Federal Court of Australia

Nasir v Reynolds (stay application) [2024] FCA 864

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s Interlocutory Application dated 23 July 2024 (bearing the proceeding number 725 of 2024) and taken to have been filed in this proceeding on 25 July 2024 be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the hearing of the Interlocutory Application.

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

REASONS FOR JUDGMENT

(Revised from transcript)

WIGNEY J:

1    This is an application by Mr Sajjad Nasir for the stay of an interlocutory order made by another Judge in this Court, who I will refer to in these reasons as the primary judge. The essential basis of the stay application is that Mr Nasir has filed what has been taken to be an application for leave to appeal the order made by the primary judge. Mr Nasir's stay application was listed before me as duty judge as it was thought that Mr Nasir sought a stay of the interlocutory order as a matter of urgency.

2    Mr Nasir's stay application was initially listed for hearing before me on 30 July 2024. Mr Nasir was advised of that listing by email sent by the Court's registry to Mr Nasir's email address for service as specified on the documents he had filed. Mr Nasir did not appear when the matter was called on for hearing on 30 July 2024. His application was accordingly adjourned to 1 August 2024. That listing was again communicated to Mr Nasir by email sent by the Court's registry. The Court's email in respect of the adjourned listing indicated that if Mr Nasir did not appear at the hearing on 1 August 2024, his application may be dealt with in his absence. Various emails that Mr Nasir sent or copied to the Court on 31 July 2024 indicated that he was aware that his stay application had been listed for hearing on 1 August 2024.

3    Mr Nasir did not appear when the matter was called for hearing at 10.15 am on 1 August 2024. Nor did he appear at 11 am when the matter was called again. It would be open to the Court, in those circumstances, to dismiss Mr Nasir's application simply on the basis of his non-appearance. It is, however, preferable to consider and determine the merits of Mr Nasir's application, albeit in his absence.

4    Mr Nasir initially 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 orders made 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.

7    It should also be noted that Mr Nasir's notice of appeal was filed in the Court’s Victorian Registry. That is despite the fact that his originating application in the proceeding before the primary judge was filed in the Court's New South Wales Registry and the primary judge convened the case management hearing and made the order the subject of the leave application in Sydney. Mr Nasir also apparently resides in New South Wales. If the application for leave to appeal proceeds, it may be necessary to consider whether it should be transferred to the Court’s New South Wales Registry.

8    On 25 July 2024, Mr Nasir lodged for filing an interlocutory application dated 23 July 2024 in which he sought an order staying the operation of the order made by the primary judge concerning the hearing of the separate issue (stay application). He also sought an order the effect of which was to restrain Oracle and its officers from taking steps to rely on that order pending the determination of his application for leave to appeal. The interlocutory application annexed various other documents, including Mr Nasir's notice of appeal, and a document said to be a notice of a constitutional matter under section 78B of the Judiciary Act 1903 (Cth). I will say something more about the latter document later.

9    It should also be noted that the stay application bore the proceeding number of the proceeding in which the primary judge made the order which is the subject of the application for leave to appeal. It would have been wrong to treat the interlocutory application as having been filed in that proceeding. The stay application was properly made in the proceedings instituted by Mr Nasir in which he sought leave to appeal. The main basis of the stay application was that Mr Nasir had filed an application for leave to appeal the interlocutory order made by the primary judge and the stay of that order was said to be necessary to “preserve the subject matter of the appeal”. That was no doubt why Mr Nasir’s interlocutory application was treated by the Registry as having been filed in the proceeding in which Mr Nasir sought leave to appeal.

10    The interlocutory application was not the only document that Mr Nasir filed on 25 July 2024. He also lodged for filing a document entitled Amended Notice of Appeal. Various documents were annexed to that document. It is unnecessary to consider those documents because they were effectively superseded by yet another document filed by Mr Nasir, this time on 26 July 2024, which purported to be another amended notice of appeal. That document again annexed various documents. One of the annexed documents purported to be an amended interlocutory application which sought the following order:

To vary the order dated 11 July 2024 issued by the Court to explicitly address and adjudicate upon the interlocutory applications and requests to issue subpoenas filed by the Applicant.

11    That amended interlocutory application has not, however, been separately filed in this proceeding, though it has been filed in the proceeding before the primary judge. Another document annexed to Mr Nasir's amended Notice of Appeal was a document which Mr Nasir had also annexed to his interlocutory application. It is entitled: "Notice of Constitutional Matter under Section 78B of the Judiciary Act 1903." That document purported to give notice that the matter (exactly which matter is unclear) involved a matter arising under the Constitution, or its interpretation. It contains 11 numbered paragraphs that purport to identify and articulate the supposed constitutional issues raised by the matter.

12    As noted earlier, Mr Nasir's stay application was listed before me, sitting as duty judge, apparently, because it was thought to be urgent. The urgency appeared to be that the orders made by the primary judge on 11 July 2024 included an order that Mr Nasir file any affidavits or submissions upon which he intended to rely in relation to the hearing of the separate issue by 31 July 2024. It was considered that Mr Nasir was seeking to stay the orders so he would not be required to file his evidence and submissions by that date.

13    Before addressing Mr Nasir's stay application itself, I should first address the notice which purported to raise constitutional issues. That is because the Court would effectively be precluded from determining Mr Nasir's stay application at this point if his application actually raised constitutional issues.

14    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].

15    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.

16    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.

17    Turning then, to that stay application, it might perhaps be accepted that there might be a basis for a stay of the order made by the primary judge if Mr Nasir was able to establish that his application for leave to appeal was reasonably arguable, or that there were reasonable prospects that leave to appeal would be granted. The problem for Mr Nasir, however, is that his application for leave to appeal is not reasonably arguable. Indeed, it is without any apparent merit.

18    The principles that apply in considering an application 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 at 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 appellant 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].

19    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].

20    The most recent iteration of the (amended) notice of appeal filed by Mr Nasir purports to identify six grounds of appeal (the first two identified “grounds” not in fact being grounds of appeal). Even the most cursory consideration of those grounds of appeal reveals that none of them have any apparent merit. 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 establish that the primary judge made an error of principle of the sort considered in House v The King [1936] HCA 40; (1936) 55 CLR 499. None of Mr Nasir’s proposed grounds of appeal clearly articulate any such error. None of the proposed grounds rise above mere assertion of error expressed in the most general terms.

21    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.

22    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.

23    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.

24    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.

25    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.

26    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.

27    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. It is therefore highly unlikely that Mr Nasir will be able to satisfy the first limb of the Décor principle.

28    Even if Mr Nasir's proposed grounds of appeal were reasonably arguable, I am not, in any event, satisfied that he has any reasonable prospect of satisfying 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. 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 is, in those circumstances, difficult to see how Mr Nasir would suffer substantial injustice if leave to appeal were to be refused.

29    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.

30    It follows that I am not persuaded that there is any reasonable prospect that Mr Nasir will secure leave to appeal his stay application. I am not persuaded that his application for leave to appeal meets the two limbs in the Décor principle. Mr Nasir’s application for a stay of the primary judge’s order, based on the fact that he has applied for leave to appeal, must therefore also fail.

31    Mr Nasir’s interlocutory application dated 23 July 2024 and taken to be filed in this proceeding on 25 July 2024 must accordingly be dismissed with costs.

Associate:

Dated:    5 August 2024