Federal Court of Australia

Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) [2022] FCA 236

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to seek leave to appeal is dismissed.

2.    The applicant is to pay the respondent’s costs as agreed or taxed.

THE COURT NOTES THAT:

3.    The parties are to endeavour to agree the quantum of costs payable under order 2, fixed if possible in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). 

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

REASONS FOR JUDGMENT

PERRY J:

1.     INTRODUCTION

1    The applicant, Dr Waqqas Ahmad, seeks an extension of time and leave to appeal from a decision of the then Federal Circuit Court (FCC) (now the Federal Circuit and Family Court of Australia). By that decision, the primary judge dismissed Dr Ahmad’s application for leave to proceed with respect to a decision of the Australian Human Rights Commission (Commission) made on 17 September 2020 to terminate a complaint by him that the respondent, MPA Engineering Pty Ltd (MPA), had contravened the Racial Discrimination Act 1975 (Cth) (RDA). Dr Ahmad’s complaint was terminated by the Commission under s 46PH(1B)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the grounds that it was misconceived and/or lacking in substance. As a result, leave was required under s 46PO(3A)(a) of the AHRC Act before Dr Ahmad’s application alleging unlawful discrimination by MPA could proceed in the FCC.

2    For the reasons set out below, Dr Ahmad’s application for an extension of time and leave to appeal must be dismissed. In my view, any appeal would lack reasonable prospects of success and it would not therefore be in the interests of justice to grant leave.

3    Finally, while Dr Ahmad feels very aggrieved by what has happened, that does not justify the making of serious and unparticularised allegations by him against MPA, such as enslavement, which lack any basis in the evidence.

2.     BACKGROUND    

4    Dr Ahmad lodged a complaint with the Commission in March 2020 in which he alleged that he was tricked into making an agreement in August 2019 between the company, Doctors of Optimisation Pty Ltd trading as PLC SCADA Skills (DO) of which he was a director and shareholder, with MPA to perform specified contract works (Agreement). Dr Ahmad also claimed that he was bullied or treated less favourably than other contractors because he was Pakistani and/or because of his immigrant status. In addition, he alleged that his contract with MPA was terminated in November 2019, he was not offered further work by MPA, he was not paid for work completed, and that an arbitrator was unfairly appointed, including for reasons that he is Pakistani and/or because of his immigrant status. These allegations were denied by MPA which alleged among other things that, when the Agreement was terminated, less than 30% of the works were completed and that the works completed by Dr Ahmad were “of poor quality, defective and incomplete”.

5    By letter dated 17 September 2020, a delegate of the President of the Commission (Delegate) advised Dr Ahmad of her decision to terminate his complaint under s 46PH(1B)(a) of the AHRC Act on the basis that she was satisfied that the complaint was misconceived and/or lacking in substance. The Delegate found there was insufficient information to support Dr Ahmad’s claims which did not rise above assertion. Rather, the Delegate found that the reasons given by MPA in relation to termination of the Agreement related to concerns around “unsatisfactory performance and poor progress under the terms of the Agreement”. Equally, the Delegate considered that non-payment of monies appeared to be explained by MPA’s concerns about progress and the quality of work performed by DO under the Agreement. Furthermore, the Delegate found that it was unclear how the actions of MPA in seeking to have the dispute dealt with through arbitration could be said to amount to unlawful racial and/or immigrant status discrimination. The Delegate concluded that:

While I appreciate you are very aggrieved by MPA’s decision to terminate the Agreement and the way they have subsequently handled the ending of the Agreement, including the appointment of an arbitrator and their role within the arbitration process, overall I am of the view that there is insufficient information to support your contentions that your race and/or immigrant status were factors in MPA’s actions or decisions. As noted above, in relation to the dispute around the correct characterisation of the Agreement, it is arguable that the dispute between the parties in relation to the termination of this same Agreement, is also in fact a contractual dispute, rather than a claim of unlawful racial discrimination under the RDA.

6    The applicant initially instituted proceedings in November 2020 in the FCC without seeking leave under s 46PO(3A) of the AHRC Act. In a decision dated 8 April 2021, that application was struck out and the primary judge refused to grant leave to proceed. The primary judge did however make orders for the proceeding to remain on foot in order to afford the applicant an opportunity to file an amended application and seek leave to proceed under s 46PO(3A) of the AHRC Act: Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) [2021] FCCA 801. The applicant subsequently applied for leave to proceed which was refused by the FCC on 9 June 2021 in written reasons published on 1 July 2021 due to deficiencies in the pleadings on which the applicant sought to rely: Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) (No 2) [2021] FCCA 1475. On that occasion, the primary judge allowed the applicant “one last chance” to address the deficiencies in his application. Finally, on the third occasion, in a decision dated 4 August 2021 and published in written reasons on 13 September 2021 (Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) (No 3) [2021] FCCA 2145), the primary judge refused leave finding that, despite the applicant then having the benefit of legal representation and the prior attempts to plead his case before the court:

11. [o]ne matter which the Court should take into account is the fact that, notwithstanding a number of attempts, the applicant has still not pleaded his claim in a manner such [that] the Court can confidently deal with it. At some point a line must be drawn and on the last occasion the applicant was told that he would be given one last chance to plead his case. He has now had that chance and I am not satisfied that the pleading should be allowed to go forward. In reaching that conclusion, I have noted the inconvenience to which the respondent has been put by the number of times the matter has had to come to Court without progressing beyond a most preliminary stage.

7    It is against this third decision that the applicant seeks an extension of time within which to seek leave to appeal. I note in this regard that leave to appeal is required, even if the extension of time were granted, because the decision refusing leave to the applicant to proceed under s 46PO(3A) is interlocutory in character.

3.     SHOULD THE EXTENSION OF TIME AND LEAVE TO APPEAL BE GRANTED?

8    The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent, and the substantive merits of the proposed appeal: SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210; (2013) 139 ALD 109 at [16]; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348–349. The relevant considerations to deciding whether to grant leave to appeal include whether an appeal would have any reasonable prospects of success in that “the decision is attended with sufficient doubt” and whether the applicant would suffer “substantial injustice” if leave were refused, assuming the decision subject to appeal is wrong: Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398–399. Accordingly, an assessment of the merits of the applicant’s appeal is relevant both to determining the application to grant an extension of time and, if an extension were granted, to the application for leave to appeal.

9    In his affidavit dated 8 February 2022 in support of the extension of time, Dr Ahmad sought to explain the reasons for his delay in seeking to appeal. While the respondent did not accept some of the reasons given by Dr Ahmad, it was not in dispute that there was a significant delay between the ex tempore judgment of the FCC dismissing the applicant’s application on 4 August 2021 and the publication of written reasons on 13 September 2021. I accept, that while the applicant filed the application for an extension of time and leave to appeal on 6 September 2021 before written reasons were provided, the delay in the provision of written reasons was a contributing and sufficient explanation for the applicant’s delay in applying for leave to appeal.

10    The respondent’s opposition to the grant of an extension of time and leave to appeal centred on the contention that an appeal would lack any reasonable prospects of success. Importantly, in considering this question, the proposed grounds of judicial review should be considered on their face and examined at a “reasonably impressionistic level” and the Court should not descend into a fuller consideration of the arguments for and against each ground: see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]–[63] (Mortimer J); approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court).

11    Furthermore, and at least in this case, the decision by the FCC was discretionary. In those circumstances, it is necessary for the applicant to establish that it is reasonably arguable that the exercise of discretion by the primary judge erred in a manner identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House v R). As Dixon, Evatt and McTiernan JJ held in House v R at 504–505:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

12    The applicant’s application for an extension of time and leave to appeal (which I note is more in the nature of submissions) contends that leave to appeal should be granted for the following reasons:

(1)    the Commission and FCC decisions “have suffered frustrating conflicts of Australian Common Law Principles with that of the legislated principles embodied in the [RDA] and such a conflict is so severe that it eventually paralyzed answering the alleged breaches of the principles embodied in the Universal Declaration of my Human Rights…”;

(2)    the application for leave to appeal should be considered “by evolving the common law” and the FCC “has missed a creative opportunity of setting an evolving precedent” in resolving the inconsistency between common law principles and the circumstances of his case and, in particular:

… whether there is room for the development of a common law principle consistent or aligned with the statutory principles embodied in the [RDA] and at the same time, this statute also demands Australia’s obligation with the Internal Convention on the Elimination of All Forms of Racial Discrimination (ICERD) as per the constitutional dimension (section 51xxix);

(3)    procedural fairness and natural justice has not been applied;

(4)    there were no pleadings rules with which his claim had to comply in the FCC “whose statute binds it to avoid technicalities and undue formalities”;

(5)    “No Consideration of Public Importance is being given by setting this bad precedent in this evolved and trended Gigs Economy – where my sort of vulnerable migrant workers are unlawfully discriminated and enslaved by predators who with the help of bad law firms organize and disguise ‘Contracts of Services’ in the forms of ‘Contracts for Services’ and eventually it leads towards unlawful discrimination with pay, rights, and entitlements theft…”; and

(6)    the FCC set the leave to proceed bar too high, which was inconsistent with common law principles established by the Federal Court.

13    None of these grounds are reasonably arguable.

14    First, the applicant’s oral and written submissions indicate that his complaints regarding the alleged conflict between the RDA and the AHRC Act, on the one hand, and the common law on the other hand, is that the requirement for leave to proceed imposed by s 46PO(3A) of the AHRC Act is inconsistent with the common law and/or international law. He also submitted at the hearing that the Commission had “imposed” the requirement for leave to proceed on him and lacked jurisdiction or competency to do so: T8/3/22 at 7.22–26; T8/3/22 at 23.17–22.

15    These submissions are completely misconceived. The Commission must apply laws made by the Parliament, as must the FCC and this Court. Where the common law or international law is in conflict with a law of the Parliament, it is trite that the statute will always prevail by reason of the principle of parliamentary sovereignty under the Constitution. As such, there is no capacity for the Court to creatively develop the common law inconsistently with laws made by the Parliament or to apply international law, instruments or resolutions of the United Nations General Assembly in preference to a law of the Parliament. Furthermore, contrary to the suggestion in the applicant’s oral submissions, laws of the Commonwealth enacted under the external affairs power in s 51(xxix) of the Constitution are not confined to laws consistent with international law: Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183 at 195 (the Court)).

16    It follows that once the Delegate formed the view that Dr Ahmad’s complaint was misconceived or lacking in substance, she was required to apply s 46PH(1B)(a) and terminate the complaint.  Equally, once the complaint was terminated under s 46PH(1B)(a), it was necessary for Dr Ahmad to seek leave to proceed in the FCC under s 46PO(3A) of the AHRC Act. There is therefore no merit in Dr Ahmad’s oral submission that the Commission had no jurisdiction to “impose” s 46PO(3A)(a) on Dr Ahmed contrary to what he described as the “Paris Principles”: T8/3/22 at 11.18–39. The Commission and the FCC simply applied the AHRC Act, as they were required to do.

17    Secondly, Dr Ahmad contends that the primary judge imposed too high a threshold for leave to proceed under s 46PO(3A) of the AHRC Act. In this regard, the applicant relied upon the following passage in the decision of Mortimer J in James v WorkPower Inc [2018] FCA 2083 (James) at [37]:

I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

18    Specifically, the applicant submits that:

in my case, His Honours … has set the barrier very high by considering the expense of technical pleadings, questions of law, questions of fact at leave to proceed stage and without determining the issue of the subpoena.

19    This complaint appears to be directed towards the matters taken into account by the primary judge at [11] of his Honours reasons which I have earlier quoted (see paragraph [6] above). There was no error in the primary judge considering such matters. To the contrary, as is apparent from Mortimer J’s reasons in James at [38], there are a broad range of other permissible considerations which may bear on the grant of leave to proceed under s 46PO(3A), including factors often considered in leave applications such as delay, the merits of the proposed proceeding, prejudice to a party, and the merits of the proposed proceeding viewed from an impressionistic perspective.

20    Dr Ahmad also submitted that the primary judge should not have dismissed his subpoenas because the burden of persuading the Court that leave to proceed should be granted lay on him (T8/3/22 at 22.22–24); his case was a complex one where he had to show the existence of prejudice and stereotypical intention towards him by the respondent (T8/3/22 at 7.41–44); the subpoenas would have produced evidence that assisted him with meeting that burden (T8/3/22 at 9.9–11); “evidence always leads pleadings” (T8/3/22 at 9.11); and he should have had the chance to present the pleadings the way he wanted to (T8/3/22 at 9.12–14). However, there is no application for an extension of time and leave to appeal the decision by the primary judge to dismiss the subpoenas. Furthermore, and more fundamentally, at the leave to proceed stage, Dr Ahmad only had to articulate an arguable case and, as I explain below, he manifestly failed to do so.

21    Thirdly, at the nub of the applicant’s complaints, in common with his case before the primary judge, is an alleged disparity between the applicant’s treatment from the respondent and the treatment enjoyed by the respondent’s employees or other contractors. In this regard, the primary judge explained that:

6. … The applicant would allege that the treatment he received was different from the treatment enjoyed by the respondent’s employees with whom he interacted. The allegation would seem to be that the difference in treatment was for reasons contrary to the Act, but it depends on the circumstances of the individuals being comparable. This in turn requires the applicant to demonstrate that he was an employee rather than a contractor which is what his status ostensibly was.

7. The applicant would allege that he was in truth an employee rather than an independent contractor but he has not particularised the allegation in a way that makes it at all persuasive. …

8. The deficiency of the pleading in that regard tends to bring into focus the conclusions reached by the Commission when it said at pg.5 of the termination notice:

… It appears that your concerns about characterisation of the nature of the relationship between MPA and yourself and the terms of the agreement are in essence a contractual dispute, rather than concerns that could be advanced under the RDA.

22    It was the failure, on the last attempt, to particularise the alleged unlawful discrimination that was material to the decision in the Court below: Ahmad v MPA Engineering Pty Ltd (Subsidiary of Aquatec Maxcon Group Ltd) (No 3) [2021] FCCA 2145 at [10].

23    In this regard, it is true that s 3(2)(a) of the (now repealed) Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) provided that the objects of the Act included “to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power”. Section 42 also provided that the FCC “must proceed without undue formality”. Section 50(1) of the FCC Act provided that proceedings may be instituted in the FCC “by way of application without the need for pleadings”. Furthermore, r 2.04(1) of the (now repealed) Federal Circuit Court Rules 2001 (Cth) (FCCR) stated that “[u]nless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient”. It is presumably in reliance on these provisions that Dr Ahmad submitted that he should not have been required to prepare technical pleadings.

24    However, under FCCR 41.02A, Dr Ahmad was still required to prepare his application in accordance with the approved form for a proceeding alleging unlawful discrimination, which required among other things that the applicant “explain briefly the basis on which the orders are sought” and if a pleading is filed, “identify in summary form the material facts” relied upon but “not the evidence by which those facts are to be proved”: see Form approved by the Chief Judge pursuant to FCCR 2.04(1A) for the purpose of FCCR 41.02A(1) (Form), and in particular the Instructions for Completion on that Form. Furthermore, technical pleadings rules aside, as I explained at the hearing, it remained incumbent upon Dr Ahmad to articulate his case and in particular, the basis on which he contended that he had been subjected to racial discrimination contrary to the RDA. However, there was no fact pleaded in Dr Ahmad’s statement of claim (which his application stated set out the allegedly unlawful discrimination) that illuminated the basis on which the claim of unlawful discrimination was made, as opposed to describing a purely commercial dispute about termination of a contract. The allegations of racial discrimination did not rise above bare assertion.

25    It follows that it is not arguable even from a reasonably impressionistic perspective that the primary judge erred in refusing leave to proceed under s 46PO(3A) of the AHRC Act on the basis that, after four opportunities, the applicant had still not pleaded a comprehensible case of unlawful discrimination.

4.     CONCLUSION

26    For these reasons, the application for an extension of time and leave to appeal must be dismissed with costs.

Associate:

Dated:    18 March 2022