Ibrahimi v Akhlaki
[2024] FedCFamC2G 1141
•5 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ibrahimi v Akhlaki [2024] FedCFamC2G 1141
File number(s): BRG 435 of 2022 Judgment of: JUDGE EGAN Date of judgment: 5 November 2024 Catchwords: PRACTICE & PROCEDURE – Where respondent had previously failed to comply with Orders of the Court – where trial dates adjourned on two previous occasions – where respondent failed to appear on the first day of the third adjourned trial hearing within 44 minutes of the time listed for commencement of the trial – where the respondent had failed to defend the proceeding with diligence – where summary judgment entered accordingly. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r. 13.04(2)(vii), r.13.05(2)(c)(i). Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 25 October 2024 Date of hearing: 25 October 2024 Place: Brisbane Counsel for the Applicant: Ms R. Varshney Solicitor for the Applicant: Legal Aid Queensland The Respondent: No appearance by, or on behalf of, the respondent ORDERS
BRG 435 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARZOO IBRAHIMI
Applicant
AND: NAJIBULLAH AKHLAKI
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
5 NOVEMBER 2024
IT IS ORDERED THAT:
1.
Judgment be entered in favour of the applicant against the respondent pursuant to the provisions of Rule 13.05(2)(c)(i) of the Federal Circuit and Family Court of
Australia (Division 2) (General Federal Law) Rules 2021 (“the Rules”) by reason of the failure on the part of respondent to appear at Court to defend the proceeding with due diligence, that failure rendering him to be in default pursuant to the provisions of Rule 13.04(2)(vii) of the Rules.
IT IS DECLARED THAT:
2.The conduct of the respondent toward the applicant, as particularized in the Amended Statement of Claim filed on 8 June 2023, amounted to sexual harassment.
3.The conduct of the respondent towards the applicant, as particularized in the Amended Statement of Claim, amounted to sexual discrimination.
AND IT IS FURTHER ORDERED THAT:
4.The handing down of judgment on the question of compensation, and the reasons for such judgment, be adjourned to a date to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
INTRODUCTION
The applicant commenced proceedings on 13 October 2022.
On 1 December 2022, the Court made interlocutory orders requiring the parties to file pleadings, and thereafter to participate in a mediation on or before 6 March 2023.
On 18 January 2023, a Notice of Adress for Service was filed on behalf of the respondent by his then lawyers, Stolar Law.
On 1 June 2023, the Court ordered that the matter be listed for final hearing on 19 February 2024 for five (5) days.
On 22 November 2023, Stolar Law filed a Notice of Withdrawal of Lawyer in respect of its representation of the respondent.
On 19 February 2024, the applicant appeared before the Court by her Counsel, duly instructed, namely Ms Varshney. The respondent also appeared, but it soon became apparent that the respondent had little command of the English language. A friend who accompanied the respondent was able to translate in the Hazara language appropriate for the respondent, but it again soon became apparent that the respondent was entirely unprepared to conduct any defence on his own behalf. He said that he hadn’t read any of the affidavits which had been filed, and that he didn’t know what questions to ask the applicant by way of cross-examination.
By reason of the respondent's lack of preparedness for trial, the trial was adjourned to 1 and 2 August 2024 for hearing. Orders were also made requiring the respondent to read all of the affidavit material filed on behalf of the applicant, and for him to file affidavits in response on or before 1 July 2024. The applicant’s costs of the hearing thrown away were reserved.
On 22 April 2024, the Court ordered that the trial dates of 1 and 2 August 2024 be vacated, and that the matter be listed for final hearing on 12 and 13 August 2024.
On 6 June 2024, the Court granted leave to the applicant to file an interlocutory application for dismissal of the proceeding should the respondent be in default of Order 2 of the Order of the Court made on 19 February 2024.
On 9 July 2024, the applicant filed an application for default judgment by reason of the respondent’s failure to comply with Order 2(b) of the Order of the Court made on 19 February 2024. Notwithstanding that 12 and 13 August 2024 had been listed as the hearing dates for trial, the Registry set the application for summary judgment down for hearing on 24 September 2024.
On 25 July 2024, a second Notice of Address for Service was filed on behalf of the respondent by Times Lawyers. The solicitor at Times Lawyers handling the matter was one Ms Cheung.
On 31 July 2024, the matter was listed for directions before the Court. Ms Varshney of Counsel appeared on behalf of the applicant, and Ms de Marco of Counsel appeared on behalf of the respondent. At that hearing, the Court ordered that the Order of the Court made on 22 April 2024 listing the matter for final hearing on 12 and 13 August 2024 be vacated. Orders designed to progress the matter to trial were otherwise made, and the matter was listed for final hearing on 25 and 28 October 2024, commencing at 8.00 am on each day.
On 24 October 2024, a Notice of Withdrawal of Lawyer was filed by Times Lawyers. Because of the closeness of the filing of such notice to the first day of trial, it was directed that Ms Cheung appear before the Court on 25 October 2024.
THE HEARING ON 25 OCTOBER 2024
At 8.00 am on 25 October 2024, the Court was advised by the Associate that Ms Varshney was present in Court representing the applicant, but that there was no appearance by or on behalf of the respondent. The Court was also advised that Ms Cheung appeared via Microsoft Teams link, and that she was waiting to assist the Court if called upon.
The Court waited 20 minutes before again being advised by the Associate that the respondent had not appeared. At 8.22 am, the Court was convened. Ms Varshney announced her appearance, and the appearance of Ms Cheung via Microsoft Teams was acknowledged. The title of the proceeding was then called three times outside Court by the Associate. The Associate returned to Court and advised the Court that there was no appearance by or on behalf of the respondent in response to the call.
Ms Cheung was asked by the Court if the respondent had been advised that the matter was listed to commence at 8.00 am that morning. The relevant conversation on that point between Ms Cheung and the Court, as recorded in the Court transcript, was as follows:
HIS HONOUR: Right. Was the respondent told by you before you withdrew that the matter was to start at 8 am this morning?
MS CHEUNG: Yes, he knows. We’ve had email correspondences, but he never replies to us.
HIS HONOUR: All right. And for how long has it been that he hasn’t replied to email correspondence?
MS CHEUNG: My understanding is that he has never replied; it has always been his daughter.
HIS HONOUR: Right.
MS CHEUNG: And I’ve also printed out – like, we had to print out the emails and get him to come to the office. So, he’s aware that it starts at 8 am.
HIS HONOUR: Did your emails to him explain that it started at 8 am?
MS CHEUNG: Yes.
HIS HONOUR: And did you have successful communications with the respondent’s daughter in the sense that she responded to your emails on behalf of the respondent?
MS CHEUNG: Yes, your Honour.
After the conversation between Ms Cheung and the Court had concluded, Ms Varshney made application for default judgment by reason of the respondent’s failure to comply with Court Orders, namely by reason of the failure by the respondent to appear at Court and defend the proceeding with due diligence.
The Court was satisfied that the respondent had notice of the time and place listed for the final hearing of the matter, both by reason of the communications referred to by Ms Cheung, as well as from correspondence directed to the respondent by Judge’s Chambers. [1]
[1] See Exhibit 5.
By reason of the non-appearance of the respondent, the Court made an Order granting to the applicant judgment in default pursuant to the provisions of r. 13.05(2)(c)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (“the Rules”) by reason of the respondent’s failure to defend the proceeding with due diligence, such lack of diligence rendering the respondent in default under r. 13.04(2)(vii) of the Rules.
The Court also made declarations that on the basis of the conduct pleaded in the Amended Statement of Claim, the respondent’s conduct amounted to both sexual harassment and sexual discrimination.
On the question of compensation/damages, the Court reserved its judgment on the question of the assessment of such compensation/damages.
The Court was adjourned at 8.44 am.
The respondent had at no time sought to appear before the Court on 25 October 2024 between 8.00 am and 8.44 am.
And it is so ordered.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 5 November 2024
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