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

1. 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.

2. 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 Sydney Registry of the Federal Circuit Court of Australia. The applicant has had since 13 November 2013 to inform herself as to the location where her matter is to be heard. In any event, once electronically filed, the court and hearing information is readily available on the Commonwealth Courts Portal.

   4. It is now 12.30pm. The matter has been called outside as recently as five minutes ago. There is no appearance by the applicant and no communication has been received from the applicant seeking an adjournment of today’s hearing, or for any other reason.

   In the circumstances, the matter should be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the failure of the applicant to appear at today’s scheduled first court date.”

3. The initiating Application, filed on filed on 13 November 2013, refers to relief sought in the Form 5 which appears to be an appeal to the “Federal Court of Australia” for a costs order to be re-heard. The details are as follows:

   “A unfair dismissal claim was lodged on the 28/02/12.

   The unfair dismissal claim was discontinued on 18^th June 2012.

   The claim was discontinued based on legal advice to do with employment timeframes.

   A costs application was served on the applicant (Sharn Stanley) and my former lawyer.

   Sharn Stanley did not attend a hearing for the costs application due to personal reasons and costs have since been awarded against.

   An appeal was lodged with Fair Work Australia which was out of time and an extension of time for the appeal was declined.

   I am appealing to the Federal Court for the matter to be reheard.”

4. It would appear that the applicant asserts that she had an unfair dismissal claim, which she discontinued on 18 June 2012 and which resulted in a costs order being made against her in circumstances in which she did not attend the hearing for the costs application.

5. The Form 5 asserts that the applicant appealed to Fair Work Australia, however was out of time and an extension of time for the appeal was declined. There is no further detail provided in relation to the claims made before this Court.

6. The Application in a Case before the Court today is supported by an affidavit, sworn/affirmed by the applicant on 11 July 2014, and filed on 17 July 2014. That affidavit purports to explain the failure of the applicant to appear at the directions hearing on 7 March 2013. That affidavit is in the following terms:

   “1. Case number SYG2814/2013 was lodged to the court on the 13/11/2013.

   2. On the 21^st February 2014, I contacted the court via email [email protected] to ask for an adjournment under section 57 of the legal aid commission act 1979. I did not receive a reply to this email from the court.

   3. I did not follow the court up as the court had already responded to an adjournment for case number SYG2843/2013 and I assumed that they would be actioning this case at the same time, as the reason or the adjournment was the same for both cases.

   4. On the 21^st March2 014, I contacted the court for a follow up a second matter but I was told that this matter was heard and dismissed on the 7^th March 2014 because I was not present. The court advised me to put in an application in a case.

   5. At the time I was still having Legal Aid review my application for legal assistance, I had to provide them with information in relation to this case and a second (Human Rights) I am raising against QBE Insurance Ltd, this review was not completed until the May 2014.

   6. The delay in lodging the application in a case was also due to surgery that I had on the 28^th April 2014 which I have been recovering from and the decision from Legal Aid Commission which was pending.

   7. The court failed to respond to my request for an adjournment sent to them on the 21^st February 2014 if it was not granted I did not get any confirmation of same back so I could of arranged a lawyer to attend with me and provide evidence with respect to the legal aid review so the matter could of not been dismissed. Copy of email will be provided.

   8. I am now requesting the case number SYG2814/2013 be re-opened against QBE Insurance Limited for the above reasons set out, so a case can proceed.

   9. A copy of the application in a case and the affidavit will be served on QBE Insurance Ltd.” (errors contained in original)

7. The affidavit makes clear that the applicant was aware of the directions hearing on 7 March 2014, but that the applicant wished to have an adjournment to seek legal advice. That affidavit is not adequate to explain the failure of the applicant to appear at the directions hearing on 7 March 2014. In circumstances where the applicant was aware that no adjournment had been granted to the first court date appearance, it was her responsibility to appear. There is no evidence before the Court of any application made for legal aid. The application states that if a party does not attend, default orders may be made. In knowingly failing to appear, the applicant takes the risk that her proceeding may be dismissed accordingly.

8. Further, in the absence of any medical evidence, the applicant’s assertion that she had surgery on 28 April 2014 is not adequate to explain her delay in filing this application in a case almost five months after her proceeding was dismissed for non-appearance.

9. I note that there is no evidence before this Court that any of the documents filed by the applicant have been served upon the respondent and no document has ever been filed by the respondent.

10. During the hearing of the matter before me this morning, the applicant was represented by her solicitor, Mr Busby, who filed in Court a Notice of Appearance. Mr Busby received instructions by telephone from the applicant during the hearing to appear. Mr Busby first told the Court that he was appearing as a friend for the applicant.

11. Mr Busby was not in a position to tell the Court whether or not any of the documents had been served.

12. Mr Busby sought an adjournment of the Application in a Case filed on 17 July 2014, on the basis that the applicant wished to seek legal advice and that Mr Busby had not, at this stage, been able to provide that advice. Mr Busby informed the Court that the applicant was presently the subject of an Intensive Correction Order.

13. The applicant in this case has had since at least 13 November 2013 to seek any legal advice. The applicant has an obligation and responsibility having commenced litigation to pursue it or to withdraw it.

14. Rule 13.10 of the Rules provides as follows:

“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

(b) the proceeding or claim for relief is frivolous or vexatious; or

(c) the proceeding or claim for relief is an abuse of the process of the Court.”

1. It is well established that the Court has inherent power to prevent misuse of its procedures. In Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 536, Lord Diplock stated the principle as follows:

   “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.

2. That view was endorsed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner [1993] HCA 77 at [23].

3. It is the Court’s function to dispense justice with impartiality and fairness both to the parties and to the community which it serves. The Court possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness (See Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at [28]). There is a broad public interest in the efficient allocation of the Court’s resources amongst all suitors and it is a consideration to which I have regard in considering the overall interests of justice. It is well recognised that the resolution of disputes serves the public as a whole and not merely the parties to a proceeding (See Aon Risk Services v Australian National University [2009] HCA 27 at [113]; Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490 per Pembroke J at [26] and [27]).

4. As stated above, the initiating application was filed on 13 November 2013, and was dismissed on 7 March 2014. From 7 March 2014 to the filing of the application case on 17 July 2014, there has been no step taken by the applicant whatsoever in relation to her proceeding. As the applicant has never even served her initiating application, in the circumstances, that the applicant’s conduct is bordering on an abuse of Court process and could be dismissed on that basis alone.

5. In any event, I have considered the merits of the applicant’s initiating application.

6. In relation to the applicant’s substantive claim for relief, there is nothing before this Court to identify which court it was that made the costs order that the applicant seeks to overturn. The applicant would plainly have had rights at the time to attend any costs application. For whatever reason, costs were ordered in her absence. I do not understand what power the Court has to grant the relief sought and Mr Busby was unable to enlighten me further on that issue.

7. There is no evidence before me to suggest that the applicant’s initiating application, filed on 13 November 2013, has any reasonable prospect of success and no argument was advanced by Mr Busby to that effect.

8. Coupled with the applicant’s inadequate explanation for her failure to appear on 7 March 2014, the Application in a Case filed on 17 July 2014, should be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  2 September 2014