Ahmad v Sahore (No 3) - [2022] ACTCA 56

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Ahmad v Sahore (No 3)
Citation:	[2022] ACTCA 56
Hearing Date:	21 September and 20 October 2022
DecisionDate:	20 October 2022
Before:	McCallum CJ
Decision:	(1) The appellant to give security for the respondent's costs in the amount of $60,000 in the manner accepted by the Registrar within 14 days. (2) That, failing payment of the security within 14 days, the appeal be dismissed. (3) Reserve the respondent’s entitlement to seek a special order as to costs.
Catchwords:	PRACTICE AND PROCEDURE — SECURITY FOR COSTS — Appeal from orders made by consent — Where appellant is unrepresented — Where appellant would be unable to meet costs if ordered against him — Where the appeal appears to be hopeless
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 1900
Cases Cited:	Ahmad v Sahore [2022] ACTCA 40 Ahmad v Sahore (No 2) [2022] ACTCA 53
Parties:	Waqar Ahmad (Appellant) Honey Sahore (Respondent) Peter Glover (Proposed Second Respondent)
Representation:	Counsel Self-represented (Appellant) C Holloway (Respondent) K Pattenden (Proposed Second Respondent)
Solicitors Aulich Civil Lawyers (Respondent) United Legal (Proposed Second Respondent)
File Number:	ACTCA 28 of 2022
Decision under appeal:	Court: Supreme Court Before: Kennett J Date of Decision: 26 April 2022 Case Title: Sahore v Ahmad Court File Number: SC 325 of 2018

McCALLUM CJ:

1․This is an appeal from orders made by Kennett J by consent on 26 April 2022. The appeal came before me on 21 September 2022 to hear five applications in proceedings then before the Court. However, the determination of those applications was complicated by an application by Ms Judith Keys to appear for the appellant as his “McKenzie friend”. I refused that application for the reasons given in an ex tempore judgment published that day: Ahmad v Sahore (No 2) [2022] ACTCA 53.
2․It remained to determine the five applications in proceedings, which are listed and described in that judgment at [9]-[11]. Of those, I considered it logical first to determine an application by the respondent for security for costs. However, before determining that application, Ms Keys having been refused leave to assist Mr Ahmad, I considered it appropriate to give him an opportunity to obtain pro bono assistance if such assistance could be made available.
3․In the intervening period, according to information I have received from the Registrar, Mr Ahmad has been provided with the contact details of a solicitor who, in turn, was prepared on a pro bono basis to accept instructions and to brief a barrister for the limited purpose of giving Mr Ahmad advice about the judgment I published that day. An uncorrected draft of the judgment was provided to the legal representatives for that purpose.
4․Further, I have been informed in Court this morning by the solicitors representing the respondent and a proposed second respondent that they have been informed by a barrister that he and the solicitor did, indeed, hold a conference with Mr Ahmad and give him…

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 (No 3)

Details

AGLC: Ahmad v Sahore (No 3) [2022] ACTCA 56
Case: [2022] ACTCA 56
Decision Date: 20 October 2022

CaseChat Overview and Summary

In *Ahmad v Sahore (No 3)*, the appellant, who was unrepresented, sought to appeal orders made by consent. The respondent sought security for costs, arguing that the appellant would be unable to meet any costs ordered against him and that the appeal appeared to be without merit. The matter came before McCallum CJ.

The primary legal issue before the Court was whether to order the appellant to provide security for the respondent's costs of the appeal. This involved considering the appellant's financial position and the apparent prospects of success of the appeal.

McCallum CJ reasoned that the appellant's inability to pay costs if unsuccessful was a significant factor. Furthermore, the Court found that the appeal lacked merit, describing it as "hopeless." Applying the principles governing applications for security for costs, the Court concluded that it was appropriate to order security to be given.

The Court ordered the appellant to provide security for the respondent's costs in the sum of $60,000 within 14 days. It was further ordered that, failing compliance with this order, the appeal would be dismissed. The respondent's entitlement to seek a special order as to costs was reserved.

Orders

Orders of the court

(1) The appellant to give security for the respondent's costs in the amount of $60,000 in the manner accepted by the Registrar within 14 days.

(2) That, failing payment of the security within 14 days, the appeal be dismissed.

(3) Reserve the respondent’s entitlement to seek a special order as to costs.

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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