FEDERAL COURT OF AUSTRALIA Barghouthi v ING Custodians Pty Limited [2003] FCA 489 RAMZI BARGHOUTHI v ING CUSTODIANS PTY LIMITED AND ORS N 505 of 2002 ALLSOP J 14 MAY 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 505 of 2002 BETWEEN: RAMZI BARGHOUTHI APPLICANT AND: ING CUSTODIANS PTY LIMITED FIRST RESPONDENT ING LIFE LIMITED SECOND RESPONDENT PLESTEL PTY LIMITED THIRD RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 14 MAY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1) the applicant, on or before 20 May 2003, file and serve a further draft amended notice of appeal upon which he seeks to rely in this case. 2) the respondents ING Custodians Pty Limited and ING Life Limited file and serve, on or before 6 June 2003, submissions as to the content of the draft amended notice of appeal and as to why it or parts of it should not be allowed to reflect the initiating process in the proceeding. 3) the applicant file and serve, on or before 20 June 2003, any submissions in reply. 4) the submissions deal with the question of costs hitherto incurred other than today's costs. 5) the matter be set down for further hearing on Monday 30 June at 9.30 am. 6) each party pay its and his own costs of today in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 505 of 2002 BETWEEN: RAMZI BARGHOUTHI APPLICANT AND: ING CUSTODIANS PTY LIMITED FIRST RESPONDENT ING LIFE LIMITED SECOND RESPONDENT PLESTEL PTY LIMITED THIRD RESPONDENT JUDGE: ALLSOP J DATE: 14 MAY 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter, the history of which I will not recount in full, Mr Barghouthi who appears for himself wishes to complain about, at least, the conduct of the two ING respondents in connection with the alleged behaviour of them which gave rise to an appeal by him to the Superannuation Complaints Tribunal (the Tribunal). The matter initially came before me, and is before me, in a jurisdictional sense, by reference to a judicial review application under the Superannuation (Resolution of Complaints) Act 1993 (Cth)brought by Mr Barghouthi complaining about the Tribunal's treatment of his complaint about the trustee and insurer, the two ING companies. 2 It became evident to me last year listening to Mr Barghouthi that his complaints ranged wider than a bare judicial review proceeding based on the Tribunal's decision. During the course of directions hearings last year I had difficulty distilling the precise content and limits of those complaints. That comment is made without the slightest disrespect to Mr Barghouthi who, if I may say so again without wishing to be disrespectful, is a very intelligent man who obviously has a grasp of the detail of his complaints. I considered he may lack the legal precision and experience, not being a lawyer, to formulate his complaint prior to trial. 3 That led to my taking a course which was rather unusual and which I hope I do not ultimately regret. I called the matter on for hearing without further interlocutory undertakings with a view, which I expressed to the parties, that I would not necessarily complete the hearing, but I would use the day (7 February 2003) to hear Mr Barghouthi both from the bar table and the witness box about all the matters he wished to complain of, so that I could, through his evidence and his submissions, come to grips with the precise content and limits of his complaints. 4 To that end, submissions were made by Mr Barghouthi in some detail and a body of evidence was taken on the voir dire during the course of the day. It became plain to me in dialogue with Mr Barghouthi on that day that there was a body of complaints he wished to make and they seemed to be against not only the two ING respondents but also his erstwhile employer (the third named respondent) and a prospective employer who was not prepared to employ him. (I should interpolate that the third named respondent has not been served.) It may not be an entirely accurate identification of Mr Barghouthi's complaints to say that the second employer may well not have employed him by reason of things which were said to it by the first employer about Mr Barghouthi to which Mr Barghouthi takes great exception, but that suffices to encapsulate at least one of Mr Barghouthi's complaints. The above is not intended to be a full or precise summary of his case. 5 Given that I could see this structure of a body of complaints, I saw a number of issues arising. First, a not necessarily straight forward question about whether Mr Barghouthi was enunciating one controversy or a number of different controversies, that is, matters in the constitutional sense. To further illuminate and distil Mr Barghouthi's complaints I ordered him to set out in an amended notice of appeal a clear enunciation in pleaded form, that is, in coherent explanatory English, what the complaints were in full against the ING companies and what the complaints and causes of action were against the other two companies. 6 Significant delay has been caused in the production of that document. Mr Barghouthi says he was ill and he attributes that illness to the respondents. I do not propose to enter that debate. On 29 April 2003 at a directions hearing he filed in Court what I had asked for: an amended draft notice of appeal. I then made directions as follows: 1. That the respondents ING Custodians Pty Ltd and ING Life Ltd file and serve, on or before Tuesday 13th May 2003, submissions as to the content of the draft amended notice of appeal and as to why it, or parts of it, should not be allowed to reflect the initiating process in the proceeding. 2. That the applicant file and serve, on or before Tuesday 3rd June 2003, any submissions in reply. 3. Directs the parties that the submissions should deal with the questions of costs hither-to incurred. 4. That the matter be set down for further hearing on Friday 13th June 2003 at 10.15am. 7 Last week my associate received a telephone call from the respondents to the effect that counsel was not able, because of illness and other personal arrangements, to meet the timetable in order 1 and an extension was sought to 30 May. My associate indicated, after consulting me that this would need to be done by consent or the matter relisted. 8 It may be that Mr Barghouthi initially consented, but later he refused to consent. In any event it was a matter for which he could perfectly properly seek an explanation. The matter was therefore brought back to me today. Ms Heath of counsel had set time aside last week to deal with the matter but she was sick during that time. She is now on holidays, being a holiday which she apparently had previously planned. Ms Livingstone told me these things from the bar table. I accept her statements of these matters. In the circumstances of this case and the delays which have occurred at the feet of Mr Barghouthi, I see no difficulty in extending the time until 30 May in order 1 and re-assigning times for orders 2, 3 and 4. 9 It should be recognised that there is or may be a troubling issue as to the connection between underlying facts for actions such as fraud, slander, libel and the like and a judicial review proceeding which involves an analysis of the appropriate approach of the Tribunal dealing with those facts. It may be that the different levels of analysis, that is, the judicial review of the tribunal of fact whose sole province is the decision of facts, is a separate matter by definition from a series of causes of action dealing with the primary facts, but for my part at the moment I'm not entirely convinced that that is the case. It would not follow, however, that even if all the facts at whatever level of analysis were part of the one controversy, as a matter of discretion the different proceedings which are elements of the matter should run together at the same time. I do not want to say any more about it. It may well depend I think upon what allegations are made in the judicial review proceedings about the flaws in the Tribunal's process and reasons. 10 During the course of today Mr Barghouthi has indicated that he may wish to amend the amended draft notice of appeal which he filed in court on 29 April 2003. It is not clear whether he says that he can only know whether to amend it after he sees the written submissions of the respondents or whether he knows that he can amend it now. However, if he wants to amend his draft notice of appeal after he has seen the respondent's submissions that will be an application which I will hear in due course. However, I apprehend that Mr Barghouthi may have some matters which he wishes to place in the draft amended notice of appeal presently before the Court. To that end I will make the following orders: 1) That the applicant, on or before 20 May 2003, file and serve a further draft amended notice of appeal upon which he seeks to rely in this case. 2) That the respondents ING Custodians Pty Limited and ING Life Limited file and serve, on or before 6 June 2003, submissions as to the content of the draft amended notice of appeal and as to why it or parts of it should not be allowed to reflect the initiating process in the proceeding. 3) That the applicant file and serve, on or before 20 June 2003 any submissions in reply. 4) That the submissions deal with the question of costs hitherto incurred other than today's costs. 5) That the matter be set down for further hearing on Monday, 30 June 2003 at 9.30 am. 6) That each party pay its own costs of today in any event. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 22 May 2003 The Applicant appeared in person: Counsel for the Respondent: V Heath Solicitor for the Respondent: Minter Ellison Date of Hearing: 14 May 2003 Date of Judgment: 14 May 2003