Ibrahim v Worken Pty Ltd - [2009] FCA 1146

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

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.
These applications to the Federal Magistrate arose in proceedings commenced by the applicant in the Federal Magistrate's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 1146
Decision Date: 8 OCTOBER 2009

CaseChat Overview and Summary

In the case of Ibrahim v Worken Pty Ltd, the applicant, Ibrahim, sought leave to appeal decisions made by the Federal Magistrate Court of Australia on 10 July 2009 and 20 July 2009. The application was filed on 23 July 2009, and the applicant argued that the magistrate had demonstrated bias, created confusion, and made inconsistent decisions during the course of the proceedings. The applicant contended that the magistrate had allowed the respondents to delay filing their affidavits and had granted excessive time for discovery, which allegedly gave the respondents an opportunity to select documents favourable to their position. Additionally, the applicant claimed that the magistrate had exhibited a double standard by demanding certain documents within an unreasonably short timeframe and had delayed the approval of a subpoena. The applicant also argued that the magistrate had made contradictory statements about the admissibility of evidence, and generally, the magistrate's decisions were characterised as unpredictable and biased against the applicant.

The legal issues before the court were whether the Federal Magistrate Court had the statutory authority to grant leave to appeal an interlocutory judgment and whether the application demonstrated grounds sufficient to justify an appeal. The court examined the relevant provisions of the Federal Magistrates Act 1999 and the Federal Magistrates Court Rules 2001 and found no authority that would allow the court to grant leave to appeal such a judgment. The court also considered the merits of the application, determining that no new evidence or arguments had been presented that would cast doubt on the correctness of the primary judgment or demonstrate that an injustice would result from allowing the decision to stand.

Based on the court's findings, the application for leave to appeal was dismissed. The court held that it lacked the power to grant leave to appeal the interlocutory judgments, and even if it had such power, the application did not meet the necessary criteria for an appeal. Consequently, the applicant's request for leave to appeal was rejected. The court's decision was final, and no further appeal was permitted.

Orders

Orders of the court

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:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BARKER J

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 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. 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 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. 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”.

Ratio Decidendi

Legal Principle Established

Established by: BARKER J

Full text does not contain this section.

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

JUDGE:	BARKER J
DATE:	8 OCTOBER 2009
PLACE:	PERTH