FEDERAL COURT OF AUSTRALIA

Hossain v Restuccia [2019] FCA 777

ORDERS

THE COURT ORDERS THAT:

1.    The Application for leave to appeal is refused.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the Second Respondent, either as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1    In July 2017, the Applicant in the present proceeding, Mr Seikh Hossain, cut his finger whilst working at the Lipari Pizza Bar in Hunters Hill in Sydney.

2    In January 2018, he filed an Originating Application and a Statement of Claim in this Court. The claim seems to have been founded, at least in part, upon alleged contraventions of the National Employment Standards. Relief was sought under the Fair Work Act 2009 (Cth). In addition to that claim, Mr Hossain also alleged (without alteration) that the “First and Forth Respondents (the Employers), with the help of the Third Respondent (the Accountant), have committed tax fraud”.

3    A hearing took place before a Judge of this Court in June 2018. In September 2018, summary judgment was entered for each of the Respondents under s 31A(2) of the Federal Court Act 1976 (Cth) (the “Federal Court Act”) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth): Hossain v Restuccia [2018] FCA 1383.

4    Now before the Court is an Application for leave to appeal. The “Grounds” upon which that Application is sought to be advanced were set forth by Mr Hossain as follows (without alteration):

1.    The judgment was done in bad faith.

2.    The judge has abused the court’s power to serve his own interest, namely to take unlawful revenge on me.

3.    He deceived me to deny my right to an oral application for leave to appeal under r 35.01 of Federal Court of Rules 2011.

Mr Hossain also filed a Draft Notice of Appeal which set out the proposed sole ground of appeal, that the “[j]udgment of the court below is invalid”. The particulars then set forth the basis of this Ground, namely:

    that the “judgment is an unlawful revenge” of the primary Judge due to his Honour’s “personal enmity” towards the Applicant;

    a statement that the Applicant had “taken [the primary Judge] to the High Court… due to his misconduct and corruption in a case where [the Applicant] was trying to save one of [his] Christian friends…”;

    that the “judgment is done in bad faith”; and

    that the primary Judge “has deliberately hidden [the Applicant’s] evidence and submissions and published false and misleading information at the reasons for judgment to infringe [the Applicant’s] rights”.

5    The decision of the primary Judge sought to be challenged is an interlocutory decision: Federal Court Act s 24(1D)(b). That provision, it has been said, “statutorily entrenche[s]” the “established position”: Cristovao v Tan & Tan Lawyers Pty Ltd [2017] FCA 1201 at [41] per Kerr J. Leave to appeal is required by reason of s 24(1A) of the Federal Court Act. Leave to appeal may be granted in circumstances where the decision sought to be challenged is “attended with sufficient doubt to warrant its being reconsidered” and where “substantial injustice would result if leave were refused”: cf. Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 400 per Sheppard, Burchett and Heerey JJ (“Décor”). These two criteria, however, do not represent a “hard and fast rule” (Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156 at [29], (2011) 217 FCR 238 at 249 per Dowsett, Foster and Yates JJ; cf. Tyne v UBS AG [2016] FCA 241 at [33], (2016) 338 ALR 624 at 631 per Edelman J) but they nevertheless provide “general guidance which the Court should normally accept”: Rawson Finances Pty Ltd v Federal Commissioner of Taxation [2016] FCAFC 95 at [39], (2016) 103 ATR 630 at 641 per Robertson, Moshinsky and Bromwich JJ.

6    At the hearing of the Application for leave to appeal, the Applicant appeared in person. The Second Respondent appeared by Counsel. The Third Respondent appeared in person. The First and Fourth Respondents did not appear. The First, Third and Fourth Respondents filed written submissions. All Respondents, it is understood, were prepared to accept the submissions made by Counsel for the Second Respondent. Non-compliance by Mr Hossain with the orders made on 7 November 2018 with respect to the filing of any evidence upon which he wished to rely by late December 2018, as well as his largely unexplained reliance upon an affidavit provided only at the outset of the hearing, can be left to one side.

7    Leave to appeal is to be refused with costs.

THE ABSENCE OF ERROR, DOUBT OR INJUSTICE

8    It should be stated at the outset that none of the three Grounds set forth in the Application for leave to appeal have any substance. Nor have any of the particulars of the proposed Ground set forth in the Draft Notice of Appeal. There is no basis upon which any allegation of “bad faith” – be it expressed in terms of “unlawful revenge” or “personal enmity” – can be argued, let alone sustained. Nor is there any basis upon which it could be argued that the primary Judge “abused the Court’s power to serve his own interest” or engaged in “misconduct and corruption”. And there is no basis upon which any conceivable argument could be advanced that the primary Judge “deceived” Mr Hossain or had “hidden … evidence and submissions”. No litigant should be deterred from making properly founded allegations of impropriety against a Judge: Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [106] to [107] per Logan and Flick JJ (Graham J agreeing); Giddings v Australian Information Commissioner [2017] FCAFC 225 at [52] per Collier, Flick and Charlesworth JJ. Courts and Judges remain accountable to (inter alia) the community. But allegations must be responsibly advanced and founded in evidence.

9    On the facts of the present case, Mr Hossain advanced these Grounds in a totally irresponsible manner. The criticisms levelled against the primary Judge were without any sustainable foundation. They were mere unsubstantiated allegations. On that basis alone, his Application for leave to appeal should be refused.

10    His Application for leave to appeal, however, has been separately considered by reference to the principles set forth in Décor.

11    So considered, the reasons for decision of the primary Judge, with respect, do not expose any error – let alone “sufficient doubt” – to warrant it being reconsidered. Those reasons set forth the competing submissions of the parties and proceed to resolve those submissions as follows:

[58]    I accept the submissions for the respondents summarised above. Each submission made is balanced, restrained, helpful and accurate. Each asserted defect or failing in the pleadings has been made out. Mr Hossain’s manifest and repeated failures to comply with orders to amend those pleadings is equally clear.

[59]    An ample basis has been made out for any of summary judgment, striking out or default judgment to be granted in favour of all four respondents. The option that most fully and appropriately addresses the manifest deficiencies in Mr Hossain’s case is summary judgment, not least because this is not a case in which re‐pleading should be contemplated because of the lack of any apparent proper foundation for the proceeding. That should be granted for the following reasons:

(1)    in the case of Mr Bai, there is no apparent basis, factual or legal, for Mr Hossain to sue him for anything at all;

(2)    in the case of Allianz, there is no apparent basis, factual or legal, for Mr Hossain to sue it at all, although at least some unrevealed basis might, conceivably, have existed;

(3)    in the case of Tryclown, while it did employ Mr Hossain at one point in time, it did not do so at any material point in time and there is no suggestion of anything untoward having happened during the time that it did employ him; and

(4)    in the case of Ms Elena Restuccia, while she could, as a member of the partnership that did employ Mr Hossain at the times during which his complaints arose, be responsible for actionable conduct against him, there is nothing to suggest in the pleadings or anywhere else, that any coherent allegation has been made that she has done anything wrong to or in relation to Mr Hossain at any time or in any way.

No error of legal principle is exposed by these reasons.

12    Even if contrary to this conclusion some error or possible error could be discerned, the rejection of the Application for leave to appeal in the present proceeding does not occasion Mr Hossain any “substantial injustice”.

13    No “injustice” was occasioned by the primary Judge resolving the Respondents’ applications by reference to the Statement of Claim as first filed in circumstances where:

    deficiencies in the Statement of Claim were canvassed during a case management conference held in March 2018 and an opportunity was afforded to Mr Hossain to file an Amended Statement of Claim; and

    no amendments were made prior to 22 June 2018.

Any prospect of “injustice” to Mr Hossain is further negatived by the fact that:

    in July 2018, namely after the hearing but before judgment, Mr Hossain provided to the primary Judge a further affidavit and an interlocutory application in which he made “an attempt to further particularise” his claims; and

    that further material was taken into account by the primary Judge in his reasons for decision published in September 2018: [2018] FCA 1383 at [32] to [37].

An adequate opportunity was thus extended to Mr Hossain to properly formulate his claims against each of the Respondents and – in the absence of him having a claim with a properly formulated legal or factual basis – judgment was properly entered in favour of the Respondents.

14    Nor was any “injustice” suffered by Mr Hossain by reason of his failure to appear in person on the date of hearing before the primary Judge, namely 22 June 2018. On that occasion Mr Hossain had informed the Court that morning that he was ill. Material subsequently made available to the Court showed that he had attended hospital that morning. No “injustice” – let alone “substantial injustice” – was occasioned by the primary Judge continuing on to hear the Respondents’ applications in his absence both because:

    the basis upon which the primary Judge proceeded was essentially by reference to the pleadings. Although the primary Judge also took into account factual considerations, his Honour’s assessment was that claims had “no apparent basis, factual or legal” ([2018] FCA 1383 at [59]). There was little, with respect, that a party could say contrary to that assessment, even had the party been present; and

    a detailed email was sent by the Court to Mr Hossain after the hearing explaining what had transpired in his absence and affording him an opportunity to file further submissions should he see fit by 20 July 2018. No further submissions were submitted for consideration by that date. Instead a further affidavit was provided by the Applicant to the primary Judge’s chambers on 22 July 2018 and an interlocutory application provided on 24 July 2018. Mr Hossain also filed submissions in reply on 8 August 2018, pursuant to orders made by the primary Judge that any such submissions be filed by 7 August 2018: cf. [2018] FCA 1383 at [31] to [36].

The fact remained, whether Mr Hossain was present or not, that he had failed to plead a properly formulated claim against any of the Respondents and his absence on 22 June 2018 occasioned him no “injustice”. In the absence of amendment, there was nothing that could have been said in support of manifestly defective pleadings.

PROPOSED AMENDMENTS

15    After the hearing in this Court on 20 February 2019, and presumably pursuant to leave granted to file further submissions if he wished to do so by 22 February 2019, Mr Hossain sought on three occasions (on 22 February 2019, 26 February 2019 and 30 April 2019) to file an Amended Statement of Claim and on 26 February 2019 sought to file an additional affidavit. Each of the Amended Statement of Claim were in a different form and sought to raise different claims. There are at least two fundamental problems confronting Mr Hossain with respect to these documents, namely:

    the documents go beyond the leave granted to file submissions; and

    the documents come far too late in the proceeding, any amendment or application to amend the Statement of Claim should have been made to the primary Judge and desirably before 22 June 2018. Any attempt to now formulate the case at this stage of the proceeding does not impact upon the manner in which the primary Judge proceeded.

Even assuming, however, that the proposed amendments may be of relevance to a question as to any “injustice” now suffered by Mr Hossain should leave to appeal be refused, it should be further noted that the proposed amendments are not in a form which would warrant leave to amend being granted. The proposed amendments (for example):

    are replete with generalisations and lack any detail or specification of material facts as to when events were said to have occurred; and

    are replete with unsubstantiated allegations as to (inter alia) the “religious persecution on Muslims” by the Fourth Respondent. If such allegations are to be advanced for resolution, there should be a sufficiently precise factual basis pleaded so that a Respondent is to know the case being advanced.

Even if the more generalised allegations be placed to one side, and the case sought to be advanced against (for example) the insurer (the Second Respondent) be considered, the proposed amendments are further:

    replete with further unsubstantiated allegations, such as allegations that the Second Respondent (for example, without alteration) “infiltrated and compromised the integrity of my doctors and specialists”, “[i]nstructed the doctors and specialists to ignore and hide any disability…” and “has placed another spy at next-door to me…”.

CONCLUSIONS

16    The three Grounds set forth in the Application for leave to appeal have been irresponsibly advanced and are supported by nothing which could conceivably give rise to any argument as to “bad faith”, “abuse” of power, or “deception” on the part of the primary Judge.

17    The reasons of the primary Judge do not expose any error, let alone expose any basis for concluding that the decision is “attended by sufficient doubt” to warrant it being reconsidered. The pleadings, as against each Respondent, were properly held by the primary Judge to be wanting. Nor has Mr Hossain suffered any “substantial injustice” in the making of the orders by the primary Judge. He had the opportunity to amend his pleadings and elected not to do so and he was twice afforded the opportunity to file submissions after the hearing on 22 June 2018. Mr Hossain elected to file submissions on 8 August 2018. These submissions were explicitly considered by the primary Judge.

18    The Application for leave to appeal should be refused.

19    There is no reason why the costs of the present application should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The Application for leave to appeal is refused.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the Second Respondent, either as assessed or agreed.

Associate:    

Dated:    30 May 2019