FEDERAL COURT OF AUSTRALIA

Soliman v University of Technology, Sydney [2009] FCAFC 159

PRACTICE AND PROCEDURE – application to raise a new point on appeal that could possibly have been met by calling evidence below – application refused

University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481

Coulton v Holcombe (1986) 162 CLR 1

Water Board v Moustakas (1987) 180 CLR 491

Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279

Tyson v Brisbane Market Freight Brokers Proprietary Limited (1994) 68 ALJR 304

Hampton Court Limited v Crooks (1957) 97 CLR 367

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1

FAWZY IBRAHIM SOLIMAN v UNIVERSITY OF TECHNOLOGY, SYDNEY

NSD 1705 of 2008

GRAHAM, LOGAN AND FLICK JJ

4 NOVEMBER 2009

SYDNEY

THE COURT:

1.                  Orders that leave be granted to the appellant to file a Further Amended Notice of Appeal containing Grounds 1, 2, 3 and 5 as set out in the draft Further Amended Notice of Appeal, lodged by the appellant with the appellant’s Outline of Submissions dated 29 October 2009.

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.

REASONS FOR JUDGMENT

the court:

1                     The matter presently before the Court is an appeal from a judgment of Jagot J of 10 October 2008.  The proceedings arise out of disciplinary action taken by the University of Technology, Sydney against the appellant, Dr Soliman. 

2                     The appellant has provided the Court with his written submissions of Thursday, 29 October 2009 and a draft Further Amended Notice of Appeal.  The appellant’s submissions refer to the effect of the amendments, if allowed, in paragraph 20 thereof.  The relevant passage reads:

‘The effect of the amendments, if allowed, will be to abandon paragraphs 1, 2c, 2d, 4, 5 and 6 of the Amended Notice of Appeal, to re-cast paragraphs 2(a), 2(b), 3, 7 and 8, and to reformulate the orders in the terms sought in orders 3, 4, 5, 6, 6A and 6B of the Further Amended Application.’

The Amended Notice of Appeal to which reference was made included eight paragraphs.  The appellant has indicated that he no longer wishes to argue a number of the grounds, which were identified in the passage that has been quoted, and that he wishes to re-cast other grounds which were similarly identified.

3                     The truth of the matter is that the appellant seeks to substitute a new Notice of Appeal for the Amended Notice of Appeal.  It is said that the proposed new grounds numbered 1 to 5 inclusive are nothing other than a ‘re-casting’ of the earlier grounds which are not now abandoned.

4                     The respondent objects to leave being granted to the appellant to rely upon the proposed new ground 4 as set out in the draft Further Amended Notice of Appeal.  That ground relevantly reads:

‘4.        … if the primary judge found that the Vice Chancellor had in fact considered a report or reports of the Committee, that finding was contrary to the evidence, or was unsupported by the evidence, and was therefore erroneous.’

(emphasis added)

5                     It is appropriate to draw attention to the principles which govern matters which may properly be argued on the hearing of an appeal.  These include:

(i)         A party is bound by the conduct of his case.  Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481 (‘Metwally’) at 483;  see also Coulton v Holcombe (1986) 162 CLR 1 at 8.  In Metwally, his counsel sought to argue on appeal that the Racial Discrimination Act 1975 was unconstitutional in circumstances where his argument at first instance had proceeded upon the premise that the Act was valid.)

(ii)        A point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.  Where all the facts have been established beyond controversy, or where the point is one of construction or of law, then a Court of Appeal may find it expedient, in the interests of justice, to entertain the point, but otherwise the rule is strictly applied (Water Board v Moustakas (1987) 180 CLR 491 (‘Water Board v Moustakas’) at 497;  Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 (‘Banque Commerciale’) at 284.)

(iii)       In deciding whether or not a point was raised at trial, no narrow or technical view should be taken.  Ordinarily, the pleadings will be of assistance, for it is one of their functions to define the issues so that each party knows the case which he has to meet. 

(iv)       In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute (Water Board v Moustakas at 497), for a party does not make an admission about one of the issues in the other party’s pleadings simply because he or she calls no evidence on, or makes no submission, about that issue.  Failure to take a point at trial does not constitute an admission or an abandonment of the issue.  It is merely a factor, albeit an important one, in determining whether the court should allow the point to be taken after verdict (Tyson v Brisbane Market Freight Brokers Proprietary Limited (1994) 68 ALJR 304 (‘Tyson’) at 310; see also Hampton Court Limited v Crooks (1957) 97 CLR 367 at 372 and Banque Commerciale at 284).

(v)        Except in the case where the parties have mutually abandoned the pleadings at the trial, the public interest in the finality of litigation requires that unless some exceptional circumstance exists, a party must be refused leave to make a case on appeal which is inconsistent with his or her pleadings (Tyson at 310). 

6                     In adversarial litigation there is a fundamental principle that a party should not be permitted to submit that a witness has lied on oath without it first being suggested to the witness that his evidence is false, and if the reason for the suggestion is not self-evident, the basis on which the suggestion is advanced so as to give the witness an opportunity to deal with the suggestion. 

7                     In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 16, Hunt J, as his Honour then was, expressed the principle as follows:

‘It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.  Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.  That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.’

8                     The relevant disciplinary action in this case was said to have been taken by Professor Booth.  He gave evidence at the trial on 8 September 2008 and was cross-examined by senior counsel for the appellant.  The transcript of the relevant cross-examination may be found at pages 1209-1211 of volume 2 of the Appeal Book.  There was no suggestion put to Professor Booth that he failed to consider any report or reports of the relevant Committee appointed to report on the facts and any mitigating circumstances in accordance with clause 46 of the Academic Staff Agreement 2006.

9                     If one searches the pleadings to find if there was any suggestion that Professor Booth did not, in fact, consider the Committee’s report one simply cannot find any such suggestion.  In the Further Amended Statement of Claim filed 25 September 2008 certain matter was recorded under the heading ‘CLAUSE 46.9–POWER NOT INTERCHANGEABLE’.  The appellant, in seeking the amendment now proposed to the Notice of Appeal, relies, in particular, on [16] to [20] inclusive.  Paragraph 20 relevantly provided:

‘20       In making his decision Acting Vice Chancellor Peter Booth took into consideration, inter alia, a briefing from the Vice Chancellor, Professor Ross Milbourne.

Particulars

Letter dated 9 January 2008 from Peter Booth to the Applicant.’

(emphasis added)

10                  Whilst it may have been alleged that Professor Booth took into account a briefing from Professor Milbourne, the use of the words ‘inter alia’ clearly indicates that other matters were considered by the appellant to have been taken into account by Professor Booth.  There was no suggestion that he did not take into consideration the report of the Committee. 

11                  Paragraph 46.9.5 of the Agreement was expressed in the following terms:

‘46.9.5   On receipt of the report of the Committee and having considered the findings on the facts related to the alleged misconduct or serious misconduct, including any findings as to whether any mitigating circumstances are evident, the Vice-Chancellor may take disciplinary action.’

(emphasis added)

12                  The defence included a paragraph 20 which was in the following terms:

‘20.      Professor Peter Booth was briefed by the Vice Chancellor when it was apparent that the Applicant’s response was not going to be available before the Vice Chancellor went on leave.  Professor Booth was briefed by the Vice Chancellor on the proceedings to date and on the views of the Vice Chancellor as expressed in his correspondence to the Applicant of 13 December 2007.  The Acting Vice Chancellor did not revisit the Vice Chancellor’s decision in his correspondence of 13 December 2007 but considered the Applicant’s response in accordance with clauses 46.9.5 and 46.10 of the Agreement, as to what, if any, discipline action should be taken.’

13                  Clause 46.9.5, of course, was predicated upon the Vice Chancellor having ‘considered the findings on the facts’.

14                  Both parties place reliance upon prayer for relief 3 in the Further Amended Application dated 8 September 2008.  Paragraph 3 relevantly provided:

‘3         A declaration that, on the proper construction of the Agreement and by reason of the fact that one vice chancellor, Professor Ross Milbourne, referred the matter to the investigation committee for investigation, received and considered the majority and minority reports of the investigation committee relating to the alleged misconduct, and evinced an intention to decide what if any disciplinary action should be taken,

a.         it was not open to another person acting as vice chancellor, Professor Peter Booth, to then consider the matter and take disciplinary action against the applicant; and

…’

(emphasis added)

15                  The appellant referred to paragraph 3.5 of his submissions filed 27 August 2008, which were relied upon by him before Jagot J.  There was no suggestion in paragraph 3.5 to the effect that Professor Booth failed to consider the Committee’s report. 

16                  Senior counsel for the appellant appearing on this appeal accepts that if he cannot demonstrate that the point raised in paragraph 4 of the draft Further Amended Notice of Appeal was thrown up before Jagot J, he cannot run that point now. 

17                  It is apparent to the Court that the proposed ground 4 seeks to raise an issue which was not raised below.  It cannot be raised, in our view, for the first time upon the hearing of the appeal when it could possibly have been met by calling evidence below.

18                  Certainly, one would have expected that Professor Booth would have been afforded an opportunity to deal in cross-examination with a suggestion that he had proceeded to deal with the matter without first considering the report of the Committee. 

19                  For the reasons that have been given the Court is not disposed to allow an amendment which would permit the appellant to rely upon the proposed ground 4. 

20                  Senior counsel for the appellant has indicated, nevertheless, that the appellant wishes to rely upon the remainder of the Further Amended Notice of Appeal in substitution for the Amended Notice of Appeal filed 5 November 2008 and leave to do so is granted. 

Associate:

Dated:         10 November 2009