Schmitz v D-Cypha Trade Limited

[2015] FCCA 3443

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHMITZ v D-CYPHA TRADE LIMITED [2015] FCCA 3443

Catchwords:
INDUSTRIAL LAW – Application listed pursuant to r.13.12(1) of the Federal Circuit Court Rules 2001 (Cth) – no appearance by parties – application dismissed.

Legislation:

Federal Circuit Court Rules 2001(Cth), r.13.12

Fair Work Act 2009 (Cth), s.340

Applicant: THOMAS SCHMITZ

Respondent: D-CYPHA TRADE LIMITED

File Number: SYG 2742 of 2013

Judgment of: Judge Nicholls

Hearing date: 11 December 2015

Delivered at: Sydney

Delivered on: 11 December 2015

REPRESENTATION

Solicitors for the Applicant: No Appearance

Solicitors for the Respondent: No Appearance

ORDERS

1. The application made on 6 November 2013 is dismissed pursuant to Rule 13.12(1) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2742 of 2013

THOMAS SCHMITZ

Applicant

And

D-CYPHA TRADE LIMITED

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 6 November 2013 by Mr Schmitz, pursuant to the Fair Work Act 2009 (Cth), alleging that the respondent, D-Cypha Trade Limited, contravened s.340 of that Act.

2. That application has had some history before the Court.  When the matter first came before the Court on 27 November 2013, a solicitor appeared on behalf of the respondent. The respondent mentioned the matter by consent of the applicant. The Court ordered that the matter be subject to mediation.  The mediation was to take place no later than 26 February 2014. The matter was set down for further directions on 5 March 2014, in the event of the possible non-settlement of the matter by mediation. 

3. On 3 March 2014, following communication from the parties, the directions listing for 5 March 2014 was vacated, and the matter was relisted for further directions on 30 April 2014 in this Court.

4. It appears that, by having regard to a note in the Court file made by the Registrar, that the matter was settled at mediation on 28 April 2014. There is a notation that that settlement was subject to a Notice of Discontinuance being filed in the Court in the “near future”. Having regard to the Court’s records, no such notice has been filed. 

5. On 6 November 2015, a communication to both parties, sent to the respective addresses for service, put the parties on notice that no action had been taken in this matter in the preceding six months and that the matter was set down before the Court today to consider whether r.13.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) should be considered.

6. There has been no appearance by either party today. The failure to file the Notice of Discontinuance remains unexplained. However, I am satisfied that no action to prosecute this matter to a conclusion has been taken, and therefore, it is appropriate that the application made to the Court be dismissed pursuant to r.13.12 of the FCC Rules. I will make that order.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 22 December 2015