Ibrahim v Worken Pty Ltd

Case •

[2009] FCA 1146

•

8 OCTOBER 2009

FEDERAL COURT OF AUSTRALIA

Ibrahim v Worken Pty Ltd [2009] FCA 1146

PRACTICE & PROCEDURE – application for leave to appeal interlocutory judgments of Federal Magistrate – whether decisions of Federal Magistrate were attended with sufficient doubt to warrant being reconsidered – whether substantial injustice would result if leave were refused – application dismissed.

Federal Court of Australia Act 1976 (Cth) s 24, s 24(1A)

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Ibrahim v Highline (No 2) [2009] FMCA 297
Ibrahim v Worken Pty Ltd  (No 2) [2009] FMCA 156
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

TAREK IBRAHIM v WORKEN PTY LTD

WAD 123 of 2009

TAREK IBRAHIM  v  HIGHLINE BUILDING CONSTRUCTION

WAD 124 of 2009

BARKER J
8 OCTOBER 2009
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 123 of 2009

BETWEEN:

TAREK IBRAHIM
Appellant
AND:

WORKEN PTY LTD
Respondent

JUDGE:

BARKER J

DATE OF ORDER:

8 OCTOBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The application for leave to appeal against the decisions of the Federal Magistrate made 10 July 2009 and 20 July 2009 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 124 of 2009
BETWEEN:

TAREK IBRAHIM
Appellant
AND:

HIGHLINE BUILDING CONSTRUCTION
Respondent

JUDGE:

BARKER J

DATE OF ORDER:

8 OCTOBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.  The application for leave to appeal against the decisions of the Federal Magistrate made 10 July 2009 and 20 July 2009 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 123 of 2009  
BETWEEN:

TAREK IBRAHIM
Appellant
AND:

WORKEN PTY LTD
Respondent

JUDGE:

BARKER J

DATE:

8 OCTOBER 2009

PLACE:

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 124 of 2009
BETWEEN:

TAREK IBRAHIM
Appellant
AND:

HIGHLINE BUILDING CONSTRUCTION
Respondent

JUDGE:

BARKER J

DATE:

8 OCTOBER 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

APPLICATION FOR LEAVE TO APPEAL

  1. This is an application for leave to appeal the interlocutory judgments of a Federal Magistrate handed down on 10 July 2009 and 20 July 2009.  In the judgment dated 10 July 2009, the Federal Magistrate dismissed the applicant’s application for the Federal Magistrate to disqualify himself from dealing with the main proceeding.  The judgment of 20 July 2009 dismissed the applicant’s application for leave to appeal against that decision. 

  2. These applications to the Federal Magistrate arose in proceedings commenced by the applicant in the Federal Magistrate's Court on 22 April 2008, in which the applicant alleges misleading and deceptive conduct in relation to design work allegedly performed by him under a contract with an entity described as "Highline", in relation to a design and construct tender for Worken Pty Ltd (Worken) (WAD 123 of 2009).   

  3. This appeal was heard at the same time as the related matter, Ibrahim v Highline Building Construction (WAD 124 of 2009). This judgment comprises reasons for decision in both matters.

    JUDGMENT OF FEDERAL MAGISTRATE DATED 10 JULY 2009

  4. In determining the applicant's application for the Federal Magistrate to disqualify himself, his Honour had regard to several contentions made by the applicant as to why there was an apprehension of bias. These were summarised by his Honour at [84]:

    a)that the applicant 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 the applicant’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 the applicant 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 previous similar course of conduct in another matter by the presiding Federal Magistrate;

    i) that costs have been awarded against the applicant; and

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

  5. His Honour gave extensive reasons for judgment, and in doing so had regard to these contentions and the general nature and history of the litigation: see Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No 3) [2009] FMCA 510 (10 July 2009 judgment).

    JUDGMENT OF FEDERAL MAGISTRATE DATED 20 JULY 2009

  6. The judgment dated 20 July 2009 was related to the applicant's application for leave to appeal the judgment of 10 July 2009: see Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No 4) [2009] FMCA 717. At [2], his Honour outlined that he was of the view that the Court had no power to grant the application:

    the court having examined the provisions of the Federal Magistrates Act 1999 (Cth) and the Federal Magistrate Court Rules 2001 (Cth) and having sought from the applicant 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 the applicant 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….This Court is not a Court of inherent jurisdiction, it is a Court of statutory jurisdiction. If there is no provision in the FM Act or the FMC Rules for the grant of leave, leave cannot be granted.

  7. His Honour further considered the matter "in the event that the Court is wrong with respect to there being no power to grant the application" and at [5] and [6] stated:

    Nothing has been put to the Court which, in view of the nature of the reasons for judgment handed down …, 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.

    APPLICATION FOR LEAVE TO APPEAL 

  8. The applicant filed his application for leave to appeal in this Court on 23 July 2009.  The application states:

    1.   The applicant applies for leave to appeal from the judgment of the Federal Magistrate Court Of Australia given on 10/07/2009 and on the 20/07/2009 at 1 Victoria Ave Perth WA.

    2. Leave to appeal is required under the Federal Court of Australia Rules.

    3.   The ground of the application appears in the annexed affidavit.

    4.   The applicant wishes to have an oral hearing to address the application.

    5.   The applicant applies for an order that compliance with sub rules 5 (2) is
         dispensed with.

  9. The applicant filed an affidavit, sworn 23 July 2009, in support of his application.  In summary, the applicant makes the following submissions:

    1)Under the heading “The Magistrate creating a confusion in the case/and his bias attitude” the applicant states:

    a)That the magistrate rewarded the respondents for failing to file their affidavit as ordered by 8 December 2008.  The applicant deposed that when he raised this with the Magistrate at a directions hearing on 22 December 2008 “the Magistrate refused to do anything about it he rather rewarded the respondent for not complying with his orders by giving them more time”.

    b)The Magistrate “allowed the respondent all of the month of February to do the discovery” and “tolerated” the respondents’ delay in complying with orders relating to discovery.  The applicant alleges that this “gave the respondent’s solicitor time to sieve through the document in their position [sic] to represent the ones that does not incriminate their client”.  He also alleges that that the Magistrate reserved the costs against the applicant in the proceedings relating to discovery even though “they were the respondent [sic] fault”.

    2)Under the heading “The Magistrate double standard”, the applicant deposes that the Magistrate was “biased and has a double standard” when he ordered the applicant to produce drawings that would be relied upon by the applicant in the proceedings, to the respondent, within 24 hours.  The applicant deposes that he “pleaded with him [the Magistrate] because he was very sick at the time” and his computer did not work but “the Magistrate was so adamant that this has to happen in 24 hours”.

    3)Under the heading “The issue of the subpoena and the discovery issues”, the applicant states that the Magistrate has “the same bias attitude…in the case of the subpoena and the discovery”.  He deposes that “the Magistrate did everything he could to delay approving the subpoena”.

    4)Under the heading “The Magistrate contradicting decisions and another chaos”, the applicant states that the Magistrate made it clear “that the evidence in chief are the evidence in the affidavits” but then later stated that he “might allow some [new] evidences during the trial”. The applicant deposes that the Magistrate has therefore made contradicting decisions.  

    5)Under the heading “The Magistrate personality”, in addition to making certain allegations about the Magistrate’s personality, the applicant states that the magistrate “is bias, prejudice, his decision is unpredictable, does always the opposite of what the appellant applies for even if the appellant application is legally correct. He failed to deal with this case effectively”.

  10. The applicant also filed a draft notice of appeal with this application.  He outlined four grounds of appeal, alleging that the Magistrate made errors of fact and law, had a “double standard” and was biased.   

  11. A hearing of this application was held on 11 August 2009.   The applicant spoke briefly at the hearing and, at his request, the Court granted him leave to file additional written submissions.  Counsel for the respondents appeared at the hearing but sought leave to take no further part in the proceedings in this Court, and an order was made to that effect.  

  12. Section 24 of the Federal Court of Australia Act 1976 (Cth) deals with the Court’s appellate jurisdiction and outlines that the Court has jurisdiction to hear and determine appeals from the Federal Magistrate’s Court exercising original jurisdiction or regulations under such Acts. Section 24(1A) states that appeals from interlocutory judgments cannot be brought unless the Court or a Judge gives leave to appeal.

  13. It is well established that in considering an application for leave to appeal, the Court should have regard to whether the decision at first instance was attended to with sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

    CONFUSION AND BIAS 

  14. In his affidavit sworn 23 July 2009, under the heading “The Magistrate creating a confusion in the case/and his bias attitude”, the applicant states that the Magistrate rewarded the respondents for failing to file their affidavit in the Worken matter as ordered by 8 December 2008.  The applicant deposed that when he raised this with the Magistrate “the Magistrate refused to do anything about it he rather rewarded the respondent for not complying with his orders by giving them more time”.

  15. The applicant raised the issue at a directions hearing on 22 December 2009, held in relation to the Highline matter.  At [37] and [38] of the judgment dated 10 July 2009, the Federal Magistrate stated: 

    The applicant then sought to raise an issue involving the Worken matter, which was not listed before the Court that day.  The applicant complained that Worken had not filed an affidavit as required by 8 December 2008, 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 MrIbrahim’s affidavit was substantial and that Worken wanted to get the response right, and also had an issue with respect to ‘gathering annexure’.

    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. The applicant 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 the applicant 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.

  16. On 30 January 2009, at a further directions hearing, an order was made by his Honour that the Worken and Highline matters be heard together.  On that date his Honour made orders in relation to the filing of the affidavits in the Highline matter.  He made the same orders in the Worken matter which effectively extended the time of the filing of the affidavits in the Worken matter.  When the applicant expressed concern, his Honour stated (see page 17 of transcript dated 30 January 2009):

    its not unusual for affidavits to be filed out of time and given the orders that I've made in respect of the Highline matter and … a similar order be made here that they be heard together, I can't see that anyone is prejudiced if I make the same orders in this matter [Worken] with respect to the filing of affidavits. 

  17. The applicant also alleges under the heading "The Magistrate creating a confusion in the case/and his bias attitude", that the Magistrate reserved the costs for the appearances relating to discovery in January and February 2009 against him even though the appearances "were the respondent fault”.  This assertion by the applicant is incorrect.  In the judgment of Ibrahim v Worken Pty Ltd (No 2) [2009] FMCA 156 which related to the subpoena and discovery issues, it is stated that an order was made that costs be reserved in the proceedings. His Honour discussed the costs issues in the 10 July 2009 judgment at [124] – [126] and identified at [18], [30], [45] the times when costs have been awarded against the applicant.

  18. It is clear from the lengthy reasons published by his Honour that the orders made relating to the filing of the affidavits and costs were appropriate.  There is no basis for the applicant’s assertions above that the Magistrate created "a confusion" and was biased. 

  19. In addition to the above, the applicant’s statement that the Magistrate “created a confusion” and was biased, in that the Magistrate “gave the respondent’s solicitor time to sieve through the documents in their position [sic] to represent the ones that does not incriminate their client”, also has no basis.  I agree with what has been outlined by his Honour at [94] of the 10 July 2009 judgment, that this is a complaint about the conduct of the respondents, and cannot constitute a basis for an apprehension of bias on the part of the Magistrate.

    DOUBLE STANDARD

  20. Under the heading “Magistrate double standard” the applicant outlines in his affidavit sworn 23 July 2009 that “the appellant did not respond to the respondent letter about which plan would be used (in the expert witness statement) because the answer was obvious Magistrate made an order that the appellant provide the drawings and gave him notice of 24 hours to produce these drawings”.  The applicant deposes that he believes that the Magistrate is biased and has a double standard. 

  21. His Honour addresses these issues at [65] – [74] and [103] of the 10 July 2009 judgment.

  22. At [65] it is stated that on 27 March 2009 the respondent Highline made an application seeking the following orders:

    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.

  23. This application was heard on 2 April 2009.  As outlined in the judgment dated 6 April 2009 at [10] (and discussed in the 10 July 2009 judgment at [70]) the Court observed during the hearing of that application 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 …that he intends to rely upon all of his plans and to say that the respondent already has those plans…neither of which…are in the Court’s view a sufficient answer”: see Ibrahim v Highline (No 2) [2009] FMCA 297.

  24. An order was made 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. After that judgment had been delivered the applicant submitted that he needed more time to complete the affidavit due to medical issues and problems with his computer. His Honour listened to the submissions, made post judgment, and amended the order so that the applicant was then required to file the affidavit by 4 pm 6 April 2009. 

  25. The applicant's allegation that the magistrate was biased or had a "double standard" has no basis. As highlighted by his Honour at [103] of the 10 July 2009 judgment, the applicant was given four days, not 24 hours, to file an affidavit attaching legible copies of the drawings to be relied upon in his case. 

    SUBPOENAS AND DISCOVERY 

  26. Under the heading “The issue of the subpoena and the discovery issues”, the applicant states that the Magistrate has “the same bias attitude…in the case of the subpoena and the discovery”.  He deposes that the Magistrate delayed “approving the subpoena” and that “the Magistrate perception of biasness is very apparent here in his prompt response to the respondent request and applications and totally ignoring for few months now the appellant request for this document to be provided either by subpoena or by discovery”. 

  27. The issue of the subpoenas is discussed at length by his Honour at [47] to [64] of the 10 July 2009 judgment. 

  28. On 1 December 2008 the applicant caused to issue a subpoena for the production of documents to Mr Philip Marsh, a director of the respondent Worken.  In summary, on 18 December 2008 the Registrar made an order that this subpoena for production be dismissed, and on 8 January 2009 the applicant filed an application for the order made by the Registrar to be revoked: see Ibrahimv Worken Pty Ltd (No 2) [2009] FMCA 156.

  29. Mr Ibrahim’s application came on for directions on 30 January 2009.  At that directions hearing it became apparent to the Court that the ultimate issue in dispute was as much about discovery generally as it was about the Marsh subpoena.  The Court ordered that all the matters associated with documents ought to be able to be resolved by conferral and the application was adjourned to 13 February 2009.  On 13 February 2009, the matter was further adjourned until 23 February 2009 due to Worken not being in a position to provide discovery.  When the matter returned on 23 February 2009 it was apparent to the Court that there had not been any meaningful conferral.  Orders were made on that date 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.

  1. On 26 February 2009 the Court was advised that the parties had met on 25 February 2009 but there had not been an exchange of documents because the applicant had refused to pay for the copying of the documents.  The Court extended the time for compliance with order 1 of 23 February to 27 February 2009 and further that the costs of photocopying the documents be reserved for later determination.  At a further directions hearing on 27 February 2009 the parties advised that the order for informal discovery had been complied with. 

  2. In relation to that application, in Ibrahim v Worken Pty Ltd (No 2) [2009] FMCA 156, the Federal Magistrate, at [38], considered that:

    it is preferable to make appropriate orders for discovery on oath, and particular discovery, if necessary. The 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 the applicant represents a piecemeal approach by comparison.

  3. There is no evidence to suggest that the Magistrate delayed dealing with the issues surrounding the subpoena and discovery, in fact the difficulty the parties had conferring and the issue of the cost of the photocopying appear to be reasons why several court appearances were required.  The Magistrate brought the matter back on for directions within short time frames to ensure that the issues were resolved as quickly as possible.  The Magistrate’s orders in relation to the subpoena and discovery were appropriate.  There is no evidence of any bias on behalf of the Magistrate. 

    CONTRADICTING DECISIONS

  4. Under the heading “The Magistrate contradicting decisions and another chaos”, the applicant states that the Magistrate made it clear “that the evidence in chief are the evidence in the affidavits” but then later stated that he “might allow some [new] evidences during the trial”. The applicant deposes that the Magistrate has therefore made contradicting decisions.    

  5. There is no basis for this assertion.  As outlined in the judgment dated 10 July 2009 at [89] and [90] his Honour merely assisted the applicant by explaining that the Court “would entertain an application from him at hearing to adduce oral evidence if he perceives that he has been disadvantaged in any way in relation to the presentation of evidence”. 

    PERSONALITY

  6. In his affidavit sworn 23 July 2009,  under the heading “The Magistrate personality”, in addition to making certain allegations about the Magistrate’s personality, the applicant stated that the Magistrate “is bias, prejudice, his decision is unpredictable, does always the opposite of what the appellant applies for even if the appellant application is legally correct. He failed to deal with this case effectively”. 

  7. There is no evidence to support the applicant’s assertions.  I agree with the comments made by his Honour in the 10 July 2009 judgment that the Court has spent considerable time and resources listening to the various interlocutory applications and submissions made by both the applicant and the respondents, that in dealing with the various interlocutory applications detailed reasons for judgment have been published and that nothing has been identified as a basis for finding that the Magistrate might decide the case other than on its legal and factual merits. 

    FEDERAL MAGISTRATE’S DECISION CONCERNING LEAVE TO APPEAL

  8. I also consider the Federal Magistrate’s decision of 20 July 2009, that the Federal Magistrate did not have the power to grant leave to appeal against his interlocutory decision, was correct for the reasons he gave.

    CONCLUSION AND ORDERS

  9. The Court has had regard to the lengthy affidavit and submissions filed by the applicant in this matter. 

  10. In my opinion the applicant has not disclosed any arguable ground of appeal.  Nothing has been raised by the applicant which leads me to consider that the decisions of the Federal Magistrate are attended with sufficient doubt to warrant them being reconsidered.  Furthermore, I am of the opinion that no injustice arises from leave to appeal not being granted. 

  11. 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.

  12. For these reasons I would dismiss the application.

  13. Accordingly, I order that:

    1.The application for leave to appeal against the decisions of the Federal Magistrate made 10 July 2009 and 20 July 2009 be dismissed. 

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:       8 October 2009

Counsel for the Appellant: Self Represented
Counsel for the Respondent: Mr L Hager
Solicitor for the Respondent: Metaxas and Hager
Date of Hearing: 11 August 2009
Date of Judgment: 8 October 2009
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Cases Citing This Decision

1

Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No.5) [2010] FMCA 201