Walker v Telstra Corporation Ltd

[2008] FCA 1165

FEDERAL COURT OF AUSTRALIA

Walker v Telstra Corporation Ltd [2008] FCA 1165

KELL WALKER v TELSTRA CORPORATION LTD

NSD 153 OF 2007

EMMETT J
18 JULY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 153 OF 2007

BETWEEN: KELL WALKER
Applicant

AND: TELSTRA CORPORATION LTD
Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	18 JULY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The motion filed on 28 February 2007 be otherwise dismissed.

2.The application be dismissed.

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 153 OF 2007

BETWEEN: KELL WALKER
Applicant

AND: TELSTRA CORPORATION LTD
Respondent

JUDGE:	EMMETT J
DATE:	18 JULY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding was commenced by an application filed on 2 February 2007.  The respondent, Telstra Corporation Limited (Telstra), appears to have made clear to the applicant, through a person appearing for the applicant, that it regarded the proceeding as an abuse of process. 

2. The matter came before Allsop J on several occasions.  On 24 July 2007, his Honour ordered that the application filed on 2 February 2007 be stayed.  That order was made on a motion filed on behalf of Telstra on 28 February 2007.

3. By that motion, Telstra sought an order that the application be dismissed or that the proceeding be permanently stayed.  Apart from alternative orders, the motion also sought an order that the applicant and his solicitor pay Telstra’s costs of and incidental to the motion on an indemnity basis.

4. On 24 July 2007, Allsop J also ordered that the applicant pay Telstra’s costs of the motion and the proceeding on an indemnity basis.  However, his Honour declined at that stage to make any order against Ms Sue Owens, who was purporting to appear for and act for the applicant.  Instead, his Honour ordered that Telstra provide a copy of his Honour’s reasons and orders to Ms Owens.  His Honour directed that the notice of motion, insofar as it sought orders against Ms Owens, be stood over to a date to be fixed for hearing.  In addition, his Honour granted leave to Telstra to fix a date for the further hearing of the motion insofar as it was still on foot in relation to the claim for costs against Ms Owens. 

5. No further step has been taken by Telstra or by the applicant.  However, following the retirement of Allsop J from this Court, Ms Owens, whose address is the address for service for the applicant, and Telstra were notified that the matter would be listed for directions today.  The solicitors for Telstra informed my associate informally that Telstra did not wish to appear today and would not oppose the dismissal of the proceedings, so far as there was anything remaining on foot.

6. When the matter was called on for hearing today there was no appearance for any party.  In all of the circumstances, it seems to me to be appropriate that the proceeding be brought to an end.  I therefore propose to order that the motion of 28 February 2007 be otherwise dismissed and that the proceeding itself be dismissed. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       10 September 2008

There was no appearance by the parties.

Date of Hearing:	18 July 2008
Date of Judgment:	18 July 2008