Stanley v QBE Insurance (Australia) Ltd - [2014] FCCA 1945

FEDERAL CIRCUIT COURT OF AUSTRALIA

STANLEY v QBE INSURANCE (AUSTRALIA) LTD

[2014] FCCA 1945

Catchwords:
INDUSTRIAL LAW – Fair work.

PRACTICE & PROCEDURE – Whether applicant’s explanation for failure to appear at directions hearing is adequate – whether initiating application has sufficent prospects of success.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.05, 13.03C, 13.10
Federal Court Rules 2011 (Cth), rr.1.40, 26

Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529

Walton v Gardiner [1993] HCA 77
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Aon Risk Services v Australian National University [2009] HCA 27
Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490

Applicant:

SHARN STANLEY

Respondent:

QBE INSURANCE (AUSTRALIA) LTD

File Number:

SYG 2814 of 2013

Judgment of:

Judge Emmett

Hearing date:

14 August 2014

Date of Last Submission:

14 August 2014

Delivered at:

Sydney

Delivered on:

14 August 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Atticus Busby

No appearance by or on behalf of the respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2814 of 2013

SHARN STANLEY

Applicant

And

QBE INSURANCE (AUSTRALIA) LTD

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 17 July 2014, the applicant filed an Application in a Case supported by an Affidavit, sworn/affirmed on 11 July 2014 and filed on 17 July 2014, which I understand to be an application to set aside an order made by me on 7 March 2014, dismissing her proceeding filed on 13 November 2013, pursuant to r.13.03C(1)(c) of the Federal Circuit Rules 2001 (Cth) (“the Rules”) by reason of the failure of the applicant to attend that Court event. That Court event was listed pursuant to an Application and Form 5 filed by the applicant on 13 November 2013, which identified as the first court date, 7 March 2014 at 12.00pm.
At the time that the proceeding was dismissed on that day, I gave reasons as follows:
“1. This is an application that was filed on 13 November 2013 and set down for a first court date today at 12 pm on that occasion. I note there is no appearance by or on behalf of the applicant.
2. While there has been no appearance entered on behalf of the respondent, a solicitor, Ms Ayako Nomura from Minter Ellison, informed the Court that there has been no service of the initiating Application or Form 5, which were filed on 13 November 2013. Ms Namura informed the Court that Minter Ellison regularly acted for the Respondent and the Respondent had become aware of the proceeding. I note that there has been no Affidavit of Service filed in respect of the Application and Form 5 that were filed on 13 November 2013.
3. The Application and Form 5 appear to be signed by the applicant. The Notice of Filing and Hearing clearly states the time and date of today’s directions hearing. The matter is identified as being in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 1945
Decision Date: 14 August 2014

CaseChat Overview and Summary

Stanley (the applicant) sought leave to appeal against a decision of the Federal Court of Australia (Full Court) which had dismissed his application for an order to set aside a notice of assessment of costs issued by QBE Insurance (Australia) Ltd (the respondent). The dispute arose from an earlier proceeding where Stanley had sought to bring a claim under the *Industrial Relations Act 1988* (Cth), which was ultimately dismissed.

The primary legal issues before the Full Court were whether Stanley had provided an adequate explanation for his failure to attend a directions hearing in the original proceedings, and whether his initiating application had sufficient prospects of success to warrant granting him leave to appeal. The Full Court was required to consider the principles governing the grant of leave to appeal, particularly in circumstances where the applicant had failed to comply with court orders.

Emmett J, delivering the judgment of the Full Court, found that Stanley's explanation for his non-attendance at the directions hearing was inadequate. His Honour noted that Stanley had not provided any evidence to support his claims of being unwell or experiencing difficulties with his legal representation. Furthermore, Emmett J concluded that the original application lacked sufficient prospects of success, as it was based on a misunderstanding of the relevant legislation. Consequently, the Full Court determined that it was not in the interests of justice to grant leave to appeal.

The Full Court ordered that the application for leave to appeal be dismissed.

Orders