Pizarro v O-I Operations (Australia) Pty Ltd [2020] FCCA 3480 (8 December 2020)

Last Updated: 22 December 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

PIZARRO v O-I OPERATIONS (AUSTRALIA) PTY LTD

[2020] FCCA 3480

Catchwords: FAIR WORK – PRACTICE AND PROCEDURE – Adjournment application – application refused. FAIR WORK – PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant – proceeding dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation: Federal Circuit Court Rules 2001 (Cth), r 13.03C

Applicant:

SHANE PIZARRO

Respondent:

O-I OPERATIONS (AUSTRALIA) PTY LTD ACN 004 230 326

File Number:

SYG 3335 of 2019

Judgment of:

Judge Emmett

Hearing date:

08 December 2020

Date of Last Submission:

08 December 2020

Delivered at:

Sydney

Delivered on:

08 December 2020

REPRESENTATION

Applicant:

No appearance by or on behalf of the applicant

Solicitors for the Respondent:

Mr Matthew Peterson solicitor Hall & Wilcox

ORDERS

(1) The applicant’s application for adjournment is refused.

(2) The proceeding commenced by way of application filed on 18 December 2019, is dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the applicant’s failure to attend today’s scheduled hearing.

NOTE: On 25 November 2020, Orders were made informing the applicant that if the applicant did not attend or was not represented at today’s scheduled hearing, the proceeding may be dismissed without further notice.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

No. SYG 3335 of 2019

SHANE PIZARRO

Applicant

And

O-I OPERATIONS (AUSTRALIA) PTY LIMITED ACN 004 230 326

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. At 5:29am this morning an email was received from the applicant in the following terms:
   • “I’m currently working on a cattle station. It’s my first work since being terminated. My lawyers have not been forthcoming with information. This is the first correspondence I have received From your honour. I will not be in a service area during the meeting. I would like an adjournment to organise my legal representation please. Thank you”.
2. I note the applicant did not inform the respondent of – or did not forward the email to the respondent. It has been provided to the respondent this morning in court and the contents of it read to the respondent.
3. To the extent that the email seeks an adjournment, it is opposed by the respondent. The applicant does not give the location of where he is working, in what capacity and does not refer to any attempt made by him to seek legal representation.
4. The orders made on the last occasion on 25 November 2020 are as follows:
   • “1. The matter is stood over for directions on 8 December 2020 at 9:30am before Judge Emmett.
   • 2. In the event that the applicant does not attend or is not represented at the next directions hearing, the proceeding before this Court commenced by way of application on 18 December 2019 may be dismissed without further notice.”
5. A Notice of Withdrawal was filed by the applicant’s solicitor on 2 December 2020 and a Notice of Intention to Withdraw was filed on 24 November 2020. I note that the Notice of Withdrawal said that the Notice of Intention to Withdraw was served on the applicant via email and express post at least seven days prior to the filing of the Notice of Withdrawal on 2 December 2020. In light of the applicant’s email to the Court this morning and those Notices, I am satisfied that the applicant is aware of today’s scheduled hearing.
6. There has been ample time for the applicant to either seek further legal representation or to provide a more detailed explanation in support of his application for adjournment sent at 5:29am this morning.
7. The applicant has not provided a satisfactory explanation for his failure to attend today’s scheduled hearing. In the circumstances, the applicant’s application for an adjournment is refused.
8. The adjournment having been refused, the respondent seeks an order pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) that the proceeding before this court, commenced by way of application filed on 18 December 2019, be dismissed by reason of the applicant’s failure to attend today’s scheduled hearing. The applicant was put on notice by the Court’s orders made on 25 November 2020 that if he failed to attend today’s scheduled hearing his application may be dismissed without further notice. In the circumstances, the Orders sought by the respondent are appropriate.
9. Accordingly, the proceeding before this Court commenced by application filed on 18 December 2019 should be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the applicant’s failure to attend today’s scheduled hearing.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate:

Date: 22 December 2020