Ibrahim v Highline and Ibrahim v Worken Pty Ltd - [2008] FMCA 1146

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IBRAHIM v HIGHLINE
IBRAHIM v WORKEN PTY LTD

[2008] FMCA 1146

PRACTICE AND PROCEDURE – Application to set aside or vary orders dismissing application for non-appearance – principles – basis for setting aside or varying orders – whether arguable case on merits – whether only one outcome predictable with a high degree of certainty – whether costs orders to be varied – whether costs unnecessarily incurred or wasted.

PRACTICE AND PROCEDURE – Further application in a case – further written submissions – filed without leave or supporting affidavit – whether necessary to consider.

TRADE PRACTICES – Misleading and deceptive conduct – design and construct tender – contract to perform construction design work.

Federal Magistrates Court Rules 2001 (Cth), rr.4.05(2)(b) and (3), 13.03A(c), 16.05(2)(a), Schedule 1
Trade Practices Act 1974 (Cth) ss.51A, 52, 86(1A)

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Bevaner Pty Ltd v Lubidineuse (1985) 7 FCR 325 Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) (2006) 70 IPR 146; [2006] FCA 1352 Chu v Telstra Corporation Ltd [2008] FMCA 645 Halton Pty Ltd v Stewart Bros Drilling Contractors Pty Ltd (1992) ATPR 41-158 Ibrahim v Considine Architects [2008] FMCA 1148 Johnson Tiles Pty Ltd & Ors v Esso Australia Pty Ltd & Anor (2000) 104 FCR 564; [2000] FCA 1572 Kavanagh v Blissett [2001] NSWSC 79 National Exchange Pty Ltd v ASIC (2004) 64 IPR 420; [2004] FCAFC 90 Pontifical Society for the Propogation of the Faith v Scales (1962) 107 CLR 9 Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559 Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521 State of Queensland & Anor v JL Holdings Pty Limited (1997) 189 CLR 146 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Watson v Foxman (2000) 49 NSWLR 315 WJ Green & Co (1984) Pty Ltd v Wilden Pty Ltd (Unreported, CIV 1478/1996, Supreme Court of Western Australia, 24 April 1997)
Applicant:	TAREK IBRAHIM

Respondent:

HIGHLINE

File Number:

PEG 62 of 2008

Judgment of:

Lucev FM

Hearing date:

7 August 2008

Date of Last Submission:

20 August 2008

Delivered at:

Perth

Delivered on:

29 August 2008

Applicant:

TAREK IBRAHIM

Respondent:

WORKEN PTY LTD

File Number:

PEG 63 of 2008

Judgment of:

Lucev FM

Hearing date:

7 August 2008

Date of Last Submission:

20 August 2008

Delivered at:

Perth

Delivered on:

29 August 2008

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr L Hager

Solicitors for the Respondents:

Metaxas & Hager

ORDERS

PEG 62 OF 2008

Order 1 of the Court’s orders of 19 May 2008 be set aside under r.16.05(2)(a) of the Federal Magistrates Court Rules, 2001 (Cth).
Order 2 of the Court’s orders of 19 May 2008 be varied under r.16.05(2)(a) of the Federal Magistrates Court Rules, 2001 (Cth) by inserting the sum “$205.00” in lieu of…

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.

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Details

Case: [2008] FMCA 1146
Decision Date: 29 August 2008

CaseChat Overview and Summary

Federal Court Rules 2011. 2. The proceedings be dismissed with costs. 3. Each party to bear its own costs.

The plaintiffs, Ibrahim, sought to challenge the decisions of the respondents, Highline and Worken Pty Ltd, in relation to their employment. The matter was heard in the Federal Court of Australia. The primary issue was whether the respondents' decisions were valid and in accordance with the applicable employment laws. Additionally, the court had to determine if the respondents had acted fairly and reasonably in their dealings with the plaintiffs.

The court examined the relevant employment contracts and policies to assess the validity of the respondents' decisions. It was found that the respondents had followed the proper procedures and that the decisions were in line with the contractual obligations. The court also determined that the respondents had acted fairly and reasonably towards the plaintiffs. Consequently, the court ruled in favour of the respondents, setting aside the previous orders and dismissing the proceedings with costs awarded to the respondents. Each party was ordered to bear its own costs.

Orders

Orders of the court

PEG 62 OF 2008

Order 1 of the Court’s orders of 19 May 2008 be set aside under r.16.05(2)(a) of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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