Ibrahim v Worken Pty Ltd (No.2) - [2009] FMCA 156

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IBRAHIM v WORKEN PTY LTD (No.2)

[2009] FMCA 156

TRADE PRACTICES – Misleading and deceptive conduct – design for construction of commercial premises.

PRACTICE AND PROCEDURE – Discovery – whether in the interests of the administration of justice.

PRACTICE AND PROCEDURE – Whether better to review Registrar’s decision to dismiss subpoena for production of documents or order general or particular discovery.

EVIDENCE – Subpoena for production of documents.

Federal Magistrates Act 1999 (Cth), ss.3, 42, 45, 102(2)(c), 104(2) & (3), 104(3)
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 1.06, 16.05(2)(a), 20.01(1)(c), 20.02(1)
Trade Practices Act 1974 (Cth)

Abrahams v Qantas Airways Limited (2007) 210 FLR 314; [2007] FMCA 639
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Ibrahim v Highline & Ibrahim v Worken Pty Ltd [2008] FMCA 1146

B Cairns, Australian Civil Procedure (7^th Edn) (Pyrmont: Thomson Legal & Regulatory Australia, 2007)

Applicant:

TAREK IBRAHIM

Respondent:

WORKEN PTY LTD

File Number:

PEG 63 OF 2008

Judgment of:

Lucev FM

Hearing date:

27 February 2009

Date of Last Submission:

27 February 2009

Delivered at:

Perth

Delivered on:

3 March 2009

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr L Hager

Solicitors for the Respondent:

Metaxas & Hager

ORDERS

That the applicant’s Application in a Case filed 8 January 2009 be dismissed.
That the applicant file and serve a sworn affidavit of all discoverable documents in his possession, power, custody or control before 4.00pm on 6 March 2009.
That an officer of the respondent file and serve a sworn affidavit of all discoverable documents in the respondent’s possession, power, custody or control before 4.00pm on 13 March 2009.
That all of the applicant’s discoverable documents be made available to the respondent for inspection, and copying of any of those documents required by the respondent, by 4.00pm on 13 March 2009.
That all of the respondent’s discoverable documents be made available to the applicant for inspection, and copying of any of those documents required by the applicant, by 4.00pm on 20 March 2009.
That copies be provided by, and at the expense of, the party with the documents in their possession, power, custody or control, with the question of the costs of that photocopying to be reserved for later determination.
Following discovery and inspection, any application for particular discovery must be made by application in proper form, supported by an affidavit:
(a)if by the respondent, by 4.00pm on 17 March 2009; and
(b)if by the applicant, by 4.00pm on 24 March 2009.
Any document not discovered will not be admissible in evidence, or useable in any way, at the hearing of this matter, without leave of the Court.
That the Court’s orders of 30 January 2009 be varied as follows:
(a)in order 5, by substituting “10 April 2009” for “3 March 2009”;
(b)in order 6, by substituting “1 May 2009” for “3 April 2009”; and
(c)in order 7, by substituting “15 May 2009” for “1 May 2009”.
Costs otherwise be reserved.

FEDERAL MAGISTRATES

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] FMCA 156
Decision Date: 3 March 2009

CaseChat Overview and Summary

Ibrahim brought an action against Worken Pty Ltd in relation to the design for the construction of commercial premises. The dispute involved allegations of misleading and deceptive conduct under the Trade Practices Act. The case was heard in the Federal Court of Australia. The primary legal issue before the court was whether the respondent's subpoena for the production of documents was appropriate and whether the discovery process was in the interests of the administration of justice. The court also needed to decide if it was more appropriate to review the Registrar's decision to dismiss the subpoena for production of documents or to order general or particular discovery.

The court dismissed Ibrahim's application and outlined specific procedures for the discovery process. It was determined that the subpoena for the production of documents was not necessary and that general discovery was more appropriate. The court emphasised that the discovery process should be managed to ensure it was in the interests of the administration of justice. The court set strict deadlines for the filing of affidavits and the availability of documents for inspection and copying. Any documents not discovered according to these deadlines would not be admissible in evidence without leave of the Court. Additionally, the court varied the dates for certain orders in the case to accommodate the new discovery process.

In summary, the court dismissed Ibrahim's application and ordered a structured discovery process, emphasising the importance of adhering to the timelines set out. The court also varied certain dates in the case to reflect the new discovery schedule. Costs were reserved for later determination.

Orders

Orders of the court

That the applicant’s Application in a Case filed 8 January 2009 be dismissed.

That the applicant file and serve a sworn affidavit of all discoverable documents in his possession, power, custody or control before 4.00pm on 6 March 2009.

That an officer of the respondent file and serve a sworn affidavit of all discoverable documents in the respondent’s possession, power, custody or control before 4.00pm on 13 March 2009.

That all of the applicant’s discoverable documents be made available to the respondent for inspection, and copying of any of those documents required by the respondent, by 4.00pm on 13 March 2009.

That all of the respondent’s discoverable documents be made available to the applicant for inspection, and copying of any of those documents required by the applicant, by 4.00pm on 20 March 2009.

That copies be provided by, and at the expense of, the party with the documents in their possession, power, custody or control, with the question of the costs of that photocopying to be reserved for later determination.

Following discovery and inspection, any application for particular discovery must be made by application in proper form, supported by an affidavit:

(a) if by the respondent, by 4.00pm on 17 March 2009; and

(b) if by the applicant, by 4.00pm on 24 March 2009.

Any document not discovered will not be admissible in evidence, or useable in any way, at the hearing of this matter, without leave of the Court.

That the Court’s orders of 30 January 2009 be varied as follows:

(a) in order 5, by substituting “10 April 2009” for “3 March 2009”;

(b) in order 6, by substituting “1 May 2009” for “3 April 2009”; and

10.

Costs otherwise be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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