Zoia v Centrelink Employee Greg Hamilton

[2004] FCA 271

FEDERAL COURT OF AUSTRALIA

Zoia v Centrelink Employee Greg Hamilton [2004] FCA 271

PROCEDURE – failure to attend directions hearing in person or by telephone – prior advice from Registry of consequences of such non-attendance – prior adjournments – dismissal for non-attendance

Federal Court Rules O 10 r 3(2)

MR A ZOIA v CENTRELINK EMPLOYEE GREG HAMILTON
W180 of 2003

ANGELO ZOIA v SOCIAL SECURITY APPEALS TRIBUNAL
W206 of 2003

ANGELO ZOIA v COMMONWEALTH OMBUDSMAN
W245 of 2003

RD NICHOLSON J
8 MARCH 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

BETWEEN:	W180 of 2003 MR A ZOIA Applicant
AND:	CENTRELINK EMPLOYEE GREG HAMILTON Respondent
BETWEEN:	W206 of 2003 ANGELO ZOIA Applicant
AND:	SOCIAL SECURITY APPEALS TRIBUNAL Respondent
BETWEEN:	W245 of 2003 ANGELO ZOIA Applicant
AND:	COMMONWEALTH OMBUDSMAN Respondent
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	8 MARCH 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

In W180 of 2003:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

In W206 of 2003:

1.The application be dismissed.

In W245 of 2003:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

BETWEEN:	W180 of 2003 MR A ZOIA Applicant
AND:	CENTRELINK EMPLOYEE GREG HAMILTON Respondent
BETWEEN:	W206 of 2003 ANGELO ZOIA Applicant
AND:	SOCIAL SECURITY APPEALS TRIBUNAL Respondent
BETWEEN:	W245 of 2003 ANGELO ZOIA Applicant
AND:	COMMONWEALTH OMBUDSMAN Respondent

JUDGE:	RD NICHOLSON J
DATE:	8 MARCH 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. There are three matters before me this morning in which Mr Angelo Zoia is the applicant.  The first matter is W180 of 2003, the second is W206 of 2003 and the third is W245 of 2003.  Mr Carey who appears for the respondents in W180 of 2003 and W245 of 2003 does not do so in respect of W206 of 2003.  Nevertheless the same issue arises in relation to each of these matters.

2. The position in relation to W180 of 2003 is that it was listed twice before Lee J for directions but the applicant failed to attend on both occasions.  In matter W206 of 2003 the directions hearing has already been adjourned twice.  Matter W245 of 2003 has been adjourned once.

3. The matters relate to the applicant seeking to bring review of various decisions made at various levels in relation to his Newstart allowance.  Repeated non-attendance and informal requests for stay or adjournment has resulted in a Deputy District Registrar writing to the applicant on 13 February 2004.  In that letter reference was made to the three matters to which I have referred.  Notice was given to him of the directions hearing being held today, 8 March 2004.

4. It was explained to him what the directions hearing would do.  It was emphasised to him that it was necessary for him to attend and that a letter informally requesting stay or adjournment of proceeding would not suffice and that such letter was not a ‘legal representative’.  It was stated that he should attend either in person or by telephone.  The reference to telephone is important because Mr Zoia resides at 7B Mudalla Road, Northam.  It was therefore more likely that he would have sought to attend by telephone.  He has not done so.

5. The Deputy District Registrar's letter refers to the fact that Mr Zoia's reason for seeking continual adjournments was apparently that he was attempting to obtain legal assistance.  The letter explained to him that the fact that he had not been able to obtain such assistance did not mean the matter should be adjourned indefinitely.

6. Likewise, he was advised that the Department of the Attorney-General could not be ordered by the Court to provide such assistance.  He was reminded that should he require any further adjournment he would need to appear at the directions hearing and make a formal request with proper grounds.  It was stated that a request by letter to the Registry was not sufficient.

7. Notwithstanding advice in those terms, in each of the matters Mr Zoia has written to the Court. In matter W180 of 2003 he requested a stay of proceedings on the grounds that he had no legal representation, that natural justice provided he be given the proper opportunity to present his case and that he never agreed to a set date, referring, in some way not apparently relevant, to s 71 of the Constitution.

8. In matter W206 of 2003, Mr Zoia sought to explain a non-attendance on 30 January 2004, referring to various matters including the statement that ‘Justice is not money’.  He requested a stay of proceedings on the same grounds as in W180 of 2003.  In matter W245 of 2003, Mr Zoia again requested a stay of proceedings on the same grounds.

9. It is apparent that in the face of clear and unequivocal advice to him from the Deputy District Registrar on behalf of the Court, Mr Zoia has sought to discharge his obligations of attendance by writing a letter to the Court maintaining the position of adjournment due to absence of legal representation and the other matters referred to therein.  Order 10 r 3(2) provides:

   ‘If no applicant appears before the court on a directions hearing the court may dismiss the application or make any other order which it thinks proper.’

   I am satisfied from examination of the files that Mr Zoia has been given proper opportunity to present his case in relation to the nature of directions that would be necessary to advance each of his applications.  He has, for reasons of his own and contrary to the advice received from the Court, declined to attend and to exercise the opportunities provided to him.

10. In those circumstances I can see no reason why the provisions of O 10 r 3(2), so far as the first limb of that subrule goes, should not be applied.  This matter would simply continue as it has been continuing.  It is quite apparent that the Deputy District Registrar's letter of 13 February 2004 was designed to focus Mr Zoia's mind on what was needed to advance the matters.  He has acted contrary to that advice and in defiance of it.  Therefore, it seems to me that the discretion arising under the rule to which I have referred clearly should be exercised against him.

11. For those reasons I now dismiss each of the applications.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             17 March 2004

No appearance on behalf of the applicant
Counsel for the Respondent in matters W180 of 2003 and W245 of 2003:	Mr TJ Carey
Solicitor for the Respondent in matters W180 of 2003 and W245 of 2003:	Australian Government Solicitor
Date of Hearing:	8 March 2004
Date of Judgment:	8 March 2004