FEDERAL COURT OF AUSTRALIA

Awadallah v CPA Australia [2004] FCA 768

HASSAN AWADALLAH v CPA AUSTRALIA

V 1123 OF 2003

NORTH J

7 JUNE 2004

MELBOURNE

THE COURT ORDERS THAT:

1.         The application for leave to appeal is refused.

2.         The applicant is to pay the respondent's costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In substance, the matters before the court are an application by Mr Hassan Awadallah, the applicant, for an extension of time in which to seek leave to appeal from an order made by the Federal Magistrates Court on 26 November 2003, and an application for leave to appeal from that order. 

2                     The respondent, CPA Australia, is a professional body which accredits Certified Practising Accountants.  It conducts a CPA post-graduate program.  If a candidate passes the necessary exams, the candidate is entitled to use the designation "CPA".

3                     The applicant sat some of these exams, and the respondent recorded that the applicant had failed them.  He filed an application in the Federal Magistrates Court alleging unlawful discrimination under the Racial Discrimination Act 1975 (Cth).  The basis for that claim was that the respondent failed him, an Egyptian, on account of his ethnicity. 

4                     The respondent brought an application in the Federal Magistrates Court seeking summary dismissal of the proceeding on the grounds that it disclosed no reasonable cause of action; was frivolous or vexatious; or was an abuse of the process of the court (see rule 13.10 of the Federal Magistrate Court Rules).

5                     On 26 November 2003, Phipps FM allowed the dismissal application and ordered that the proceeding brought by the applicant stand dismissed.  On 16 December 2003, the applicant filed a document purporting to appeal from the decision of the Federal Magistrates Court.  The grounds stated were, as follows:

‘The following cases of law are irrelevant in regarding [sic] my case against the society of the CPA

·        Dey v Victorian Railways Commission (1949) 78 CLR 6291

·        General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125

·        Seemi v Minister for Immigration & Ethnic Affairs (1976) 137 CLR 388.’

The orders sought in the document were:

‘The Federal Court of Australia judging my case on a real relevant ground of justice.’

6                     At the same time, the applicant filed an affidavit which set out his arguments in support of the purported appeal.  On 5 January 2004, he filed a supplementary affidavit which reiterated the arguments which he sought to raise.  On 2 February 2003, at the first directions hearing, the respondent foreshadowed filing an objection to competency on the ground that the applicant required leave to appeal, had not applied for leave, and was out of time.  The Court suggested to the applicant that he seek legal advice.

7                     On 12 February 2004, the respondent filed a notice of motion seeking orders under O 52, r 18 of the Federal Court Rules alleging that the appeal is incompetent because leave to appeal was necessary and had not been sought or granted, and the notice of appeal disclosed no basis for, or reasonable grounds of appeal.  On 16 February 2004, the applicant filed an application for leave to appeal and for an extension of time within which to bring that application.  On 4 March 2004, a solicitor filed a notice indicating that he acted on behalf of the applicant.  On 8 April 2004, the applicant filed a further affidavit, again largely containing argument in support of his case. 

8                     On 14 April 2004, the solicitor acting for the applicant filed a notice of ceasing to act.  At a directions hearing on 19 April 2004, the applicant applied for a referral to the pro bono legal assistance scheme.  This application was refused.  The respondent then asked the court to hear and determine the applicant's application for leave to appeal and for an extension of time.  Mr O'Grady, then acting as counsel for the respondent, handed an outline of argument to the Court.  The following exchange then occurred:

‘HIS HONOUR: … it seems to me that the appropriate course is, given the history of the matter and Mr Awadallah's lack of representation that the matter be stood over to allow him to look at the outline of submissions.  He now knows through it the entirety of your case.

MR O'GRADY:   Yes, your Honour.

HIS HONOUR:   And the matter should be brought on at the next directions hearing.  The next directions hearing is on 7 June.

MR O'GRADY:   Yes, your Honour.

HIS HONOUR:   It is quite a long time away, but I am concerned to give Mr Awadallah, every possible opportunity to answer the argument.  Now, it might be said he has already had that opportunity but in a case like this, he clearly feels very strongly about it.  It's a matter that affects him very directly and importantly.  I don't think he can ask for better than to have the whole of your case handed to him in writing today.

MR O'GRADY:   Yes, your Honour.

HIS HONOUR:  And then get another six weeks to respond to it and I'm inclined to do that, unless you have a strong argument against it.

MR O'GRADY:   I have nothing that I haven't already put to your Honour.’

9                     On 17 May 2004, the applicant filed an outline of submissions in support of his application for leave to appeal.  At the hearing today, the applicant filed a further, short additional submission and addressed some oral argument. 

10                  The order of the Federal Magistrate dismissing the primary application was an interlocutory order:  Hall v Nominal Defendant (1966) 117 CLR 423 and Dai Rong-Hua v Telecommunications Industry Ombudsman & RSL Com Personal Communications (2000) FCA 717.  As a result, leave to appeal is necessary, (s 24(1A) Federal Court of Australia Act 1976).  Mr McNab, who appeared today on behalf of the respondent, was unable to refer the court to the time limit for making an application for leave to appeal for an interlocutory order of the Federal Magistrates Court.  I am prepared to assume in the applicant's favour that no extension of time is required. 

11                  However, in order to determine whether to grant or refuse leave to appeal, the Court must consider whether in all the circumstances the judgment of the Federal Magistrate is attended by sufficient doubt to warrant it being reconsidered by the appeal court and, whether substantial injustice would result if leave were refused, supposing the decision is wrong.  It is accepted that the sufficiency of doubt in respect of the decision and the question of substantial injustice should not be assessed in isolation because they may bear upon each other: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

12                  The Federal Magistrate properly directed himself that the power to dismiss a claim should be exercised only in a very clear case.  He cited the well known authorities of Dey v Victorian Railway Commission (1949) 78 CLR 6291; General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125; and Seemi v Minister for Immigration and Ethnic Affairs (1976) 137 CLR 388. 

13                  The Federal Magistrate analysed the evidence contained in two affidavits filed on behalf of the respondent, concerning the examination procedures.  The larger part of the seven exams concerned in the proceeding involved multiple choice questions which were marked automatically by computer processes, and these processes were undertaken by two organisations independent of the respondent.  The applicant asserted in two affidavits filed before the Federal Magistrate that the exam papers produced could not have been his papers.  The Federal Magistrate closely considered the arguments and found that they were insubstantial.  He said at [25]:

‘What the applicant is then left with is his own assertions that his ability and knowledge was such that he must have achieved passes.  He says the exam papers produced cannot be his, and he then says that the only inference is that it is because his name shows his race and ethnicity.  This is a case where the applicant in his own affidavit says that all the necessary material is before the court.  Quite apart from that, it is not a case where the applicant could produce other evidence to improve his position.’

The Federal Magistrate concluded at [28]:

‘For the purpose of a summary dismissal application it may be accepted that the applicant had the ability and knowledge to pass the exams.  He can not [sic] establish the next step in his argument that is that the exam papers said to be his are not his.  His analysis of the various documents does not lead to the conclusion he claims.  But that does not decide the summary disposal application.  What does dispose of it is that the applicant has no prospect of establishing that he was failed because of his race or ethnicity.  There is no direct evidence of it and nothing from which an inference might be drawn.  The evidence shows the process for marking exam papers and that the applicant did not pass.  There is no more than that.  The summary disposal application therefore succeeds.’ [Emphasis added]

14                  In my view the Federal Magistrate was correct to hold that there was no evidence linking the failures with the applicant's race or ethnicity.  This gap is fatal to the proceeding based on the Racial Discrimination Act 1975.  There would be an obvious injustice to allow the decision of the Federal Magistrate to stand if it were wrong.  However, there is no sufficient doubt about the Magistrate's conclusions to warrant the matter being reconsidered on appeal.  Consequently leave to appeal should be refused. 

Associate:

Dated:              16 June 2004