Ibrahim v Highline (No.2) - [2009] FMCA 297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IBRAHIM v HIGHLINE (No.2)

[2009] FMCA 297

TRADE PRACTICES – Misleading and deceptive conduct – design and construct tender – plans.
PRACTICE AND PROCEDURE – Request for particular discovery and production of plans.

Trade Practices Act 1974 (Cth), s.52
Federal Magistrates Act 1999 (Cth), s.45(1)
Federal Magistrates Court Rules 2001 (Cth), r.14.02

Abrahams v Qantas Airways Limited (2007) 210 FLR 314; [2007] FMCA 639
Ibrahim v Highline and Anor [2008] FMCA 1146
Ibrahim v Worken Pty Ltd (No 2) [2009] FMCA 156
Goodall v Nationwide News Pty Ltd [2007] FMCA 218

Applicant:

TAREK IBRAHIM

Respondent:

HIGHLINE

File Number:

PEG 62 of 2008

Judgment of:

Lucev FM

Hearing date:

2 April 2009

Date of Last Submission:

2 April 2009

Delivered at:

Perth

Delivered on:

2 April 2009

REPRESENTATION

For the Applicant:

Mr T Ibrahim appeared in person

Counsel for the Respondent:

Mr L Hager

Solicitors for the Respondent:

Metaxas Hager

ORDERS

By 4pm on 6 April 2009 the applicant file an affidavit of discovery specifying the building plans to be relied upon by the applicant at the hearing and attaching legible copies of the plans so specified as annexures to the affidavit.
Liberty to apply urgently in the event of non-compliance with above Order 1.
The respondent’s time for compliance with Order 2 of Orders of the Court of 30 January 2009 be extended to 4pm on 20 April 2009.
The applicant to pay the respondent’s costs in the sum of $1455 to be paid by 4pm on 30 April 2009.
The applicant be granted leave to appeal from today’s proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 62 of 2008

TAREK IBRAHIM

Applicant

And

HIGHLINE

Respondent

REASONS FOR JUDGMENT

(Ex tempore – edited from the transcript)

The application in the case made on 27 March 2009 by the respondent seeks orders in the following terms:
(1)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.
(3)The applicant pay the respondent’s costs of this application.
The applicant is essentially seeking discovery and production, or at least discovery, of building plans to be relied upon by the applicant at hearing.
The substantive application in this matter is an application in respect of alleged misleading and deceptive conduct contrary to s.52 of the Trades Practices Act 1974 (Cth) in relation to design work allegedly performed under contract by the applicant for the respondent in relation to a design and construct tender for another entity, Worken Pty Ltd,[1] in respect of which there is another application which will be heard together with this application in late May 2009.
[1] “Worken”.
One of the issues in the proceedings is whether the applicant’s design was “taken” and used by the respondent and Worken without appropriate remuneration and contrary to an assertion by the respondent that the applicant was not a successful tenderer in the tender application.[2]
[2] See Ibrahim v Highline and Anor (2008) FMCA 1146 at para.24 per Lucev FM where arguable allegations of misleading and deceptive conduct are set out in some detail.
In relation to the facts of this application in a case, Mr Hager has sworn an affidavit on 27 March 2009. Paragraphs 3 and 4 of that affidavit read as follows:
I require a copy of the final building plans prepared by the applicant that the applicant intends to rely on at trial in this action and in the Federal Magistrates Court Action PEG 63 of 2008 so they can form part of affidavits to be filed by the respondents in both actions.
I have read the affidavits and material filed by the applicant in this action in the Federal Magistrates Court Action PEG 63 of 2008 and the applicant does not identify the building plans prepared by the applicant that the applicant will rely on at trial in this action or Federal Magistrates Court Action PEG 63 of 2008.
Paragraph 5 refers to a letter sent by post to the applicant on 3 March 2009 which is annexure LH1 to Mr Hager’s affidavit and addressed to Mr Ibrahim, the applicant. The body of that letter reads as follows:
My clients have instructed me to engage an expert to assess the plans prepared by you with Highline Building Constructions and the plans used by Highline Building Constructions to construct their building for Worken Pty Ltd.
Can you please provide me with a copy of your final plans that you will be relying upon in these cases so we can avoid any potential disagreement. I would appreciate it if you could provide me with a copy of your plans within the next seven days.
Interpolating, pursuant to order (1) made by the Court on 30 January 2009, the applicant has leave to file and serve any affidavit including those of expert witnesses by 3 March 2009, that is the date of annexure LH1. Order (2) of those same orders provides that the respondent has leave to file and serve any affidavits including those of an expert by

3 April 2009
.
Turning back to Mr Hager’s affidavit, paragraphs 6 and 7 say that he telephoned the applicant, Mr Ibrahim, on 19 and 23 March 2009 and the applicant has not answered his telephone on either of those occasions.
Mr Hager’s affidavit goes on to depose that a further letter which is annexure LH2 was sent to the applicant on 23 March 2009. The content of that letter is as follows:
I refer to my letter dated 3 March 2009.
I have not received your final building plans that you will be relying upon in these actions as they are not currently annexed to your affidavits. This has caused delays in finalising my client’s affidavits in opposition to your claims and the preparation of my clients’ experts report.
I require a copy of your building plans by Thursday, 26 March 2009. If the plans are not received by this time, I will apply to the court for an urgent order that you provide them or at least nominate which plans you will be relying upon at trial.
In paragraph 9 of his affidavit Mr Hager says that there has been no response to his letters to the applicant. 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.
With respect to discovery, this Court does not ordinarily order discovery. Discovery requires determination by the Court that it is in the interests of the administration of justice that there be discovery and the making of a declaration to that effect. Section 45(1) of the Federal Magistrates Act1999 (Cth)[3] provides for the making of such a declaration where it would be in the interests of the administration of justice to do so or and in deciding whether it is in the interests of the administration of justice to do so, the Court must look at the question of whether or not it would be likely to contribute to the fair and expeditious conduct of the proceedings and such other matters as the Court considers relevant.
[3] “FM Act”.
Rule 14.02 of the Federal Magistrates Court Rules 2001 (Cth),[4] provides that such a declaration may be made on the application of a party and that in making such a declaration the Court may make an order for disclosure generally or in relation to particular classes of documents or in relation to particular issues or by a specified date.
[4] “FMC Rules”.
In Abrahams v Qantas Airways Limited[5] the Court said:
The Court must therefore in considering an application for a discovery declaration determine whether the interests of the administration of justice, that is, the interests of the management of justice, being the management by the Court of the proceedings pending before the Court, require such a declaration, and in so doing the Court “must have regard” to whether discovery “will be likely to contribute to the fair and expeditious conduct” of the proceeding and such other matters as the Court considers relevant.[6]
[5] (2007) 210 FLR 314; [2007] FMCA 639 (“Abrahams”).
[6] Abrahams FLR at 317 per Lucev FM; FMCA at para.11 per Lucev FM.
In Abrahams the Court summarised the position from the cases in the following terms:
In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and such other matters as the Court considers relevant. Those other matters might include:
(a) the relevance of any documents sought to be discovered;
(b) the volume of documents sought to be discovered;
(c) whether there is a court book containing relevant documents and the extent to which relevant documents are included in the court book;
(d) whether discovery would narrow the issues;
(e) whether both parties seek discovery;
(f) whether there is consent to discovery;
(g) whether discovery is of benefit in the litigation; and
(h) the effect of discovery on litigants, especially, vulnerable litigants.[7]
[7] Abrahams FLR at 321 per Lucev FM; FMCA at para.25 per Lucev FM (footnotes omitted from quote).
The Court then went on to say that the categories of relevant factors were obviously not closed.[8] The Court has in Ibrahim v Worken Pty Ltd (No.2)[9] made similar observations and applied similar principles.
[8] Abrahams FLR at 321 per Lucev FM; FMCA at para.26 per Lucev FM.
[9] [2009] FMCA 156 at paras.32-35 per Lucev FM.
In considering this matter, it is patently clear that the building plans prepared by the applicant, however many of them there are, are the central documents in this case. Without them, the applicant cannot prove his case; without them, the respondent cannot refute any case mounted by the applicant. The building plans are therefore relevant.
The building plans do not appear to be inordinately voluminous and, therefore, in the Court’s view, there is no substantial burden imposed on the applicant as litigant, and no reason or adverse effect on that account, precluding their discovery.
The question of a Court Book is not relevant here.
Discovery in this instance is unlikely to narrow the issues, but nor will it expand them. Discovery is, however, essential to put:
a)the parties; and
b)the Court,
in a position to deal with the issues at hearing, and to put the Court in a position to resolve or quell the relevant controversy.
This is not a case or situation where both parties seek discovery, nor was there initially consent to discovery. That is not, however, a significant factor, given the centrality and relevance of the building plans.
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 FM Act and the FMC Rules.[10]
[10] See Goodall v Nationwide News Pty Ltd [2007] FMCA 218 (“Goodall”) at para.21 per Lucev FM:
The Court wishes to add these 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.[11] 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.
[11] Goodall at para.21 per Lucev FM.
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.
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.[12]
[12] The dates of 3 and 8 April 2009 were subsequently amended to 6 and 20 April 2009 following further submissions by the parties.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: Sandra Gough

Date: 6 April 2009

Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:

(a) as informal as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolves proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality.