephone link. However, in light of the issues to be dealt with, the solicitor for the applicant was advised that his attendance in person was necessary to progress the matter.
He then advised chambers by facsimile on 18 November 2010 that the respondent had been in contact, that they were in the process of finalising payment and expected that payment would be made and a notice of discontinuance filed within seven days.
On this basis the parties sought and were granted a seven day adjournment by consent.
The applicant’s solicitor asked to be contacted on a telephone number provided in relation to whether or not an attendance on 19 November 2010 was required. He was called on the telephone number provided but there was no answer. As my associate advised him by facsimile on 18 November 2010 the matter was adjourned until today and no attendance was required on 19 November 2010.
The applicant’s solicitor has not further contacted the court. He did not appear today or contact chambers after 18 November 2010. There has been no contact from either of the parties. There is nothing before me to show that there has been any notice of discontinuance or other material filed by either party since 17 September 2010 or any further communication from either party or their legal representatives. In these circumstances it would be open to the court to dismiss the matter for non-appearance.
However, notwithstanding what is, at the least, a lack of courtesy on the part of the applicant’s solicitor in failing to appear today, I intend to order one further adjournment on the basis that on the next occasion, unless a notice of discontinuance has been filed prior to that time, it will be necessary for the parties or their legal representatives to attend. This matter has now been before the court on a number of occasions without resolution.
Unless there is an attendance in person, either by the parties or their legal representatives, the matter may be dismissed on 9 December 2010 for non-appearance pursuant to the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 3 December 2010
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