Sheikholeslami v Brungs

FEDERAL COURT OF AUSTRALIA

Sheikholeslami v Brungs [2006] FCA 933

PRACTICE AND PROCEDURE – Application to dismiss applicant’s claim –power of the Court to control its proceedings to prevent abuse of process - applicant in default of Court orders – applicant’s response to subpoena oppressive – no specifics of claim provided – indemnity costs

Human Rights and Equal Opportunities Commission Act 1986 (Cth) s 46PO
Federal Court Rules O 35A r 3(1)

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Walton v Gardiner (1993) 177 CLR 378

Wu v Avin Operations Pty Ltd [2006] FCA 36
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718
Brown v Zomba Music Publishers Australia Pty Ltd [2004] FCA 324

ROYA SHEIKHOLESLAMI v MICHAEL BRUNGS AND UNIVERSITY OF NEW SOUTH WALES

NSD 757 OF 2005

TAMBERLIN J
SYDNEY
28 JULY 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 757 OF 2005

BETWEEN:

ROYA SHEIKHOLESLAMI
APPLICANT

AND:

MICHAEL BRUNGS
FIRST RESPONDENT

UNIVERSITY OF NEW SOUTH WALES
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

28 JULY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The respondents’ Motion to dismiss the applicant’s claim is granted and the proceeding is dismissed.

2.The applicant is to pay the costs of the respondent in the main proceedings on a solicitor-client basis.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 757 OF 2005

BETWEEN:

ROYA SHEIKHOLESLAMI
APPLICANT

AND:

MICHAEL BRUNGS
FIRST RESPONDENT

UNIVERSITY OF NEW SOUTH WALES
SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	28 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant on 17 May 2005 filed an application under s 46PO of the Human Rights and Equal Opportunities Commission Act 1986 (Cth) seeking an apology and damages in respect of loss and detriment caused to her while employed by the University of New South Wales.  The application makes claims in respect of alleged discriminatory acts during the period from 2000 to 2004 for mental anguish, for defamation, for loss of opportunity for advancement, for distress and for costs.

2. The matter has had a long history and in the light of this history the respondents seek an order dismissing the applicant’s claim.  The respondents’ application is brought pursuant to O 35A r 3(1) of the Federal Court Rules which empowers the Court to dismiss proceedings where the applicant is in default of Court orders, and also under O 20 r 2 on the ground that the proceedings are an abuse of process or frivolous or vexatious.  On the hearing to dismiss the proceeding the applicant was represented by counsel.

3. Since the commencement of the proceedings in May 2005, there have been eleven directions and interlocutory hearings and repeated failures by the applicant to cooperate in bringing the matter to a hearing. The applicant has also made several applications to the Court devoid of merit or…