IBRAHIM v Housing Industry Association Limited

[2018] FCCA 3586

FEDERAL CIRCUIT COURT OF AUSTRALIA

IBRAHIM v HOUSING INDUSTRY ASSOCIATION LIMITED & ORS [2018] FCCA 3586

Catchwords:
PRACTICE AND PROCEDURE – Pleadings – where applicant unrepresented – whether to adopt pragmatic approach and proceed without requiring pleadings – no matters of principle.

PRACTICE AND PROCEDURE – Apprehended bias – effect of discussions at directions hearing aimed at defining issues in case – no matters of principle.

PRACTICE AND PROCEDURE – Joinder – joinder of parties after proceedings commenced – where parties applicant seeks to join are other employees of respondent that were not named in Fair Work complaint – no matters of principle.

PRACTICE AND PROCEDURE – Discovery in Federal Court of Australia – whether discovery should be granted – whether discovery should be limited to directly relevant documents or documents that may lead to a chain of enquiry – no matters of principle.

Legislation:

Fair Work Act 2009 (Cth), s.370.

Federal Circuit Court of Australia Act 1999.
Federal Circuit Court Rules 2001.
Federal Court of Australia Act 1976.

Applicant: TARIQ IBRAHIM

First Respondent: HOUSING INDUSTRY ASSOCIATION LIMITED

Second Respondent: DAVID HUMPHREY

Third Respondent: KEITH RYAN

File Number: MLG 855 of 2018

Judgment of: Judge Riethmuller

Hearing date: 4 September 2018

Date of Last Submission: 4 September 2018

Delivered at: Melbourne

Delivered on: 4 September 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the Respondents: Mr Bell

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The Applicant’s oral application that I recuse myself be dismissed.

2. The Applicant’s application to join additional respondents be dismissed.

3. By way of discovery, the Respondents provide to the Applicant:

   (a)Any documents relating to the Applicant’s workplace complaint, supervision or dismissal; and

   (b)Any documents relating to the Applicant’s telephone being redirected.

4. The Applicant file and serve an Outline of Evidence of any witnesses he seeks to call to give evidence, on or before 31 January 2019.

5. The Respondents file and serve an Outline of Evidence of any witnesses they seek to call to give evidence, on or before 28 February 2019.

6. The proceeding be listed for final hearing on a date to be advised, with an estimated hearing time of three days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 855 of 2018

TARIQ IBRAHIM

Applicant

And

HOUSING INDUSTRY ASSOCIATION LIMITED

First Respondent

DAVID HUMPHREY

Second Respondent

KEITH RYAN

Third Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. In this matter, I first determine the oral application that I recuse myself from hearing the case on the grounds of an alleged reasonable apprehension of bias.  The applicant (a solicitor who works in industrial law and represents himself) is concerned that I have taken an adverse view of his draft pleading that he puts before the Court today, and on his application to join four more respondents to his adverse action claim, which is presently pending against the employer and two other employees who were involved with him in his workplace.

2. The draft pleading that he has put forward runs to some 85 pages.  It is very difficult to read and to follow.  It reads very much like a lengthy stream of thoughts around evidence.  It does not, clearly articulate the precise nature of the case, particularly with respect to accessorial liability that is said to be alleged against the proposed additional respondents.

3. The applicant expresses his concerns that I have such a view of the pleading and that I find it difficult to follow and understand.  He submits that my concerns in this regard are an unfounded prejudice against the document and his case.  I note at this point, that in an effort to better understand his case, I had asked him to go through the precise incidents he is relying upon as being adverse action, and to attempt to identity exactly what the nature of the adverse action was with respect to each incident and what he suggests is the basis for the claims.  Some time was spent attempting to identify these claims, in order to get to a point of understanding clearly what the applicant’s case was, so as to enable him to better put it, and the respondent to better answer the case.  I do not see that process, which is reasonably required in a busy trial Court where it is important to attempt to narrow the issues, as being prejudicial to his case: rather, it was an attempt to identify and clarify what case he actually wishes to put on his behalf.

4. The applicant is also concerned that I raised with him the operation of s.370 of the Fair Work Act 2009 (‘the FW Act’), which prevents proceedings being brought in this Court without first obtaining a certificate from the Fair Work Commission with respect to the dispute. In this case, the certificate that the applicant has is with respect to the ‘Housing Industry Association’.

5. The first respondent is Housing Industry Association Limited (ABN 99004631752).  Whilst not precisely the same name, it appears to me that it is certainly open to the Court to permit a proceeding against the first respondent, who is obviously intended to be named in the certificate and who participated in the conciliation conference with the Fair Work Commission.  This is in keeping with the many cases about misnomers in pleadings and claims.

6. The certificate, however, does not go on to name any other respondent.  Two further respondents are already named in these proceedings.  I hold some doubts about the extent to which the certificate is sufficient to permit them to be joined.  However, at this stage I have not formed the view that the claims against them should be struck out.

7. This issue, however, is a relevant matter to consider in determining whether or not to allow further respondents to be joined, whether or not the respondents raise such a matter.  This seems to be part of the basis that the applicant is concerned there is some reasonable apprehension of bias, however it is relevant as this Court is a statutory court, and must ensure that it actually has jurisdiction to hear and determine the matter.  If I were to hear and determine a matter without jurisdiction, not only would the orders of this Court be open to appeal, but also judicial review for acting without power. 

8. I do not accept the submission of the applicant that there are provisions in the Federal Court Rules 2001 or the Federal Circuit Court of Australia Act 1999, that would enable me to be seized of all of the jurisdiction of the Federal Court if there were any gap in the jurisdiction of this Court, nor does it seem to me that the provisions in the Federal Court of Australia Act 1976, even if this matter were pending in the Federal Court, would simply overcome s.370 of the FW Act.

9. In this regard, it does not seem to me that raising this issue forms a basis for a reasonable apprehension of bias. 

10. The applicant also says that my manner is dismissive and that I am belittling of his claims.  That, I accept, is the applicant’s subjective feeling of the argument as it has proceeded today.  In my view, the argument as it has proceeded today is one whereby his claims and position has been questioned and tested by the Court, but not in a dismissive or belittling fashion.  In particular, I spent some time trying to clarify his precise case, rather than acting in a dismissive manner of not going through exactly what he was putting in such an attempt to identify his case.  To the extent that he says he is left with the feeling that he will not get justice, it does not seem to me that that is reasonably open on the way that the hearing has been conducted. 

11. It may be that the applicant takes umbrage at the fact that I put to counsel for the respondents that it seemed to me that, whilst I had thought that pleadings would clarify this case and contain it (given that the applicant is a solicitor of 10 years standing), the nature of the pleading that has been produced has led me to believe that to continue to press for pleadings was unlikely to be productive.  Rather, it would be more productive to simply have outlines of evidence and hear the case so that, in substance, that would allow the application to still be heard by the Court, but not hamstring the applicant in his case by forcing him to draw pleadings, nor requiring the other party to constantly return to the Court in the situation where, given the state of the draft pleading that has been put, it seems unlikely to me that a pleading in standard format would be forthcoming.  Again, this does not seem to me to result in a basis upon which I could recuse myself on the basis of reasonable apprehension of bias. 

12. The applicant also claims that I am not duly considering his arguments, which appear to me to be his subjective experience of the Court not readily accepting his arguments, which again is not a basis for a reasonable apprehension of bias. 

13. The applicant was concerned that I raised with him the question of how important it was to join the fourth through seventh respondents on a practical level.  I asked whether he was worried or concerned that he might not be able to recover any damages and penalty order that he might obtain as against the employer, because the employer may not be in a solid financial position.  That is not the argument that he put in this case: there is nothing to suggest that the first respondent will not be able to meet any judgment of the magnitude sought in this case.  However, it seems to me that that is not an irrelevant consideration in exercising the discretion to allow the late joinder of respondents who were not named in the certificate, nor participated individually at the Fair Work Commission.  It seems to me that if the joinder of such respondents was, on a practical level, the only real chance of an applicant actually obtaining the fruits of a judgment they may obtain in this Court, then that may be a factor that may weigh heavily in the balance.

14. As a result, I am of the view that this is not a basis for disqualifying myself on the basis of reasonable apprehension of bias.

15. Finally, the applicant put that I had unduly put him to task about the issues.  In a busy trial Court it is important that judges, at an early stage do press applicants and respondents for the core aspects of their case, so as best as possible to confine litigation to what is reasonably required, and force litigants to identify the key issues in a case so that their evidence and arguments can be focused, keeping in mind that identifying key issues in a clear way is often of great assistance to negotiations that may be happening outside of the Court in these types of cases.

16. Considering all of the points made by him as a whole, I am not persuaded that it is open to me to recuse myself in this matter on the basis of a reasonable apprehended bias, and therefore I do not accede to that application. 

Application to join additional respondents

1. I turn, then, to consider whether or not I should permit the applicant to join the fourth through seventh respondents.  As indicated above, there are a number of features of this case to which I should have regard.  I note at the outset that the certificate that was issued from the Fair Work Commission in this case names only the first respondent.  The applicant says that others were present at the Fair Work Commission’s conciliation conference, and that others of the respondents may have been named in the description that he gave to the Fair Work Commission with respect to the events that give rise to his claim.

2. There is no copy of the material provided to the Fair Work Commission that the applicant relies upon, that has been before me.  There is no evidence that any of the other proposed respondents were given notice that these proceedings may be brought against them, to enable them to participate in the conciliation conference as potential respondents, if they chose to do so.

3. This application was lodged in April 2018, and was initially brought only against the first through third respondents.  When the matter came before me for directions, I directed the preparation of a proposed statement of claim clearly articulating and particularising the claim against the other respondents in this case, for the purpose of being able to carefully consider whether it was appropriate to join additional respondents to the litigation. 

4. I have already made comments above about the statement of claim and the difficulty reading it.  It seems to me that it would present considerable costs and difficulties to the respondents to even lodge a defence to the statement of claim in the form that this statement of claim is drawn. When I consider all of the matters, it seems to me that, ultimately, I should not exercise the discretion in this case to allow the late joinder of the fourth through seventh respondents.

5. I remain of the view that simply directing the applicant to file a further statement of claim is unlikely to be productive of a narrowing of the issues or a lessening of any of the costs in the matter.  It seems to me that there is no prejudice to the applicant if he is not forced to lodge or draw a statement of claim detailing his case.  In these circumstances, it is appropriate to simply make orders that he provide an outline of the evidence he proposes to call from each witness, and set the matter down for a hearing so that the evidence can be given.  One can ascertain at the end of the hearing precisely what claim is put and whether or not it should be accepted and if so what damages should flow.

6. I heard submissions from the respondent about such a course, and ultimately they are accepting of such a course as being a practical way to proceed to a fair hearing of the case.  Obviously there may be issues that arise following the exchange of material or during the course of evidence that may result in one party or the other seeking a brief adjournment if they are taken by surprise.  It seems to me that that can be dealt with, in the running of the case.

Discovery

1. The applicant requested orders for discovery of particular documents, which were ruled on individually during argument.  For the purpose of settling these reasons, I have included the substance of the rulings given during argument.

2. Namely, the applicant sought the name and contact details for the respondents IT service provider and IT Helpdesk in relation to his complaint against a co-worker not doing any work.  The applicant sought a report of database entries of his work output and the co-workers output during the periods he alleged.  The question of whether in fact, the

   
   

   co-worker was doing as much work as the applicant or not, does not seem to me to be a central question I will need to determine.  At this stage, on the material before me I am not persuaded that this is sufficiently relevant to the proceedings to make an order for discovery of the IT service provider’s details.

3. The applicant then sought discovery of the name of the computer program on the reception computer which monitors the actions of the telephones in the workplace.  On the case put by the applicant, there is some dispute as to the redirecting of his telephone and when this was occurring.  It is therefore appropriate that I make an order for the discovery of any documents or records relating to the redirection of his telephone. At this stage, I do not find the name of the program to be relevant, rather the records are the relevant documents.

4. The applicant sought the names of the members of the ‘employee services department’ of the respondent that were employed during the applicant’s course of employment.  The applicant contends these people were responsible for investigating his complaints raised in accordance with the respondent’s Grievance Resolution Policy, and sought the names of the people within the department to confirm their existence. 

5. It seems to me that what the applicant really seeks are the records of the management of his complaint and any escalation that occurred. Presumably there would be some sort of file, or email trail that sets out what was done internally to handle the complaint.  Prima facie, subject to any claim of privilege, if documents exist relating to the handling of the complaint, or any referral of the complaint further up the chain, those documents would be discoverable and I make orders accordingly.  I am not prepared to make orders in the abstract for the names of the people in the employee services department.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 5 December 2018