Nasir v Reynolds

1. Leave to appeal the orders dated 11 July 2024 in NSD725/2024 is refused.
2. The applicant pays the respondents' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WIGNEY J: 1 This is an application for leave to appeal an interlocutory order made by a Judge of this Court on 11 July 2024. The effect of that order was that a question arising in the proceeding be heard and determined separately from other questions in the proceeding. The hearing in respect of the separate question has not yet taken place. A separate interlocutory application for a stay of the order was dismissed: see Nasir v Reynolds & Ors (stay application) [2024] FCA 864. 2 The parties agreed that the application for leave to appeal could be determined on the papers. 3 For the reasons that follow, the application for leave to appeal will be dismissed with costs. 4 The Applicant, Mr Sajjad Nasir, commenced proceedings in this Court against Oracle Corporation Australia Pty Ltd, and two of its officers, alleging unlawful discrimination under the Racial Discrimination Act 1975 (Cth). His original complaint to the Australian Human Rights Commission in relation to that allegation was terminated by the Commission without inquiry, pursuant to ss 46PF(1)(b) and 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth). A key reason considered by the Commission in relation to the termination of the complaint was that Mr Nasir had signed an agreement with Oracle pursuant to which he released Oracle from any liability. 5 Mr Nasir's proceeding against Oracle and its officers was listed for case management hearing before the primary judge on 11 July 2024. At that hearing, after briefly raising the issue concerning the release agreement with the parties, his Honour ordered that the issue as to whether the release agreement between Mr Nasir and Oracle constituted a complete defence to the relief sought by Mr Nasir be set down for final determination separately and before any other issue in the proceeding. The primary judge listed the separate issue for hearing on 8 August 2024, and made procedural orders for the filing of evidence and submissions in respect of that hearing. 6 Mr Nasir did not oppose, or at least clearly and explicitly oppose, the making of the orders by the Primary Judge. On 22 July 2024, however, Mr Nasir filed a notice of appeal which purported to institute an appeal against the primary judge's order concerning the hearing of the separate issue. That document should not have been accepted for filing. The order concerning the hearing of the separate issue was plainly an interlocutory order. Mr Nasir was therefore required to apply for and obtain leave to appeal: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Mr Nasir appeared to appreciate that he required leave to appeal because other documents he has filed refer to his appeal proceeding as being an application for leave to appeal. Mr Nasir's notice of appeal has accordingly been treated and dealt with as if it were an application for leave to appeal. 7 Mr Nasir also subsequently filed two other documents which bear the heading "Amended Notice of Appeal". Those documents both include particulars of the grounds of the leave application. Those grounds may be taken to be the grounds of appeal that Mr Nasir would pursue if he were granted leave to appeal. The grounds specified in the two documents do not appear to differ in any material respect. The Court will nevertheless proceed on the basis of the grounds specified in the second of the two notices of appeal, being a document that was accepted for filing on 29 July 2024. 8 Mr Nasir's amended notice of appeal also had appended to it a document said to be a notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth). It is necessary to consider that notice before considering the merits of Mr Nasir's application for leave to appeal. That is because the Court would effectively be precluded from determining Mr Nasir's application for leave to appeal at this point if his application actually raised constitutional issues. 9 Section 78B of the Judiciary Act provides, in effect, that where a cause pending in a federal court involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice. It is, however, well established that a cause does not involve a matter arising under the Constitution, or its interpretation, simply because someone says it does. Rather, it must be established that the cause does actually involve such a matter: Glennan v Commissioner of Taxation [2003] 77 ALJR 1195; Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at [13]. 10 I am not satisfied that the cause presently before the Court involves any matter arising under the Constitution or its interpretation. Mr Nasir's notice does not identify or articulate any such matter. Rather, it contains a series of sweeping generalised allegations about the supposed erroneous nature of the order and its supposed impact on Mr Nasir's ability to pursue his case concerning the infringement of his fundamental rights. Even if those assertions had any merit, which is far from clear or apparent, they do not involve any matter arising under the Constitution, or its interpretation. Mr Nasir's notice does not refer to any provision of the Constitution, or any Constitutional right or principle, which his application is said to involve, or the interpretation of which is said to be raised by his application. 11 It follows that Section 78B of the Judiciary Act is not engaged and the Court is not precluded from hearing and determining Mr Nasir's stay application. 12 Turning then, to the application for leave to appeal, the principles that apply in considering applications for leave to appeal are settled and well known. It suffices to note that in the frequently cited and applied decision of the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc [1991] 33 FCR 397, it was said that the principal criteria that must be addressed in considering any application for leave to appeal are: first, whether in all the circumstances the decision or order of the primary judge was attended with sufficient doubt to warrant it being reconsidered by the appellate court; and second, whether substantial injustice would result if leave were refused, supposing that decision made by the primary judge was wrong. The two criteria are cumulative, and both must ordinarily be made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139 at [4]-[5]; Ah-Chee v Stuart [2019] FCAFC 165 at [12]. 13 Where the decision which is the subject of the application for leave to appeal involves a discretionary decision relating to a matter of practise and procedure, and no questions of general principle are at stake, appellant intervention requires the "exercise of particular caution": Hogan v Australian Crime Commission [2010] 240 CLR 651 at [34]. 14 The first question that must be considered is whether the order made by the primary judge is attended with sufficient doubt to warrant it being reconsidered by the Full Court. The short answer to that question is that the order is not attended by any doubt, let alone a doubt which is sufficient to warrant it being reconsidered by the Full Court. 15 The most recent iteration of Mr Nasir's notice of appeal purports to identify six grounds of appeal. None of those grounds has any apparent merit. 16 The order made by the primary judge was an interlocutory order concerning a matter of practice and procedure. In order to successfully challenge the order, it would be necessary for Mr Nasir to articulate and establish that the primary judge made an error of principle of the sort considered in House v The King (1936) 55 CLR 499; [1936] HCA 40. None of Mr Nasir's proposed grounds of appeal clearly articulate any such error. None of the proposed grounds rise mere assertion of error expressed in the most general terms. 17 The first ground is that the primary judge made an error of procedure because the order in question did not "align with the intention communicated to the parties." There is no merit in that contention. The transcript of the case management hearing on 11 July 2024 plainly indicates that the primary judge told the parties that his view was that the issue concerning the release agreement should be dealt with separately and before the other issues in the case were heard and determined. His Honour gave the parties an opportunity to be heard in respect of the order he had proposed. There was no error of procedure as alleged. 18 The second ground is that the order made by the primary judge went beyond the scope of the case management powers under section 37P(2) of the FCA Act by prematurely determining a substantive legal issue that required a full evidentiary hearing. There is no merit in that contention. It was plainly open to the primary judge to find that the issue as to whether the release agreement signed by Mr Nasir provided a complete defence could and should be dealt with separately pursuant to section 37P(2) of the FCA Act. His Honour made orders permitting the parties to file evidence in relation to that issue. There was therefore to be a "full evidentiary hearing" in respect of that issue. The making of the order concerning the separate determination of the issue concerning the release agreement was plainly within the primary judge's discretionary powers in respect of matters of practice and procedure. There is no basis for the assertion that the order somehow went beyond the scope of the power in section 37P(2) of the FCA Act. 19 The third ground is said to be that the language of the order "prejudges the validity of the release and its potential impact on the applicant's claims, potentially denying the Applicant a fair hearing and due process." There is no merit in that contention. The order does not in any sense prejudge the validity of the release. The validity of the release is an issue that can and most likely will be raised and determined at the hearing of the separate issue. Mr Nasir has and will be permitted to adduce evidence and make submissions in respect of that issue. There is no basis for the assertion that he will be denied a fair hearing and due process. 20 The fourth ground is that the order "places the burden on the Applicant to prove the invalidity of the Release." There is no merit in the contention. The order made by the primary judge, plainly does not impose any burden on Mr Nasir to prove that the release is invalid. If the respondents rely on the release in their defence, they will effectively bear the burden of proving the validity of the release, at least if the validity of the release is challenged by Mr Nasir. 21 The fifth ground is that the order made by the primary judge somehow limits Mr Nasir's ability to seek remedies for what he contends was a breach of his rights under s 9(2) of the Racial Discrimination Act. There is no merit in that ground. The order does not limit Mr Nasir's ability to seek any remedy in the primary proceeding. If Mr Nasir succeeds in respect of the separate issue and it is not established that the release agreement constitutes a complete defence to his claim, he will be able to continue to prosecute his claim. The fact that the issue concerning the release agreement is to be determined separately and before the other issues raised by Mr Nasir claim does not mean that he is being denied the opportunity to pursue his claim. 22 The sixth ground is that the primary judge's order "prematurely concludes that the Release dated 7 November 2022 constitutes a "complete defence" to the applicant's claims of racial discrimination." There is no basis for that contention. The order does not prematurely conclude that the release constituted a complete defence. The question as to whether the release constitutes a complete defence is the very issue to be determined at the separate hearing. 23 It follows that there is no apparent merit in any of the proposed grounds of appeal raised by Mr Nasir. None of them are reasonably arguable. Mr Nasir's application for leave to appeal accordingly does not satisfy the first limb of the Décor principle. 24 Even if Mr Nasir's proposed grounds of appeal were reasonably arguable, I am not, in any event, satisfied that Mr Nasir's application for leave to appeal meets the second limb of the Décor principle. That limb is that Mr Nasir would suffer substantial injustice if leave were refused, supposing that the decision of the primary judge was wrong. 25 The order made by the primary judge involved a discretionary decision in respect of a matter of practice and procedure. As the order is discretionary in nature, it can be revisited. It would be open to Mr Nasir to seek to persuade the primary judge that the decision should be varied or reversed. It might be observed, in that context, that it appears none of the arguments that underly Mr Nasir's proposed grounds of appeal were put to the primary judge. As noted earlier, Mr Nasir did not actively oppose the order. If any of Mr Nasir's arguments had any merit, he might be able to persuade the primary judge to vary the order. It is, in those circumstances, difficult to see how Mr Nasir would suffer substantial injustice if leave to appeal were to be refused. 26 Perhaps more significantly, if the separate determination of the issue concerning the release agreement proceeds and is determined adversely to Mr Nasir and his primary application is dismissed on that basis, it will be open to Mr Nasir to appeal that decision. He could conceivably include among his appeal grounds a ground to the effect that the primary judge erred in determining the issue separately and in advance of the other issues. It is in those circumstances difficult to accept that Mr Nasir would suffer any injustice, let alone any substantial injustice, if leave to appeal is refused. Moreover, if the hearing of the separate issue proceeds, it is conceivable that Mr Nasir may successfully persuade the primary judge that the release agreement does not provide a complete defence to his action. Mr Nasir would plainly not have suffered any injustice arising from the refusal of his application for leave to appeal in those circumstances. 27 As noted earlier, the Court must be particularly cautious when it comes to granting leave to appeal in respect of interlocutory decisions or orders concerning practice and procedure. This is such a matter. I am not persuaded that appellant intervention is warranted or appropriate in the circumstances of this case. 28 Mr Nasir's application for leave to appeal does not meet the two limbs in the Décor principle. Leave to appeal will be refused. Mr Nasir will be ordered to pay the respondents' costs of the application for leave to appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.