Attorney General in and for the State of New South Wales v Mahmoud

[2014] NSWSC 392

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 392

Hearing dates:

1/04/2014

Decision date:

01 April 2014

Before:

Fullerton J (as Duty Judge)

Decision:

1. The notice of motion is dismissed.

2. The defendant, the applicant under the motion, pay the costs of the motion.

Catchwords:

PROCEDURE - application for temporary stay of proceedings

Legislation Cited:

Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Litigants Act 2008 (NSW)

Cases Cited:

Mahmoud v State of New South Wales [2013] NSWSC 1785

Category:

Principal judgment

Parties:

Attorney General for the State of New South Wales (Plaintiff)
Tosson Mahmoud (Defendant)

Representation:

Counsel:
J Emmett (Plaintiff)
In person (Defendant)
Solicitors:
Crown Solicitor's Office (Plaintiff)
In person (Defendant)

File Number(s):

2013/266710

Judgment

1. HER HONOUR: By notice of motion dated 26 March 2014, Mr Mahmoud, the defendant in the proceedings brought by the Attorney General for orders declaring him a vexatious litigant, seeks an order for a temporary stay of those proceedings until unrelated proceedings identified by file number 2009/293446, are heard and determined. He relied upon an affidavit of the same date in support of the orders sought.

1. The proceeding referred to as the unrelated proceeding were the subject of a decision published on 4 December 2013 (Mahmoud v State of New South Wales [2013] NSWSC 1785 per Harrison J). His Honour left unresolved the question whether the defendant was entitled to interest on a judgment in his favour for an amount of $110,000.00, consequent upon the operation of r 20.26(8) of the Uniform Civil Procedure Rules 2005 and a related question of costs.

1. On 16 December 2013 the parties appeared before his Honour where, in a brief ex extempore judgment, his Honour accepted that the defendant was not in a position on that occasion to address either of those questions. His Honour adjourned the proceedings to 2 May 2014, inviting receipt of submissions from the defendant at any time in the week preceding the adjourned date, providing they were served on the other parties by that date. I note that his Honour did not direct that submissions be filed, but merely invited the defendant to furnish submissions if he wished.

1. Without predetermining either of the outstanding questions, they do not appear to give rise to any difficult question of fact or law. I make that observation despite the defendant's submissions to the contrary, and despite what he submitted would be the need for lengthy submissions to address them. As I read his Honour's judgment, he was simply affording the defendant the opportunity to address him before resolving the outstanding questions.

1. The evidence relied upon in support of the temporary stay is to the effect that the defendant does not have the time and resources, or sufficient physical health, to both comply with the directions made by the Registrar on 19 March 2014 for filing and service in proceedings brought by the Attorney General, and the filing and service of any process upon which the defendant seeks to move in those proceedings by 28 March 2014, and to address the outstanding questions in the unrelated proceedings fixed for consideration on 2 May 2014. I note the defendant has given evidence that a notice of motion with supporting affidavits running to 689 pages have been prepared in compliance with the orders of the Registrar, although it has not, as I understand it, been served at this time.

1. The defendant annexed to the affidavit in support of the grant of a temporary stay a report from Dr Fattore, General Practitioner, dated 24 March 2014 to the effect that, having regard to the defendant's cardiovascular ill-health and what are described as his multiple health concerns, the defendant should not address more than one court proceeding at the one time.

1. I note that in an earlier report dated 12 September 2013 Dr Fattore recommended that the proceedings brought by the Attorney General be adjourned to 27 June 2014 for the same reason. It is not clear to me whether the earlier report has ever been relied upon in support of any application for a stay of the proceedings or otherwise. Be that as it may, self evidently, the doctor's report of 24 March 2014 seeks, on the defendant's behalf, a stay of proceedings for a period well in excess of what the defendant seeks. The doctor does not give any indication that he has any knowledge of the nature of the proceedings.

1. Whilst conscious of the fact that the defendant obviously suffers ill-health, and that stress is a risk factor in those circumstances, it would appear that to date the defendant has appeared, as is his right to appear, unrepresented, in both sets of proceedings. In that connection I also note that on 19 March 2014 the Registrar directed that on the return date the defendant detail in an affidavit all attempts by him to obtain legal advice setting out the details of all applications for legal assistance and results of those applications. There is no evidence before me as to whether those enquiries have been made, or that an affidavit has been prepared.

1. In all the circumstances, I am not persuaded that in s 67 of the Supreme Court Act 1970 (NSW), or in the Court's inherent jurisdiction, and in particular, having regard to the overriding purpose of s 56, that an order ought to be made temporarily staying the proceedings under which orders are sought under the Vexatious Proceedings Litigants Act 2008 (NSW), whether by reason of the pending proceedings before Harrison J, or for any other reason.

1. Accordingly, I make the following orders:

1. The notice of motion is dismissed.

2. The defendant, the applicant under the motion, pay the costs of the motion.

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Decision last updated: 08 April 2014