Ahmad v Sahore - [2022] ACTCA 40

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Ahmad v Sahore
Citation:	[2022] ACTCA 40
Hearing Dates:	20 and 27 July 2022
DecisionDate:	27 July 2022
Before:	Mossop J
Decision:	See [21]
Catchwords:	APPEAL – APPLICATION IN PROCEEDING – Application to strike out appeal – no power in r 1613 of the Court Procedures Rules 2006 (ACT) for Court of Appeal to set aside order of court below – abuse of process – appeal partially struck out APPEAL – APPLICATION IN PROCEEDING – Application for second respondent to be removed – not a party to the proceedings below – where no formal joinder – second respondent removed
Legislation Cited:	Court Procedures Rules 2006 (ACT), Pt 2.16, rr 1613, 5001, 5404 Supreme Court Act 1933 (ACT), s 37J
Cases Cited:	ZA v Director General, Community Services Directorate (No 2) [2021] ACTCA 29
Parties:	Waqar Ahmad ( Appellant) Honey Sahore ( First Respondent) Peter Glover (Second Respondent)
Representation:	Counsel Self-represented ( Appellant) Self-represented ( First Respondent) K Pattenden (Second Respondent)
Solicitors Self-represented (Appellant) Self-represented (First Respondent) United Legal (Second Respondent)
File Numbers:	ACTCA 28 of 2022
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Kennett J Date of Decision: 26 April 2022 Case Title: Sahore v Ahmad Court File Number: SC 325 of 2018

MOSSOP J:

Introduction

These reasons relate to two applications. The first of which was filed by Honey Sahore (the first respondent) on 1 July 2022, seeking, amongst other things, to strike out the appeal. The second application was filed by Peter Glover (the second respondent) on 13 July 2022, seeking that the appeal be dismissed and/or that the appellant provide security for costs in the sum of $10,000 to Mr Glover as the second respondent in the appeal.

In this matter I am sitting as a single judge exercising the jurisdiction of the Court of Appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).

Waqar Ahmad (the appellant) appeals from the final orders of a judge of this court made on 26 April 2022. In those proceedings, consent orders were made and judgment was entered in favour of Mr Sahore in the sum of $40,000. A declaration was also made which had the effect of dissolving the partnership between the parties with effect from 9 September 2014. Mr Ahmad was also ordered to pay the plaintiff’s costs as agreed or assessed.

During the hearing of the matter at first instance the defendant, now the appellant, made an application to adjourn the proceedings. The application was brought by Judith Keys, who purported to be acting as amicus curiae. Ms Keys had previously appeared as counsel for Mr Ahmad in the matter but had not renewed her practising certificate. Ms Keys sought an adjournment from the court in order to allow the appellant time to brief counsel and to adequately review the court book. The basis for the adjournment sought was that the court book was filed late and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahmad v Sahore

Details

AGLC: Ahmad v Sahore [2022] ACTCA 40
Case: [2022] ACTCA 40
Decision Date: 27 July 2022

CaseChat Overview and Summary

In *Ahmad v Sahore*, the applicant sought to strike out an appeal and remove a second respondent from the proceedings. The application to strike out the appeal was based on the assertion that the Court of Appeal lacked the power under rule 1613 of the *Court Procedures Rules 2006* (ACT) to set aside an order made by the court below. The applicant also sought the removal of the second respondent on the grounds that this party had not been a party to the original proceedings and had not been formally joined.

The primary legal issue before the Court of Appeal was whether it possessed the authority, under rule 1613 of the *Court Procedures Rules 2006* (ACT), to set aside an order of the court below, and if not, whether the appeal constituted an abuse of process. A secondary issue concerned the status of the second respondent, specifically whether their participation in the appeal was permissible given their non-involvement in the original proceedings and lack of formal joinder.

The Court of Appeal determined that rule 1613 did not confer power upon the Court of Appeal to set aside an order of the court below. Consequently, the appeal, in so far as it sought to set aside the order of the court below, was considered an abuse of process and was partially struck out. Furthermore, the Court found that the second respondent had not been a party to the proceedings below and had not been formally joined to the appeal, leading to their removal from the proceedings.

Orders

Orders of the court

See [21]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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