Ibrahim v Considine Architect - [2008] FCA 1819

FEDERAL COURT OF AUSTRALIA
Ibrahim v Considine Architect [2008] FCA 1819
PRACTICE AND PROCEDURE - application for extension of time for leave to appeal - no explanation for delay - consideration of likelihood of leave to appeal being granted - decision below not attended with sufficient doubt - no substantial injustice if leave not granted.
Trade Practices Act 1974 (Cth) s 52
Federal Court Rules 1976 (Cth) O 52 r 10(2A)(b)
Deighton v Telstra Corp Ltd [1997] FCA 1568
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 39
Ibrahim v Considine Architect [2008] FMCA 1148
TAREK IBRAHIM v CONSIDINE ARCHITECT
WAD 201 of 2008
GILMOUR J
1 DECEMBER 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 201 of 2008

ON APPEAL FROM A FEDERAL MAGISTRATE

BETWEEN:
TAREK IBRAHIM
Appellant

AND:
CONSIDINE ARCHITECT
Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

1 DECEMBER 2008

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The application for an extension of time for leave to appeal be refused.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 201 of 2008

ON APPEAL FROM A FEDERAL MAGISTRATE

BETWEEN:
TAREK IBRAHIM
Appellant

AND:
CONSIDINE ARCHITECT
Respondent

JUDGE:

GILMOUR J

DATE:

1 DECEMBER 2008

PLACE:

PERTH

REASONS FOR JUDGMENT

The appellant has filed a Notice of Appeal from the judgement of Federal Magistrate Lucev: Ibrahim v Considine Architect [2008] FMCA 1148. There, Lucev FM dismissed the appellant’s motion to set aside an order dismissing the appellant’s original application.
The decision appealed from is in fact an interlocutory judgment and requires leave. I will accordingly treat the Notice of Appeal as an application for leave to appeal. The Notice has also been filed out of time and the applicant now seeks an extension of time.
Background
The appellant’s original application alleges misleading and deceptive conduct in contravention of s 52 Trade Practices Act 1974 (Cth) (“the Act”). It alleges that representations were made by the respondent in relation to the hourly rate of payment of work performed by the appellant, in particular, payment of superannuation and tax deductions and subsequent alleged representations concerning disputes over the hourly rate of pay allegedly made by the respondent to the Western Australian Industrial Relations Commission (WAIRC) and Centrelink.
The appellant failed to attend when the proceeding first came before the Court below and his application was dismissed by the primary judge. The appellant then made an application to set aside that order.
The primary judge was satisfied that the appellant had an adequate reason for not attending the hearing but found that there was no arguable case on the merits of his application and accordingly dismissed his application.
Extension of Time
The appellant was required to file an application for leave to appeal pursuant to O52 r 10(2A)(b) Federal Court Rules 1976

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ibrahim v Considine Architect

Details

AGLC: Ibrahim v Considine Architect [2008] FCA 1819
Case: [2008] FCA 1819
Decision Date: 1 December 2008

CaseChat Overview and Summary

The appellant, Ibrahim, filed an appeal against an interlocutory judgment of the Federal Court, seeking leave to appeal and an extension of time for filing the application for leave to appeal. The original application alleged misleading and deceptive conduct by the respondent, Considine Architect, in relation to the hourly rate of payment and superannuation and tax deductions. The appellant did not attend the initial hearing, leading to the dismissal of his application. Subsequently, an application to set aside the dismissal was also dismissed by the primary judge, who found that while the appellant had an adequate reason for his absence, there was no arguable case on the merits.

The court had to determine whether to grant an extension of time for filing the application for leave to appeal, which was filed thirteen days late, and whether to grant leave to appeal the interlocutory judgment. The appellant's affidavit did not explain the delay in filing the appeal, but the court considered whether there was enough doubt about the primary judge's decision to warrant reconsideration. The appellant challenged several findings of the primary judge, including the determination that the respondent was not a corporation under the Trade Practices Act and that the conduct in question did not constitute conduct in trade or commerce.

The court ultimately found that there was no sufficient doubt about the primary judge's decision to warrant reconsideration and that no substantial injustice would result from refusing the application for an extension of time and leave to appeal. The appellant's application for an extension of time and leave to appeal was therefore dismissed.

Orders

Orders of the court

1. The application for an extension of time for leave to appeal be refused.

Note:

Background

Background to the litigation

The decision appealed from is in fact an interlocutory judgment and requires leave. I will accordingly treat the Notice of Appeal as an application for leave to appeal. The Notice has also been filed out of time and the applicant now seeks an extension of time. Background The appellant’s original application alleges misleading and deceptive conduct in contravention of s 52 Trade Practices Act 1974 (Cth) (“the Act”). It alleges that representations were made by the respondent in relation to the hourly rate of payment of work performed by the appellant, in particular, payment of superannuation and tax deductions and subsequent alleged representations concerning disputes over the hourly rate of pay allegedly made by the respondent to the Western Australian Industrial Relations Commission (WAIRC) and Centrelink. The appellant failed to attend when the proceeding first came before the Court below and his application was dismissed by the primary judge. The appellant then made an application to set aside that order. The primary judge was satisfied that the appellant had an adequate reason for not attending the hearing but found that there was no arguable case on the merits of his application and accordingly dismissed his application.Extension of Time The appellant was required to file an application for leave to appeal pursuant to O52 r 10(2A)(b) Federal Court Rules 1976 (Cth) within seven days after the interlocutory judgement was pronounced. His Notice of Appeal was filed on the 18 September 2008, thirteen days late. The applicant seeks an extension of time to file an application for leave to appeal under the same provision in the rules. The appellant filed an affidavit sworn on 7 November 2008 which explains why he did not attend the first directions day before the primary judge. It does not explain why there has been a delay in instituting appellate proceedings in this Court. Accordingly I have no material before me to explain the delay. I will nonetheless consider whether leave should otherwise be granted absent such an explanation. It is relevant to consider the likelihood of leave to appeal being granted; Deighton v Telstra Corp Ltd [1997] FCA 1568 (Lee, Heerey and Nicholson JJ, 17 October 1997, unreported). The general approach in such cases is well established: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 39. The decision below must be attended with sufficient doubt to warrant its being reconsidered and that substantial injustice would result if leave were to be refused supposing that decision to be wrong. The “Notice of Appeal” claims that the primary judge made an error of law and fact in dismissing the application. The grounds are numerous but most significantly they challenge the primary findings of the Court below. The primary judge found that the respondent was a sole trader and not a corporation within the meaning of the Act and that none of the extending provisions under s 6 of the Act had application. His Honour further found that the alleged conduct relating to the manner and form of payment and the implementation of the contract was not conduct in trade or commerce. His Honour came to the same conclusion in relation to the representations allegedly made to WAIRC and Centrelink.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GILMOUR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 201 of 2008

BETWEEN:	TAREK IBRAHIM Appellant
AND:	CONSIDINE ARCHITECT Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	1 DECEMBER 2008
WHERE MADE:	PERTH

JUDGE:	GILMOUR J
DATE:	1 DECEMBER 2008
PLACE:	PERTH