FEDERAL MAGISTRATES COURT OF AUSTRALIA
IBRAHIM v DIRECTOR GENERAL, NSW DEPARTMENT OF HEALTH & ORS	[2012] FMCA 441	

HUMAN RIGHTS – Practice and Procedure – failure of applicant to file points of claim and affidavits – numerous defaults – springing order for dismissal.	

Federal Magistrates Court Rules 2001 (Cth), r.13.03B 	

Applicant:	Tony Ibrahim	

First Respondent:	Director General, Nsw Department Of Health In Respect Of Sydney Local Health Network (a Part Of The Nsw Health Service)	

Second Respondent:	Kevin Lewis	

Third Respondent:	JOSEPH LAHOOD	

Fourth Respondent:	JACQUI CLARK	

Fifth Respondent:	ROSS HUGHES	

Sixth Respondent:	JOSEPH JEWITT	

File Number:	SYG 1126 of 2011	

Judgment of:	Smith FM	

Hearing date:	18 May 2012	

Delivered at:	Sydney	

Delivered on:	18 May 2012	

REPRESENTATION
Counsel for the Applicant:	In Person	

Counsel for the Respondents:	Mr J McLeod	

Solicitors for the Respondents:	Lander & Rogers	

ORDERS
(1)	Note that the applicant is default under order 1 made on 30 March 2012 and extend the date for compliance until 20 June 2012 and no later.
(2)	The date provided in order 2 is extended until 31 July 2012.
(3)	The dates of the listings provided in orders 5 and 6 are confirmed.
(4)	Pursuant to Federal Magistrates Court Rules r.13.03B(1)(c) order that the principal application be dismissed as to the whole of the relief claimed by the applicant if he does not comply with order 1.
(5)	Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Sydney	
SYG 1126 of 2011
Tony Ibrahim	
Applicant

And

Director General, Nsw Department Of Health In Respect Of Sydney Local Health Network (a Part Of The Nsw Health Service)	
First Respondent
Kevin Lewis	
Second Respondent

JOSEPH LAHOOD	
Third Respondent
JACQUI CLARK	
Fourth Respondent

ROSS HUGHES	
Fifth Respondent
JOSEPH JEWITT	
Sixth Respondent

REASONS FOR JUDGMENT
(revised from transcript)
1.	This is a matter in which Mr Ibrahim commenced proceedings in the Federal Court’s human rights jurisdiction on 12 May 2011, seeking a variety of relief in relation to his employment.  The application was supported only by an affidavit of Mr Ibrahim which attached his complaint to the Australian Human Rights Commission and its attachments, being email exchanges with his employer.  This material did not provide focused identification of his complaints in a form suited to a court proceeding.  Since that time, neither Mr Ibrahim acting for himself, nor lawyers acting on his behalf, have been able to progress the matter at all, despite numerous listings and directions seeking to achieve this.
2.	The matter was transferred to this Court by order of Flick J on 3 June 2011.  It was then listed before me for directions on 1 July 2011.  I referred Mr Ibrahim to the NSW District Registrar for a referral to a lawyer on the pro bono panel, and directed a full timetable requiring his case to be pleaded and supported by affidavits before 12 August 2011.  This direction allowed a period of time which was generous in the circumstances.  
3.	A referral was made by the Registrar, and a young barrister accepted the referral and conferred with Mr Ibrahim. Unfortunately, he was unable to retain Mr Ibrahim’s confidence, and counsel withdrew when he and Mr Ibrahim appeared before me at a directions listing on 23 September 2011.  Mr Ibrahim was in default under my previous order, since no documents had been filed to elucidate Mr Ibrahim’s case prior to that date.  I extended time for him to present his case until 28 October 2011.  
4.	This direction was also not complied with by Mr Ibrahim.  At the next listing on 9 December 2011, order 3 again directed Mr Ibrahim to present his case to the Court in points of claim and affidavits no later than 3 February 2012.  Order 4 gave the respondents liberty to apply for default orders under r.13.03B of the Federal Magistrates Court Rules 2001 (Cth).  The matter was adjourned to 11 May 2012 for the purpose of fixing a hearing date.
5.	On 20 December 2011, a solicitor filed a notice of address for service, indicating that he had accepted instructions to represent Mr Ibrahim.  However, that solicitor did not comply with the directed time-table and he also withdrew, filing a notice of withdrawal on 5 March 2012.  Meanwhile, the respondents held their hand in relation to moving for default orders.  
6.	On 6 March 2012, a Registrar held a mediation session attended by Mr Ibrahim and representatives of the respondents.  The listing report suggests that the parties discussed how to progress the litigation, as well as its resolution.
7.	In view of Mr Ibrahim’s continuing failure to file points of claim and his evidence in support, the matter was then re-listed before me on 30 March 2012.  On this occasion, Mr Ibrahim sought more time to obtain further legal assistance to prepare his case.  I allowed further time, but made abundantly clear to Mr Ibrahim that the Court regarded him as having been given more than enough time to present his case in a sufficient fashion, even unaided by lawyers, so that the Court could identify and address the real issues in the case, insofar as they related to the discrimination legislation which he was invoking.
8.	I ordered Mr Ibrahim again to file documents explaining his case “no later than 11 May 2012”, and directed a further time-table.  I fixed the matter for final hearing on 23 August 2012, and indicated to Mr Ibrahim that I expected the matter to be prepared and ready for those hearing dates.    
9.	However, Mr Ibrahim did not comply with that order.  The matter is now listed today at his request, to allow him to seek an extension of that time.  He has not filed an affidavit recounting his further efforts to find legal representation, but he tells me from the bar table that he has made telephone calls to unspecified solicitors, but has been unable to obtain one who will take instructions from him or, it appears, even meet him or look at his papers.
10.	In the circumstances, and based on the long history of Mr Ibrahim’s unsuccessful efforts to find legal representation for this case, it appears to me as a matter of prediction that it will be most unlikely that Mr Ibrahim will be able to find a solicitor to assist him in the proceedings.  It appears to me that if Mr Ibrahim genuinely wants his case to come to hearing, he himself will have to prepare the documents which I have directed, doing the best he can to prepare them by his own efforts and with whatever qualified or unqualified sources of advice he can obtain.  However, further delays should not be tolerated by the Court.
11.	I accept that this course might be unfortunate, and that it is not what Mr Ibrahim wants himself.  However, taking into account all that he has put to me today, it appears to me that the time has long passed when he must accept that finality in this litigation will need to be reached at the hearing which I have appointed in August.  This requires that he must attempt without any further delay to present his case in a manner which the respondents can try to understand and answer in their own documents filed prior to that hearing. 
12.	I am prepared to allow one further extension of time.  However, based on Mr Ibrahim’s long history of defaults, in my opinion, the time has come where I should properly exercise the powers I have under r.13.03B(1)(c) of the Federal Magistrates Court Rules, to attach an order by way of dismissal of the proceedings if Mr Ibrahim does not file anything and comply with order 1 no later than 20 June 2012.  
13.	If Mr Ibrahim is again in default, then the order for dismissal will come into effect without any further listing of the matter before me, if the respondents can satisfy a Registrar in Chambers that there has been non-compliance and thereby obtain the entry of the order for dismissal.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  29 May 2012