Ibrahim v Highline and Ibrahim v Worken Pty Ltd

1. The Court is dealing with applications in its trade practices jurisdiction against two entities, one described as Highline and the second, a corporate entity, described as Worken Pty Ltd[1], in relation to design work allegedly performed under contract by the applicant for Highline in relation to a design and construct tender for Worken.
2. On 19 May 2008 both applications were dismissed when the applicant failed to appear at the first Court date, and costs were awarded against the applicant in each matter. On 26 May 2008 the applicant made an application in a case in each matter to have the dismissal and costs orders set aside or varied. The applications were heard on 7 August 2008, and then on 8 August 2008 the applicant made a further application in a case in the Worken matter only and made further submissions in relation to that matter, essentially seeking that the respondent be allowed to file a response. The respondent in the Worken matter was allowed to make further written submissions in response.
3. On 29 August 2008 the Court ordered that the dismissal orders of 19 May 2008 be set aside and that the cost orders of 19 May 2008 be varied by way of reduction of the costs the applicant was to pay and were made payable by 4:00pm on 31 October 2008. That was in relation to the application in the case proper. The further application in the case in relation to the Worken matter filed on 8 August 2008 was dismissed and the Court indicated in its reasons for judgment that it would hear the parties as to the costs of that application; otherwise the matter was adjourned to 8 September 2008 for further directions. The costs of the further application in the case were then also adjourned to 8 September 2008 for hearing.
4. On 8 September 2008 conferral which had been ordered by the Court in relation to the application in the case proper has been unavailing, and it being evident at the hearing that there was some confusion on the part of the applicant as to whether he was expected to argue about the issue of costs in both the application in the case and the further application in the case that day, the Court adjourned the question of costs in both of those applications through to today. For reasons which are not apparent, the applicant has not attended today.

1. Costs in this Court are dealt with in s.79(2) and (3) of the Federal Magistrates Act 1999 (Cth).[2] Rule 21 of the Federal Magistrates Court Rules 2001 (Cth)[3] also deals with costs, and relevantly rr.21.02 and 21.10 deal with the question of fixing costs and the level of costs respectively.
2. Having regard to the above provisions, costs in this Court are discretionary and it is usually the case in general federal law proceedings, which these are, that costs follow the event; that is, that the successful party will recover their costs. Costs in that regard are neither a bonus to a successful party nor a penalty to an unsuccessful party; rather they are compensation to the successful party for the liability for professional costs incurred in conducting the proceedings. Costs thus contain no element of penalty.[4] In that regard, the Court notes that the applicant is a self-represented litigant. He is, however, a quasi professional person in Australia, having been a professional person in his home country, and although he has not incurred professional costs as such in relation to the litigation, there would have been a cost to him professionally in relation to this appearance in the proceedings.
3. In relation to the application in the case, the respondent incurred costs in the application in the case because of the applicant's failure to attend at Court on 19 May 2008. Whilst the Court subsequently found that there was an adequate reason for the applicant's non-appearance on 19 May 2008, it nevertheless remains the case that it was the applicant's non-attendance that was the reason for the application in the case and further hearings, in particular the substantive hearing of the application in the case on 7 August 2008. There was no significant argument on the application in the case in relation to the issues of delay and prejudice but there was significant argument in relation to the issue of an arguable case and that matter occupied the vast majority of the judgment.[5]
4. As to whether or not there was an arguable case, the respondent's argument was wholly unsuccessful. In particular the Court took the view that the respondent did not have proper regard or put sufficient weight on the fact that the applicant was a self-represented litigant and what that meant in relation to the conduct of the proceedings.[6] The Court also referred to the respondent's argument about the agreement between the applicant and Highline not necessarily addressing the applicant's case with respect to misleading and deceptive conduct.[7]
5. The Court dealt with the fact that the evidence in many respects dealt with issues which were assertion and counter-assertion. The Court addressed the fact that the respondent had not denied some particularly relevant evidence from which it might have been inferred that the applicant's design was part of a successful tender.[8] The Court concluded that this was not litigation in which the outcome was so manifestly obvious that there could only be one outcome predictable and having regard to the findings made the Court came to the view that there was sufficient evidence before the Court to make the applicant's allegations arguable.[9]
6. It is fair to observe, therefore, that the greater proportion of the costs incurred by the respondent were incurred by them in the pursuit of this ultimately unsuccessful argument and the Court considers that it is fair to say that had the position been properly analysed by those then appearing for the respondents that that argument would not have been run in the manner that it was run and there could indeed have been, quite properly on the respondent's part, consent to a setting aside of the orders made on 19 May 2008 with respect to the dismissal. Thus it is that the Court now notes that the argument with respect to the usual results with respect to costs flowing from an application to set aside, being costs which would ordinarily go to the respondent in these circumstances, must be mitigated or set against the conclusions that the Court reached in Ibrahim (No.1).For those reasons, the Court is of the view that with respect to the application in the case, that it is not a case in which the usual result with respect to the costs of an application to be set aside, will necessarily follow.
7. With respect to the further application in the case, that is, the one against Worken filed on 8 August 2008, the Court observed as follows:
   • 49. The Further Application in a Case was filed on 8 August 2008. It was filed in the Worken matter only. It was not supported by an affidavit. It sought that the Applicant's resubmission be accepted, or that the matter be listed for a new hearing about the issue of deception or that the Respondent be allowed to file a Response. The Applicant filed written submissions in support of the Further Application in a Case, and the Court ordered that the Respondent also file written submissions, which it did on 20 August 2008.
   • 50. The Court has considered the Further Application in a Case and the written submissions filed, and makes the following observations:
     • a) the nature and effect of the orders sought by the Applicant are vague;
     • b) there is no affidavit in support;
     • c) the Applicant's written submissions:
       • i) in some respects, refer to matters not otherwise in evidence, such as the details of the similarities of the plan (design);
       • ii) re-argue matters which were argued or adverted to in the hearing on 7 August 2008; and
       • iii) raise new arguments not raised at the hearing on 7 August 2008;
     • d) the matter was reserved for judgment on 7 August 2008, following argument on the evidence presently before the Court; and
     • e) the Respondent (Worken) cannot properly be expected to respond to alleged matters of fact raised for the first time, in written submissions filed without leave after judgment has been reserved.
   • 51. For the above reasons the Court would have dismissed the Further Application in a Case, in any event. In this case however there is a further reason why the Further Application in a Case ought to be dismissed, and that is that it is unnecessary to determine the Further Application in a Case because of the conclusions reached on the Application in a Case.
   • 52. The Court will dismiss the Further Application in a Case and hear the parties as to costs.[10]
   • (footnotes omitted)
8. That says everything that needs to be said with respect to the further application in the case.
9. The further application in the case, put shortly, ought not have been made and the costs that have been incurred in relation to it have been incurred by reason of the applicant's actions which, in all of the circumstances, were both unreasonable and unnecessary. It is, nevertheless, the case that the costs that the respondent might have incurred with respect to that matter were fairly minimal, the respondent having filed brief written submissions of about a page and a half (six paragraphs) dealing with the further application in the case.

1. In the final analysis the Court considers that it can be said that the applicant has caused the respondent to incur costs with respect to the application in the case, which he had to initiate because of his failure to attend Court on the first Court directions date. The applicant has also caused the respondent to incur costs with respect to the further application in the case which is, as the Court has indicated, ought not to have been filed. The respondent has been caused to incur costs with respect to its opposition to the application to set aside, and particularly whether or not the applicant had an arguable case on the merits. Against each of those things must be weighed the fact that the applicant is a self-represented litigant and his costs are not professional costs in the sense traditionally referred to and, in any event, they would not have been as significant or large as if he had had lawyers engaged in the matter.
2. On balance, and having considered all of the factors referred to, the Court is of the view that there ought be no order as to costs with respect to the application in the case filed on 26 May 2008 in relation to both the Highline and Worken matters.
3. With respect to the further application in the case filed in the Worken matter on 8 August 2008, having regard to the nature of that application, the submissions for the applicant and the submissions of the respondent, and the failure of the applicant to appear to argue the matter today, the Court is of the view that the respondent ought have the costs of that application, but also having regard to those factors, and the other factors that the Court has outlined above, the Court proposes to fix the costs of that application, pursuant to r.21.02(a) of the FMCA Rules and fix those costs at $750. There will be an order that the applicant pay the respondent's costs of the further application in the case in the Worken matter, fixed at $750, by 4:00pm on 31 October 2008.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lucev FM

[4] Bunnag v Minister for Immigration and Citizenship (No. 2) (2008) FMCA 430 at para. 49 per Lucev FM, and the cases there referred to.

[5] Ibrahim v Highline & Anor [2008] FMCA 1146 ("Ibrahim (No. 1)) at paras. 21 - 46 per Lucev FM and, in particular, in terms of the reasoning of the Court from paras. 33 - 46 per Lucev FM.

[6] Ibrahim (No. 1) at paras. 37 - 39 per Lucev FM referring to the Federal Court's judgment in Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at 355 per Lander J; [2004] FCA 559 at para. 75 per Lander J.

[7] Ibrahim (No. 1) at para. 41 per Lucev FM.

[8] Ibrahim (No. 1) at para. 43 per Lucev FM particularly at sub-paras. (c) and (d).

[9] Ibrahim (No. 1) at para. 45 per Lucev FM.

[10]Ibrahim (No. 1) at paras. 49 - 52 per Lucev FM.