White v Van Beck Pty Ltd

[2010] FMCA 797

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITE v VAN BECK PTY LTD & ANOR [2010] FMCA 797

PRACTICE AND PROCEDURE – FAIR WORK – Dismissal.

Fair Work Act 2009 (Cth)
Federal Magistrates Court Rules2001 (Cth)

Applicant: JOHN BARRY WHITE

First Respondent: VAN BECK PTY LTD

Second Respondent: IAN BECKWITH

File Number: SYG 1819 of 2009

Judgment of: Raphael FM

Hearing date: 11 October 2010

Delivered at: Sydney

Delivered on: 11 October 2010

REPRESENTATION

For the Applicant: No appearance

For the Respondents: No appearance

ORDERS

1. Application dismissed pursuant to Part 13, rule 13.03C(1)(c) of the Federal Magistrates Court Rules2001.

2. No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1819 of 2009

JOHN BARRY WHITE

Applicant

And

VAN BECK PTY LTD

First Respondent

IAN BECKWITH

Second Respondent

REASONS FOR JUDGMENT

1. This matter, which is an application under the Fair Work Act2009 (Cth), was commenced on 30 July 2009. The respondents filed a response on 28 August and, on 23 September, the applicant filed some points of claim.

2. The matter had come before me on 28 June 2010 when I gave a timetable for the hearing in the absence of the respondents who had not appeared.  I ordered that if evidence was filed by the respondents the matter would be restored for directions on 13 July. In fact, the matter was restored for directions on 3 August when the hearing date of

   
   

   4 August was vacated and orders were made for the filing of evidence by the respondents and by the applicant with a hearing date today.

3. Mr White, the applicant, has filed a consolidated points of claim and an affidavit.  The respondents also filed evidence.  It appears that the first respondent has gone into liquidation, but the second respondent, an individual, is represented.

4. In the last few weeks the Court has received a considerable amount of correspondence from the parties indicating that the applicant intended to withdraw his claim and file a notice of discontinuance and, on that basis, it was proposed that the solicitor for the second respondent would not appear because both he and the second respondent were resident outside of Sydney.

5. My associate spoke to the applicant on two occasions last week and on both of those occasions he said he intended to file a notice of discontinuance.  No notice of discontinuance has been received by the Registry or by my associate.  This morning there is no appearance by other party.

6. I am satisfied that the applicant does not wish to proceed with the matter and that the second respondent is happy for the matter to be concluded. I believe that the best way of doing this is to order its dismissal, pursuant to Part 13, rule 13.03C(1)(c) of the Federal Magistrates Court Rules2001 (Cth). As this is a Fair Work matter, there will be no order for costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  15 October 2010