Picos v Hyatt Hotel Canberra

REASONS FOR JUDGMENT 1 The applicant, Miss Picos, has filed an interlocutory application seeking an order that the notice of address for service filed by the respondent be struck out. She has also sought other relief: see [7] below. 2 On 12 January 2015, the applicant filed an originating application, dated 9 January 2015, against the respondent seeking relief based on alleged unlawful discrimination under the Sex Discrimination Act 1984 (Cth). The respondent was named in the originating application as "Hyatt Hotel Canberra". This is an apparent business name. 3 A proceeding can be started against a business name in the circumstances provided in Div 9.5 of the Federal Court Rules 2011 (Cth) (the Rules). The combined effect of rr 9.51 and 9.52 is that a proceeding can only be started against a business name where the proceeding relates to anything done, omitted to be done or otherwise related to a business carried on by a person under that business name, and the person's name is not registered in a Register of a State or Territory in which the business is carried on, showing the matters referred to in r 9.51(b) (namely, the person's name and residential address). 4 A respondent who has been served with an originating application must file a notice of address for service in accordance with r 5.02 of the Rules. If an originating application is brought against a business name, the person must file an address for service in the person's name and, where required, provide other details: r 11.03. 5 On 16 January 2015, the respondent filed a notice of address for service (the notice of address). As it was required to do, the respondent filed the notice of address in its name, which it gave as Tropical Almond Development (PTC) Ltd (Tropical Almond Development). The respondent identified its address as the Hyatt Hotel Canberra, Commonwealth Avenue, Yarralumla ACT. It gave as its address for service, the address of its solicitors, Snedden Hall & Gallop Lawyers in Deakin, ACT. The notice of address contained the email address of the solicitor at the firm having the day-to-day carriage of the proceeding on behalf of the respondent, under the supervision of a principal of the firm, Mr Martin, who has overall conduct of the proceeding on behalf of the respondent. 6 An amended notice of address for service was filed on 19 January 2015, giving the respondent's Australian Registered Body Number. Nothing turns on this for present purposes. 7 The applicant says that the notice of address filed by the respondent is "fraudulent" and should, for that reason, be struck out. The applicant's interlocutory application seeks other relief, namely that the "professional body responsible for the regulation of" the solicitor having the day-to-day carriage of the matter be given notice of this alleged fraud and that the solicitor be "banned" from appearing in the proceedings in this Court in which Miss Picos is applicant. There are several such proceedings. Alternatively, the applicant seeks an order that the proceeding be stayed until the solicitor "has been dealt with by the professional body" for the alleged fraud. 8 The applicant has filed an affidavit in which she has annexed a search of Tropical Almond Development taken from the database maintained by the Australian Securities and Investments Commission (ASIC). The search discloses that Tropical Almond Development is a British Virgin Islands company that is registered as a foreign company in Australia. The registration date is given as 4 March 2009, a date well before the events recorded in the originating application as giving rise to the alleged unlawful discrimination. 9 The applicant says that Tropical Almond Development does not own the business name "Hyatt Hotel Canberra". This is true in the sense that, on the evidence before me, there is no registered business name "Hyatt Hotel Canberra". However, the evidence establishes that if an Organisation & Business Names search of the registers maintained by ASIC is conducted using "Hyatt Hotel Canberra" as the search term, only one current registered business name is shown, namely "The Hyatt Hotel Canberra". A search of the national Business Names Register maintained by ASIC under the Business Names Registration Act 2011 (Cth) against the name "The Hyatt Hotel Canberra" then discloses that Tropical Almond Development is the holder of that business name. The address of the business is given as Commonwealth Avenue Yarralumla, ACT 2600. 10 The Notice of Termination issued under s 46PH(2) of the Australian Human Rights Commission Act 1986 (Cth), on which the principal proceeding is founded, gives the address of the organisation against whom the applicant's complaint was made, as 120 Commonwealth Avenue Canberra ACT 2600. 11 Based on this address and the address shown for the registered business name "The Hyatt Hotel Canberra", I do not think it can be reasonably said that the hotel business "Hyatt Hotel Canberra" in relation to which the applicant has made her complaint, is other than the one operating under the business name "The Hyatt Hotel Canberra". Further, I have no reason to think that Tropical Almond Development is not the person carrying on that business. There is no reason to go behind ASIC's records. 12 The applicant's concern seems to have been aroused by the fact that she has conducted a search of the Australian Business Register. The search parameters are not apparent from the evidence. However, the search revealed the trading name "Hyatt Hotel Canberra" in connection with a particular Australian Business Number and that the entity holding the business number is "The trustee for Viewgrand Trust E". It is not clear to me why the applicant conducted this search and not a search for a registered business name. Had she conducted a search for a registered business name using the search term "Hyatt Hotel Canberra", I have little doubt that, by reasonable efforts, she would have found "The Hyatt Hotel Canberra" with Tropical Almond Development as the holder of that business name. 13 Nevertheless, having conducted the search she did, she has found an entity which she believes is a person who is different from the one shown on the notice of address filed by the respondent's solicitors. The applicant's concern, expressed in written submissions, is that the solicitors for "Hyatt Hotel Canberra" are seeking to confuse the Court as to the relevant person to be sued by "attributing any unlawful discrimination and liability to a worthless entity", by whom she means, apparently, Tropical Almond Development. 14 I make no comment about the way in which the applicant chooses to describe Tropical Almond Development, other than to say that there is no evidence before me that it is "worthless". However, Mr Martin has deposed, on information from Mikael Svensson, the General Manager of the hotel in Canberra, that Tropical Almond Development has been the trustee for Viewgrand Trust E at all times relevant to this proceeding and for some considerable period of time before then. I can see no reason why I should not accept that evidence for the purpose of this application: s 75 Evidence Act 1995 (Cth). 15 For these reasons, I am not satisfied that the applicant has established that the notice of address, as filed, is "fraudulent". Indeed, to be clear, on the evidence before me, any suggestion by the applicant that the respondent or its solicitors have acted fraudulently in filing the notice of address is baseless. Further, the balance of the claims to relief in the interlocutory application, which are dependent on the allegation of fraud, cannot be supported and are, in any event, misconceived as to the nature and scope of relief that the Court would make on the application of a party to a proceeding. 16 Before departing from this application I should record that the applicant, for her own reasons, elected not to appear at the hearing of the interlocutory application. One course open to the Court was simply to dismiss the application for want of prosecution after the application was called on for hearing. I nevertheless decided that I should deal with the application as a matter of substance, particularly in light of the serious allegation the applicant has made concerning the respondent's solicitors' conduct which, in the circumstances, should not stand uncorrected. 17 I wish to make clear that if, in future, the applicant brings an application which she does not prosecute when the application is called on for hearing, I may not adopt the course that I have taken in the present application. Further, if the applicant is absent from any hearing appointed by the Court, whether for directions or otherwise, she runs the risk that orders may be made in her absence. 18 The applicant's interlocutory application will be dismissed, with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.