Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No.4)
[2009] FMCA 717
•20 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IBRAHIM v HIGHLINE and IBRAHIM v WORKEN PTY LTD (No.4) | [2009] FMCA 717 |
| PRACTICE AND PROCEDURE – Application for leave to appeal interlocutory judgment re disqualification of presiding Federal Magistrate – whether power to grant application – principles re grant of leave to appeal interlocutory judgment. |
| Federal Magistrates Act 1999 (Cth) Federal Magistrates Court Rules 2001 (Cth) |
| Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Deighton v Telstra Corp Ltd [1997] FCA 1568 Ibrahim v Considine Architect [2008] FCA 1819 Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No 3) [2009] FMCA 510 Skipworth v State of Western Australia and Others (No 2) (2008) 218 FLR 16; 6 ABC(NS) 252; [2008] FMCA 544 |
| Applicant: | TAREK IBRAHIM |
| Respondent: | HIGHLINE |
| File Number: | PEG 62 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 20 July 2009 |
| Date of Last Submission: | 20 July 2009 |
| Applicant: | TAREK IBRAHIM |
| Respondent: | WORKEN PTY LTD |
| File Number: | PEG 63 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 20 July 2009 |
| Date of Last Submission: | 20 July 2009 |
| Delivered at: | Perth |
| Delivered on: | 20 July 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr L. Hager |
| Solicitors for the Respondent: | Metaxas and Hager |
ORDERS
PEG 62 OF 2008
The applicant’s application for leave to appeal the Court’s judgment of 10 July 2009 be dismissed.
The respondent’s application of 27 May 2009 for orders arising from the applicant’s alleged non-compliance with Order 1 of the Court’s Orders of 1 May 2009 be heard at 2:15pm on 3 August 2009.
The costs of today be reserved.
PEG 63 OF 2008
The applicant’s application for leave to appeal the Court’s judgment of 10 July 2009 be dismissed.
The respondent’s application of 27 May 2009 for orders arising from the applicant’s alleged non-compliance with Order 1 of the Court’s Orders of 1 May 2009 be heard at 2:15pm on 3 August 2009.
The costs of today be reserved.
| 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
(Ex tempore reasons edited from transcript)
There is an application before the Court by Mr Ibrahim which seeks leave to appeal the judgment of this Court handed down in relation to an earlier interlocutory application by Mr Ibrahim seeking that the presiding Federal Magistrate be disqualified. That interlocutory application was dismissed by the Court on 10 July 2009 and extensive reasons for that judgment were published on that day together with the order dismissing that interlocutory application.[1]
[1] Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No 3) [2009] FMCA 510 (“Ibrahim (No 3)”).
The Court, having examined the provisions of the Federal Magistrates Act 1999 (Cth)[2] and the Federal Magistrate Court Rules 2001 (Cth),[3] and having sought from Mr Ibrahim an indication as to what provisions of the FM Act or FMC Rules he relies upon in relation to the application for leave to appeal the judgment of 10 July 2009, and receiving no indication that there were any relevant provisions from Mr Ibrahim and, on its own inquiries, not being able to find any provisions of the FM Act or the FMC Rules which give it power to grant leave to appeal an interlocutory judgment, is of the view that it has no power to grant the application by Mr Ibrahim. If it has done so in the past then the Court is of the view that it was mistaken in the past in doing so. There is simply no provision in the FM Act or the FMC Rules which allows it do so. This Court is not a Court of inherent jurisdiction, it is a Court of statutory jurisdiction.[4] If there is no provision in the FM Act or the FMC Rules for the grant of leave, leave cannot be granted.
[2] “FM Act”.
[3] “FMC Rules”.
[4] See, generally, Skipworth v State of Western Australia and Others (No 2) (2008) 218 FLR 16 at 24-30 per Lucev FM; 6 ABC(NS) 252 at 260-266 per Lucev FM; [2008] FMCA 544 at paras. 27-53 per Lucev FM.
In the event that the Court is wrong with respect to there being no power to grant the application for leave to appeal, then the authorities clearly show that what must be shown on an application for leave to appeal an interlocutory judgment is that the primary decision be attended with sufficient doubt to warrant its being reconsidered, and that substantial injustice would result if leave were refused, supposing that decision to be wrong. It is also relevant to consider the likelihood of leave to appeal being granted. The Court refers Décor Corporation Pty Ltd v Dart Industries Inc,[5] and Deighton v Telstra Corp Ltd,[6] and the judgment of Gilmour J in Ibrahim v Considine Architect.[7]
[5] (1991) 33 FCR 397.
[6] [1997] FCA 1568.
[7] [2008] FCA 1819 per Gilmour J at paras.8 and 9.
The applicant, Mr Ibrahim, indicated to the Court that he has simply not read the primary decision in respect of which leave to appeal is now sought. In those circumstances the arguments that he put today were simply a shortened reiteration of the arguments that the Court heard in support of the interlocutory application that the presiding Federal Magistrate be disqualified, and then not all of those arguments.
Nothing has been put to the Court which, in view of the nature of the reasons for judgment handed down in Ibrahim (No 3), would cause the Court to doubt the correctness of the primary judgment or establish that an injustice would be done by allowing the decision to stand.
In those circumstances the application for leave to appeal the interlocutory judgment is dismissed.
There is outstanding an interlocutory application made orally by the respondents for orders arising from Mr Ibrahim’s alleged non-compliance with order 1 of the Court’s orders of 1 May 2009. That application has previously been adjourned to a date to be fixed and provision made for both parties to file affidavits by dates set out in the orders. That interlocutory application has not been withdrawn and it is appropriate that application be listed for hearing. That application will therefore be listed for hearing on 3 August at 2.15 pm.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Susan Dinon
Date: 24 July 2009
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