Application by Mohammad Tabibar Rahman
[2015] NSWSC 164
•13 March 2015
Supreme Court
New South Wales
Medium Neutral Citation: Application by Mohammad Tabibar Rahman [2015] NSWSC 164 Hearing dates: On the papers Date of orders: 13 March 2015 Decision date: 13 March 2015 Before: Garling J Decision: The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons filed 18 December 2014, is dismissed.
Catchwords: PROCEDURE – Vexatious Proceedings Act 2008 – application for leave to institute proceedings – supporting affidavit not compliant – no draft pleading – proceedings vexatious – no prima facie ground for proceedings – applicant subject of sequestration order under Bankruptcy Act - applicant not entitled to commence proceedings without consent of Trustee in bankruptcy - application dismissed Legislation Cited: Bankruptcy Act 1966 (Cth)
Crimes Act 1900
Judiciary Act 1903 (Cth)
Vexatious Proceedings Act 2008Cases Cited: Application by Michael Bar-Mordecai [2012] NSWSC 501 Texts Cited: Not applicable Category: Principal judgment Parties: Mohammad Tabibar Rahman (Applicant) Representation: M Rahman (Self Represented)
File Number(s): 2014/371482 Publication restriction: Not applicable
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Judgment
These Proceedings
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On 18 December 2014, Mohammad Tabibar Rahman filed a Summons in which he claimed a grant of leave to commence proceedings against 15 named defendants. In that Summons, he described the type of claim in the following way:
“Administrative law (inherent power of court [individual rights and financial rights]), real property – freehold title [transfer of propriety rights], jurisdiction of federal courts, charge of crimes against the defendants – incohort [white collar economic offenders] …”
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So far as can be ascertained, Mr Rahman seeks an exercise of the Court’s powers to order judicial review, grant prerogative relief generally and grant specific relief in the nature of various writs. As well, Mr Rahman seeks that the Court reverse certain actions of the Land Titles Office and grant “orders for relief” purportedly under the Crimes Act 1900.
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Mr Rahman also claims damages of $1.7M, and “… further orders for fixed amounts of compensations of damages …”. In addition, he seeks a fixed amount of compensatory costs of $1.95M and some relief with respect to bankruptcy proceedings.
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In support of that Summons, Mr Rahman has filed a lengthy affidavit sworn on 18 December 2014.
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On 30 January 2015, Mr Rahman filed a Notice of Motion seeking to add four further defendants to the proceedings. Mr Rahman has also filed and served a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) and submissions with respect to that Notice.
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It does appear that the Notice and these submissions, filed 22 December 2014, have been provided to the Attorneys General of each State and Territory, the Shadow Attorney-General of the Commonwealth, the Attorney-General of the United States of America and the Attorney-General of the United Kingdom. Service of the Notice on the last three office holders is not provided for in the Judiciary Act.
Vexatious Litigant
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The applicant, Mr Rahman, is a vexatious litigant.
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On 10 February 2014, Adams J made orders pursuant to the Vexatious Proceedings Act 2008 (“VP Act”), which prohibited Mr Rahman from instituting proceedings in NSW without leave of this Court. The orders of Adams J also prohibited him from taking any further steps in any existing proceeding in NSW without leave of the Court, and stayed all proceedings which had been instituted by Mr Rahman until leave to proceed was granted by the Court.
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Because of these orders, Mr Rahman, should he wish to institute any proceedings, must do so in accordance with the legislative scheme set out in the VP Act.
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I have on a number of occasions, in previous decisions, set out my views as to how the legislative scheme under the VP Act operates, and the way in which applications under that Act are to be dealt with. Those conclusions can be found in the Application by Michael Bar-Mordecai [2012] NSWSC 501 at [9]-[20]. I will proceed to deal with this application in accordance with those conclusions.
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The first step to be considered by the Court is whether to grant leave pursuant to s 16(1) of the VP Act to serve a Summons and any accompanying affidavit on the ”relevant persons”, as that term is used in the Act.
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In considering the application by Mr Rahman, it is appropriate for the Court, when considering whether to make orders for service under s 16(1) of the VP Act, to consider whether having regard to the provisions of s 15 of the VP Act, the Summons for leave to commence proceedings must be dismissed.
Discernment
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I am abundantly satisfied that Mr Rahman’s application for leave to institute proceedings must be dismissed pursuant to s 15 of the VP Act.
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My reasons for this conclusion include, but are not limited to, those which follow and which are more than sufficient as a basis for the orders.
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First, Mr Rahman does not provide an affidavit of the kind required by s 14(3) of the VP Act. Such an affidavit must be filed, and must list all occasions on which Mr Rahman has applied for leave, and list all other proceedings which the applicant has instituted in Australia. As well, the affidavit must disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
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The affidavit supplied does not, as required, list applications made for leave to commence proceedings, nor does it list all of the proceedings in which the applicant has been involved. It does not disclose all facts relevant to the application.
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Secondly, the affidavit is not accompanied by, nor has the Court been provided with, any document in which the applicant sets out in the form of a draft pleading (or other document in any form) from which the nature of any rational case that he wishes to bring, and for which leave is required, can be discerned. Unless an applicant provides with his application, the draft of a pleading of the action which he intends to commence if granted leave, or if he fails to articulate in any of the filed documents, clearly, the nature of the proceedings which are to be brought, then a court will not be able to determine that there is a prima facie ground for the proceedings.
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Here, not only does the affidavit not include such a draft pleading, but such are the contents of the application and such are the complexities of the apparently proposed cause of action, that it is abundantly clear that the proceedings are vexatious proceedings, and that there is no prima facie ground for the proceedings which are intended to be brought.
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Thirdly, if the proceedings were brought as broadly contemplated by the application, there would be a mixture of civil and criminal proceedings, a collation of wholly unrelated defendants where there is no similarity of the apparent causes of action between them all. There is no apparent common issue of fact and law which would permit a proper ground in accordance with r 6.19 of the Uniform Civil Procedure Rules 2005. The proceedings if commenced, including all of the claims which it seems Mr Rahman wishes to bring, would be struck out as an abuse of process of the Court.
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Finally, the material discloses that on 19 July 2012, the applicant was the subject of a sequestration order under the Bankruptcy Act 1966 (Cth). There is no material which suggests that Mr Rahman has been discharged from his bankruptcy.
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The consequence of Mr Rahman’s continuing status as an undischarged bankrupt, is that he is not entitled to commence proceedings in his own name or without the consent of his Trustee in bankruptcy because his claims arose prior to his bankruptcy and, to the extent that they have value, as he claims, they are property which vests in his Trustee in Bankruptcy: see s 58(1) Bankruptcy Act.
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It follows for these reasons that the application must be dismissed.
Order
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I make the following order:
The application for leave to commence proceedings pursuant to s 14 of the Vexatious Proceedings Act 2008, contained in the Summons filed 18 December 2014, is dismissed.
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Decision last updated: 13 March 2015
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