Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No.5)
[2010] FMCA 201
•22 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IBRAHIM v HIGHLINE and IBRAHIM v WORKEN PTY LTD (No.5) | [2010] FMCA 201 |
| PRACTICE AND PROCEDURE – Interim application by the respondents to dismiss substantive applications for want of compliance with Court’s orders – substantive applications dismissed – costs awarded to the respondents. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(1)(a), 13.03B(1)(a) High Court Rules 2004 (Cth), r.41.02 |
| Ibrahim v Highline (No. 2) [2009] FMCA 297 Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No. 3) [2009] FMCA 510 Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No. 4) [2009] FMCA 717 Ibrahim and Worken Pty Ltd [2009] FCA 1146 |
| Applicant: | TAREK IBRAHIM |
| Respondent: | HIGHLINE |
| File Number: | PEG 62 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 22 March 2010 |
| Date of Last Submission: | 22 March 2010 |
| Applicant: | TAREK IBRAHIM |
| Respondent: | WORKEN PTY LTD |
| File Number: | PEG 63 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 22 March 2010 |
| Date of Last Submission: | 22 March 2010 |
| Delivered at: | Perth |
| Delivered on: | 22 March 2010 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the Respondent: | Mr L. Hager |
| Solicitors for the Respondent: | Metaxas & Hager |
ORDERS
PEG 62 OF 2008
The interim application to dismiss the application be upheld.
The application be dismissed.
The applicant pay the respondent’s costs, including all reserved costs and the costs of today, to be assessed by a Registrar of this Court in accordance with the Schedule of Costs in the Federal Magistrates Court Rules 2001 (Cth).
PEG 63 OF 2008
The interim application to dismiss the application be upheld.
The application be dismissed.
The applicant pay the respondent’s costs, including all reserved costs and the costs of today, to be assessed by a Registrar of this Court in accordance with the Schedule of Costs in the Federal Magistrates Court Rules 2001 (Cth).
| 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)
The Court has before it an interim application to dismiss the substantive application in each matter for want of compliance with orders made by the Court on 1 May 2009.
The lengthy and somewhat sorry history of these proceedings up until 10 July 2009 is fully set out in lengthy Reasons for Judgment in Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No. 3).[1] That history need not be repeated here but is adopted for the purposes of these Reasons for Judgment.
[1] [2009] FMCA 510 (“Ibrahim (No. 3)”).
In Ibrahim (No. 3) this Court, as presently constituted, dismissed a disqualification for bias application by Mr Ibrahim. On 20 July 2009 the Court heard an application by Mr Ibrahim for leave to appeal the judgment in Ibrahim (No. 3). The application for leave to appeal was dismissed. The Court also listed for hearing on 3August 2009 the respondents’ application for orders arising from Mr Ibrahim’s alleged non-compliance with order 1 of the Court’s orders of 1 May 2009.[2]
[2] Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No. 4) [2009] FMCA 717 (“Ibrahim (No. 4)”).
Order 1 of the Court’s orders of 1 May 2009 provided as follows:
1.By 4:00pm 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.
Mr Ibrahim applied to the Federal Court for leave to appeal the orders made arising from the Reasons for Judgment in Ibrahim (No. 3) and Ibrahim (No. 4). And so, on 3 August 2009, the proceedings in this Court were adjourned to a date to be fixed depending on the outcome of Mr Ibrahim’s appeals to the Federal Court.
On 8 October 2009 the Federal Court dismissed Mr Ibrahim’s application for leave to appeal in Ibrahim and Worken Pty Ltd.[3] Having found that the application ought to be dismissed the Federal Court observed as follows:
40.I consider I should add that it is important for the applicant, if he wished seriously to pursue the proceeding he has commenced in the Federal Magistrates Court, to ensure compliance with orders made by the Federal Magistrate from time to time that are designed to enable the parties to present their cases adequately at a final hearing. Interlocutory applications for leave to appeal of this kind are only apt to delay the whole process and add expense to the process, neither of which can be considered to the advantage of any of the parties.[4]
[3] [2009] FCA 1146 (“Ibrahim – Federal Court”).
[4] Ibrahim – Federal Court at para.40 per Barker J.
On 16 November 2009 there was a further directions hearing before this Court. Mr Ibrahim advised the Court as follows:
MR IBRAHIM: The matter will go to the High Court for an appeal. It is ready, it has been lodged on Friday. Unfortunately it was returned back to me because there was some document missing. Today – this morning, I have them. There is some document again I forgot at home. It is in the file and will be copied as soon as this proceeding is finished. That bill will proceed. If I fail to disqualify you, I will be dismissing the cases and I will take it to the Federal Court. As I’ve mentioned to the Court I will not allow you to rule over me ever again.[5]
[5] Transcript 16 November 2009, p.2.
Consequently, this Court ordered as follows on 16 November 2009:
1.The matter be adjourned until after the High Court has dealt with Mr Ibrahim’s intended application for special leave to appeal the judgment of Justice Barker of the Federal Court.
AND THE COURT NOTES that the judgment of Justice Barker referred to above is Ibrahim v Worken Pty Ltd [2009] FCA 1146.
In February 2010 the Court caused inquiries to be made of the High Court Registry in Perth concerning the progress of Mr Ibrahim’s intended special leave application. The Court’s Perth chambers staff were advised, and have advised the Court, that there was no record of any application or appeal having been filed in the High Court by Mr Ibrahim. On 18 February 2010 the matter was listed for a further directions hearing on 8 March 2010.
On 8 March 2010 when the matter was called Mr Ibrahim did not appear. The following exchange occurred between the Court and Counsel for the respondent:
HIS HONOUR: Yes, all right. Mr Hager, I can indicate to you and I do not know whether you are aware of this, but apparently Mr Ibrahim has been in the vicinity of the Court this morning and has indicated to chambers staff that there is no point in his appearing this morning as his High Court appeal is still pending. That is what I am informed. We have had that matter checked, and so far as the Perth Registry is concerned there have been no documents filed or accepted by the High Court in relation to this matter. And when I say this matter, any appeal from the judgment of Mr Barker J, which dismissed the appeal from this Court’s decision on Mr Ibrahim’s application to – for the court as presently constituted to disqualify itself. In those circumstances, it appears that Mr Ibrahim is out of time with respect to any High Court application in any event. That is as the Court presently understands the situation. Do you have anything to say with respect to the matter?
MR HAGER: Well, your Honour, I saw Mr Ibrahim in the Court this morning, and he stormed out. From my client’s position, they are fairly frustrated with the direction that the proceedings have taken, they have been going on and on, and Mr Ibrahim has been granted indulgence after indulgence…
Mr Hager then quoted the paragraph from Ibrahim - Federal Court set out above,[6] and then proceeded as follows:
[6] See para.6 above.
My client’s position for the last year has been that we just want a set of plans that Mr Ibrahim was going to tender at trial. Our position is that he has not done that. He filed an affidavit earlier in the year that pointed to three plans, and then there were numerous others that were going to be tendered into evidence at trial. The position is – well, I think it is clear where the trial will go. There will be three plans, then my clients will be ambushed with a stack of plans at the trial. Mr Ibrahim has indicated, I believe, in open court that he’s going to do that.
HIS HONOUR: Do you still have an outstanding application arising from the non-compliance with an order for him to produce the plans, do you not?
MR HAGER: Yes, I do.
HIS HONOUR: Do you seek to have that heard? Not today, but to have it listed for hearing?
MR HAGER: Yes.[7]
[7] Transcript 8 March 2010, pages 2-3.
No High Court papers of any kind have been served on the respondents and Counsel for the respondents has confirmed that that position pertains up to today. On 8 March 2010 the Court made the following orders in both matters:
1. 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 2.15 pm on 22 March 2010.
2. The respondent to serve a photocopy of this Order on the applicant by ordinary pre-paid post, to be posted on or before 10 March 2010, and file an affidavit of service in relation thereto, by 15 March 2010.
The Court is satisfied that service has been effected as ordered in order 2 of the orders of 8 March 2010 and the Court refers to the affidavit of Mr Hager filed on 9 March 2010.
At the directions hearing on 1 May 2009 the Court was informed by Counsel for the respondents that:
MR HAGER: …Mr Ibrahim has agreed to provide the plans that he is going to rely upon at trial in an affidavit and that will be filed and provided to our office in 10 days…[8]
[8] Transcript 1 May 2009, p.4.
That agreement was reached in a hearing before Barker J in the Federal Court in relation to whether an application by Mr Ibrahim for leave to appeal earlier orders of this Court was to be dismissed, which it was.
In an ex tempore judgment on 2 April 2009 in Ibrahim v Highline (No. 2),[9] this Court said as follows:
21.For reasons already set out, discovery of the building plans would be of benefit to the litigation. Indeed, the litigation can probably not be properly conducted without the building plans originally submitted by the applicant in relation to the tender, and on which he says he relies. For that reason, they are integral to the fair, proper and expeditious management of the case. The Court notes that at this stage, those building plans do not appear to be appended to any affidavit filed in the proceedings by the applicant. The Court also notes that if the building plans were not to be discovered now but only at or during the hearing, it may, and probably would be, necessary to adjourn, and possibly to have to relist the hearing to allow the respondent a fair opportunity to deal with the building plans and to brief an expert in respect of those building plans. To have to do so, when alternative arrangements can properly be made now would not be in the interests of the administration of justice and would be contrary to the objects of the Federal Magistrates Act and the Federal Magistrates Court Rules.[10]
[9] [2009] FMCA 297 (“Ibrahim (No. 2)”).
[10] Ibrahim (No. 2) at para.21 per Lucev FM.
The Court therefore went on to find that, in the circumstances, it was appropriate to make a declaration for discovery in relation to those plans,[11] and made orders that:
1.By 4 pm on 6 April 2009 the applicant file an affidavit of discovery 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.Liberty to apply urgently in the event of non-compliance with Order 1 above.
[11] Ibrahim (No. 2) at para.23 per Lucev FM.
It can therefore be seen that the orders of 1 May 2009 were not the first orders requiring plans to be produced on affidavit. It remains the case that the orders of 1 May 2009 have not been complied with. It is clear from the foregoing that:
a)there is no evidence of an application or appeal having been made or filed in the High Court by Mr Ibrahim from Ibrahim – Federal Court and the orders in that matter dismissing the application for leave to appeal to the Federal Court orders made by this Court in Ibrahim (No. 3) and Ibrahim (No. 4), and the Court notes that, in any event, such application is probably now out of time;[12]
b)order 1 of the orders of 1 May 2009 has not been complied with and that earlier orders of 2 April 2009 to similar effect were also not complied with;
c)Mr Ibrahim evinced an intention to have the proceedings dismissed in the event that he failed to have the presiding Federal Magistrate in these proceedings disqualified for bias, which he has failed to do before the Federal Court and in respect of which he has failed to appeal to or make any application to appeal to the High Court.
[12] High Court Rules 2004 (Cth), r.41.02.
The Court can conclude from the foregoing, and from Mr Ibrahim’s non-appearance today, that Mr Ibrahim has deliberately determined not to comply with order 1 of the orders of 1 May 2009 and that he is unlikely to do so in the future. Mr Ibrahim is therefore in default by reason of failure to comply with an order of this Court; that default being under r.13.03A(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).[13] Under r.13.03B(1)(a) of the FMC Rules the Court may dismiss or stay in whole the proceedings where there is default. In circumstances where there is, as there is here, a default in relation to a matter integral to the applicant’s case, and the Court has concluded that that default is deliberate and likely to be ongoing, the Court has no real option but to dismiss the proceedings. Accordingly, in each matter there will be an order that the interim application be upheld and that the substantive application be dismissed.
[13] “FMC Rules”.
In addition to the above orders there will, in each application, be an order that the applicant pay the respondent’s costs, including all reserved costs and the costs of today, to be assessed by a Registrar in accordance with the Schedule of Costs in the FMC Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Dinon
Date: 24 March 2010
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