FEDERAL COURT OF AUSTRALIA

Wan v Human Rights & Equal Opportunity Commission [2000] FCA 432

Victor Wan v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, MONASH UNIVERSITY, JANEK RATNATUNGA AND GHASSAN HOSSARI

VG 683 of 1997

NORTH J

4 APRIL 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         The proceeding be struck out;

2.         The applicant to pay the respondents' costs of the proceeding;

3.         The applicant is at liberty to seek reinstatement of the proceeding

            and consequent variation of paragraphs 1 and 2 of the orders for cause shown.

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

REASONS FOR JUDGMENT

1                     Before the Court is a motion, notice of which was filed on 20 March 2000, by the second, third and fourth respondents, seeking that the Court make directions in relation to two other motions.  The first motion was filed on 8 October 1999 by those respondents and sought orders to strike out the proceedings.  The second motion was filed by the applicant on 11 November 2000, and sought orders in effect, to enforce a settlement arrived at in the course of these proceedings.

2                     This notice of motion filed on 20 March 2000 was returnable at 2.15 today and was, for the convenience of the applicant, to be conducted by video link so that the applicant could appear in Sydney where he lives or via his representatives who are in Sydney, without attending in Melbourne.  In the absence of confirmation of the hearing date in the course of last week, my associate requested an indication from the solicitors for the applicant as to whether they required a video link to attend the hearing of the notice of motion.

3                     At 6.45 pm on Friday last, 1 April 2000, a facsimile was sent to my chambers from the office of W Chan & Co, the applicant's solicitors, as follows:

“We refer to the above matter and would like to apply for adjournment to after 17th April, 2000 as our Client Victor Wan is on medical leave until 17th April, 2000.  Medical Certificate will be provided prior to next hearing date.

 On the other hand, we will attend Federal Court in Sydney for the subject adjournment.  Kindly have the video link set up accordingly.”

4                     As a consequence of that communication the video link facility was established.  The second, third and fourth respondents have appeared by counsel in Melbourne.  There has been no appearance in Sydney for the applicant. 

5                     Ordinarily the Court would probably not be minded to strike out a claim in such circumstances.  But in this case the application has been attended with such delay, non-responsiveness and lack of attention to the efficient progress of the proceeding that it seems appropriate to accede to the application of the second, third and fourth respondents that the proceeding in whole be struck out with costs.  Such an order is justified by the failure of the applicant to appear today, taken against the background of the extensive delays, adjournments, needs for alterations to pleadings and like events that have characterised the conduct of this proceeding by the applicant of this proceeding.

6                     Of course the order being made in the absence of the applicant must carry with it the right of the applicant to seek to have it set aside if cause can be shown that the orders should in truth be set aside.  It is for those reasons that I have made the order to strike out the proceedings, subject to the right of the applicant to seek reinstatement and that the applicant pay the respondents' costs of the proceedings, which costs order is itself subject to variation upon application by the applicant on proper material.

Associate:

Dated:              4 April 2000