Rahman v University of New South Wales

[2012] FMCA 966

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAHMAN v UNIVERSITY OF NEW SOUTH WALES [2012] FMCA 966

HUMAN RIGHTS – Application for relief under Disability Discrimination Act 1992 (Cth) – No appearance by applicant at three consecutive directions hearings – Application dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001(Cth).

Disability Discrimination Act 1992 (Cth), ss.6, 22
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46
Federal Magistrates Court Rules 2001(Cth), r.13.03C(1)(c)

Applicant: SHAIKH HAFIZUR RAHMAN

Respondent: UNIVERSITY OF NEW SOUTH WALES

File Number: SYG 1971 of 2012

Judgment of: Lloyd-Jones FM

Hearing date: 17 October 2012

Delivered at: Sydney

Delivered on: 23 October 2012

REPRESENTATION

The Applicant: The Applicant did not appear at the hearing

Solicitors for the Respondent: Mr J. Mattson of Bartier Perry

ORDERS

1. The Application be dismissed pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The Applicant is to pay the Respondent’s costs and disbursements of and incidental to the Application fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1971 of 2012

SHAIKH HAFIZUR RAHMAN

Applicant

And

UNIVERSITY OF NEW SOUTH WALES

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 July 2012 the Applicant, Shaikh Hafizur Rahman, filed an Application under the Australian Human Rights Commission Act 1986 (Cth) (the “Human Rights Act”) against the Respondent, the University of New South Wales (“UNSW”) in the Federal Court of Australia. The Applicant alleged that he was discriminated against by the Respondent under the Disability Discrimination Act 1992 (Cth) (the “DDA”) and sought relief from the Respondent of the awarding of two Masters’ degrees, implementation of the Applicants’ research and pecuniary compensation.

2. The Applicant had previously lodged a complaint with the Australian Human Rights Commission (“HREOC”) in December 2011 against the Respondent. A delegate of HREOC wrote to the Applicant on 29 May 2012 to advise him that his complaint had been terminated pursuant to s.46PH(1)(1) of the Human Rights Act on the same day as the delegate was satisfied there was no reasonable prospect of the matter being settled by conciliation.

3. The matter was first made returnable before Justice Bennett on 17 August 2012 for first directions.  Her Honour made orders for the filing of documents and adjourned the matter to 11 September 2012.  On 7 September 2012 the Respondent filed an interlocutory application seeking summary dismissal of the proceedings.  Her Honour then made orders for the transfer of the proceedings to this Court on 11 September 2012.  It should be noted that the Applicant was not present at the directions hearing on 11 September 2012.

4. The matter was next listed before this Court on 2 October 2012. The applicant was not present at the directions hearing and orders were made for the proceedings to be adjourned to 2.15pm on 17 October 2012 and for the Respondent to notify the Applicant accordingly. At the directions hearing on 17 October 2012 the Applicant was, similarly, not present at the hearing. I asked my associate to call the matter in the precinct of the court but the Applicant was not there. The application was then dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (the “FMC Rules”) and costs fixed in the sum of $3,000.00 were awarded in favour of the Respondent. These reasons give effect to those orders.

Hearing 17 October 2012

1. Mr Mattson, appearing on behalf of the Respondent appeared at the directions hearing on 17 October 2012. Mr Mattson filed in Court and read his own affidavit sworn 17 October 2012. Mr Mattson indicated to the Court that the Applicant had appeared at the first directions hearing in the Federal Court, but had not appeared since (at [3], [4] and [8] of Mr Mattson’s affidavit. Annexed to Mr Mattson’s affidavit was the Applicant’s Application and Points of Claim as filed in the proceedings which show two addresses for service for the Applicant, one postal address and one email address. Mr Mattson submitted that correspondence from both the Court’s Registry and the Respondent had been sent to the Respondent ([5] – [7] of Mr Mattson’s affidavit) and that, pursuant to the orders of this Court on 2 October 2012, Mr Mattson had notified the Applicant twice of the 17 October 2012 listing ([9] – [10] of Mr Mattson’s affidavit). Mr Mattson indicated that none of the postal or email correspondence sent by his firm to the Applicant had been returned as undeliverable. Accordingly, he submitted that pursuant to r.13.03C(1)(c) of the FMC Rules the application should be dismissed.

2. Rule 13.03C of the FMC Rules states:

   Default Appearance of a party

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

   a) adjourn the hearing to a specific date or generally;

   …

   b) if the absent party is an applicant – dismiss the application;

   …

3. I am assisted by the submissions of Mr Mattson that the proceedings should be dismissed pursuant to r.13.03C(1)(c) of the FMC Rules. The Applicant has failed to appear on three separate occasions, despite being notified of the listings of the proceedings before both the Federal Court and this Court. Accordingly, I make orders dismissing the application and awarding costs in favour of the Respondent.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date:  23 October 2012