Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No.3)

[2009] FMCA 510

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IBRAHIM v HIGHLINE and IBRAHIM v WORKEN PTY LTD (No.3) [2009] FMCA 510

PRACTICE & PROCEDURE – COURTS AND JUDGES – Application for disqualification of Federal Magistrate – whether apprehension of bias – principles applied in determining whether apprehension of bias.

Fair Trading Act 1987 (WA)
Federal Magistrates Act 1999 (Cth), ss.3, 42, 45, 102(2)(c), 104(2) and (3)
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 16.05(2)
Trade Practices Act 1974 (Cth), s.52

Abrahams v Qantas Airways Ltd (2007) 210 FLR 314; [2007] FMCA 639
ASIC v Lanepoint Enterprises Pty Ltd [2009] FCA 258
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Ibrahim v Considine Architects [2008] FMCA 1148
Ibrahim v Considine Architect [2008] FCA 1819
Ibrahim v Highline (No.2) [2009] FMCA 297
Ibrahim v Highline and Ibrahim v Worken Pty Ltd [2008] FMCA 1146
Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No.2) [2008] FMCA 1336
Ibrahim v Worken Pty Ltd (No. 2) [2009] FMCA 156
Idoport v National Australia Bank [2004] NSWSC 270
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Luck v University of Southern Queensland [2009] FCA 521
Neil v Reward Property Group Pty Ltd [2008] FMCA 1583
Re JRL; Ex parte CJL (1986) 161 CLR 342
Wilson & Partners v Nicholls & Ors [2009] NSWSC 505

B Cairns, Australian Civil Procedure (7^th Edn) (Pyrmont: Lawbook Co, 2007)
Justice Allsop, “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aust Bar Review 25
Justice Allsop, “An Introduction to the Jurisdiction of the Federal Court of Australia”, (October 2007)

Applicant: TAREK IBRAHIM

Respondent: HIGHLINE

File Number: PEG 62 of 2008

Judgment of: Lucev FM

Hearing date: 27 May 2009

Date of Last Submission: 27 May 2009

Applicant: TAREK IBRAHIM

Respondent: WORKEN PTY LTD

File Number: PEG 63 of 2008

Judgment of: Lucev FM

Hearing date: 27 May 2009

Date of Last Submission: 27 May 2009

Delivered at: Perth

Delivered on: 10 July 2009

REPRESENTATION

Applicant: In Person

Counsel for the Respondents: Mr L Hager

Solicitors for the Respondents: Metaxas and Hager

ORDERS

PEG 62 OF 2008

1. The applicant’s application that the presiding Federal Magistrate be disqualified be dismissed.

2. The hearing dates on 13 and 14 July 2009 be vacated.

3. The matter be listed for further directions at 10.15am on 13 July 2009.

PEG 63 OF 2008

1. The applicant’s application that the presiding Federal Magistrate be disqualified be dismissed.

2. The hearing dates on 13 and 14 July 2009 be vacated.

3. The matter be listed for further directions at 10.15am on 13 July 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 62 of 2008

TAREK IBRAHIM

Applicant

And

HIGHLINE

Respondent

PEG 63 of 2008

TAREK IBRAHIM

Applicant

And

WORKEN PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are applications by the applicant, Mr Ibrahim, that the presiding Federal Magistrate in these proceedings disqualify himself. The respondents appeared but took no position on the application.[1]

   [1] Transcript 27 May 2009 at page 8.

2. The matter of disqualification first arose in a directions hearing on 13 February 2009. At that time Mr Ibrahim asked that the presiding Federal Magistrate be disqualified if not willing to proceed with the case. [2] The Court, being willing to proceed with the case, did so, and made orders on that day.

   [2] Transcript 13 February 2009 at page 7.

3. The matter was back before the Court on 23, 26 and 27 February 2009 and 3 March 2009, and the matter of disqualification was not raised by Mr Ibrahim.

4. On 2 April 2009 the Court delivered judgment concerning the filing of an affidavit of discovery specifying the building plans to be relied upon by Mr Ibrahim at the hearing and the attachment of legible copies of the plans specified as annexures to the affidavit.[3] Having made orders that Mr Ibrahim file an affidavit and annexe legible copies of plans to be relied upon, Mr Ibrahim then asked the presiding Federal Magistrate to disqualify himself. Mr Ibrahim was advised by the Court that, if he wished to make a disqualification application, to do so, and support it by affidavit and that it would be heard in due course. [4]

   [3] Ibrahim v Highline (No. 2) [2009] FMCA 297 (“Particular Discovery Judgment”).

   [4] Transcript 2 April 2009 at page 7.

5. The matter was next before the Court on 1 May 2009 at 10.15am. In the interim, no application for disqualification of the presiding Federal Magistrate was made by Mr Ibrahim.

6. When the matter came on 1 May 2009 the Court indicated that it was conscious of the previous indications from Mr Ibrahim concerning disqualification of the presiding Federal Magistrate.[5] Mr Ibrahim advised the Court that:

   In regard to the application for disqualification of yourself, I haven’t got into it yet but I’m planning to put it [in] next week, time permitting for me…. So that’s going to be put in writing before you, and there will be a hearing.[6]

   [5] Transcript 1 May 2009 at page 2.

   [6] Transcript 1 May 2009 at page 3.

7. Because of a pending hearing in respect of an appeal to the Federal Court by Mr Ibrahim against earlier orders made by this Court, which appeal was listed at 11.45am on 1 May 2009, the matter was adjourned to not before 12.30pm. When the matter came back on the Court made orders concerning the disqualification application as follows:

   6. In relation to the applicant’s disqualification application:

   (a) The applicant file and serve an outline of contentions of fact and law, and any affidavits if necessary, by 4:00pm on 8 May 2009;

   (b) The respondent file and serve an outline of contentions of fact and law, and any affidavits if necessary, by 4:00pm on 15 May 2009;

   (c) The applicant file and serve any outline of contentions of fact and law, and any affidavits if necessary, in reply by 4:00pm on 22 May 2009;

   (d) The disqualification application be listed for hearing at 10:15am on 27 May 2009.

8. Mr Ibrahim did not file an outline of contentions of fact and law at any stage prior to the hearing of the disqualification application listed for 27 May 2009. Notwithstanding Mr Ibrahim’s failure to file and serve contentions the Court heard oral submissions from him at the hearing of the disqualification application.[7] In the course of Mr Ibrahim’s oral submissions he raised a number of contentions as to why there was an apprehension of bias. There was no oral submissions as to actual bias.

   [7] Transcript 27 May 2009 at page 2.

Nature and history of the litigation

1. The broad and unparticularised sweep of the contentions relied upon by Mr Ibrahim in support of the disqualification application,[8] are such that it is necessary for the Court to set out, in detail, both the nature and history of the litigation.

   [8] Transcript 27 May 2009 at pages 2-8; see paras.84 -126 below.

Nature of litigation

1. On 22 April 2008 Mr Ibrahim made two applications in the Court’s trade practices jurisdiction alleging misleading and deceptive conduct by:

   a)an entity described as “Highline”; and

   b)a corporate entity – Worken Pty Ltd,

   in relation to design work allegedly performed under contract by the applicant for Highline in relation to a design and construct tender for Worken Pty Ltd.

2. The facts alleged by the applicant have previously been summarised by the Court as follows:

   22. In essence, the facts alleged by the Applicant are as follows:

   (a) he saw a tender advertisement in early November 2004 in The West Australian newspaper for the design and construction of an office building and workshop for a company called Marshcivil;

   (b) he contacted Marshcivil and spoke to a representative (Neil Constantine) who refused to accept a design only submission for the tender;

   (c) he received the tender document by post;

   (d) he contacted a “company” called Highline which agreed to tender with him jointly, with Highline as builder and the Applicant as designer;

   (e) he met with Peter Hearne, a representative of Highline, signed an agreement with him, and gave Highline a copy of the tender document;

   (f) after a few days the Applicant emailed Highline a copy of his design for pricing;

   (g) on 1 December 2004 the tender was submitted by the Applicant to Marshcivil;

   (h) the tender document consisted of the proposed building designed by the Applicant (as designer) and a pricing list by Highline (as builder);

   (i) the Applicant was told that five other tenders were submitted;

   (j) no winning tenderer was announced;

   (k) Marshcivil asked the Applicant to make changes in the design;

   (l) the Applicant worked on design changes, and attended meetings with the “client” and Highline from 1 December 2004 until 13 January 2005;

   (m) the Applicant several times raised his objections to the changes and the amount of time that he had to put into the process, but was told to do the changes to remain in the tender, and that he was being done “a favour by keeping …[him] in the tender”;

   (n) the Applicant was told that there was another tenderer also making changes to their tender submission in the same manner;

   (o) the Applicant was told that the competing tenderers were being used against each other to get more work done for no payment;

   (p) on or around 17 December 2004 the Applicant was asked to submit his design to the Gosnells Shire Council for development approval;

   (q) the Applicant asked for a letter of appointment or signed agreement before he submitted the development approval or made any more changes, but was refused;

   (r) on 7 January 2005 the Applicant and a representative of Highline met with Marshcivil and were told that the tender prepared by Highline and the Applicant had been successful, and the Applicant was again asked to submit a development approval;

   (s) the Applicant and a representative of Marshcivil visited the Gosnells Shire Council and had a meeting with “two building councillors” (presumably on a date on or after 7 January 2005) at which the design and issues “that needed to be looked at” were discussed;

   (t) the Applicant again asked for a letter of appointment or a signed agreement, but was again refused, and when he requested that Marshcivil pay him “they stated they had no contract with me and the contract is with Highline”;

   (u) the Applicant says that he spent more than 280 hours on the tender from start to finish, for which Highline is liable to pay him, but that Highline and Marshcivil “played a gimmick against me not to pay me my fees and take my design.”

   23. The precise nature of the relationship between the Applicant and Marshcivil, and Marshcivil and Worken is not set out in the Applicant’s Application or any of his affidavits.  Those matters are, to a certain degree, addressed by information contained in the tender Expression of Interest document, which is set out below, but which makes it reasonably clear that Worken was seeking expressions of interest to tender for the work on behalf of Marshcivil.[9]

   [9] Ibrahim v Highline and Ibrahim v Worken Pty Ltd [2008] FMCA 1146 at paras.22- 23 per Lucev FM (“Set Aside Judgment”) (footnotes omitted).

3. The misleading and deceptive conduct alleged by the applicant has also previously been summarised by the Court in the following terms:

   24. In his submissions the Applicant asserted an array of alleged misleading and deceptive conduct by the Respondents.  Reduced to its essence the claim can be said to be one in which on the facts alleged by the Applicant he could, at a minimum, argue that:

   (a) it was represented to him by Highline and Worken that if the design and construct tender was successful he would be paid for his design work;

   (b) it was represented to him by Worken at meetings with the Gosnells Shire Council that his design was the successful design, and, at least implicitly, that Highline and the Applicant would therefore be successful in their tender;

   (c) contrary to the representations, his design was said not to be the successful design, therefore Highline’s tender was not successful, and he was not paid; and

   (d) what was essentially “his” design was then “taken” and used by Worken and Highline.[10]

   [10] Set Aside Judgment at para.24 per Lucev FM (footnotes omitted).

History of litigation

1. An overview of the procedural history of this litigation prior to 22 September 2008 is set out in the Court’s ex tempore costs judgment of 22 September 2008 as follows:

   2. On 19 May 2008 both applications were dismissed when the applicant failed to appear at the first Court date, and costs were awarded against the applicant in each matter. On 26 May 2008 the applicant made an application in a case in each matter to have the dismissal and costs orders set aside or varied.  The applications were heard on 7 August 2008, and then on 8 August 2008 the applicant made a further application in a case in the Worken matter only and made further submissions in relation to that matter, essentially seeking that the respondent be allowed to file a response. The respondent in the Worken matter was allowed to make further written submissions in response.

   3. On 29 August 2008 the Court ordered that the dismissal orders of 19 May 2008 be set aside and that the cost orders of 19 May 2008 be varied by way of reduction of the costs the applicant was to pay and were made payable by 4:00pm on 31 October 2008.  That was in relation to the application in the case proper.  The further application in the case in relation to the Worken matter filed on 8 August 2008 was dismissed and the Court indicated in its reasons for judgment that it would hear the parties as to the costs of that application; otherwise the matter was adjourned to 8 September 2008 for further directions.  The costs of the further application in the case were then also adjourned to 8 September 2008 for hearing.

   4. On 8 September 2008 conferral which had been ordered by the Court in relation to the application in the case proper has been unavailing, and it being evident at the hearing that there was some confusion on the part of the applicant as to whether he was expected to argue about the issue of costs in both the application in the case and the further application in the case that day, the Court adjourned the question of costs in both of those applications through to today.  For reasons which are not apparent, the applicant has not attended today.[11]

   [11] Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No. 2) [2008] FMCA 1336 at paras.2-4 per Lucev FM (“Costs Judgment”).

2. In the Set Aside Judgment on 29 August 2008 the Court made the following observations:

   a)the issue must be determined on the basis of Mr Ibrahim’s evidence;[12]

   b)Mr Ibrahim’s evidence was not challenged and was not inherently incredible;[13] and

   c)there was no reason to doubt Mr Ibrahim’s evidence that he would have attended Court on the First Court Date had he realised or known that the matters were listed.[14]

   [12] Set Aside Judgment at para.10.

   [13] Set Aside Judgment at para.10.

   [14] Set Aside Judgment at para.12.

3. The Court went on to find that the circumstances set out above constituted a sufficient, and therefore adequate, reason, for Mr Ibrahim’s non-appearance on the First Court Date.[15]

   [15] Set Aside Judgment at para.13.

4. In finding that Mr Ibrahim acted with no unwarranted delay the Court took account of factors including the following:

   a)that Mr Ibrahim was a self-represented litigant; and

   b)that English was clearly Mr Ibrahim’s second language. [16]

   [16] Set Aside Judgment at para.17.

5. The Court went on to find that Mr Ibrahim had an arguable case, summarising the position as follows:

   45. For the Court to find a case unarguable the evidence must be all one way, and such that the outcome of the litigation is so manifestly obvious that there be only one outcome predictable with “a high degree of certainty.” This is not such a case. The contrary assertions in the evidence and the evidence of the Applicant not denied by either Respondent mean that the allegations of misleading and deceptive conduct are arguable.  … for present purposes there is sufficient evidence before the Court to make the Applicant’s allegations arguable.[17]

   [17] Set Aside Judgment at para.45 per Lucev FM (footnotes omitted).

6. The Court went on to vary the costs orders made on 19 May 2008 to provide the costs of $205 be awarded to each of the respondents in lieu of the sum of $2,210 which was originally ordered.[18]

   [18] Set Aside Judgment at paras.47-48 per Lucev FM (footnotes omitted).

7. In relation to the further application in a case filed on 8 August 2008 the Court observed that:

   a) the nature and effect of the orders sought by the Applicant are vague;

   b) there is no affidavit in support;

   c) the Applicant’s written submissions:

   (i) in some respects, refer to matters not otherwise in evidence, such as the details of the similarities of the plan (design);

   (ii) re-argue matters which were argued or adverted to in the hearing on 7 August 2008; and

   (iii) raise new arguments not raised at the hearing on 7 August 2008;

   d) the matter was reserved for judgment on 7 August 2008, following argument on the evidence presently before the Court; and

   e) the Respondent (Worken) cannot properly be expected to respond to alleged matters of fact raised for the first time, in written submissions filed without leave after judgment has been reserved.[19]

   [19] Set Aside Judgment at para.50 per Lucev FM.

8. The Court further observed that the further application in a case was unnecessary to decide because of the conclusions reached on the application in a case.[20]

   [20] Set Aside Judgment at para.51 per Lucev FM.

9. Mr Ibrahim did not appear at the handing down of the judgment (having indicated to the Court beforehand that he did not intend to do so), and the Court therefore adjourned the question of costs in relation to his application in the case to a directions hearing on 8 September 2008. The Court did so in order to ensure that Mr Ibrahim had the opportunity to be heard.[21]

   [21] Transcript 29 August 2008 at page 2.

Directions hearing 8 September 2008

1. The directions hearing on 8 September 2008 dealt with programming and costs. In relation to programming the Court indicated that it would ordinarily make standard programming orders for the filing of affidavits, objections, affidavits to be taken as evidence-in-chief, and listing through to a hearing at some future time.[22]

   [22] Transcript 8 September 2008 at page 2.

2. In response Mr Ibrahim indicated that:

   a)there should be discovery before the filing of affidavits;[23]

   b)he did not have the submission of another tenderer which the respondents claimed was the runner-up tenderer (to his tender) and that he needed to see that tender and find out when “they received their marching order”;[24]

   c)he was concerned that he might not get an opportunity to file an affidavit in reply to the respondents’ affidavits;[25] and

   d)he was concerned that the respondents “will definitely hide some information in the discovery process.”[26]

   [23] Transcript 8 September 2008 at page 2.

   [24] Transcript 8 September 2008 at page 3.

   [25] Transcript 8 September 2008 at page 3.

   [26] Transcript 8 September 2008 at page 6.

3. The Court indicated that:

   a)orders for discovery were ordinarily made in this Court once the Court was persuaded that it was in the interests of the administration of justice that there be discovery;[27]

   b)Mr Ibrahim would have to tell the respondents what his case was in full before they were obliged to respond and that it was inevitable that there would be an order for affidavits to be filed;[28]

   c)because Mr Ibrahim was a self-represented litigant the Court would allow more time than would be usual for each of the interlocutory steps to be taken;[29] and

   d)the Court was “not prepared to make orders [for discovery] on the basis of something that … [Mr Ibrahim] suspect[s] might happen which is presently unsupported by anything in an affidavit and unsupported by any inference which might be drawn from any of the materials that are presently before the court.”[30]

   [27] See Federal Magistrates Act 1999 (Cth), s.45 (“FM Act”); Abrahams v Qantas Airways Ltd (2007) 210 FLR 314 at pages 317 and 321; [2007] FMCA 639 at paras.11 and 25 per Lucev FM (“Abrahams”); Transcript 8 September 2008 at page 2.

   [28] Transcript 8 September 2008 at page 2.

   [29] Transcript 8 September 2008 at page 3.

   [30] Transcript 8 September 2008 at page 6.

1. The Court went on to make the following orders:

   1. The Applicant have leave to file any amended application and any further affidavits in support of the application by 4:00pm on 10 November 2008.

   2. The Respondent file and serve any amended response and any further affidavits in support of the response by 4:00pm on 8 December 2008.

   3. The Applicant file and serve any affidavits in reply by 4:00pm on 22 December 2008.

   4. Any affidavit filed is to annex any document referred to in the affidavit or relevant to the application or response as the case may be.

   5. The matter be referred to mediation before a Registrar of this Court on or before 30 January 2009.

   and consequential orders in the event that mediation was unsuccessful, including listing the matter for two days hearing on 25 and 26 March 2009.

2. The directions hearing on 8 September 2008 also dealt with the question of costs of the application with respect to the application in a case and the further application in a case which had been the subject of the Set Aside Judgment. Mr Ibrahim exhibited some uncertainty as to what was to be argued, and the Court said that the “best course” given that it was unsure that Mr Ibrahim “apprehends what we are arguing today” and “as a self-represented litigant it might be fairer to him” was “to adjourn … [the costs hearing] off to a short hearing perhaps some time next week.”[31] Consequently, there was an order that the question of costs be set down for hearing on 22 September 2008.[32]

   [31] Transcript 8 September 2008 at page 9.

   [32] Transcript 8 September 2008 at page 10.

Costs hearing and judgment – 22 September 2008

1. The hearing with respect to the costs of the application in a case of 26 May 2008 and the further application in a case dated 8 August 2008, occurred on 22 September 2008, with an ex tempore judgment being delivered that day.

2. Mr Ibrahim did not attend the costs hearing, and endeavours to contact him were unsuccessful.[33]

   [33] Transcript 22 September 2008 at page 2.

3. In the Costs Judgment the Court summarised its findings in the Set Aside Judgment in relation to the application in a case and the further application in a case.[34]

   [34] Costs Judgment at paras.8-9 and 11-13 per Lucev FM.

4. In relation to the application in a case the Court, in Mr Ibrahim’s absence put it to the respondents in argument, and ultimately found that the respondents could have, on a proper analysis of the facts, quite properly have agreed to consent to the application to set aside the orders made on 19 May 2008, and that “the greater proportion of the costs incurred by the respondent[s] were incurred by them in the pursuit of … [their] ultimately unsuccessful argument” opposing the application to set aside the orders of 19 May 2008.[35] That finding was considered, together with an analysis of the cause of the costs otherwise incurred, in arriving at a conclusion that no order ought be made as to the costs of the application to set aside.[36]

   [35] Costs Judgment at para.10 per Lucev FM.

   [36] Transcript 22 September 2008 at pages 3-4; Costs Judgment at paras.14 and 15 per Lucev FM.

5. With respect to the further application in a case the Court determined that the respondent, Worken, ought have the costs of that application, fixed at $750.

Summary judgment application – 5 December 2008

1. On 5 December 2008 the Court brought on for directions an application by the respondent Highline for summary judgment. The basis for that application was that Highline was not a corporation for the purposes of s.52 of the Trade Practices Act 1974 (Cth).[37]

   [37] “TP Act”. Transcript 5 December 2008 at page 3. The argument was not foreign to Mr Ibrahim. In Ibrahim v Considine Architects [2008] FMCA 1148 (“Considine Architects”) this Court refused an application in a case by Mr Ibrahim to set aside an order dismissing his application under s.52 of the TP Act in relation to alleged misleading and deceptive conduct because there was no arguable case on the merits of the substantive application. One reason for there being no arguable case was that the respondent in those proceedings, Considine Architect, was not a corporation for the purposes of s.52 of the TP Act. See Considine Architects at paras.23-29 per Lucev FM. Mr Ibrahim’s application for leave to appeal out of time against the judgment in Considine Architects was dismissed: the Federal Court held that this Court’s judgment in Considine Architects was not attended by sufficient doubt to warrant it being reconsidered: Ibrahim v Considine Architect [2008] FCA 1819 at para.13 per Gilmour J (“Considine Architect Appeal”). The judgment in Considine Architect Appeal was handed down on 1 December 2008, four days before the directions hearing on the summary judgment application by Highline in this matter.

2. In relation to Highline’s summary judgment application there were orders made to allow Mr Ibrahim to amend his application, in a manner suggested by the Court as a possibility to overcome the basis for the summary judgment application, namely that a claim might also be made in the Court’s associated jurisdiction under State fair trading legislation. Leave was given to Mr Ibrahim to amend his application within 14 days and the matter was adjourned to 22 December 2008.[38]

   [38] Transcript 5 December 2008 at pages 3-4.

Adjourned directions hearing – 22 December 2008

1. An amended application was filed by Mr Ibrahim on 16 December 2008 in the Highline matter. When the adjourned directions hearing resumed on 22 December 2008 Counsel for the respondent, Highline, raised two issues:

   a)whether the amended application was within the accrued jurisdiction of the Court; and

   b)whether the amended application was within the relevant limitation period under the Fair Trading Act 1987 (WA).

2. Counsel for the respondent said there had not been an opportunity to consider properly the accrued jurisdiction issue,[39] and the limitation period question required the taking of further instructions from officers of the respondent, Highline, as to the particular date on which the cause of action accrued.[40]

   [39] Which can be an issue of some complexity: see the erudite paper by Justice Allsop, “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aust Bar Review 25, and Justice Allsop “An Introduction to the Jurisdiction of the Federal Court of Australia”, (October 2007).

   [40] Transcript 22 December 2008 at page 2.

3. The Court suggested that the matter be adjourned to 9.15am on 30 January 2009. That was a convenient time for Mr Ibrahim because he was before the Court on another matter that day at 9.00am. The matter was adjourned accordingly.[41]

   [41] Transcript 22 December 2008 at page 3.

4. Mr Ibrahim then sought to raise an issue involving the Worken matter, which was not listed before the Court that day.[42] Mr Ibrahim complained that Worken had not filed an affidavit as required by 8 December 2008,[43] and that he was due to file a responsive affidavit that day, and he was not sure what ought to happen. Counsel for Worken acknowledged that Worken was out of time to file the affidavit, but indicated that the affidavit was in preparation and that that had taken some time because Mr Ibrahim’s affidavit was substantial and that Worken wanted to get the response right, and also had an issue with respect to “gathering annexures”.[44]

   [42] Although the two matters have generally been heard together they have not been joined or consolidated, and hence there have been occasions where an application in one matter only has proceeded before the Court.

   [43] In accordance with the orders of 8 September 2008.

   [44] Transcript 22 December 2008 at page 4.

5. The Court indicated that it was the type of matter in which, had there been solicitors on both sides some agreement as to extension of time and the filing of affidavits would have been likely to have been reached.[45] Mr Ibrahim protested that he had not been contacted by Worken’s solicitor and had therefore worked until 4.00am the previous night on his affidavit. The Court told Mr Ibrahim that “it’s the sort of thing that happens”, but that if he wanted to take objection or oppose any application for extension of time, or not consent to orders extending time, that was a course that was open to him.[46]

   [45] Transcript 22 December 2008 at page 4.

   [46] Transcript 22 December 2008 at page 4.

6. No orders were made in the Worken matter at the 22 December 2008 directions hearing.[47]

   [47] Transcript 22 December 2008 at page 5.

30 January 2009 – directions hearing and applications in a case

1. The matter came back before the Court on 30 January 2009 in relation to:

   a)the adjourned directions hearing of Highline’s application for summary judgment; and

   b)applications in a case filed by Mr Ibrahim with respect to two subpoenas.

The adjourned summary judgment application by Highline

1. When the adjourned summary judgment application by Highline came back on, Counsel for Highline indicated that there was no longer an issue with:

   a)the amended application raising matters which were within the associated jurisdiction of the Court; and

   b)whether the cause of action was within the relevant limitation period.[48]

   [48] Transcript 30 January 2009 at pages 2-3.

2. Counsel for Highline did however indicate that there might now be a necessity to call expert evidence, which was not a matter that it had previously contemplated. Following a discussion concerning the appropriateness of a single expert witness, the Court indicated that it would allow each party to call their own expert witness, rather than having a Court appointed expert, or trying to get the parties to agree upon an expert (but without precluding the latter).[49] There was also a discussion concerning the then scheduled hearing dates of 23 and 24 March 2009. The parties agreed that those dates could no longer be met, both because of the orders concerning the obtaining of expert evidence, and because the Court determined that the matter ought to be referred for mediation, in any event.[50]

   [49] Transcript 30 January 2009 at pages 3 and 6-7.

   [50] Transcript 30 January 2009 at pages 4-5.

3. The Court then enquired whether the parties sought to file any further affidavits in the Highline matter. Mr Ibrahim responded affirmatively to that request.[51] Counsel for Highline indicated that if Mr Ibrahim filed further affidavits Highline would also seek to file affidavits.[52] Consequently, orders providing for the filing of further affidavits, including the affidavits of expert witnesses, were made as follows:

   [51] Transcript 30 January 2009 at page 5, by saying: “Yes, Your Honour. I would love to, yes.”

   [52] Transcript 30 January 2009 at pages 5-6.

   5. The Applicant have leave to file and serve any further affidavits including affidavits of any expert witnesses by 4:00pm on 3 March 2009.

   6. The Respondent have leave to file and serve any further affidavits including the affidavits of any expert witnesses by 4:00pm on 3 April 2009.

   7. The matter be referred for mediation before a Registrar of this Court on or before 1 May 2009.

   8. If mediation is unsuccessful:

   (c) the affidavits are to stand as the evidence-in-chief of each witness except by leave of the Court;

4. The same orders were then made in the Worken matter.[53]

   [53] Transcript 30 January 2009 at pages 17-18.

5. Highline sought the costs of the summary judgment application on the basis that Mr Ibrahim had to amend his application in order to avoid summary judgment. Mr Ibrahim accepted that, and costs were ordered against him, but only the costs of the application itself, and not the directions hearing concerning the application. A request by Mr Ibrahim for costs to go to “the end of the case” was rejected because the costs of the summary judgment application had been incurred. Mr Ibrahim was however given two months to pay.[54]

   [54] Transcript 30 January 2009 at  pages 7-8.

6. Mr Ibrahim then expressed a concern that he would not be able to respond to the further affidavits filed by the respondents. The Court told Mr Ibrahim that if there was “any difficulty” in terms of responsive material the Court would entertain an application at hearing for him give some oral evidence if he thought he had been disadvantaged as to his ability to respond.[55]

   [55] Transcript 30 January 2009 at page 18.

Subpoenas

1. On 1 December 2008, at the instance of Mr Ibrahim, subpoenas were issued by a Registrar of this Court to:

   a)David Chia, a commercial manager with a company called Keytown Constructions Pty Ltd; and

   b)Philip Marsh, who was a director of the respondent, Worken.

2. Both subpoenas were for the production of documents only.

3. On 18 December 2008 an order was made by a Registrar of the Court in the following terms:

   1. The Subpoena for production addressed to David Chia was answered and a document produced to the Court.

   2. The party at whose request the Subpoena was issued may apply for orders in relation to those documents on 3 days written notice to Mr David Chia.

   3. The subpoena for production addressed to Phillip Marsh be dismissed.

   4. Mr Marsh’s costs in relation to the Subpoena be reserved.

   5. There be liberty to apply.[56]

   [56] Transcribed from original copy of the orders without amendment.

4. On 8 January 2009 Mr Ibrahim filed an application in a case in the following terms:

   1. The applicant applies for an order to view and copy subpoena document submitted by Keytown/David Chia.

   2. The applicant applies for the subpoena issued to Philip Marsh to be resubmitted to the court and the dismissal order to be reversed.

   No grounds were specified in the application, and no affidavit filed in support from which grounds might be gleaned.

5. That application in a case was listed for 30 January 2009 immediately following the directions hearing concerning the Highline summary judgment application referred to above.

Chia subpoena

1. When the application in a case for the Chia subpoena came on the Court made an unopposed order that both Mr Ibrahim and Worken be allowed to view, and upon payment of the prescribed amount, copy in the Registry, the documents produced by David Chia in response to the subpoena issued on 1 December 2008.[57]

   [57] Transcript 30 January 2009 at pages 10-11.

2. Counsel appearing for Mr Chia sought a signed undertaking from Mr Ibrahim concerning the confidentiality of those documents, but the Court refused to make orders requiring the undertaking to be signed. The Court did make an order that the documents only be used for the purpose of the conduct of these proceedings.

3. Mr Ibrahim sought to argue that the subpoena to produce documents had not been complied with by Mr Chia and that there were other documents which ought to have been produced. The submission was made orally, without notice, and without any evidence in support of it being tendered.[58] The Court indicated that it was appropriate that Mr Ibrahim:

   a)first view the documents which had been produced in answer to the subpoena to produce; and

   b)if after having viewed the documents Mr Ibrahim was still of the view that certain documents had not been produced, he might then make an application, supported by an affidavit, concerning that matter.[59]

   [58] Transcript 30 January 2009 at pages 9 and 11.

   [59] Transcript 30 January 2009 at pages 11-12.

Marsh subpoena

1. The history of proceedings with respect to the Marsh subpoena is set out in the Court’s judgment in Ibrahim v Worken Pty Ltd (No. 2)[60] handed down on 3 March 2009.

   [60] [2009] FMCA 156 (“Marsh Subpoena Judgment”).

2. By way of background, the Court said the following in the Marsh Subpoena Judgment:

   5. The Marsh Subpoena was returnable before Registrar Stanley on 18 December 2008. There was no appearance by Mr Ibrahim. In oral submissions on 13 February 2009, and again on 23 February 2009, Mr Ibrahim said that he did not realise that it was necessary for him to attend on the day of the return of the subpoena. There was an order that the Marsh Subpoena be dismissed. Unexceptionally, there are no written reasons for that order, and there is no transcript of the proceedings. Worken’s counsel, Mr Hager, who attended before the Registrar, has told the Court that he advised the Registrar that Worken was prepared to disclose relevant documents. It is possible that that was a reason for dismissal of the Marsh Subpoena.

   6. On 8 January 2009 Mr Ibrahim filed an Application In A Case for the Marsh Subpoena to be re-submitted to the Court and for the dismissal order to be revoked. The Application in a Case was not supported by an affidavit.

   7. The application in a case was listed for directions before the Court on 30 January 2009. At that directions hearing it appeared, having heard Mr Ibrahim and Counsel for Worken, that the ultimate issue in dispute was as much about discovery generally, as it was about the Marsh Subpoena. The Court suggested to the parties that all matters associated with documents ought to be able to be resolved by conferral. Accordingly, the Court made orders that:

   3. The parties are to confer with respect to the production, inspection and copying of documents generally prior to 13 February 2009.

   4.  The application in a case with respect to the subpoena to Mr Marsh filed on 1 December 2008 be adjourned to 13 February 2009 at 11:00am.

   8. The Court made it apparent that proper conferral between the parties ought to be able to resolve the issue of discovery, and, that in any event, the Marsh Subpoena might equally be seen as an application for particular discovery.

   9. At the hearing on 13 February 2009 the Court indicated to the parties that:

   a) it was extraordinary on the part of Worken that:

   (i) the application having been on foot for the better part of nine months, they were not yet in a position to provide discovery in what was not major litigation, from a size and complexity view point, and

   (ii) that they would not be able to do so until some time in the following week;

   b) Mr Ibrahim made legitimate criticism of Worken’s failure to be in a position to presently provide discovery;

   c) if by 23 February 2009 there had not been appropriate conferral and informal discovery that the Court would consider making orders with respect to discovery, subject to the provisions of s.45 of the Federal Magistrates Act 1999 (Cth); and

   d) if there had been no progress by 23 February 2009 with respect to the issue of discovery that the matter would be dealt with on that day together with the Marsh Subpoena.

   10. When the matter came back on for hearing on 23 February 2009 it was apparent that there had been no meaningful conferral. In oral submissions each party traded unhelpful accusations as to where the blame lay for the failure to have had meaningful conferral. The Court is not in a position to deal with that issue in the absence of sworn evidence.

   11. On 23 February 2009 the Court ordered that:

   1.  Each party attend the offices of the Respondent’s solicitors at 9:00am on 25 February 2009 to exchange copies of all relevant documents in their possession, power, custody or control.

   2.  The parties attend a further directions hearing at 4.30pm on 26 February 2009.

   12. When the matter came on on 26 February 2009 the Court was advised by both parties that they were present at the offices of Worken’s solicitors at 9.00am on 25 February 2009, but there had not been an exchange of documents. Mr Hager, Counsel for Worken, advised the Court that an articled clerk had been assigned the task of meeting with Mr Ibrahim. The articled clerk had been given instructions to ascertain what documents Mr Ibrahim wanted copied from Worken’s bundle of documents, and to take those documents to a nearby copy shop to be copied, subject to Mr Ibrahim paying for those copies. The Court was told from the bar table that the cost was in the vicinity of $200 to $300, because many of the documents were architectural plans which were oversize and more expensive to copy than would ordinarily be the case. Mr Ibrahim, the Court was advised, refused to pay. He was therefore not provided with any copy documents. Mr Ibrahim therefore refused to provide his copy documents to Worken’s solicitors. Thus, neither party complied with the Court’s first order of 23 February 2009.

   13. In response to a question from the Court on 26 February 2009 Mr Ibrahim advised that if the Marsh Subpoena was complied with it would not be necessary for there to be any further discovery or for further subpoenas to issue, and that he would be satisfied with compliance with the Marsh Subpoena.

   14. The Court made orders that the time for compliance with order 1 made on 23 February 2009 be extended to 11.00am the next day, 27 February 2009. Further, that the costs of photocopying the documents be reserved for later determination, and that each party was to bring to Court the originals of the exchanged copy documents at the hearing of the Application in a Case, which was ordered to be heard at 12.00noon on 27 February 2009. The Court also made it apparent that it would consider the question of general or particular discovery at that hearing.

   15. On 27 February 2009 both parties:

   a) advised that the Court’s Order for informal discovery had been complied with; and

   b) put submissions concerning the Marsh Subpoena and discovery.

   16. Mr Ibrahim made submissions in support of the Application in a Case, arguing that each of the documents subpoenaed was relevant to his case, a proposition not disputed by Worken’s Counsel. Contrary to his position on 26 February 2009 Mr Ibrahim said that as a consequence of the informal discovery it was apparent that certain documents had not been discovered and that it would be necessary to issue “further subpoenas.” Mr Ibrahim maintained that position, and said that discovery on affidavit was not sufficient because Worken would not comply with the requirement of an order to make discovery on affidavit. When asked by the Court, Mr Ibrahim was unable to explain why, if his submission was correct, Worken was any more likely to comply with a subpoena than an order for discovery. There was no indication from Mr Ibrahim whether any other person needed to be subpoenaed.

   17. Worken submitted that it had produced all of the documents within its possession, power, custody or control by way of informal discovery, and that what Mr Ibrahim was seeking was particular discovery. As Worken had voluntarily produced all documents in compliance with the Court’s order the re-issuance of the Marsh Subpoena was unnecessary in Worken’s view and the Application in a Case ought to be dismissed. Worken said that further subpoenas, to it, were unnecessary for the same reason. If a basis for an order for particular discovery could be established, Worken would provide that discovery. In those circumstances there was no necessity for the issuance of a subpoena directed to Worken.

   18. The Court reserved judgment over the Labour Day long-weekend, to today.[61]

   [61] Marsh Subpoena Judgment at paras.5-18 per Lucev FM (footnotes omitted). The reference to “today” in the last sentence is to 3 March 2009.

1. The Court considered the nature of the application in a case under consideration in the Marsh Subpoena Judgment, and concluded that it was either an application under s.104(2) and (3) of the FM Act to review the exercise of a power exercised by a Registrar of the Court under s.102(2)(c) of the FM Act or, alternatively, for an order under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth)[62] setting aside an order made in the absence of a party.[63] Notwithstanding that the application for review did not comply with the appropriate form, the Court considered that the matter could be treated as an application for a review of a Registrar’s decision because:

   a)of the nature of the matter, being an application to review a Registrar’s decision to dismiss a subpoena for production of documents;

   b)Mr Ibrahim was self-represented;

   c)compliance with the FMC Rules could be waived if it was in the interests of justice to do so; and

   d)the parties were on notice that the Court may treat the matter as an application for review of a Registrar’s decision.[64]

   [62] “FMC Rules”.

   [63] Marsh Subpoena Judgment at para.19 per Lucev FM.

   [64] Marsh Subpoena Judgment at para.21 per Lucev FM.

2. The Court also noted that the Marsh subpoena was irregular because what was really sought was production of documents by Worken and that in those circumstances the subpoenas ought to be addressed to the proper officer of Worken.[65] The Court however determined that it was prepared, if necessary, to direct that the subpoena be amended accordingly, there be no requirement to serve, personally or otherwise, the subpoena and that the present service upon Mr Marsh be taken to be proper service upon the proper officer of the respondent Worken.[66]

   [65] Marsh Subpoena Judgment at para.23 per Lucev FM.

   [66] Marsh Subpoena Judgment at para.24 per Lucev FM.

3. The Court then set out the documents sought to be produced, the nature of the case,[67] and the test for production of documents by a witness under subpoena,[68] before concluding that:

   a)there was no dispute that the documents sought to be subpoenaed were relevant;

   b)Worken said that it was prepared to voluntarily discover and produce the documents;

   c)the documents sought to be produced were sufficiently precisely prescribed to enable the proper officer of Worken to know what was required;

   d)in normal circumstances it would be proper that the order of the Registrar of 18 December 2008 dismissing the subpoena be revoked under s.104(3) of the FM Act, and to have the subpoena reissued and made returnable within a few days; and

   e)the circumstances of this case were not normal, and it was necessary to consider whether discovery was a more appropriate option than revocation of the Registrar’s order and reissuing of the subpoena.[69]

   [67] As set out above at paras.11 and 12.

   [68] Referring to B Cairns, Australian Civil Procedure (7^th Edn) (Pyrmont: Lawbook Co, 2007) at pages 435-436.

   [69] Marsh Subpoena Judgment at paras.29-31 per Lucev FM.

4. The Court then went on to consider whether discovery was necessary. The Court noted that it did not ordinarily order discovery,[70] set out the relevant test for discovery in this Court,[71] and having regard to that test made a number of findings including the following:

   a)discovery might assist in clarifying or defining the issues which have been identified, and assist in their resolution;

   b)that there was no real opposition to discovery from Worken;

   c)discovery would in the Court’s view be of benefit to the litigation;

   d)if discovery was ordered, on oath, there was presently no reason for the Court to believe, and no evidence to support the formation of a belief, that Worken would not comply with an order for discovery, and discover, produce and allow the inspection of, the documents. [72]

   [70] Marsh Subpoena Judgment at para.32 per Lucev FM.

   [71] Marsh Subpoena Judgment at para.33 per Lucev FM citing Abrahams.

   [72] Marsh Subpoena Judgment at para.34 per Lucev FM.

5. The Court found that this was a case in which the interests of the administration of justice required discovery to be ordered, “because the documents are such that they are relevant and necessary to a proper resolution of the litigation.”[73]

   [73] Marsh Subpoena Judgment at para.35 per Lucev FM.

6. In its final consideration of the matter the Court observed as follows:

   38 The Court considers that it is preferable to make appropriate orders for discovery on oath, and particular discovery, if necessary. This is because the Court considers that this is the only proper means of ensuring that, as between the parties, all of the relevant documents are discovered, and, if there is a dispute about that discovery, to provide a means for the Court to resolve it pursuant to an application for particular discovery. The ongoing issuance of further subpoenas to Worken, or officers of Worken, by Mr Ibrahim represents a piecemeal approach by comparison, and is more likely to lead to a situation where when the matter comes on for hearing on 27 May 2009, that the matter is not ready for hearing because relevant documents are not available.

   39. For the above reasons the Court will make an order for discovery on oath, and provision for particular discovery, if that is necessary.

   40. Finally, the Court notes that on a number of occasions during the various directions hearings Mr Ibrahim has referred to a document which he considers essential to his case and which he has indicated that he is not prepared to discover to Worken until the hearing. The Court does not know whether that document has been discovered by way of informal discovery, but the Court would expect that to be the case. Lest that has not occurred, the Court makes it clear that the orders that it is about to make require the discovery of all relevant documents. Civil litigation, particularly in trade practices, is not conducted by ambush. Moreover, if there is a significant document which has the potential to significantly affect the outcome of the litigation, that document ought to be made known to the other party, as it may result in a settlement of the litigation, either by arrangement between the parties or at mediation. At the very least, the document ought to be discovered so that the other party is in a proper position to deal with it at hearing. There will therefore be an order that, other than by leave of the Court, any document which is not discovered will not be admissible or be able to be used at hearing.[74]

   [74] Marsh Subpoena Judgment at paras.38-40 per Lucev FM.

7. The Court made the following orders:

   (1) That the applicant’s Application in a Case filed 8 January 2009 be dismissed.

   (2) That the applicant file and serve a sworn affidavit of all discoverable documents in his possession, power, custody or control before 4.00pm on 6 March 2009.

   (3) That an officer of the respondent file and serve a sworn affidavit of all discoverable documents in the respondent’s possession, power, custody or control before 4.00pm on 13 March 2009.

   (4) That all of the applicant’s discoverable documents be made available to the respondent for inspection, and copying of any of those documents required by the respondent, by 4.00pm on 13 March 2009.

   (5) That all of the respondent’s discoverable documents be made available to the applicant for inspection, and copying of any of those documents required by the applicant, by 4.00pm on 20 March 2009.

   (6) That copies be provided by, and at the expense of, the party with the documents in their possession, power, custody or control, with the question of the costs of that photocopying to be reserved for later determination.

   (7) Following discovery and inspection, any application for particular discovery must be made by application in proper form, supported by an affidavit:

   (a) if by the respondent, by 4.00pm on 17 March 2009; and

   (b) if by the applicant, by 4.00pm on 24 March 2009.

   (8) Any document not discovered will not be admissible in evidence, or useable in any way, at the hearing of this matter, without leave of the Court.

8. Orders were also made varying the times for compliance with various of the Court’s orders of 30 January 2009 and for the reservation of costs. Relevantly, the time for the filing of:

   a)Mr Ibrahim’s further affidavit/s was extended from 3 March 2009 to 10 April 2009; and

   b)Worken’s further affidavit/s was extended from 3 April 2009 to 1 May 2009.

Respondent’s application in a case 27 March 2009

1. On 27 March 2009 the respondent Highline made an application in a case seeking the following orders (excluding costs):

   1.  That the applicant provide the respondent with a copy of the building plans prepared by the applicant that the applicant will rely on at trial.

   2.  Alternatively, the applicant identify for the respondent the building plans prepared by the applicant that the applicant will rely on at trial.

2. That application in a case came on for hearing on 2 April 2009.

3. Highline’s Counsel relied upon an affidavit which indicated that its solicitors had been seeking the plans that Mr Ibrahim intended to rely upon at hearing for a month. It was submitted that the central issue was whether or not Mr Ibrahim’s plans were used to construct the building. Mr Ibrahim had discovered plans, but Highline did not know which plans Mr Ibrahim was going to rely on at hearing, because the plans were not part of or annexed to any affidavits. Highline said it did not want to get to hearing and either have to seek to adjourn the hearing, or be in the difficult position where it was looking at plans that had not previously been analysed by an expert.[75]

   [75] Transcript 2 April 2009 page 2.

4. Mr Ibrahim’s response was as follows:

   MR IBRAHIM: Your Honour, I do not know where he got the notions that I am going to rely on one single plan. … There were several versions of my plan been submitted. Basically, I am just going to rely on every document that has been submitted in the tender, whether it is a plan, documentation, emails, letters, whatever. Where he got this idea, and he keeps insisting on it, there was no indication whatsoever in the proceeding before that I am just going to rely on one plan.

   HIS HONOUR: Well, how many plans do you say there are, Mr Ibrahim?

   MR IBRAHIM: I have no idea, your Honour. I can’t remember all of them. There was a few version that has been changed over and over. I have about – at least, in my computer, about nine, but I am only going to rely on the one that has been submitted over and over to Highline and Worken. They need to figure out which one they need to put the report about. If they have to write their report about the whole lot, that is their problem, not mine.

   HIS HONOUR: Well, it is your problem because you are the applicant and you bear the onus of proof to demonstrate to the court which plan or plans you say were taken by them, which you say are effectively the misleading and deceptive conduct. So it is not a situation where ---

   MR IBRAHIM: I just mention to the court ---

   HIS HONOUR: It is not a situation, Mr Ibrahim, where we will arrive at trial or we want to arrive at trial and suddenly find that either one or other party are in a situation where they have not understood the other’s case because that is not the way civil litigation, particularly in trade practices, is conducted.

   MR IBRAHIM: I just mention to the court, your Honour, that I am not going to rely on one single plan because basically, what has been submitted in the tender is several versions.

   …

   HIS HONOUR: Well, will you have any objection then, Mr Ibrahim, to nominating which plans you are going to rely on?

   MR IBRAHIM: Yes, your Honour, because I am not going to rely on only one plan during the trial. I am going on trial, rely on all what has been ---

   HIS HONOUR: Just listen to the question, Mr Ibrahim. Do you have any objection ---

   MR IBRAHIM: Yes, your Honour.

   HIS HONOUR:  --- to nominating which plans you will rely on?

   MR IBRAHIM: Yes.

   HIS HONOUR: Well, what is the objection?

   MR IBRAHIM: Because I am not going to rely on one plan.

   HIS HONOUR: Well, that is why I asked whether you had any objection to nominating which plans – plans in the plural – you are going to rely upon, and if you have an objection to nominating which plans, in the plural, that you are going to rely on, what is that objection?

   MR IBRAHIM: At the moment, your Honour, I do not have a list of my drawings. They are in my computer and some of them is a hard copy. I can’t nominate the court any plans because I do not have them on me.

   HIS HONOUR: Well, the difficulty with that, Mr Ibrahim, is, well, you are not being asked to do it immediately in the sense of doing it within the next five minutes or half an hour. The difficulty is that if you do not do it, it is unlikely you will be able to rely upon any plan or plans ---

   MR IBRAHIM: Why is that?

   HIS HONOUR: --- at trial.

   MR IBRAHIM: Why?

   HIS HONOUR: Because the other side have to be put on notice of what it is that you, as the applicant, say you are going to rely upon. This is not, and I have said it a number of times already indirections hearings in relation both of these matters, this is not trial by ambush. The respondents are entitled to know which plan or plans you intend to rely upon.

   MR IBRAHIM: Okay, there are about nine or 10 of them. If he want me to write them down to him, I will send him a letter of that.

   HIS HONOUR: All right, so ultimately, can I take it then that you do not have an objection to nominating or giving them copies of the plans that you intend to rely upon?

   MR IBRAHIM: I would not give them a copy because they already obtained the copy. I will just name the drawings and dates been produced.

   HIS HONOUR: All right. Is there anything else you want to say?

   MR IBRAHIM: Yes, your Honour. This application is just pathetic because they are already aware what drawings they have got.

5. The Court delivered an ex tempore judgment in relation to the application. The Court set out the relevant factual material. This included reference to letters sent, and telephone calls made, to Mr Ibrahim by Highline’s solicitors in an endeavour to ascertain from Mr Ibrahim what plans he intended to rely upon at hearing, and to which no response had been forthcoming.[77]

   [77] Ibrahim v Highline (No. 2) [2009] FMCA 297 at paras.5-10 per Lucev FM (“Particular Discovery Judgment”).

6. The Court then observed that:

   There is no explanation from the applicant as to why what are perfectly normal and reasonable requests in the course of civil litigation have not been complied with other than to say, as he said today in submissions, that he intends to rely upon all of his plans and to say that the respondent already has those plans. Neither of which, with respect to an application for discovery or an application to specify which plans are going to be relied upon at hearing, are in the Court’s view a sufficient answer. Ultimately today the applicant conceded that he was going to rely upon all of the plans which he had prepared for the purposes of the tender at hearing.[78]

   [78] Particular Discovery Judgment at para. 10 per Lucev FM.

7. The Court then dealt with the principles with respect to discovery and in considering the matter found as follows:

   a)the building plans prepared by Mr Ibrahim were relevant and the central documents in the case, and without which:

   i)Mr Ibrahim could not prove his case; and

   ii)the respondent (in this instance Highline) could not refute any case mounted by Mr Ibrahim;[79]

   b)discovery of the building plans would benefit the litigation, which could probably not be properly conducted without the building plans originally submitted by Mr Ibrahim in relation to the tender, and for that reason they were integral to the fair, proper and expeditious management of the case;[80]

   c)the building plans did not appear to be appended to any affidavit filed in the proceedings by Mr Ibrahim;[81] and

   d)if the building plans were not to be discovered now but only at or during the hearing, it may be, necessary to adjourn and relist the hearing to allow Highline a fair opportunity to deal with the building plans and to brief an expert in respect of those building plans, a course which would not be in the interests of the administration of justice, and would be contrary to the objects of the FM Act and the FMC Rules.[82]

   [79] Particular Discovery Judgment at para. 16 per Lucev FM.

   [80] Particular Discovery Judgment at para. 21 per Lucev FM.

   [81] Particular Discovery Judgment at para. 21 per Lucev FM.

   [82] Particular Discovery Judgment at para. 21 per Lucev FM.

8. The Court added the following observations:

   Trade practices proceedings are not to be conducted so that one party or the other is ambushed or taken by surprise at hearing. To do so would be contrary to the ordinary rules and spirit of civil litigation and in particular to the intention behind the conduct of litigation in this Court. There ought to be no ambush nor surprise in these proceedings or indeed in the related Worken proceedings. Any party springing an ambush or surprise in these proceedings may, dependent upon the relevant circumstances at the time, find itself visited by adverse consequences, procedurally, or in respect of costs, or both of them.[83]

   [83] Particular Discovery Judgment at para. 22 per Lucev FM.

9. The Court concluded as follows:

   23. In conclusion, the Court considers that in all the circumstances before it today, this is an appropriate case in which to make a declaration under section 45(1) of the FM Act that discovery is appropriate and to order discovery of the building plans prepared by the applicant that the applicant will rely upon at hearing. In the circumstances, and given the initial reluctance of the applicant displayed today to discover and produce those plans and to ensure that there is no issue as to which plans are relied upon, that discovery is to be on affidavit.

   24. There will therefore be an order that by 4 pm on 3 April 2009 the applicant file an affidavit of discovery specifying the building plans prepared by him and to be relied upon by him at the hearing of the application and attaching legible copies of those plans so specified as annexures to the affidavit. There will be a further order that there be liberty to apply urgently in the event of noncompliance with that order, and there will be a further order, which is necessary in the circumstances, in the Court’s view, that the respondent’s time for compliance with order 2 of the orders of the court of 30 January 2009 be extended to 4 pm on 8 April 2009.[84]

   [84] Particular Discovery Judgment at paras.23-24 per Lucev FM.

10. Mr Ibrahim then made submissions about the preparation of the affidavit required by the orders as set out in the judgment cited above. Specifically, he said that he had neurological problems and was having a medical test the following day and that it was not possible for him to prepare the affidavit by the following day. He indicated that he had medical certificates if the Court wished to look at them. Mr Hager then made a submission about a further extension of time if Mr Ibrahim received an extension of time consequent upon his submission that he could not prepare the necessary affidavit and annex the plans by the following day.[85] The following exchange then occurred:

    [85] Transcript 2 April 2009 at page 6.

    HIS HONOUR: How long will it take you to do an affidavit and annex the plans, Mr Ibrahim? It’s not that difficult a task, so ---

    MR IBRAHIM: It is, your Honour.

    HIS HONOUR: Well, with respect, Mr Ibrahim, it’s a three-line affidavit and it’s running off copies of the plans, marking them annexure 1 to whatever it is. It’s not that difficult a task. I appreciate you will not be able to do it by ---

    MR IBRAHIM: Why don’t I just give them a copy of the plans and I don’t need to do the affidavit.

    HIS HONOUR: Well, I’ve ordered you to do the affidavit for a specific reason. Will you be able to do it by 4 pm Monday?

    MR IBRAHIM: I’ll try, your Honour.

    HIS HONOUR: All right.

    MR IBRAHIM: There is another issue that I have, the AutoCAD in my computer – and my computer is not working. I need it to go through the AutoCAD drawings or I’ll get to know every plan that I produced during the tender.

    HIS HONOUR: Well, I’m going to ---

    MR IBRAHIM: And because my AutoCAD is not working, that’s going to be a dilemma for me.

    HIS HONOUR: Well, that’s a dilemma you’re going to have to resolve, Mr Ibrahim, because I’m going to order that you produce ---

    MR IBRAHIM: But you’re putting me under the hammer for 48 hours.

    HIS HONOUR: Well, there’s no evidence before the court of any of those things. I’m going to order that it be done by 4 pm on 6 April 2009, which is Monday – it’s four days away – and in the circumstances and given that the Easter break and so on, I’m going to order that the respondent’s time for compliance be extended to 4 pm on 20 April 2009. So there’ll be orders as indicated. Yes, Mr Ibrahim.[86]

    [86] Transcript 2 April 2009 at page 7.

1. It was immediately following the above exchange that Mr Ibrahim asked the Court as presently constituted to disqualify itself from the proceedings.[87] Mr Ibrahim almost immediately evinced an intention to appeal the Court’s orders.[88]

   [87] Transcript 2 April 2009 at page 7.

   [88] Transcript 2 April 2009 at pages 7-10.

Respondent’s application in a case 7 April 2009

1. The respondent Highline made a further application in a case on 7 April 2009. The terms of that application sought orders that judgment be entered against Mr Ibrahim, both in the Highline and the Worken matters, and that Mr Ibrahim pay the respondents’ costs of the application.

2. That application in a case came before the Court on 1 May 2009 at 10.17am. It was immediately indicated to the Court that there was an appeal in these matters, which was listed before the Federal Court at 11.45am that morning. The respondent Highline indicated that it would be premature to deal with the application in the case because of the appeal. The Court indicated that it did not know what was before the Federal Court, and that the Court’s preference was to adjourn until 12.30pm because, dependent upon what happened in the Federal Court, vacation of the hearing dates, then set for 27 and 28 May 2009, might be necessary.[89] The Court also indicated that adjournment might give the opportunity to Mr Ibrahim to deal with the disqualification question which he had previously raised.[90] It was then that Mr Ibrahim indicated that he had been planning to make that application the following week.[91] The Court determined to adjourn to not before 12.30pm. Mr Ibrahim indicated that he had his weekly prayers between 1.00pm and 2.00pm and he did not want to miss them. The Court indicated that if the parties were out of the Federal Court by 12.30pm the Court would not imagine that they would be detained by much more than about 15 minutes, and therefore adjourned to not before 12.30pm.[92]

   [89] Transcript 1 May 2009 at page 2.

   [90] Transcript 1 May 2009 at page 3.

   [91] See para.6 above and Transcript 1 May 2009 at page 3.

   [92] Transcript 1 May 2009 at pages 3-4.

3. The matter resumed at 12.33pm. On the basis of an agreement made by the parties before the Federal Court this Court made the following orders:

   1. By 4.00 pm on 11 May 2009, the applicant file and serve an affidavit specifying the building plans to be relied upon by the applicant at hearing and attaching legible copies of the plans so specified as annexures to the affidavit.

   2. By 4.00 pm on 2 June 2009 the respondent file and serve any affidavits they intend to rely upon at hearing.

   3. By 4.00 pm on 16 June 2009 the applicant file and serve any affidavit in reply that he intends to rely upon at hearing.

4. The Court asked about the disqualification application. The respondents’ view was that that had been dealt with before the Federal Court. Mr Ibrahim however indicated that he still wished to proceed with the disqualification application, and therefore the Court made orders to set down the disqualification application for hearing. Those orders are set out above.[93]

   [93] See para.7 above and Transcript 1 May 2009 at page 7.

5. Mr Ibrahim then said he wanted to issue new subpoenas to Mr Marsh and to the proper officer of Keytown. The respondents raised the concern that those subpoenas would be returnable before the same Registrar with whom Mr Ibrahim had indicated that he had a difficulty in earlier proceedings, and that if the subpoenas were not issued there would no doubt be an “appeal”[94] and that the parties would be back before the Court as presently constituted on a review of the decision to issue, or not, the subpoenas. The Court indicated it would “fix” that issue by making the subpoenas returnable before a Federal Magistrate.[95] The Court therefore made orders that in both matters any request for the issuance of subpoenas be returnable before a Federal Magistrate. The matters were also re-listed for hearing on 13 and 14 July 2009.

   [94] Actually, an application under s.104(2) of the FM Act for a review of a Registrar’s decision.

   [95] Transcript 1 May 2009 at page 9.

Federal Court appeal

1. The Court has made enquiries through the Registry as to the disposition of the applicant’s Federal Court appeal on 1 May 2009. The results of those enquiries indicated that the Federal Court ordered, on that date, that the appeal be dismissed.

Respondents’ application in a case 27 May 2009

1. When the matter came before the Court on 27 May 2009 on the disqualification application the respondents made an oral application for orders arising from Mr Ibrahim’s alleged non-compliance with order 1 of the Court’s orders of 1 May 2009. The Court ordered that that matter be adjourned to a date to be fixed and provided for both parties to file affidavits by dates set out in the orders.

Law re apprehended bias

1. The legal principles with respect to the disqualification of a Federal Magistrate for apprehended bias are firmly established and may be summarised as follows:

   a)the test is whether a fair minded lay observer might reasonably apprehend that the Federal Magistrate might not bring an impartial mind to the resolution of the question required to be decided;[96]

   [96] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 per Gleeson CJ, McHugh, Gummow and Hayne JJ; [2000] HCA 63 at para.6 per Gleeson CJ, McHugh, Gummow and Hayne JJ (“Ebner”); ASIC v Lanepoint Enterprises Pty Ltd [2009] FCA 258 at para.17 per Gilmour J (and cases there cited) (“Lanepoint Enterprises”); Luck v University of Southern Queensland [2009] FCA 521 at para.7 per Rares J (“Luck”).

   b)the application of the test requires two steps:

   i)the identification of what it is said might lead a Federal Magistrate to decide a case other than on its legal and factual merits; and

   ii)an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits;[97]

   [97] Ebner CLR at 344 per Gleeson CJ, McHugh, Gummow and Hayne JJ; HCA at para.8 per Gleeson CJ, McHugh, Gummow and Hayne JJ; Lanepoint Enterprises at para.18 per Gilmour J; Luck at para.8 per Rares J.

   c)the fair minded lay observer is a person who is:

   i)informed, objective, and taken to be reasonable;[98]

   ii)not assumed to have a detailed knowledge of the law or the character or ability of a particular Federal Magistrate, but rather a general knowledge of ordinary judicial practice and the actual circumstances of the case;[99]

   d)the Federal Magistrate being observed is a professional judicial officer who by training, tradition and oath or affirmation is required to discard the irrelevant, immaterial and prejudicial;[100]

   e)a Federal Magistrate’s duty is to hear and determine the litigation before the Court, and not to accede too readily to suggestions of an apprehension of bias, lest parties be encouraged to seek such disqualification without justification;[101]

   f)disqualification is only made out by firmly establishing that there is a reasonable apprehension of bias by reason of prejudgment, that is that the Federal Magistrate’s mind is so prejudiced in favour of a conclusion already formed that it is not susceptible to alteration of that conclusion irrespective of the evidence or arguments presented;[102] and

   g)comments made by a federal magistrate must be considered in the context in which they are made, including the context of:

   i)ordinary judicial practice;

   ii)the exigencies of modern litigation.[103]

   [98] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 609-610 per Kirby and Crennan JJ; 635-636 per Callinan J (with Gummow ACJ at 582 and Hayne J at 612 agreeing); [2006] HCA 55 at paras.110-112 per Kirby and Crennan JJ; 177 per Callinan J (and at para.4 per Gummow ACJ and 120 per Hayne J agreeing) (“Parramatta Design & Developments”); Luck at paras.9 and 10 per Rares J.

   [99] Wilson & Partners v Nicholls & Ors [2009] NSWSC 505 at para. 6 per Einstein J (“Wilson & Partners”), quoting from Idoport v National Australia Bank [2004] NSWSC 270 (“Idoport”).

   [100] Johnson v Johnson (2000) 201 CLR 488 at 493 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; [2000] HCA 48 at para.12 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ [(“Johnson”)]; Luck at para.10 per Rares J.

   [101] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294 per Mason, Murphy Brennan, Deane and Dawson JJ (“Livesey”) ; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J (“JRL”); Luck at para.11 per Rares J.

   [102] Livesey at 300 per Mason, Murphy, Brennan, Deane and Dawson JJ; JRL at 352 per Mason J.

   [103] Wilson & at para. 6 per Einstein J quoting from Idoport .

Issues for consideration

1. Various generalised contentions were raised in oral submissions by Mr Ibrahim as to why there was an apprehension of bias. Briefly these contentions are as follows:

   a)that Mr Ibrahim will not be listened to by the presiding Federal Magistrate;

   b)that the extension of time for filing of affidavits by the respondents and a limiting of Mr Ibrahim’s opportunity to reply favoured the respondents;

   c)that there was an extension of time for discovery by the respondents;

   d)that there was a limited time for the applicant to discover drawings and a failure to consider reasons relating to this issue;

   e)that Mr Ibrahim was denied the right to issue subpoenas;

   f)that every decision has been determined the respondents’ way;

   g)that orders that the parties agreed in the Federal Court on 1 May 2009 would be made in this Court were changed by the presiding Federal Magistrate;

   h)that there was a previous similar course of conduct in another matter by the presiding Federal Magistrate;

   i)that costs have been awarded against Mr Ibrahim; and

   j)that the nature of the major issue in the proceedings has been misapprehended by the presiding Federal Magistrate.

2. The Court has also considered for itself whether the presiding Federal Magistrate ought to be disqualified in any event.

That Mr Ibrahim will not be listened to

1. Mr Ibrahim submitted that it did not matter what he said, it was “in vain”, “a waste of time”,[104] and that “every word I’ve said now you will not take into consideration, because you just don’t”[105] and also that what he says is “not going to make any difference”.[106] These assertions are vague and unparticularised.

   [104] Transcript 27 May 2009 at page 2.

   [105] Transcript 27 May 2009 at page 7.

   [106] Transcript 27 May 2009 at page 8.

2. The mere fact that Mr Ibrahim was allowed to make oral submissions when, contrary to the Court’s orders of 1 May 2009, he had not filed written submissions, is indicative of the Court’s desire to hear what he had to say about the disqualification application. Further, the length and nature of the Reasons for Judgment indicate that he has been listened to in relation to the submissions that were put. That ought to be sufficient to dispose of this contention. However, the contention that Mr Ibrahim will not be listened to is inconsistent with the entire litigation history of the matter. As the history of the litigation set out in these Reasons for Judgment reveals, the Court has spent considerable time and resources listening to the various interlocutory applications and submissions made by both Mr Ibrahim and the respondents in these proceedings. In particular, the Court notes the following:

   a)Mr Ibrahim only remains in the proceedings by reason of his being successful on the Set Aside Judgment. In the Set Aside Judgment the Court ordered that earlier orders dismissing his applications (made in his absence by reason of his non-attendance at the first directions hearing) be set aside. The Court in so doing made findings that there was no reason to doubt the evidence of Mr Ibrahim that he would have attended on the first court date had he realised or known that matters were listed. Further, in dealing with the issue of unwarranted delay the Court took account of factors particular to Mr Ibrahim, namely, that he was a self-represented litigant with English as a second language. The Court also reduced, by approximately ninety per cent, the costs ordered to be paid by Mr Ibrahim in relation to the order of dismissal which was set aside.[107]

   b)Costs in relation to the application in a case resulting in the Set Aside Judgment were specifically adjourned to allow Mr Ibrahim to be heard (again because he did not appear, this time, at the handing down of the Set Aside Judgment). These costs were further adjourned on 8 September 2008 - to 22 September 2008 - because Mr Ibrahim exhibited some uncertainty about what was to be argued on 8 September 2008.[108]

   c)Mr Ibrahim did not attend the further adjourned hearing of the costs application. Costs in the application in a case resulting in the Set Aside Judgment were however not ordered against Mr Ibrahim, the Court determining that the respondents ought not have opposed the application in a case, and that by doing so they incurred costs unnecessarily.[109]

   d)In relation to Highline’s summary judgment application on 5 December 2008 orders were made to allow Mr Ibrahim to amend his application in a manner which would avoid summary judgment, and he ultimately did so. The manner of avoidance of the summary judgment application was suggested by the Court.[110]

   e)In relation to expert evidence which was an issue raised on the adjourned hearing of the summary judgment application by Highline, Mr Ibrahim suggested that there be a single expert, a proposition which was listened to by the Court, but not agreed with.

   f)In relation to the Marsh Subpoena Judgment the Court listened to the submissions and provided detailed reasons for judgment in relation to Mr Ibrahim’s application to review the dismissal of the Marsh Subpoena by a Registrar. In so doing, the Court allowed the application to be treated as an application to review notwithstanding that there was non-compliance with appropriate forms and that the Marsh Subpoena was itself irregular. The Court’s finding was that it would have been proper to revoke the Registrar’s decision to dismiss the subpoena (in effect a finding for Mr Ibrahim), but because of the particular circumstances of this litigation it was more appropriate, procedurally, and of greater benefit to the litigation, to order that there be discovery of all relevant documents, rather than the piecemeal process of numerous subpoena applications proposed by Mr Ibrahim.[111]

   g)Although not an issue raised by Mr Ibrahim, but rather by the respondents, the Court was prepared to make applications by Mr Ibrahim for further subpoenas returnable before a Federal Magistrate rather than a Registrar, having regard to the fact that Mr Ibrahim had made allegations, albeit wholly unsubstantiated, concerning the conduct of a Registrar.

   [107] See paras.14-18 above.

   [108] See above paras.21 and 26-31.

   [109] See paras.26-30 above.

   [110] See paras.32-36 above.

   [111] See paras.55-62 above.

3. Having regard for the matters discussed immediately above, and the overall conduct of the litigation, the Court does not consider that Mr Ibrahim can make out an allegation that he will not be listened to. There is, on the basis of the matters set out immediately above, and more generally in the overall history of the litigation, no evidence in support of the contention that he will not be listened to, and no basis for it to be implied. The fair-minded observer would, in the Court’s view, consider that the Court had done little more than try to manage the litigation properly, making due allowance for the fact that Mr Ibrahim was self-represented. In the circumstances, nothing has been identified as a basis for finding that the presiding Federal Magistrate might decide the case other than on its legal and factual merits, and there has been no establishment of any suggestion of any pre-judgment by the presiding Federal Magistrate.

The extension of time for filing of affidavits by the respondents and a limiting of Mr Ibrahim’s opportunity to reply favoured the respondents

1. Mr Ibrahim asserted that there was a perception of bias because he had complied with the orders made by the Court on 10 September 2008 and that by 8 December 2008 the respondents had not complied with the Court’s orders of 10 September 2008.[112] Mr Ibrahim says that when the matter was raised with the Court on 22 December 2008 he was told that “it’s hypothetical”. Mr Ibrahim says that the respondents were then granted further time to file affidavits, and that he was surprised, that instead of penalising the respondents for failing to file affidavits on time that they were given an extension of time, and that he was denied the right to respond because the evidence-in-chief is the evidence in the affidavits to be filed and there would be no right of reply. Mr Ibrahim asserts that the Court was “very lenient” with the respondents, granting “extension over and over and over” from the end of January until the end of February 2009.[113] He asserts that he is disadvantaged by the lack of a right of reply: “You tie my hand behind my back and tell me, ‘… make your case.’”[114] Mr Ibrahim asserts that he is disadvantaged by going to hearing without the opportunity to reply on affidavit. This is so notwithstanding that he acknowledges that the Court has indicated that it would entertain an application from him at hearing to adduce additional oral evidence if he perceives that he has been disadvantaged in any way in relation to the presentation of evidence.[115]

   [112] No orders were made on 10 September 2008. The orders referred to appear to be those made on 8 September 2008 and set out at para.25 above.

   [113] Transcript 27 May 2009 at pages 2-3.

   [114] Transcript 27 May 2009 at page 7.

   [115] Transcript 27 May 2009 at pages 7-8.

2. In summary, the position with respect to this contention is that:

   a)the Court never indicated that any position raised by Mr Ibrahim was “hypothetical”;

   b)Mr Ibrahim, and then the respondents, asked to file further affidavits which did not involve an extension of time in relation to the filing of affidavits arising from the orders made by the Court on 8 September 2008;

   c)time for the filing of the further affidavits was extended for both parties; and

   d)the Court has indicated to Mr Ibrahim that if there is any disadvantage in relation to the presentation of evidence, he may make an application to adduce additional oral evidence, and there is, therefore, no present disadvantage in this respect. Nor is there necessarily a right to reply to the respondents’ affidavit in any event.

3. On the facts, the contentions raised under this heading are either not made out, or, in the case of the filing of further affidavits and the extension of time to file those further affidavits, indicate that the parties were treated equally.

4. There is nothing in the contentions raised under this heading which identifies anything which indicates that the presiding Federal Magistrate will decide the case other than on its legal and factual merits, and nothing to indicate any established pre-judgment by the presiding Federal Magistrate.

Extension of time for discovery by the respondents

1. Mr Ibrahim also asserts that there is an apprehension of bias because the presiding Federal Magistrate kept extending the respondents’ time in which to provide discovery.[116] This leads to complaints by Mr Ibrahim that:

   a)the respondents had been through discoverable documents and only selected those “that will not incriminate” the respondents;[117] and

   b)there was a failure to properly provide discovery by the respondents.[118]

   [116] Transcript 27 May 2009 at pages 3 and 6.

   [117] Transcript 27 May 2009 at page 3.

   [118] Transcript 27 May 2009 at pages 5 and 8-9.

1. The latter complaints are about the conduct of the respondents, and cannot constitute a basis for an apprehension of bias on the part of the presiding Federal Magistrate. Even if the complaints could constitute a basis for an apprehension of bias there is no evidence to support them, and nothing from which the asserted facts might be implied.

2. In summary the facts relating to discovery orders are:

   a)no order dealing with discovery in these matters was made until 30 January 2009:

   b)the parties were ordered to confer with respect to the production, inspection and copying of the documents generally prior to 13 February 2009;

   c)by 23 February 2009 there had been no meaningful conferral;

   d)the parties were ordered to attend the offices of the respondents’ solicitors on 25 February 2009 to exchange copies of all relevant documents, but a dispute arose as to payment for copying, and that did not occur;

   e)the time for compliance with the Court’s order concerning the exchange of all relevant documents was extended to 27 February 2009;

   f)the Court then determined in the Marsh Subpoena Judgment that formal discovery ought to be ordered and orders were made accordingly; [119]

   g)Mr Ibrahim failed to comply with an order to file and serve a sworn affidavit of all discoverable documents in his possession by 4.00pm on 6 March 2009;

   h)the respondent Worken filed an affidavit of discovery on 17 March 2009, four days later than required by the Court’s order; and

   i)there have been no other relevant orders with respect to discovery made in relation to the respondents.

   [119] See especially paras.61-63 above.

3. Mr Ibrahim’s assertion that the Court has kept extending the respondents’ time in which to provide discovery cannot be maintained on the facts. As such, it cannot be a basis for asserting an apprehension of bias on the part of the presiding Federal Magistrate.

Limited time for the applicant to discover drawings and failure to consider reasons relating to this issue

1. Mr Ibrahim asserts that there is an apprehension of bias because in the Court’s orders as originally proposed on 2 April 2009 he was only given 24 hours to file an affidavit attaching legible hard copies of drawings to be relied upon in his case. He further says that the Court failed to consider any reasons put forward by him as to why that time was unreasonable, including that he was medically unfit, and that the AutoCAD on his computer was not working and was not able to print out hard copies of the drawings concerned.[120] In argument, Mr Ibrahim had indicated that he did not have a list of the plans to be relied upon and that they were in his computer.

   [120] Transcript 27 May 2009 at pages 3 and 6.

2. The Court delivered the Particular Discovery Judgment ex tempore and said that there would be an order that Mr Ibrahim file an affidavit of discovery specifying the building plans and attaching legible copies of them by 4.00pm on 3 April 2009, which was the next day.

3. It was only once the Particular Discovery Judgment had been delivered, and the Court indicated the order that it intended to make, that Mr Ibrahim submitted that he had medical problems and a medical test which would mean that it was not possible for him to prepare the affidavit by the following day (which was a Friday). The Court asked whether he was able to prepare the affidavit by 4.00pm Monday, to which Mr Ibrahim responded “I’ll try”.[121] There was no assertion that the affidavit could not be done by that time, or that the medical problems alluded to, would preclude the affidavit being done by that time. The only submission was that it could not be done by the following day, the Friday.

   [121] See para.74 above.

4. Mr Ibrahim then raised a further issue and that was that the AutoCAD in his computer was not working. There was no evidence at all before the Court as to this matter. It also occurred in circumstances where, prior to raising the AutoCAD issue, and in the context of the discussion concerning his medical problems, Mr Ibrahim had said:

   “Why don’t I just give them a copy of the plans and I don’t need to do the affidavit.”[122]

   [122] See para.74 above.

5. Thus on the one hand Mr Ibrahim in the context of the medical problems was seemingly endeavouring to avoid filing an affidavit by indicating that he could just give a copy of the plans to the respondent Highline, but on the other hand was saying to the Court that he had a “dilemma” and was going to be put “under the hammer for 48 hours” if he had to produce legible copies of the specified plans. In the circumstances, the Court was entitled to conclude that it was possible for Mr Ibrahim to provide copies of the specified plans, at least within 48 hours.

6. It was against that background that the Court indicated that it would make orders providing for the affidavit specifying the relevant plans, and attaching legible copies of them, to be filed by the following Monday, 6 April 2009.

7. It is evident from the foregoing that Mr Ibrahim was given more than 24 hours, and indeed was given four days, to file an affidavit attaching legible hard copies of the drawings to be relied upon in his case – a case which, by that time, had been on foot for some eleven months. It is also evident that the Court did consider the reasons put forward by him, and extended the time initially indicated from 24 hours to four days having regard to the submissions made, albeit that those submissions were made after judgment and without any evidence being put before the Court of the relevant matters.

8. Ultimately, nothing in the contentions raised under this heading identifies anything to indicate that the presiding Federal Magistrate will decide the case other than on its legal and factual merits. There is nothing to indicate any established pre-judgment by the presiding Federal Magistrate. Rather, what occurred was that the presiding Federal Magistrate listened to submissions made post-judgment and amended the order that was to be made to accommodate the concerns raised by Mr Ibrahim.

Denial of right to issue subpoenas

1. Mr Ibrahim complains that there is an apprehension of bias because not only did the Court extend time for the respondents to provide discovery (which for reasons set out above is incorrect), but it also denied Mr Ibrahim the right to have a subpoena issued. Mr Ibrahim asserts that the right to issue the subpoena being denied was a matter which went to the proof of whether or not he was “lying” about his case, or whether the respondents were “lying” about their case.[123]

   [123] Transcript 27 May 2009 at page 3.

2. In the course of his submissions (on the disqualification application) concerning the denial of the right to have a subpoena issued, Mr Ibrahim referred to decisions allegedly made by a Registrar of this Court in relation to subpoenas. He made an assertion - “Is [the Registrar] on the take here, or what?”[124] concerning that Registrar. That assertion was unsupported by any evidence, and was an assertion which Mr Ibrahim was requested to, and did, withdraw.[125] Mr Ibrahim then went on to assert that the Registrar and the presiding Federal Magistrate “are going hand on hand. You’re both going in the same direction. You’re both trying to defeat my case.”[126] That assertion was also unsupported by any evidence.

   [124] Transcript 27 May 2009 at page 4.

   [125] Transcript 27 May 2009 at page 4.

   [126] Transcript 27 May 2009 at page 4.

3. A fundamental reason why the allegation of an apprehension of bias in relation to alleged denial of the right to issue subpoenas must fail is that the Court made it clear, both in the transcript and in issuing the 1 May 2009 Orders, that Mr Ibrahim was at liberty to seek to have further subpoenas issued. Further, because of his complaints about the failure of the Registrar concerned to issue subpoenas, the Court ordered that any subpoenas be returnable before a Federal Magistrate. The fair minded observer might think the former order extended some latitude to Mr Ibrahim, whilst the latter order was just common sense.

4. Mr Ibrahim now complains, without any evidential foundation whatsoever, that the Registrar concerned and the presiding Federal Magistrate are acting in concert to defeat his case by denying him the right to issue subpoenas. No evidence of the “in concert” allegation is put before the Court, and it is not particularised beyond the bare assertion. The “in concert” allegation cannot be substantiated or sustained in those circumstances.

5. In any event, the allegation that Mr Ibrahim is denied the right to have a subpoena issued is factually incorrect. The Court ordered that any further subpoenas that Mr Ibrahim sought to issue be returnable before a Federal Magistrate. Since that order was made, in the 1 May 2009 Orders, there is no evidence that Mr Ibrahim has sought the issuance of further subpoenas.

6. In the circumstances set out above, the allegation of apprehension of bias on this ground is not made out.

Every decision determined the respondents’ way

1. Mr Ibrahim says that there is an apprehension of bias because every decision which the Court has had to make has gone the respondents’ way.[127] When asked for examples Mr Ibrahim cited the AutoCAD drawings and the discovery issues. In the course of argument, and after it was pointed out that those matters had also been the subject of an appeal to the Federal Court which had been dismissed (a matter which he disputed), Mr Ibrahim said that the adjourning of the directions hearing to 12.30pm on 1 May 2009 from the directions hearing earlier that day, and the Court’s changing of the Orders on that day, were further examples.

   [127] Transcript 27 May 2009 at pages 3 and 5-6.  

2. The AutoCAD drawings and discovery issues have been considered above,[128] and the Court repeats what has been previously said.

   [128] See paras.93-104 above.

3. In relation to the adjournment to 12.30pm on 1 May 2009 it is clear from the transcript references extracted above that Mr Ibrahim did not, either ultimately or at all, object to the adjournment of the matter to 12.30pm. His overriding consideration was that the matter be completed by 1.00pm so that he could attend Friday prayers. When the matter was called back on at 12.33pm on 1 May 2009, there was no request to adjourn to later on Friday or to another day, and, indeed, no mention or indication at any stage prior to the matter being adjourned at 12.50pm that Mr Ibrahim would not be able to get to Friday prayers. There is nothing in this contention which could possibly amount to an apprehension of bias.

4. The vague contention that every decision in these proceedings has been determined the respondents’ way is also unsupported by the evidence. For reasons set out above under the heading related to the contention that Mr Ibrahim will not be listened to, a general contention that every decision has been determined the respondents’ way cannot be sustained.

5. In the circumstances set out above, the allegation of apprehension of bias in relation to this contention is not made out.

Changing Federal Court orders

1. As to the assertion that the Court changed the orders agreed in the Federal Court on 1 May 2009 the factual position is as follows:

   a)The parties attended the adjourned directions hearing on that day, and put before the Court, orally, orders to be made by consent concerning the filing and service of affidavits. Those orders were made.

   b)Because the orders concerning the filing and serving of affidavits consented to by the parties superseded some of the orders of 30 January 2009 made by the Court, the Court made an order concerning the supersession. That order was purely consequential.

   c)Additionally, in relation to the disqualification application, the Court confirmed that that application was persisted with by Mr Ibrahim, and the Court made orders to enable that matter to be dealt with.

   d)Further, the Court made an order that any request by the applicant for subpoenas be returnable before a Federal Magistrate. That order was made to deal with Mr Ibrahim’s concerns related to a Registrar of this Court, albeit, that on the evidence before the Court those concerns are wholly without foundation.

2. There were therefore no orders changed on 1 May 2009. The consent orders agreed by the parties were made, and additional orders to deal with other matters consequential upon the consent orders, and other matters raised by the parties, were made. Again, there is nothing in this contention which could possibly amount to an apprehension of bias.

Previous similar course of conduct in another matter

1. As part of his assertion that there was an apprehension of bias by reason of the denial of the issuance of a subpoena, Mr Ibrahim referred to the case of a Mr Peter Neil. In this regard Mr Ibrahim said as follows:

   “…I met Peter Neil. I’m sure the Court aware who Peter Neil is. I met him two weeks ago in a fast food outlet, and I remembered him, and he told me that you did exactly in his case the same. You denied him the right to table an affidavit, to prove his case.”[129]

   [129] Transcript 27 May 2009 at page 3.

2. The litigation history of the matter in which Mr Neil was involved is set out in Neil v Reward Property Group Pty Ltd.[130] An examination of the Reasons for Judgment shows that the Court, in the course of hearing an application by Mr Neil to set aside a bankruptcy notice served on him, and for an interim order that time for compliance with the bankruptcy notice be extended, allowed two affidavits to be filed by Mr Neil. The second affidavit was allowed to be filed because the first affidavit did not comply with the requirements of the relevant bankruptcy rules.[131] It transpired that the second affidavit did not fulfil those requirements either.[132] The Court did refuse to accept the tender from the bar table of a letter, sent by Mr Neil to the respondent in those proceedings, alleging criminal conduct by the respondent. The reasons for doing so are fully set out in the Reasons for Judgment, and include a provision for Mr Neil to make further application “supported by evidence in proper form”.[133] The proceedings involving Mr Neil were, as a consequence of the judgment in Neil, transferred to the Melbourne District Registry of this Court, with the proceedings adjourned to a further directions hearing before a Federal Magistrate in the Melbourne Registry, and with time for compliance with the bankruptcy notice extended until further order of the Court.[134] There was no appeal against the judgment in Neil.

   [130] [2008] FMCA 1583 (“Neil”).

   [131] Neil at paras.1-5 per Lucev FM.

   [132] Neil at para.7 per Lucev FM.

   [133] Neil at paras.10-12 per Lucev FM. The quote is from para.12.

   [134] Neil at para.85 per Lucev FM.

3. The allegation raised by Mr Ibrahim of apprehended bias by reason of the presiding Federal Magistrate’s conduct in the Neil matter cannot be sustained on an examination of the facts set out above. In any event, the matter is irrelevant as to whether or not there is an apprehension of bias in the present circumstances. There is nothing identified in the circumstances of the proceedings involving Mr Neil which is relevant to the current proceedings, or which might be said to lead the presiding Federal Magistrate to decide the current proceedings other than on the legal or factual merits of the case. Further, there is no logical connection between the two matters. There was nothing decided in Neil which constitutes a live and significant issue in these proceedings, or which impinges on any issue of the credit of any witness in these proceedings.

Nature of the major issue in the proceedings misapprehended

1. Mr Ibrahim appears to also claim that there is an apprehension of bias because the Court does not make sense of his assertion that the major issue in the proceedings is not about the drawings but what he describes as “the tender deception”.[135] Mr Ibrahim says that there was “no runner up” for the tender in January 2005 and that he has undisputed sworn evidence that the tenderer now said to be the runner up by the respondents, had their tender terminated in the first half of December 2004.

   [135] Transcript 27 May 2009 at page 5.

2. Unless it arises from pre-judgment or prejudice of some kind the failure to make sense of an assertion about a major issue does not give rise to an apprehension of bias. In these proceedings, there is adequate time for that issue to be drawn to the Court’s attention during the course of any hearing, and in particular in submissions in the substantive hearing of the matter. In any event, it is clear from the summary of facts set out by the Court above,[136] and the summary of the misleading and deceptive conduct alleged which is also set out above,[137] that the Court appreciates that the case relates to representations made by the respondents, as well as the alleged taking and using of Mr Ibrahim’s design. Thus, whilst the interlocutory processes have become mired in controversies about discovery and subpoenas related to documents, it remains the case that the Court understands that the alleged misleading and deceptive conduct arises from representations allegedly made to Mr Ibrahim.

   [136] See para.11 above.

   [137] See para.12 above.

3. There is nothing in this contention which gives rise to an apprehension of bias. No conduct of the presiding Federal Magistrate has been identified which might be said to warrant a conclusion that the presiding Federal Magistrate will decide the current proceedings other than on the legal or factual merits of the case. Further, and in any event, the factual basis for the assertion cannot be made out as it is apparent that the Court understands that the case relates to representations concerning what Mr Ibrahim describes as “the tender deception”.

The awarding of costs against Mr Ibrahim

1. Mr Ibrahim might also be seen to have suggested that the costs which have thus far been awarded against him by the Court in the course of these matters reveals apprehended bias.[138]

   [138] Transcript 27 May 2009 at page 3.

2. Costs, where awarded, have generally followed the event, save where they have been reduced or not ordered, and where that occurred[139] the orders advantaged Mr Ibrahim. On at least one occasion Mr Ibrahim accepted that costs orders ought to be made against him, and on that occasion the Court refused Mr Ibrahim’s application that that order not be made until after the case was complete.[140]

   [139] See paras.18 and 30 above.

   [140] See para. 45 above.

3. No case of apprehended can be made out in relation to the way in which costs has been dealt with by the presiding Federal Magistrate.

Disqualification in any event?

1. The Court has also considered whether or not the presiding Federal Magistrate ought to be disqualified in any event. In so doing, the Court has considered the contentions on a global basis, and also had regard for the general nature and history of the litigation, as set out above. In that regard, the Court does not consider that there is anything in the conduct of the proceedings which warrants the disqualification of the presiding Federal Magistrate. In circumstances where Mr Ibrahim has failed to establish any of the contentions he asserts, there has not been firmly established any reasonable apprehension of bias by reason of pre-judgment, and to disqualify the presiding Federal Magistrate would be an abrogation of the Court’s duty to hear and determine the litigation before the Court without acceding too readily to suggestions of an apprehension of bias.[141]

Conclusion and orders

[141] See para.83(e) above.

Conclusion

1. The Court has concluded that Mr Ibrahim has failed to establish any of the contentions in support of his applications that the presiding Federal Magistrate be disqualified.

Orders

1. There will be orders that the applications be dismissed.

2. There will be consequential orders that the:

   a)hearing dates on 13 and 14 July 2009 be vacated; and

   b)matter be listed for further directions at 10.15am on 13 July 2009.

1. The Court will hear the parties as to costs.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  S. Gough

Date:  10 July 2009

[76] Transcript 2 April 2009 pages 2-4.