Haque
[2024] FedCFamC2G 1139
•4 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haque [2024] FedCFamC2G 1139
File number(s): SYG 1476 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 4 November 2024 Catchwords: PRACTICE AND PROCEDURE – Application for leave to institute proceedings following vexatious litigant orders - – proposed proceedings dismissed Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 243
Independent Contractors Act 2006 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 13.10(b),(c)
Industrial Relations Act 1996 (NSW)
Cases cited: Applicant X [2020] FCCA 2322
Haque v Jabella Group Pty Ltd and Anor [2016] FCCA 147
Haque v Jabella Group Pty Ltd [2016] FCA 92
Haque v Jabella Group Pty Ltd [2023] FedCFamC2G 228
Haque v Tessoriero [2017] FCA 86
Division: Division 2 General Federal Law Number of paragraphs: 12 Date of hearing: 25 October 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant ORDERS
SYG 1476 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKM AZMERUL HAQUE
Applicant
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
4 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 243 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the proposed proceedings are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This matter has a long and complicated history. In 2014, the applicant instituted proceedings in the then Federal Circuit Court alleging that his former employer, Jabella Group Pty Ltd, had breached a number of sections of the Fair Work Act 2009 (Cth), the Industrial Relations Act 1996 (NSW) and the Independent Contractors Act 2006 (Cth).
In a judgement of 4 February 2016, Judge Nicholls dismissed the application pursuant to r 13.10(b) and (c) of the then Federal Circuit Court Rules 2001 (Cth): Haque v Jabella Group Pty Ltd and Anor [2016] FCCA 147. His Honour found the proceedings were frivolous or vexatious or otherwise an abuse of the process of the Court.
The applicant sought to appeal that decision. On 18 August 2016, Bromwich J of the Federal Court dismissed an application for an extension of time and leave to appeal: Haque v Jabella Group Pty Ltd [2016] FCA 92. In a further judgement of 9 February 2017, Bromwich J affirmed a Registrar’s decision to refuse to accept a further application for leave to appeal and a supporting affidavit: Haque v Tessoriero [2017] FCA 86.
In July 2018, orders were made prohibiting the applicant form instituting proceedings under s 88Q(2)(b) of the then Federal Circuit Court of Australia Act1999 (Cth) without leave of a Judge of the Court. The applicant sought leave, however this application was dismissed by Judge Street in the application for leave to institute proceedings by Applicant X [2020] FCCA 2322 (‘Applicant X’).
A further application for leave to institute proceedings was considered and dismissed by Judge Manousaridis in Haque v Jabella Group Pty Ltd [2023] FedCFamC2G 228 (‘Haque’).
THE CURRENT PROCEEDINGS
The applicant now seeks, yet again, leave to institute proceedings that relate to the original cause of action that was considered by Judge Nicholls. The applicant alleges there is new evidence evidencing fraud and misconduct of the part of the respondents to the original proceedings. In support of his application, the applicant has filed an affidavit sworn 24 February 2024.
That affidavit list some 23 documents that have been rejected for filing by the Court Registry covering the period July 2018 to February 2024. In his affidavit, which is difficult to follow, the applicant claims at [38] to have discovered that 23 pages of documents that were contained in a Federal Court Appeals book contained a false email. The applicant claims that he was not shown the document and did not know about it. The applicant seeks to have the judgement of Judge Nicholls set aside on the basis it was procured by fraud.
In Applicant X, Street J had the following to say at [9] – [10]:
[9] The applicant has provided a further proposed affidavit that annexes a purported process and makes submissions concerning a judgement made on 4 February 2016. That judgement was the subject of an unsuccessful appellant challenge by the applicant for leave.
[10] The applicant’s affidavit makes bare assertions of the judgement made on 4 February 2016 having been obtained by fraud. There is reference to communications that took place between the parties prior to the orders made on 4 February 2016. The applicant alleges that a particular email that was sent in April 2015 is false. The assertions in the affidavit make reference to the state of mind of the applicant and do not properly identify any basis for the assertion of falsity nor does the affidavit identify how this is new evidence that was not known at the time of the dismissal of the proceedings before the court.
The affidavit otherwise seeks to agitate alleged errors in the decision of the trial judge. The assertions that the judgement was obtained by fraud or perjury appear baseless.
As noted by Judge Manaousaridis at [15] in Haque as to the requirements for proving fraud (citations omitted):
Finally, it is necessary to refer to the nature of the ground on which the proposed with proceeding seeks to set aside the judges order; the ground alleges fraud. It is a fundamental a long established principle that, in all cases based on fraud, “particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such charge requires”; and “if the case of fraud is to be mounted, it should be pleaded specifically and with particularity”. The “mere labelling of an allegation has fraud amounts to little”, because “nobody can be expected to meet a case… Upon the allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest”. If the applicant were permitted to commence the proposed proceeding, it would not meet these requirements for alleging fraud, and the proposed proceeding would be liable to be summarily dismissed for that reason.
I am not satisfied that there is proper evidence to support the contention that the judgement was procured by fraud. I am not satisfied that the purported discovery of one email, that the applicant apparently was not aware of, constitutes something material in the sense of fresh facts, which would provide a reason for setting aside the judgement. I am satisfied that the allegation raised in support of the application is nothing more than a mere restatement of the material that was previously relied upon and rejected by both Judge Street and Judge Manousaridis, for the reasons they gave, in refusing the applicant’s application for leave to commence the proposed proceeding.
Accordingly, I consider and find the proposed proceedings are vexatious proceedings within the meaning of Part 8 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). I dismiss the proposed proceedings pursuant to s 243 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 4 November 2024
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