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 certain advice.  There is, of course, no evidence before the Court as to what the advice was. 

5․I was further informed that the barrister indicated his preparedness to appear at the hearing today.  However, he has not appeared and Mr Ahmad does not appear to understand why he has not appeared.  It is possible that the explanation is to be found in the fact that, notwithstanding the clear terms of my judgment published on 21 September 2022 in the presence of Ms Keys, she has attempted several times this morning to stand at the Bar table and represent Mr Ahmad; a course I did not allow. 

6․The reason it is logical to determine the issue of security for costs first was explained in my earlier judgment, where I expressed the view that the appeal, to the extent that it has not already been dismissed by an earlier judgment by Mossop J, Ahmad v Sahore [2022] ACTCA 40, faces difficulties.

7․There are in fact two applications for security before the Court but one cannot be determined today.  The proposed second respondent has filed an application seeking security for costs in the sum of $10,000.  However, it has been acknowledged that, at this stage of the proceedings, given that the applicant on that application is not a party to the proceedings, the application for security cannot be determined.  It was filed against the prospect that that party, although previously removed from the appeal, would be joined again on the application of Mr Ahmad (on the advice of Ms Keys).

8․I do, however, think it is appropriate first to determine the application in proceeding for security for costs brought by the only existing respondent, Mr Sahore. That application was filed on 1 September 2022 and invokes r 1900 of the Court Procedures Rules 2006 (ACT). The application is supported by two affidavits and there is also a schedule of correspondence. The affidavit of Erin Taylor affirmed 1 September 2022 deposes to the circumstances in which Kennett J made the consent orders from which the appellant now appeals. She also explains in her affidavit the basis for the respondent's apprehension that the appeal is unmeritorious and that the appellant will take “unusual steps in the appeal that will ultimately cause the respondent to incur costs in excess of those that would reasonably be expected”.

9․The apprehension is well founded.  The judgment entered by consent was in the sum of $40,000.  The circumstances which I have recited in the previous judgment and in this judgment involving the intermeddling of Ms Keys in the proceedings would plainly have incurred significant costs on behalf of the respondent and I would not be surprised if those costs are already disproportionate to the interest at stake.

10․By her conduct this morning, Ms Keys has proved herself to be more persistent than she is helpful to the Court or to Mr Ahmad.  From my observations of their interactions this morning, it appears Mr Ahmad is either unwilling or unable to resist her attempts to persist in intermeddling in the proceedings. 

11․Further, even leaving aside the involvement of Ms Keys, the appeal appears to be hopeless for the reason identified in my previous judgment.  It is an appeal against a judgment entered by consent based on the circumstances in which the underlying settlement agreement was reached.  The proper remedy, instead of an appeal, would appear to be an equity suit seeking to have the underlying agreement set aside.

12․Mossop J in an earlier judgment in the proceedings took the view that, there being an allegation of denial of procedural fairness in the entry of the orders themselves, the appeal would have to proceed at least to determine that issue.  So much may be accepted but the argument does not appear to be strong, to say the least.  The transcript of the hearing before Kennett J shows that his Honour took care to hear from Mr Ahmad to ascertain that he agreed to the orders sought.  In my assessment, this is plainly a case warranting an order for security for costs, the appellant having frankly acknowledged that he would not be in a position to meet costs if ordered against him.  I note that the amount of $60,000 is amply supported by the affidavit to which I have referred.

13․The orders I make are:

(1)  The appellant is 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.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: