Stanley v QBE Insurance (Australia) Ltd

[2014] FCCA 3199

FEDERAL CIRCUIT COURT OF AUSTRALIA

STANLEY v QBE INSURANCE (AUSTRALIA) LTD [2014] FCCA 3199

Catchwords:
HUMAN RIGHTS – Application in a Case – substantive application made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) – no appearance – Application in a Case dismissed.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PO

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

Stanley v QBE Insurance Limited [2014] FCCA 1636

Applicant: SHARN STANLEY

Respondent: QBE INSURANCE (AUSTRALIA) LTD

File Number: SYG 2843 of 2013

Judgment of: Judge Nicholls

Hearing date: 13 August 2014

Date of Last Submission: 13 August 2014

Delivered at: Sydney

Delivered on: 13 August 2014

REPRESENTATION

Applicant: No Appearance

Respondent: No Appearance

ORDERS

1. The application in a case made on 17 July 2014 is dismissed for non-appearance pursuant to Rule 13.03C(1)(d) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2843 of 2013

SHARN STANLEY

Applicant

And

QBE INSURANCE (AUSTRALIA) LTD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an Application in a Case (“AIC”) made on 17 July 2014 where the applicant, Sharn Stanley, seeks to reinstate her matter which had been earlier dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

2. The history of this matter, relevantly, is as follows. On 18 November 2013, Sharn Stanley made an application to the Court alleging unlawful discrimination under s.46PO of the Australian Human Rights Commission Act 1986 (Cth). The respondent was identified as QBE Insurance (Australia) Ltd.

3. The matter was set down for directions on 19 March 2014. On that day, the applicant did not appear.  A solicitor appeared on behalf of the respondent, QBE Insurance Limited. It was put to the Court that although QBE had not been properly served with any notice by the applicant of the Court date, a check of the Court’s listings led to the respondent sending a legal representative on that day. 

4. Given the applicant’s non-appearance, the respondent’s solicitor asked that the matter be dismissed for non-appearance, pursuant to the FCC Rules. I agreed and made that order. I refer to my judgment Stanley v QBE Insurance Limited [2014] FCCA 1636.

5. Subsequent to that, the applicant filed an AIC on 17 July 2014. Attached to the Court’s copy of that application is a communication from the Court’s Registry to the applicant. This indicated that the AIC had been filed electronically on 17 July 2014 at 11.19am and was accepted for filing under the FCC Rules. The Registry then proceeded to provide what is set out in this notice as a “time and date for hearing”. That was 13 August 2014 at 9.30am. I am satisfied that in these circumstances the applicant had reasonable notice of the Court event today.

6. When the matter was called today there was no appearance by or for either party. The absence of both parties remains unexplained. However, it is the absence of the applicant, which is of relevance today. In light of her unexplained absence, it is appropriate that the AIC made on 17 July 2014 be dismissed for non-appearance by the applicant. I have regard to r.13.03C(1)(d) of the FCC Rules for that purpose. I am satisfied on what is on the Court’s file that the applicant, at least, would have been on notice of the Court event today. I note that there is no evidence before the Court that the respondent has ever been served with any document by the applicant in these proceedings.

7. It is appropriate that the AIC be dismissed for non-appearance.  I will make that the order.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 10 December 2015