Perananthasivam v Telstra Corporation Ltd (No.4)

[2007] FMCA 1774

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PERANANTHASIVAM v TELSTRA CORPORATION LTD (No.4) [2007] FMCA 1774

HUMAN RIGHTS – Interlocutory proceedings.

Perananthasivam v Telstra Corporation Limited (No.2) [2007] FMCA 1274

Applicant: SIVANADIAN PERANANTHASIVAM

Respondent: TELSTRA CORPORATION LIMITED

File No: SYG 1602 of 2007

Judgment of: Scarlett FM

Hearing date: 19 October 2007

Delivered on: 19 October 2007

Delivered at: Sydney

REPRESENTATION

Applicant: No Appearance

Solicitor for the Respondent: Ms Woodward

Solicitors for the Respondent: Deacons

INTERLOCUTORY ORDERS

1. The Applicant has leave to file and serve on the Respondent an Amended Application limited to the ground of disability discrimination identified in Order 2 made by Federal Magistrate Driver on 2 August 2007, but seeking such relief in respect of that ground that the Applicant deems appropriate, no later than Wednesday 7 November 2007.

2. The Respondent is to file and serve an Amended Response by 14 November 2007.

3. The Applicant is to file and serve on the Respondent all affidavit evidence upon which he wishes to rely by Monday 3 December 2007.

4. The Application is listed for Directions on Wednesday 5 December 2007 at 10:15am before Federal Magistrate Driver in Court 6B, level 6, John Maddison Tower at 88 Goulburn Street, Sydney.

5. The hearing date of Friday 7 December 2007 is vacated.

6. The Applicant is to pay the Respondent’s costs fixed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1602 of 2007

SIVANADIAN PERANANTHASIVAM

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

REASONS FOR JUDGMENT

1. This is an interlocutory decision made as a result of the Respondent’s request to the Court to re-list the proceedings due to a failure by the Applicant to comply with directions made by Driver FM in his decision of 2^nd August 2007. On that day his Honour had dealt with an application for summary dismissal of the application and dismissed all but one of the Applicant’s claims.

2. His Honour subsequently made an order for costs in favour of the Respondent. On 2^nd August 2007 his Honour listed the substantive application for hearing on 5^th and 7^th December 2007 and made orders granting the Applicant leave to file and serve an amended application limited to the ground of disability discrimination, being assertion of indirect disability discrimination in relation to the performance improvement program which the Applicant was required to participate in during July 2004.

3. His Honour set a date for compliance with that order of no later than 14^th September 2007. His Honour consequently required the Respondent to file and serve an amended response no later than 28^th September 2007 and required the Applicant to file and serve any further affidavit evidence upon which he sought to rely no later than 12^th October 2007.

4. The Applicant has not complied with those directions. Instead, he sought leave to appeal against the decision of Driver FM and argued before the Court on 8^th October that he should not be required to comply with Driver FM’s directions pending the hearing the following day of his application for leave to appeal before his Honour Sackville J.

5. The application for leave to appeal was unsuccessful. The Applicant has not complied with those directions and I listed the application for directions today in order to deal with the matter now that the application for leave to appeal had been disposed of.

6. The Applicant has not attended, forwarding a medical certificate indicating that he would not be able to attend Court for two weeks until 31^st October 2007 because he was suffering from severe anxiety and depression. He wrote to the Court and a copy of his letter has been forwarded to the Respondent’s legal advisers indicating his wish for a mediated settlement and setting out a fresh timetable which would have involved vacating the hearing dates of 5^th and 7^th December and listing the matter for hearing before Driver FM on 2^nd and 3^rd June 2008. His suggested timetable did not involve an amended application as directed by his Honour on 2^nd August 2007.

7. The Applicant has gone on to say in his letter:

   In the light of above reasons and explanations, I request your Honour to make the following orders without a direction hearing, (if direction hearing is necessary, in my absence): 

   1.  That the parties enter into a court supervised mediation. 

   2. That, if the parties cannot enter into a court supervised mediation or if the mediation fails, the above time line or similar is followed. 

   3. Revising any orders made by Federal Magistrate Driver to reflect Justice Sackville’s reasoning. 

   4. Any other orders your Honour thinks fit.

8. Ms Woodward, who appears for the Respondent, has indicated that there is no consent to the court-supervised mediation as suggested by the Applicant. She does, however, take the view that it would not now be possible due largely to the Applicant’s delay but also by his proposed application for special leave to appeal to the High Court, or what other appeal that he considers appropriate, that the hearing dates of 5^th and 7^th December are going to be of no value as the parties will not be ready in time. At the same time she has expressed a concern that the Applicant is planning on travelling overseas early in the New Year and is expected to be away for two or three months.

9. I am reluctantly vacating the hearing dates of 5^th and 7^th December before Driver FM, but I consider that the matter should remain in the list for Directions on 5^th December 2007. The delay in this matter is to my mind becoming intolerable.

10. I propose to make directions granting leave to file and serve an amended application and requiring a response and further affidavit evidence. The aim is that when the matter comes before Driver FM on 5^th December 2007 the pleadings should be in a state that his Honour is able to give an accurate estimate or make an accurate estimate of the time needed to hear the matter and then make whatever directions his Honour thinks fit, if any more are needed, to list the matter for final hearing.

11. I am also of the view that the proceedings before me have been necessitated entirely by the Applicant’s failure to comply with directions made by Driver FM on 2^nd August 2007 and which appear to me, with respect, to have been perfectly clear.

12. I propose to make an order for costs in favour of the Respondent. I note that I reserved the Respondent’s costs on the last occasion, but it is now appropriate to make an order for costs and I consider that the sum of $1,500.00 is appropriate.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  19 October 2007