Ibrahim v Considine Architect [2008] FCA 1819 (1 December 2008)

Last Updated: 5 December 2008

FEDERAL COURT OF AUSTRALIA

Ibrahim v Considine Architect [2008] FCA 1819

PRACTICE AND PROCEDURE - application for extension of time for leave to appeal - no explanation for delay - consideration of likelihood of leave to appeal being granted - decision below not attended with sufficient doubt - no substantial injustice if leave not granted.






Trade Practices Act 1974 (Cth) s 52
Federal Court Rules 1976 (Cth) O 52 r 10(2A)(b)



Deighton v Telstra Corp Ltd [1997] FCA 1568
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 39
Ibrahim v Considine Architect [2008] FMCA 1148











TAREK IBRAHIM v CONSIDINE ARCHITECT
WAD 201 of 2008


GILMOUR J
1 DECEMBER 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 201 of 2008

ON APPEAL FROM A FEDERAL MAGISTRATE

BETWEEN:

TAREK IBRAHIM Appellant

AND:	CONSIDINE ARCHITECT Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	1 DECEMBER 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application for an extension of time for leave to appeal be refused.

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	WAD 201 of 2008

ON APPEAL FROM A FEDERAL MAGISTRATE

BETWEEN:

TAREK IBRAHIM Appellant

AND:	CONSIDINE ARCHITECT Respondent

JUDGE:	GILMOUR J
DATE:	1 DECEMBER 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The appellant has filed a Notice of Appeal from the judgement of Federal Magistrate Lucev: Ibrahim v Considine Architect [2008] FMCA 1148. There, Lucev FM dismissed the appellant’s motion to set aside an order dismissing the appellant’s original application.

2 The decision appealed from is in fact an interlocutory judgment and requires leave. I will accordingly treat the Notice of Appeal as an application for leave to appeal. The Notice has also been filed out of time and the applicant now seeks an extension of time.

Background

3 The appellant’s original application alleges misleading and deceptive conduct in contravention of s 52 Trade Practices Act 1974 (Cth) ("the Act"). It alleges that representations were made by the respondent in relation to the hourly rate of payment of work performed by the appellant, in particular, payment of superannuation and tax deductions and subsequent alleged representations concerning disputes over the hourly rate of pay allegedly made by the respondent to the Western Australian Industrial Relations Commission (WAIRC) and Centrelink.

4 The appellant failed to attend when the proceeding first came before the Court below and his application was dismissed by the primary judge. The appellant then made an application to set aside that order.

5 The primary judge was satisfied that the appellant had an adequate reason for not attending the hearing but found that there was no arguable case on the merits of his application and accordingly dismissed his application.

Extension of Time

6 The appellant was required to file an application for leave to appeal pursuant to O52 r 10(2A)(b) Federal Court Rules 1976 (Cth) within seven days after the interlocutory judgement was pronounced. His Notice of Appeal was filed on the 18 September 2008, thirteen days late. The applicant seeks an extension of time to file an application for leave to appeal under the same provision in the rules.

7 The appellant filed an affidavit sworn on 7 November 2008 which explains why he did not attend the first directions day before the primary judge. It does not explain why there has been a delay in instituting appellate proceedings in this Court. Accordingly I have no material before me to explain the delay.

8 I will nonetheless consider whether leave should otherwise be granted absent such an explanation. It is relevant to consider the likelihood of leave to appeal being granted; Deighton v Telstra Corp Ltd [1997] FCA 1568 (Lee, Heerey and Nicholson JJ, 17 October 1997, unreported).

9 The general approach in such cases is well established: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 39. The decision below must be attended with sufficient doubt to warrant its being reconsidered and that substantial injustice would result if leave were to be refused supposing that decision to be wrong.

10 The "Notice of Appeal" claims that the primary judge made an error of law and fact in dismissing the application. The grounds are numerous but most significantly they challenge the primary findings of the Court below. The primary judge found that the respondent was a sole trader and not a corporation within the meaning of the Act and that none of the extending provisions under s 6 of the Act had application. His Honour further found that the alleged conduct relating to the manner and form of payment and the implementation of the contract was not conduct in trade or commerce. His Honour came to the same conclusion in relation to the representations allegedly made to WAIRC and Centrelink.

11 That the respondent is not a corporation or body corporate was, of itself, enough to dispose of the application below. I have considered his Honour’s reasons. The primary judge was clearly correct in so concluding. Beyond that, I have considered the reasons of the primary judge on the further issue of whether the alleged representations were in trade and commerce. I am satisfied that the conclusion reached, presuming representations were made, that they were not made in trade and commerce is correct and I am in general agreement with the reasons to that end.

12 The appellant submits that the respondent was at all material times a partnership. This was not established below. Indeed, the primary judge concluded that he could not be satisfied as to this as the evidence was "flimsy". Even if it had been held that there was a partnership it would not have assisted the appellant.

13 I am satisfied that there is not sufficient doubt attached to the decision to warrant it being reconsidered. Further there would be no substantial injustice to the appellant if leave were not granted. It is open to the appellant to institute fresh proceedings.

14 In my opinion there is no reasonable prospect that leave to appeal would be granted. The application for an extension of time for leave to appeal should therefore be refused. The respondent was self-represented. There will be no order as to costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:
Dated: 1 December 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	No appearance

Date of Hearing:	11 November 2008
Date of Judgment:	1 December 2008