Saville v TPG Holdings Pty Ltd

[2016] FCCA 1528

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAVILLE v TPG HOLDINGS PTY LTD [2016] FCCA 1528

Catchwords:
INDUSTRIAL LAW – Application pursuant to Fair Work Act 2009 (Cth) – no appearance by or for the applicant – application dismissed.

Legislation:

Fair Work Act 2009 (Cth)

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

Applicant: NEIL SAVILLE

Respondent: TPG HOLDINGS PTY LTD

File Number: SYG 1160 of 2015

Judgment of: Judge Nicholls

Hearing date: 8 June 2016

Date of Last Submission: 8 June 2016

Delivered at: Sydney

Delivered on: 8 June 2016

REPRESENTATION

Applicant: No Appearance

Respondent: Mr T Moffatt

ORDERS

1. The application made on 27 April 2015 is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1160 of 2015

NEIL SAVILLE

Applicant

And

TPG HOLDINGS PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to the Fair Work Act 2009 (Cth) (“the Act”) on 24 April 2015 by Mr Neil Saville (“the applicant”) alleging a number of breaches of the Act by his former employer, TPG Holdings Pty Ltd (“the respondent”).

2. The progress of this matter before the Court was initially the subject of orders made by another Judge of this Court on 20 May 2015. The parties have taken some action to progress this case. The applicant does appear to have taken some steps to file a statement of claim in June 2015. The respondent filed a “defence” as the orders required. However, nothing further has apparently happened in this matter since the filing of the defence. 

3. Both parties were notified of further directions before me today in an attempt to enliven the matter. This was done by letter dated 3 May 2016 (marked as “RE1”), marked as sent to the applicant’s address for service, in Greenwich, NSW, on 5 May 2016 by ordinary post.

4. When the matter was called today at the scheduled time, there was no appearance by, or for, the applicant. The respondent did appear by way of its representative. 

5. An application was made by the respondent to dismiss the substantive application pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). Obviously this is not a final hearing, the FCC Rules do contemplate such a dismissal at an interlocutory stage. Rule 13.03C(1)(c) of the FCC Rules is in the following terms:

   “Default of 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:

   …

   (c)  if the absent party is an applicant--dismiss the application;”

6. In essence, the absence of the applicant at the Court event today is unexplained. I am satisfied that the applicant had reasonable notice of the Court event today, particularly as the relevant notice was sent in the usual way to the address for service provided by the applicant.

7. I am unaware of any application for an adjournment of the Court event, I am not aware of any other communication to the Court’s Registry explaining, or proposing, any difficulty by the applicant in attending today.  Therefore, the applicant’s absence remains unexplained. 

8. I am satisfied that the order should be made. In making that order I note, in any event, rule 16.05 of the FCC Rules, which provides the mechanism for the applicant to reinstate the substantive application if that is what he elects to do. I will make the order accordingly.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 21 June 2016