FEDERAL COURT OF AUSTRALIA

Pham v University of Queensland [2001] FCA 1044

PRACTICE – no appearance of applicant

Federal Court Rules O 32 r 2(1)(c)

CHARLES PHAM v UNIVERSITY OF QUEENSLAND and ANOR

V 689 of 2000

HEEREY J

30 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondents’ costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     This matter was listed for hearing today.  The applicant Charles Pham did not appear.  It is necessary to recount the recent history of this matter.

2                     On 20 July 2001, following a letter sent to the Court on 17 July, Mr Pham sought an adjournment which was refused.  Then on 26 July 2001 he sent a fax to the District Registrar which said:

“Due to panic attacks my Specialist has asked me not to proceed with the Court case on Monday, 30 July 2001.  I will have the Doctor’s Report.  Please advise on adjournment of the Court Date.” 

3                     Copies were sent to the solicitors for the respondents.  The fax was sent from an address at 102 Elizabeth Street, Richmond.  On the same day the District Registrar tried to telephone Mr Pham on his mobile but received no answer or voicemail.  On the same day the District Registrar sent a fax to Mr Pham saying:

“I refer to your letter sent by facsimile today. 

As pointed out after your previous request of 17 July to adjourn the case, the conduct of the matter is for the Judge to decide.  I have consulted the chambers of the docket Judge and the matter will remain listed for 30 July 2001. 

If you wish to apply for an adjournment of the hearing, you need to appear and you should have your doctor at Court on that date for the purpose of giving evidence.  A subpoena can be issued by you to require attendance if necessary.”

4                     On 27 July Mr Pham sent a fax to the District Registrar in these terms:

“I would like to use the “No Technicality” clause in the HREOC Act 1986 in

asking for an adjournment to the Court date on Monday, 30 July 2001. 

Dr Arumugam indicated that in the interest of my health, it would be wiser to postpone the trial for the period of two weeks.  In such case I will have to take his advice based on his professional medical assessment.  Dr Arumugam will be asked to be present at the later court Date as a matter of the court proceedings. 

I believe both the Court as well as the Human Rights Commission have had documents relating to my illness dating back to 1986.  In other words, my illness is a chronic condition that will subject myself to hospitalisation for the period of 30 July onwards.  I will be looking forward to continuing with the proceeding with the trial as soon as I am able to do so, and to minimise the disruption to the workings of the Federal Court.”

5                     Copies were sent to the respondents’ solicitors. 

6                     A copy of the report from Dr Arumugam of 402 Bay Street, Brighton - his qualifications include psychiatry - was sent to the court by fax on 5.35 pm on the 27th.  Mr Pham’s fax had been sent at 1.47 pm.  Dr Arumugam’s fax, which referred to Mr Pham but gave an address at 579 Drummond Street, North Carlton, said:

“Mr Pham is suffering a marked exacerbation of anxiety systems due to then performance pressures associated with his impending court case.  

Given his perfectionistic tendencies, high expectations and the perception of the court case is a do or die situation, I believe that in the absence of legal representation he would not be able to adequately represent himself and cope with the stress.  Therefore I recommend that he seeks an adjournment of his court case for at least two weeks.”

7                     Today, 30 July, a fax was sent at 9.54 am to the District Registrar by Mr Pham again from the Richmond address:

“I refer to the above matter of the Federal Court. 

I have sent two (2) faxes on Thursday 26th, and Friday 27th to your Office to request an adjournment of the trial date on 30 July 2001.  I have yet to receive a reply from yourself.  If there were any place an uneducated refugee may be able to seek a fair hearing, I would have thought it would be in the Federal Court of Australia. 

I would like to use the No Technicality clause with the Human Rights and Equal Opportunity Commission Act 1986, section 46PR, throughout the whole proceedings.  The Act is also designed to make the Court as accessible to the average person, and more specifically the more disadvantaged that the Act attempts to protect. 

I would like an indication of when I can rearranged my witnesses so as to avoid further cost to myself; I am also looking for the same leniency and courtesy in treatment His Honour had shown to the other parties.”

8                     My associate telephoned Mr Pham this morning on his mobile and received no answer or no voicemail response.

9                     The solicitor for the first respondent sent by express post, for which he received a receipt, a letter dated 26 July 2001 to Mr Pham in which he enclosed a copy of the letter of the District Registrar of 26 July advising the need to appear and have Mr Pham’s doctor at the court.  Both letters from the Registrar were sent by courier to Mr Pham at the Richmond address on the same day as they were faxed.

10                  I am satisfied that this proceeding should be dismissed.  The applicant has been given every opportunity to present his case on the merits or explain properly why the case should be adjourned.  The application will be dismissed pursuant to O 32 r 2(1)(c) of the Federal Court Rules.  I order that the applicant pay the respondents’ costs including reserved costs.

Associate:

Dated:              6 August 2001