Ahmad v Sahore
[2022] ACTCA 40
•27 July 2022
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 that its contents did not comply, in some unspecified way, with the requirements for such a court book. Counsel for the plaintiff, now first respondent, objected to the proposed adjournment sought by the appellant. Counsel for the first respondent argued that Ms Keys was acting as a McKenzie friend, as opposed to an amicus curiae. In the absence of legal representation, counsel for the first respondent directed the court to authorities which established the appellant’s right to appear for himself as a self‑represented litigant.
The primary judge did not grant leave to adjourn as the hearing date had been set on 30 September 2021 and his Honour was satisfied that the defendants had been adequately served with the relevant documents. The primary judge was aware that the parties had engaged in discussions and adjourned briefly to allow the parties to confer with a view to some resolution of the matter. Upon resumption of proceedings, the parties advised the primary judge that they had reached an agreement to resolve the matter. Counsel for the first respondent explained the terms of the agreement as follows:
(a)Judgment for the plaintiff in the sum of $40,000.
(b)Declaration that the partnership between the parties is dissolved with effect from 9 September 2014.
(c)The defendant is to pay the plaintiff’s costs as agreed or assessed.
The parties confirmed that the proposed orders were reached by consent and the primary judge proceeded to make the orders as proposed.
On 24 May 2022 Mr Ahmad filed a Notice of Appeal. The appellant appeals from the orders made by the primary judge on 26 April 2022. The first ground of the appeal, ground (a), is that the appellant seeks that the orders are to be set aside pursuant to r 1613(2) of the Court Procedures Rules 2006 (ACT) as they were obtained by fraud. The ground is based on an assertion that the second respondent, being Mr Sahore’s solicitor in the proceedings below, made representations during a mediation to the effect that there was no fixed hearing date for the matter. The second ground of the appeal is that the appellant was denied the opportunity to be heard in connection with his defence of the first respondent’s claim as a result of the second respondent’s conduct described in ground one.
Applications
By way of application in proceeding, the first respondent, Mr Honey Sahore, who represents himself in the proceedings, seeks to strike out the appeal made by the appellant. The application also seeks an order that the appellant cannot be represented by a McKenzie friend and an order that Ms Keys not be allowed to sit at the bar table and must sit at the back of the court room. Various grounds for that application are set out which concluded “in my opinion [the application for an adjournment] was just a bluff and this appeal is just wasting [the] courts and my time”. None of the grounds provided an appropriate basis upon which to “strike out” or otherwise terminate the appeal. He elaborated upon these submissions orally, making submissions about further evidence proposed to be admitted on the appeal. Those submissions had merit but were not sufficient to demonstrate the incompetence of the appeal or a basis for its summary termination.
The application by the second respondent, seeks an order that the appeal as against him be dismissed. This is principally because he was not a party to the proceedings below. The application also seeks security in the order of $10,000 or such an amount as the court deems appropriate, and an order that the appellant and/or Ms Keys pay the second respondent’s costs and any other orders that the court considers appropriate.
Consideration
There are many obvious problems with the appeal. First, it is an appeal against an order entered by consent. Second, the second respondent has been joined in the appeal in circumstances where he was not required to be joined and no order of the court requiring him to be joined has been made: see r 5404(1) and (2) of the Court Procedures Rules. Third, it asserts fraudulent conduct in circumstances where any such conduct must have been known to the appellant and his then legal adviser at the time that he made the application for the adjournment, but he did not put them before the primary judge at the time.
When the proceedings were first before me I raised with the parties whether or not the proceedings were either incompetent or amounted to an abuse of process because ground (a) sought to set aside the orders pursuant to r 1613(2) of the Court Procedures Rules in circumstances where the power in that rule was applicable to the court which made the order and, in the circumstances of this case, not one available to the Court of Appeal. I adjourned the proceedings for one week so that the parties could consider the issue. Ms Keys then sent (without leave) some written submissions on behalf of the otherwise unrepresented appellant to my chambers. Those submissions made reference to r 1613 but did not address the point which I had raised with the parties.
I heard some further oral submissions from the parties at the hearing on 27 July 2022. The submissions made by Mr Sahore are referred to earlier. Counsel for the second respondent referred me to my decision in ZA v Director General, Community Services Directorate (No 2) [2021] ACTCA 29 at [22], where I made reference to the appropriate operation of r 1613.
Rule 1613 provides:
(1) The court may amend or set aside an order before the filing of the order.
(2) The court may set aside an order at any time if –
…
(b) the order was obtained by fraud …
Rule 1613 is within Pt 2.16 of the Court Procedures Rules which is applied to the Court of Appeal by r 5001. When read as a whole and in context, r 1613 is clearly targeted at the powers of the relevant court to control its own orders. It has power to set aside an order before the filing of the order and a more limited power to set aside the order after it has been filed. Subrule (2) does not provide a power for the Court of Appeal to set aside an order of the Supreme Court when not constituted as the Court of Appeal on the grounds set out in that subrule. It is a power distinct from the power of the Court of Appeal. Therefore, in my view it is not open to an appellant to invoke r 1613 in an appeal to the Court of Appeal as a basis for setting aside the order. Any such application would need to be made to the primary judge and the primary judge would then be in a position to determine the facts and determine whether the orders that he made should be set aside.
Ground (b) appears to assert a denial of procedural fairness in connection with the appellant’s defence of the first respondent’s claim because of the asserted fraud. As I have pointed out, in the absence of something more than that which is stated in the Notice of Appeal, this ground it is very unlikely to succeed because the appellant must have been aware of the conduct at the time that he made the application for an adjournment, but did not mention it and then consented to orders finalising the proceedings rather than proceeding to a contested hearing. However, it is not possible to say that this ground invokes a power which is clearly not available. A denial of procedural fairness is an orthodox ground of appeal even if the foundation for the allegation appears to be, at best, weak.
Insofar as the appeal seeks to raise r 1613, it amounts to an abuse of process because that procedure is not available in the Court of Appeal in relation to orders made by the Supreme Court not constituted as the Court of Appeal. Insofar as ground (b) appears to raise a denial of procedural fairness, having regard to the circumstances, it appears to be weak but not manifestly an abuse of process.
So far as the matters raised by the second respondent are concerned, there was no order in place permitting him to be joined as a party to the proceedings. What appears in the Notice of Appeal appears to be a final order sought joining him as a party to the proceedings. This involves a misconception of the required procedure, in that Mr Glover should not have been joined as a party to proceedings until an order of the court was made permitting that course. In this case it is, in my view, appropriate to require the procedure contemplated by the Court Procedures Rules to be followed. That will allow a formal process to determine whether or not Mr Glover should be a party to the proceedings, having regard to the fact that no relief other than joinder is sought against him, the making of serious allegations against him and the fact that he was not a party to the proceedings below.
I will order that the second respondent be removed as a party the proceedings, make an order for costs in his favour and direct that any application to join him be filed and served within 14 days. That will force the issue of his role in the proceedings to be determined without too much delay.
My tentative view is that costs should follow the event and that I should make an order in favour of both respondents even though that order is likely to be of limited utility in relation to the first respondent who is self-represented.
[Respondents made submissions on costs.]
Costs will follow the event. I will make an order in favour of both respondents even though that order is likely to be of limited utility in relation to the first respondent who is self‑represented.
The orders the Court are:
1. Ground (a) of the Notice of Appeal filed 24 May 2022 is struck out as an abuse of process.
2. The second respondent is removed as a party to the proceedings.
3. Save for order 1, the first respondent’s application in proceeding is otherwise dismissed.
4. The appellant is to pay the first and second respondents’ costs of the respective applications.
5. Notwithstanding order 2, liberty is reserved for the second respondent in relation to any application that Ms Keys pay the second respondent’s costs.
6. Any such application is to be made within 14 days and to be served upon Ms Keys.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 11 October 2022 |
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