Hossain v Restuccia

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FEDERAL COURT OF AUSTRALIA

Hossain v Restuccia [2019] FCA 777

Appeal from: Application for leave to appeal:  Hossain v Restuccia [2018] FCA 1383
File number: NSD 1741 of 2018
Judge: FLICK J
Date of judgment: 30 May 2019
Catchwords: PRACTICE AND PROCEDURE – summary judgment at first instance – application for leave to appeal – decision not attendant with sufficient doubt – no injustice occasioned by absence of applicant at hearing of summary judgment application   
Legislation:

Fair Work Act2009 (Cth)

Federal Court Act 1976 (Cth) ss 24, 31A

Federal Court Rules 2011 (Cth) r 26.01

Cases cited:

Cristovao v Tan & Tan Lawyers Pty Ltd [2017] FCA 1201

Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28

Giddings v Australian Information Commissioner [2017] FCAFC 225

Hossain v Restuccia [2018] FCA 1383

Rawson Finances Pty Ltd v Federal Commissioner of Taxation [2016] FCAFC 95, (2016) 103 ATR 630

Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156, (2011) 217 FCR 238

Tyne v UBS AG [2016] FCA 241, (2016) 338 ALR 624
Date of hearing: 20 February 2019
Date of last submissions: 30 April 2019
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 19
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: The First Respondent did not appear
Counsel for the Second Respondent: Mr K Brotherson
Solicitor for the Second Respondent: Hall & Wilcox
Counsel for the Third Respondent: The Third Respondent appeared in person
Counsel for the Fourth Respondent: The Fourth Respondent did not appear

ORDERS

NSD 1741 of 2018
BETWEEN:

SEIKH HOSSAIN

Applicant
AND:

ELENA RESTUCCIA

First Respondent

ALLIANZ AUSTRALIA WORKERS COMPENSATION (NSW) LIMITED

Second Respondent

SONG BAI

Third Respondent

TRYCLOWN PTY LTD

Fourth Respondent

JUDGE:

FLICK J

DATE OF ORDER:

30 MAY 2019

THE COURT ORDERS THAT:

1.The Application for leave to appeal is refused.

2.The proceeding is dismissed.

3.The Applicant is to pay the costs of the Second Respondent, either as assessed or agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

FLICK J:

  1. In July 2017, the Applicant in the present proceeding, Mr Seikh Hossain, cut his finger whilst working at the Lipari Pizza Bar in Hunters Hill in Sydney.

  2. In January 2018, he filed an Originating Application and a Statement of Claim in this Court.  The claim seems to have been founded, at least in part, upon alleged contraventions of the National Employment Standards.  Relief was sought under the Fair Work Act2009 (Cth). In addition to that claim, Mr Hossain also alleged (without alteration) that the “First and Forth Respondents (the Employers), with the help of the Third Respondent (the Accountant), have committed tax fraud”.

  3. A hearing took place before a Judge of this Court in June 2018.  In September 2018, summary…

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Details
Case
[2019] FCA 777
Decision Date

CaseChat Overview and Summary

In the matter of Hossain v Restuccia, the Federal Court was tasked with considering an application for leave to appeal against an order granting summary judgment to the respondents. The applicant, Hossain, sought to challenge the decision of the primary judge, who had dismissed his claims due to insufficiency of the pleadings. Hossain's application was based on three grounds, including allegations of bad faith, abuse of power, and deception on the part of the primary judge.

The central legal issue before the court was whether the grounds provided by Hossain were sufficient to warrant reconsideration of the primary judge's decision. Specifically, the court had to determine whether the decision was attended by sufficient doubt, and whether Hossain had suffered substantial injustice by not being granted leave to amend his pleadings. The court found that the applicant's claims were irresponsibly advanced and unsupported by any evidence of bad faith or abuse of process on the part of the primary judge. Moreover, the proposed amendments to the pleadings were found to be replete with unsubstantiated allegations and lacked the necessary detail to warrant an amendment.

The court reasoned that the primary judge had properly exercised his discretion in dismissing Hossain's claims, and that there was no basis for concluding that the decision was attended by sufficient doubt to warrant reconsideration. The applicant had been afforded ample opportunity to amend his pleadings and file submissions, but had chosen not to do so. The court found no substantial injustice had been caused to the applicant by the primary judge's decision, and accordingly refused the application for leave to appeal.

The court further ordered that the proceeding be dismissed and that the applicant pay the costs of the second respondent. The court's decision underscores the importance of timely and adequate pleadings in litigation, and the need for applicants to demonstrate a valid basis for reconsideration of a primary judge's decision.

Orders

Orders of the court

1. The Application for leave to appeal is refused.

2. The proceeding is dismissed.

3. The Applicant is to pay the costs of the Second Respondent, either as assessed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

After the hearing in this Court on 20 February 2019, and presumably pursuant to leave granted to file further submissions if he wished to do so by 22 February 2019, Mr Hossain sought on three occasions (on 22 February 2019, 26 February 2019 and 30 April 2019) to file an Amended Statement of Claim and on 26 February 2019 sought to file an additional affidavit. Each of the Amended Statement of Claim were in a different form and sought to raise different claims. There are at least two fundamental problems confronting Mr Hossain with respect to these documents, namely: ·the documents go beyond the leave granted to file submissions; and ·the documents come far too late in the proceeding, any amendment or application to amend the Statement of Claim should have been made to the primary Judge and desirably before 22 June 2018. Any attempt to now formulate the case at this stage of the proceeding does not impact upon the manner in which the primary Judge proceeded. Even assuming, however, that the proposed amendments may be of relevance to a question as to any “injustice” now suffered by Mr Hossain should leave to appeal be refused, it should be further noted that the proposed amendments are not in a form which would warrant leave to amend being granted. The proposed amendments (for example):·are replete with generalisations and lack any detail or specification of material facts as to when events were said to have occurred; and ·are replete with unsubstantiated allegations as to (inter alia) the “religious persecution on Muslims” by the Fourth Respondent. If such allegations are to be advanced for resolution, there should be a sufficiently precise factual basis pleaded so that a Respondent is to know the case being advanced.Even if the more generalised allegations be placed to one side, and the case sought to be advanced against (for example) the insurer (the Second Respondent) be considered, the proposed amendments are further:·replete with further unsubstantiated allegations, such as allegations that the Second Respondent (for example, without alteration) “infiltrated and compromised the integrity of my doctors and specialists”, “[i]nstructed the doctors and specialists to ignore and hide any disability…” and “has placed another spy at next-door to me…”.CONCLUSIONS The three Grounds set forth in the Application for leave to appeal have been irresponsibly advanced and are supported by nothing which could conceivably give rise to any argument as to “bad faith”, “abuse” of power, or “deception” on the part of the primary Judge. The reasons of the primary Judge do not expose any error, let alone expose any basis for concluding that the decision is “attended by sufficient doubt” to warrant it being reconsidered. The pleadings, as against each Respondent, were properly held by the primary Judge to be wanting. Nor has Mr Hossain suffered any “substantial injustice” in the making of the orders by the primary Judge. He had the opportunity to amend his pleadings and elected not to do so and he was twice afforded the opportunity to file submissions after the hearing on 22 June 2018. Mr Hossain elected to file submissions on 8 August 2018. These submissions were explicitly considered by the primary Judge.

Ratio Decidendi

Legal Principle Established

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