Attorney General of New South Wales v Rahman
[2014] NSWSC 42
•10 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Attorney General of New South Wales v Rahman [2014] NSWSC 42 Hearing dates: 28 November 2012 Decision date: 10 February 2014 Jurisdiction: Common Law Before: Adams J Decision: (1) Mr Rahman is prohibited from instituting proceedings in New South Wales without first obtaining leave of the Court;
(2) no further steps are to be taken by Mr Rahman in any proceeding already instituted by him in New South Wales without leave of the Court;
(3) all proceedings already instituted by Mr Rahman in New South Wales are stayed pending leave of the Court to proceed;
(4) the defendant is to pay the plaintiff's costs.
Catchwords: PROCEDURE - application for vexatious proceedings order pursuant to s 8 of the Vexatious Proceedings Act 2008 - whether proceedings are vexatious - whether proceedings were instituted or conducted frequently - repeated re-litigation of issues determined against the defendant Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Administrative Decisions Tribunal Act 1997 (NSW)
Industrial Relations Act 1996 (NSW), s 84
Judiciary Act 1903 (Cth), s 39B, 78
Supreme Court Act 1970 (NSW), ss 84, 101
Uniform Civil Procedure Rules 2005 (NSW), rr 14.6, 14.7, 14.8, 14.9
Vexatious Proceedings Act 2008 (NSW), ss 3, 4, 5, 6, 8Cases Cited: Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
Attorney General of NSW v Wilson [2010] NSWSC 1008
Dubs v Rahman [2012] FMCA 664
Rahman v Ashpole [2007] FCA 883
Rahman v Ashpole [2007] FCA 1067
Rahman v Bimson [2010] NSWSC 338
Rahman v Dayeh [2007] FMCA 98
Rahman v Dayeh and Ors (No 2) [2007] FMCA 234
Rahman v Dayeh [2007] FCA 786
Rahman v Dayeh & Ord [2008] HCASL 23
Rahman v Department of Education, Employment and Workplace Relations [2009] FCA 239
Rahman v Director-General Department Of Education & Training [2005] NSWCA 285
Rahman v Director-General NSW of Education & Training [2004] NSWIRComm 1036
Rahman v Director-General NSW of Education and Training in the State of NSW [2004] NSWIRComm 303
Rahman v Director-General NSW Department of Education and Training [2004] NSWIRComm 370
Rahman v Director-General Department of Education and Training [2005] NSWCA 158
Rahman v Director-General of Dept of Education and Training [2006] HCATrans 188
Rahman v Dubs (Supreme Court (NSW), McCallum J, 18 December 2009, unrep)
Rahman v Dubs [2010] NSWCA 129
Rahman v Dubs (Supreme Court (NSW), Hidden J, 1 February 2011, unrep)
Rahman v Dubs [2011] NSWSC 376
Rahman v Dubs [2012] NSWCA 98
Rahman v Dubs [2012] NSWSC 1065
Rahman v Dubs [2012] FCA 849
Rahman v Dubs (No 2) [2012] FCA 1081
Rahman v Dubs [2013] HCASL 23
Rahman v Eagle (District Court (NSW), Neilsen DCJ, 2 December 2011, unrep)
Rahman v Edward T David [2005] NSW 1251
Rahman v Hooper (District Court (NSW), Judicial Registrar Smith, 17 January 2012, unrep)
Rahman v Institute of Languages New South Global Pty Ltd (Supreme Court (NSW), Hulme J, 28 November 2005, unrep)
Rahman v Institute of Languages, New South Wales Global Pty Limited (Court of Appeal (NSW), Ipp JA, 6 February 2006, unrep)
Rahman v Institute of Languages New South Global Pty Limited [2007] HCA Trans 174
Rahman v John Robert Marsden trading as Marsdens Law Group & Ors [2005] NSWSC 1306
Rahman v Marsdens Law Group [2005] NSWSC 529
Rahman v New South Global Ltd (Administrative Decisions Tribunal (NSW), Innes G - Judicial Member, 7 November 2003, unrep)
Rahman v New South Global Ltd (EOD) [2003] NSWADTAP 46
Rahman v New South Global Pty Ltd [2004] NSWADTAP 49
Rahman v New South Global Pty Ltd [2005] NSWSC 1249
Rahman v New South Global Pty Ltd (Supreme Court (NSW), Giles and Bryson JJA, 3 August 2006, unrep)
Rahman v Riordan (Supreme Court (NSW), 15 April 2010, McCallum J, unrep)
Rahman v Riordan [2010] NSWCA 288
Rahman v Riordan [2010] NSWCA 375
Rahman v Riordan & Anor [2011] HCASL 16
Rahman v Riordan [2011] NSWCA 54
Rahman v Riordan [2011] NSWCA 142
Rahman v Secretary, Department of Education, Employment and Workplace Relations [2006] AATA 960
Rahman v Secretary, Department of Employment and Workplace Relations [2007] FCA 1013
Rahman v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 187
Rahman v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1634
Rahman v Secretary, Department of Employment and Workplace Relations [2008] HCASL 401
Rahman v Sharpe (District Court (NSW), Delaney DCJ, 13 February 2012, unrep)
Rahman v Sharpe (No 1) [2012] NSWDC 48
Rahman v Sharpe (No 2) [2012] NSWDC 49
Tomko v Palasty (No 2) [2007] NSWCA 369Category: Principal judgment Parties: Attorney General of New South Wales (Plaintiff)
Mohammad Tabibar Rahman (Defendant)Representation: Counsel:
S E Gray (Plaintiff)
In person (Defendant)
Solicitors:
Crowns Solicitor's Office (Plaintiff)
In person (Defendant)
File Number(s): 2012/140230
Judgment
The Attorney General of New South Wales seeks orders pursuant to s 8 of the Vexatious Proceedings Act2008 (NSW) that the defendant Mr Rahman be prohibited from instituting proceedings in New South Wales without leave of the Court and staying all proceedings in New South Wales already instituted by him. (All references to statutory provisions, without identifying the Act, are to this legislation.)
Mr Rahman has instituted a large number of proceedings, both in the New South Wales and Federal jurisdictions. It was submitted by the plaintiff, generally speaking, that these proceedings demonstrated several consistent elements and themes. In many of them, Mr Rahman sought to re-litigate issues that had previously been determined. Mr Rahman also instituted proceedings to harass, annoy or achieve another wrongful purpose. Some were instituted after being ordered by the Court not to do so without first obtaining leave of the Court or a Registrar.
Furthermore, the plaintiff submits, in many cases, Mr Rahman made outrageous allegations and offensive remarks concerning members of the judiciary, members of the AAT and the ADT, government bodies, his opponents, and practitioners of the Court, all of which have been considered utterly baseless and without foundation.
The Legislative Scheme
Section 8(1)(a) of the Act provides that a vexatious proceedings order in relation to a person may be made where an "authorised court" (such as this Court - see the definition in s 3) is satisfied "the person has frequently instituted or conducted vexatious proceedings in Australia". Section 4 of the Act defines "proceedings" as including:
"(a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and
(b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and
(c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way."
Section 5 of the Act defines "institute", in relation to proceedings, as including:
"(a) for civil proceedings-the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and
(b) for proceedings before a tribunal-the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and
(c) for criminal proceedings-the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and
(d) for civil or criminal proceedings or proceedings before a tribunal-the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings."
Section 6 of the Act defines "vexatious proceedings", as including:
"(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."
Section 8(7) of the Act provides:
"The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in New South Wales,
(c) any other order that the Court considers appropriate in relation to the person."
The test under s 8(1)(a) requires that, before making a vexatious proceedings order, the court must first be satisfied that the person has instituted or conducted vexatious proceedings as defined in s 6 and then that those proceedings have been instituted or conducted frequently (see: Attorney General of NSW v Wilson [2010] NSWSC 1008 per Davies J at [10] - [11]).
In Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192, Davies J helpfully (if I may respectfully say so) set out the relevant principles as follows -
"[7] I discussed in Attorney General of NSW v Wilson [2010] NSWSC 1008 at [9]-[17] the principles associated with the making of an order under s 8(1)(a) of the Act. Those matters may be summarised as follows:
(a) the test of "frequently" is a less demanding test than was required under s 84 Supreme Court Act 1970;
(b) the term "frequently" is a relative term and must be looked at in the context of the litigation being considered;
(c) the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;
(d) regard may be had to applications made by the person in proceedings commenced against that person;
(e) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;
(f) regard may be had to proceedings in any Australian court or tribunal;
(g) regard may be had to the findings and result in the proceedings under consideration.
[8] In these proceedings, reference has been made to the judgment of Perram J in Official Trustee in Bankruptcy v Gargan(No 2) [2009] FCA 398 where his Honour eloquently expresses the principles relating to vexatious litigants at [2]-[12]. Whilst acknowledging that the test his Honour had to consider was the test under s 84 Supreme Court Act and is, as I have noted, a more demanding test than is required under the Vexatious Proceedings Act 2008, much of what his Honour sets out is relevant to the determination in the present case.
[2] A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen's ordinary right. It is, therefore, not lightly to be made.
[3] Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
[4] Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
[5] Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant's institution of such proceedings may fairly be said to be both habitual and persistent.
[6] Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding's legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
[7] Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
[8] Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant's conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
[9] Eighthly, each of these notions - the want of reasonable grounds, habitual institution and persistent institution - are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
[10] Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto - so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
...
[12] Finally, once it is concluded that the Court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise."
The evidence
The plaintiff read the affidavit of Sophie Jaggard affirmed on 2 May 2012 and two affidavits of Lisa So affirmed on 29 October 2012 and 27 November 2012. Each of these affidavits exhibited copies of files, transcripts and judgments of various courts and tribunals.
Mr Rahman filed submissions on 21 August 2012 and also, with leave of the Court, made further written submissions. The plaintiff contends (rightly) that the submissions filed on 21 August 2012 are inadmissible, but was content for them to be considered in the application subject, of course, to weight.
The defendant's litigation history
In determining whether to make the orders sought by the plaintiff, it is first necessary to determine whether, if any, of the proceedings which the plaintiff points to as being vexatious are such and then to further determine whether they have been frequently instituted or conducted. In so doing, I have reviewed the proceedings pointed to by the plaintiff as demonstrative of the defendant's litigation history. It is necessary to focus on the nature of the defendant's claim in each case, the outcome of individual proceedings and the findings of or views expressed by the presiding judicial officer in determining the proceedings, the conduct of the defendant within the proceedings and the attitude or perceived attitude of the defendant towards his obligations as unsuccessful litigant.
I have set out in some instances, Mr Rahman's pleadings and submissions. These have mostly been reproduced in their original form.
Mr Rahman has undertaken proceedings in this State in various courts and tribunals, the Federal Court and the High Court. My approach has been to deal with the former category first, in chronological order, up to the applications for special leave in the High Court, and then the Federal Court proceedings.
Mr Rahman made extensive written submissions in this proceeding. They deal, directly or indirectly, with the particular cases or decisions relied on by the plaintiff, sometimes in general language that, so far as I can discern, is intended to apply to all those matters. I have quoted some parts of these submissions to demonstrate what Mr Rahman wishes to say about the litigation but I have not set out the entirety: they are rambling, repetitive and, on occasions, incomprehensible. However, I have given careful consideration to everything he has said. It is fair, I think, to characterise them as a robust defence of his conduct in commencing and maintaining every piece of litigation to which the plaintiff has referred. That defence has included not only insisting that each adverse decision was wrong, not only for legal reasons but also was motivated by bias against him, incompetence and, in some cases corruption.
The NSW Litigation -
(a) The language test proceedings
This litigation arose out of the one event. Mr Rahman was a schoolteacher in Bangladesh and had also been a teacher in the United Kingdom. In Australia, the defendant applied to the Department of Education and Training (the Department) to become a teacher in New South Wales. His first application was made on 25 July 1991. This application was refused on the basis that he did not hold the requisite qualifications. Mr Rahman's fresh application to the Department in 1999 was refused. In April 2001, he applied again and was told that he would be required to undertake an assessment of his English language proficiency through the Professional English Assessment for Teachers Programme (PEAT Programme) administered through the Institute of Languages (operated by New South Global Pty Limited, owned by the University of New South Wales). He was employed on a conditional basis to teach casually, pending the successful completion of the test. He was unsuccessful.
On 7 January 2002, Mr Rahman wrote a letter of complaint to the Anti-Discrimination Board alleging that his low score on the test in October 2001 was the result of racial bias on the part of the examiners or the criterion used for assessment was racially biased against him. On or about 14 November 2002, this complaint was rejected by the Anti-Discrimination Board, with the President of the Board observing "his complaint presents less than a remote possibility of merit and should therefore be declined as misconceived and lacking in substance under s 90(1) of the NSW Anti-Discrimination Act, 1977" (Rahman v New South Global Pty Ltd [2005] NSWSC 1249). Mr Rahman requested that his complaint be referred to the Administrative Decisions Tribunal.
Rahman v New South Global Ltd (EOD) [2003] NSWADTAP 46
In the Administrative Decisions Tribunal, Mr Rahman appealed a number of preliminary decisions of the Equal Opportunity Division of the Tribunal These concerned a refusal to grant an adjournment, the referral of the matter to mediation without consent, representation of New South Global by a solicitor, Ms Kirby, not dealing appropriately with non-production of documents and bias of the judicial member, Mr Innes. The Reasons of the ADT Appeal Panel of 7 October 2003 dealt with each of these points and held they were not made out. The appeal was accordingly dismissed.
In the result, the refusal to adjourn was not pressed except in relation to allegations of bias. As to the mediation, not only had Mr Rahman not objected to it, he participated in it. At all events, his consent was not necessary. Since leave had implicitly been granted for Ms Kirby to appear, she was entitled to do so. The grant of leave, moreover, was not an appellable decision. As to the documents, they had either all been produced or a satisfactory explanation for their absence given, as Mr Rahman had expressly conceded. As to bias, Mr Rahman simply relied on decisions he regarded as adverse, but which the Appeal Tribunal regarded as correct.
The plaintiff submits that this proceeding was vexatious as having no real prospects of success; the non-production of documents claim was without substance and was an abuse of process; and the allegation of bias lacked any reasonable basis.
Rahman v New South Global Ltd (Administrative Decisions Tribunal (NSW), Innes G - Judicial Member, 7 November 2003, unrep)
The decision of 7 November 2003 was by the Equal Opportunity Division of the ADT and dealt with the substantive issues involved in the plaintiff's appeal to that body. It is apparent from the reasons that evidence was given by the plaintiff, a Kathleen Lane and a Dr Jill Murray. The Tribunal also had before it a number of documents including the assessments made by various markers who had marked the plaintiff's test. The Tribunal made findings as to this evidence and concluded that there was no basis for the plaintiff's allegations of discrimination and dismissed his complaint.
Rahman v New South Global Pty Ltd [2004] NSWADTAP 49
Mr Rahman appealed the 7 November 2003 decision of the Tribunal on grounds which included many of the issues which had already been decided by the Appeal Panel on 7 October 2003. Noting this fact, the Appeal Panel said, "... We told Mr Rahman during the ... hearing that he is not entitled to re-agitate those matters before this Panel ... His only option is to appeal to the Supreme Court, if he is still entitled to do so". Mr Rahman's submission that the presiding member of the Appeal Panel, Magistrate Hennessy, should disqualify herself as she had also presided over the Appeal Panel that made the decision of 7 October to dismiss that appeal was rejected. Three other grounds were relied on: the respondent had been wrongly named; the Tribunal (Mr Innes) was biased; and insufficient reference had made to the facts and the law. Each of these grounds were considered and rejected. In relation to the bias ground, the Appeal Panel noted that "a similar submission was rejected by the Appeal Panel in Rahman v New South Global Ltd (EOD) [2003] NSWADTAP 46 at [26] to [32]" (the 7 October 2003 decision). Mr Rahman's fresh allegation was that a "subtle inner subconscious revengeful mind has worked in Mr Innes' mind". A submission as to Ms Kirby representing New South Global was rejected as misconceived and, at all events, as having been dealt with by the earlier Appeal Panel decision. Mr Rahman's further submissions alleging errors of fact, amounting to seeking a merits review, were rejected and he failed to identify any error of law. Further submissions were characterised as "wholly irrelevant to the question of whether the Tribunal made an error of law".
The plaintiff contends that this was a vexatious proceeding as the matters sought to be litigated had already been determined by the Tribunal and the application for Magistrate Hennessey to disqualify herself were without reasonable grounds.
Rahman v New South Global Pty Ltd [2005] NSWSC 1249
Mr Rahman filed a summons on 3 December 2004 in the Supreme Court appealing the ADT decisions of 7 October 2003, 7 November 2003 and 5 November 2004 (this last being the only appeal within time). Mr Rahman filed two Notices of Motion, the first to amend the name of the respondent, the second seeking orders for contempt of court (for non-production of documents) as well as damages, aggravated damages and exemplary damages. The respondent, New South Global filed a Notice of Motion seeking summary dismissal of the proceedings.
The summons was summarily dismissed: Rahman v New South Global Pty Ltd [2005] NSWSC 1249. Hulme J concluded, as to each matter decided by the Appeal Panel on 5 November 2004, that none demonstrated any error of law. His Honour also concluded that leave to extend time to appeal from the decision of 7 October 2003 should be refused: it concerned only interlocutory matters and was at all events doomed to fail. There could be no appeal from the decision of 7 November 2003, since it was not a decision of the Appeal Panel: s 119 Administrative Decisions Tribunal Act 1997 (NSW).
The Notice of Motion seeking orders for contempt and damages was also dismissed: Rahman v Institute of Languages New South Global Pty Ltd (Supreme Court (NSW), Hulme J, 28 November 2005, unrep). Hulme J found that there was no evidence of personal service of the subpoena, non-compliance with which was alleged to be the basis for the defendant's contempt. There was, at all events, no evidence produced by Mr Rahman capable of establishing any contempt, in particular that the defendant was in possession of the documents to which the subpoena referred.
It was submitted by the plaintiff that this proceeding was vexatious: it had no prospects of success; Mr Rahman sought to re-litigate matters that had already been determined and sought relief that was not relevant to the cause of action. Mr Rahman had also sought to initiate private criminal proceedings in order to harass or annoy.
Rahman v Institute of Languages, New South Wales Global Pty Limited (Court of Appeal (NSW), Ipp JA, 6 February 2006, unrep)
On 6 February 2006 Mr Rahman sought a stay of the order of Hulme J. The application came before Ipp JA. The nature of Mr Rahman's application can be gathered from his opening oral submission -
"What happens, this proceeding originates in 2001 and I have evidence with the legal things of the documents but due to my racial backgrounds the arbitrators - the justice, the Supreme Court, they have made an error, abused the process, the justice devolved from the facts and findings and it appears that all the decisions there was an error of law, ... (not transcribable) ..., corruption practices ... (not transcribable) ... and abuse of all relevant acts and I have challenged in all locations since the proceedings started in lower courts and ended in here. And I have challenged the decisions of Hulme J on three days and I having 160 documents and I have all these exhibits give to him. All the laws he has abused it, I have challenged him that I'll take this matter to the High Court and it appears that the parties in the proceedings and the lady whose decisions have lost the job was doing corruption practices and bribery practices. I have given evidences with supporting documents. Even the justice of the courts they are tempted with the bribes. I have given all the documents but nothing happens because my social background. All discriminated. ... So I need stay of the proceedings because prejudice, justice was injustice and I believe that is because the judicial members is biased and corruptions. I don't know how big size the money they provided at the corruption practices - I haven't any evidence at the moment but I'll prove at the High Court the judicial member Hulme with Mr Howie."
Ipp JA, in a brief ex tempore judgment, refused the stay. He pointed to Mr Rahman's statement that he had no evidence as to the serious issues for determination of the appeal and to his not having addressed the question of prejudice.
Rahman v New South Global Pty Ltd (Supreme Court (NSW), Giles and Bryson JJA, 3 August 2006, unrep)
This proceeding was an application for leave to appeal (Giles and Bryson JJA) the decisions of Hulme J. Mr Rahman objected to the application being heard by only two judges and, in particular, objected to Bryson JA, claiming that he had "no confidence" in his Honour. He submitted that Bryson JA had not challenged his legal argument in the course of his submissions in another appeal; Rahman v Director-General Department Of Education & Training [2005] NSWCA 285, heard by Mason P, Handley and Bryson JJA, in which Handley and Bryson JJA agreed with the President. Mr Rahman stated -
"[Y]our Honour being a member of the appeal panel you have obligations to uphold a matter of justice but you fail to do that but you show a favour to your social class, you abuse the Acts. You owe to Her Majesty the Queen to uphold the justice by the legislation and evidences and it ask you - you fail to do that absolutely. Not only you the whole panel members. You absolutely, absolutely fail to challenge my submissions... The whole honourable judges they become blind to the laws and acts."
Mr Rahman continued -
"As a part time employee I have challenged in the High Court what they have done in the judicial systems - the Judges decide on social class... I have made a strong submission to your Honour how ridiculous, how they abuse the laws to certain social class."
...
BRYSON JA: Do you say that I abused the law --
CLAIMANT: Yes.
BRYSON JA: -- with respect to the interests of a certain social class?
CLAIMANT: Yes indeed you haven't looked at the lot."
Mr Rahman also said -
"...[Y]ou [Bryson JA] failed to act according to the law and you failed to uphold - denial of natural justice both evidences and the Acts. You failed to understand or if you have understanding everything but you have abused the process.
Mr Rahman made other serious allegations -
"Industrial Relations Commissions, they bribe the judges. I have given documents. In ADT, they bribe. They didn't follow the provision. Here, Hulme J, contempt of the Court - what did happen, no, there's no document ... There is no existence of examination but bribery practices. There is corruption practice in the Crime Act [sic], nothing happened, nothing happened ... I personally submitted my applications. It's just contempt of the court, not only Supreme Court but in other courts, but yes, is lot of money. I have given the documents. Justice stop. Because there's big party. They have millions of dollars. They can buy the judges as it happens in other parts of the world, but my person is that, who gives evidences is only - how a judge can give evidence to a party."
The Court, dismissing the application with costs, stated (in a very brief judgment) -
"Nothing that Mr Rahman has said indicates to us any basis for error on the part of Hulme J warranting the grant of leave to appeal."
Rahman v Institute of Languages New South Global Pty Limited [2007] HCA Trans 174
On 27 April 2007 Mr Rahman applied for special leave in the High Court to appeal the Court of Appeal's decision, which was refused. Gummow J commented -
"Much of the applicant's complaint about those decisions was legally misconceived and doomed to fail, and Hulme J was correct to dismiss the application... [T]here was no substance to his complaints about the composition of the bench in [the Court of Appeal] ...The applicant's draft notice of appeal in this Court is largely unintelligible and is embarrassing in the technical sense. There would be no prospect of success on any appeal to this Court against the orders of the Court of Appeal."
The plaintiff submits that these were vexatious proceedings as being doomed to fail.
(b) The unfair dismissal proceedings
Mr Rahman was provided with the opportunity to re-take the language test, but did not and so lost the approval to teach. Mr Rahman took the matter to the Industrial Relations Commission.
Rahman and NSW Director-General of Education & Training [2004] NSWIRComm 1036
Mr Rahman made an application under s 84 of the Industrial Relations Act1996 (NSW) claiming that the termination of his employment amounted to a "harsh, unreasonable or unjust dismissal". He raised the issue of discrimination in relation to his applications for employment since 1991. The Commission dismissed the proceedings on 3 June 2004, noting that the application was out of time and commenting -
"[Mr Rahman] submitted forcefully in the proceedings there was no need for him to undertake the PEAT examination, given matters such as the nature of his tertiary studies, earlier English language accreditation and employment history in English-speaking countries. He also forcefully challenged the bases upon which an employment condition concerning the PEAT examination could be imposed upon him, adverting in this respect to a wide range of policy-related considerations and statutory provisions. Few of the statutory provisions referred to in the applicant's submissions were relevant to the determination of the two threshold issues...
I accept the respondent's contention that the termination of employment was not such as would attract the unfair dismissals jurisdiction of Ch2 Pt6 of the Act...
Despite the applicant's view that the application was made within time, the evidence and submissions lead, inexorably in my view, to the conclusion the application was made outside the timeframe of 21 days specified in s 85(1) of the Act. The applicant was resolute in his opinion that the application had been filed within time and, for that reason, declined to advance any reasons at all why the application should be accepted out of time."
The plaintiff submitted that as the application was out of time and Mr Rahman did not provide reasons as to why the matter should proceed despite being out of time, it was vexatious.
Rahman and NSW Director-General of Education and Training in the State of NSW [2004] NSWIRComm 303
Mr Rahman appealed the [2004] NSWIRComm 1036 proceedings and sought to summons 31 witnesses for the appeal. The respondent filed a notice of motion to set the summonses aside, which was upheld by Staff J on 24 September 2004. On 27 September 2004 Mr Rahman filed a notice of motion seeking to adduce fresh evidence, being from the 31 witnesses and argued that his case was not heard on its merits and the 31 witnesses will assist his case. The Commission stated in relation to the [2004] NSWIRComm 1036 proceedings -
[10] ... [I]t is patently obvious that the appellant misunderstood what the Commissioner was required to determine. So much is evident from the reasons for this notice of motion ...
[11] It must be reiterated that the merits of the appellant's case have not, at any stage, been determined. It follows that the appeal is confined to what the Commissioner decided and not the merits of the appellant's case.
"[12] ... [It [Decline[d] to admit further evidence 'as it would not have 'further[ed] a determination of the essential issue' on appeal'. It follows, in our view, that special grounds do not exist for the admission of further evidence ..."
The plaintiff submits that this was a vexatious proceeding in that the notice of motion was doomed to fail and, as well, that it sought to re-litigate matters that had already been determined by Staff J, which were not the subject of the appeal.
Rahman and Director-General NSW Department of Education and Training [2004] NSWIRComm 370
This proceeding was the substantive appeal of the [2004] NSWIRComm 1036 decision. It was heard on 15 October 2004 and judgment was handed down on 3 December 2004. The Full Bench concluded that the first instance Commissioner was correct in not determining the matter on the merits. The Full Bench noted that Mr Rahman "filed a significant amount of material, the bulk of which went to the merits of his case. [Mr Rahman] spoke to his submissions on 15 October 2004, but did not raise any relevant issues in addition to the material he had earlier filed."
The Full Bench first determined whether the learned Commissioner was correct in not granting leave for the application by Mr Rahman to be heard out of time -
"[19] In our view, the Commissioner's exercise of discretion in considering the out of time application was correct and is beyond challenge...
[20] It follows that it is unnecessary to resolve the question of jurisdiction being whether a dismissal of Mr Rahman occurred on either 4 July 2003 or 28 August 2003 because if the application is out of time and leave to extend time is not granted, there is no appeal. This is not to say the Commissioner was wrong. It is unnecessary, in light of the decision which we have reached, to express any view on this aspect of the appeal and we decline to do so."
The plaintiff claimed that this proceeding was vexatious as it was doomed to failure and that Mr Rahman refused even to deal with the issue that his application may be out of time (despite the earlier decision) and lead evidence on this issue. The plaintiff contends that the proceedings were clearly out of time.
Rahman v Director-General Department of Education and Training [2005] NSWCA 158
A summons was filed by Mr Rahman on 4 January 2005 in the Supreme Court, which transferred the matter to the Court of Appeal, where he sought leave to appeal, and to appeal the decisions made in the Industrial Relations Commission on 3 June, 24 September, 12 October and 3 December 2004. The Registrar directed that an amended summons be filed and served by 5 April 2005. This was not done, but Mr Rahman filed affidavits and a Notice of Appeal was annexed to one. The Registrar ultimately ordered -
"[7] If the claimant wishes to bring summons claiming relief pursuant to s.48(2) of Supreme Court Act then such an Amended Summons must be filed and served on or before 06/05/05. In default of which these proceedings are struck out as an abuse of process."
On 26 April 2005 Mr Rahman filed a notice of motion seeking for this order to be set aside and relied upon an affidavit. Hodgson JA, dismissing the notice of motion on 9 May 2005, stated -
[8] ... [The claimant's affidavit] did not set out any evidence in admissible or understandable form, but ... was received as an indication of the claimant's understanding of the basis on which he seeks to challenge the IRC decisions.
...
[14] ... In my opinion, the claimant has not advanced any reasonable ground for thinking that Registrar Schell's decision was incorrect, nor has he advanced, in my opinion, any reasonable basis for thinking he should, by way of variation of Registrar Schell's order, be given a further opportunity to bring proceedings seeking prerogative relief. The material he has put before the Court does not give any grounds for thinking that this may be a case which could fall within the Supreme Court's very limited jurisdiction over IRC proceedings.
...
[17] On the material before me, the claimant's proceedings are an abuse of process in form and in substance. So, for those reasons, in my opinion, the Notice of Motion should be dismissed, and that is the order I make."
The plaintiff submits that this was a vexatious proceeding as it had no prospects of success, the Court (as quoted above) stated that the proceedings were "an abuse of process in form and in substance" and that, as the proceedings were undertaken to avoid filing the amended summons, was instituted "in such a way as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose".
Rahman v Director-General Department of Education & Training [2005] NSWCA 285
Mr Rahman appealed from the 9 May 2005 decision of Hodgson JA. On 22 August 2005 the appeal was set down for delivery of judgment. Mason P (sitting with Handley and Bryson JJA) informed Mr Rahman that the Court did not have jurisdiction in the matter and proposed to dismiss the appeal. His Honour commenced to give reasons. Mr Rahman interrupted to make some points about the initiating process. The President allowed him to file an application for an order seeking leave to appeal from the decision of Hodgson JA and then proceeded to give judgment on the substantive issue, which concerned the limited jurisdiction of the Court of Appeal to consider appeals from the Industrial Relations Commission. In the course of his judgment, the President said -
"[29] There have been some very general allegations in the written submissions and in the oral submissions to the effect that the Commissioners were not properly appointed, or that there was gross dereliction of duty or even corruption. Those are very serious allegations that would require the clearest of evidence. Nothing in the material that has been put before this Court indicates that there is any substance in those allegations."
Mason P (Handley and Bryson JJA agreeing) concluded that the Court had no jurisdiction to deal with the matter and stated -
"[31] In my view, there is a need to put an end to this litigation because of the jurisdictional problem and the absence of any substance in it."
The plaintiff contends that this proceeding was vexatious as it had no prospects of success, it sought to re-litigate issues that had already been determined and Mr Rahman "made very serious allegations without putting any material that would substantiate those allegations", which the plaintiff claimed was to harass or annoy.
Rahman v Director-General of Dept of Education and Training [2006] HCATrans 188
Mr Rahman then sought special leave to appeal to the High Court (Gummow and Heydon JJ). On 12 April 2006 this was refused. Gummow J stated -
"The applicant's special leave application to this Court is embarrassing, vexatious, abusive and very difficult to follow. It is not directed to the two reasons given by McKenna C for dismissing the original application, and it does not expose any error of jurisdiction. It has no prospects of success."
It was submitted by the plaintiff that, for the reasons given, this proceeding was vexatious.
(c) The challenge to English tests
In 2009 Mr Rahman sought also to challenge his failing the PEAT test by taking proceedings in this Court against Peter Riordan, Deputy Director-General and David McGrath, Manager Teacher, NSW Department of Education and Training.
Rahman v Riordan (Supreme Court (NSW), McCallum J, 15 April 2010, unrep)
Mr Rahman had sought leave to issue a number of subpoenas in connection with the hearing of this appeal. On 30 March 2010 Davies J had refused leave to appeal from the decision of the Registrar refusing to issue the subpoenas. On 7 April 2010 Mr Rahman, by Notice of Motion, sought to review the decision of Davies J. Mr Rahman submitted that the Registrar and Davies J had misconstrued s 68 of the Civil Procedure Act 2005, since the section permitted subpoenas to be issued in respect of "any person", that the decision of Tomko v Palasty(No 2) [2007] NSWCA 369, should not have been followed and lastly, he was denied procedural fairness because Davies J did not require counsel who appeared for the defendants to produce any document proving that he was a barrister. McCallum J rejected each of these submissions and dismissed the application with costs.
Rahman v Riordan [2010] NSWSC 409
Mr Rahman sought orders in the nature of mandamus against Messrs Rordan and McGrath. On 20 April 2010 McClellan CJ at CL in an ex tempore judgment dismissed the summons with costs. His Honour noted (at [24]) that Mr Rahman had failed in earlier proceedings in the Administrative Appeals Tribunal. Mr Rahman "complain[ed] that the relevant officers of the Department have acted contrary to law and that he is entitled to relief from this court in the nature of mandamus ordering the Department to employ him as a teacher". His Honour held that Mr Rahman was not entitled to relief (at [29]) and stated that he was not persuaded that the Department had acted contrary to law and that there was "nothing ... to indicate that the decision which was made by the Department to require the PEAT assessment in the plaintiff's case was made otherwise than in accordance with the procedures adopted by the Department" (at [30]). His Honour further commented [at 31] that Mr Rahman had "been treated no differently to hundreds of other persons who have gained their qualifications overseas and are of non-English speaking backgrounds".
It was submitted by the plaintiff that this proceeding was vexatious as it sought to re-litigate issues that had already been determined.
Mr Rahman devotes some seven or so pages of his written submissions to this matter. Though the language is awkward, the thrust is clear enough. A sufficient sample is as follows -
"[10] ... P D McClellan ... hesitated to his social class to validate the applicant's claim that the DET Officials are in continuous practice of corruption of bribery of millions of dollars with the higher authority in the name of :'False English Test - 'Professional English Assessment for Teachers - PEAT for Employment of teachers whom have Teaching qualifications from 'Not in English medium of Learning and Teaching". [No such terminology of 'Professional English Assessment for Teachers; - PEAT Course are offered by any Professional Institutes in the World under and Charter of Instruments].
...
[20] The facts also that that Peter Rordan, Deputy-Director-General, and David McGrath, Manager, Teacher, NSW Department of Education and Training both of them in doing such act of decision exceeded power and has misconstrued not only the provisions of above mentioned provisions of enactments but also all the false claims about the false Professional English Assessment for Teachers when 'in witness box both of them failed to defend the existence of PEAT with the unlawful use and Practice of the name of the University of New South Wales (UNSW) where it is New South Global Pty - a private company and absolutely failed to produce any Subpoena documents 1-8 & 1-7 and Reg 33.12 Failure to comply with subpoena - contempt of Court, UCPR. But Justice McClellan showed indulgence to his Social Class as a form of "Judicial racism" to the Applicant in such procedures (Annex H).
[21] ... Justice Peter David McClellan' misconstrued all the provisions of the laws that are required for the interpretations, applications with documentary evidences under enactments of legislations and related International concurrence of law of 'jurisprudence for the discharge and to upheld the truthfulness of administration of justice in this proceedings. But His decisions are infatuated with his own Social passion of lineage for the "Peter Riordan and David McGrath and as such manifested with which are involved ultra vires, without justiciability in the context of Australian Constitution s 75(v) & 69 Proceedings in lieu of writs Supreme Court Act , without any applicable citations of legislations of enforcement of enactments of NSW, Constitutional Act, Administrative Decisions (Judicial Review JR) Act or any statutory rules' but an act of "judicial racism" for the infringe of denial of natural justice 'of an Australian citizen 'whom is a Juris-Doctor Post-Graduate Student, Faculty of Law, UTS sought justice against unlawful act of:
"two decisions- "Crime against Humanity" - CAH under International law by the [First] and [Second] Defendants DET of the controversial issues of false PEAT and thus infringed for full-time employment since 2002 and for such acts 'Summons submitted on 20 July 2009 for justice
"[Section 75(v) of the Constitution] serves a basic element of the Rule of Law - Gleeson CJ in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [5].
"A decision-maker falls into jurisdictional error if he or she misunderstands the nature of the jurisdiction to be exercised, misconceives his or her duty, fails to apply himself or herself to the question to be decided, or misunderstands the nature of the opinion which he or she is to form": per Gaudron J in Re Patterson; ex parte Taylor (2001) 182 ALR 657 at [82]."
As I understand him, Mr Rahman maintains that he is the victim of unlawful decisions based, at least in part, upon his ethnic origins and a conspiracy, which includes the judges, against persons in his social and cultural situation. His claims about PEAT and his unjustified treatment are true and the decision of McClellan CJ at CL is rejected as actuated by bias. It is not altogether clear, but "Annex 8" appears to be a reference to "PART EIGHT" in the written submissions, which commences as follows -
"Under the above submission it is evident that the NSW Judicature has transformed into a "institutional mafia" and its employed judicial members (except few - Hon David Kirby L, NSW, & Hon Schinder J, Brisbane) as judicial mafias and doing a continuous practice of "crimes against humanity" as practiced with the Applicant as well as other social class, ethnic and racial group against the unlawful and transgress decisions by the Officials, Government Departments, (Both State and Commonwealth) as did with the Aborigines whom took away from those classes the property, children and other belongs in favour of them in the name of justice (Document enclosed)."
This theme is elaborated in successive paragraphs, concluding with the following -
"In submitting such Dictum of Statutory and substantive law' the Defendant is seeking order for himself and on behalf of common citizens of the Australia [whom have constrain of access to the judiciary is such right issues] that Your Hon with frustrate and prohibit such notions of "encroachment of Human Dignity" by Gregory Smith [the Attorney-General] for serious crimes of concern to the Defendant and other Ethnic Citizens of distinct educational, socio-cultural and religious affiliations and as well did with the Aborigines by Australian Judiciary for centuries - Crimes of "Stolen Generation" legalise for penalty and took over their wealth, pecuniary and property ownership by the Judiciary's identical pronouncements/judgments are nothing but absolutely crimes as well as to the whole international community."
Mr Rahman filed an application for leave to appeal against the decision of McClellan CJ at CL. It was dismissed with costs on 23 September 2010 by Giles JA and Sackville AJA. The plaintiff submits that this proceeding was vexatious, but was unable to locate the transcript. The submission was based on the subsequent judgments of the Court of Appeal as well as the Application for Special Leave to appeal to the High Court.
Mr Rahman in the present proceedings submits that s 101(1)(a) of the Supreme Court Act and s 78(b) of the Judiciary Act 1903 (Cth) had been "transgressed" by Giles JA and Sackville AJA.
Rahman v Riordan [2010] NSWCA 288
On 20 October 2010 Mr Rahman filed a Notice of Motion in the Court of Appeal seeking to set aside the orders made by Giles JA and Sackville AJA on 23 September 2010. Amongst other issues raised by Mr Rahman, he objected to the motion being heard by two judges. As noted earlier Mr Rahman had unsuccessfully put this argument in another proceeding (Rahman v New South Global Pty Ltd [2006] NSWCA (3 August 2006). He also requested remittal of the matter to Giles JA and Sackville AJA to enable them to reconsider their refusal of leave to appeal, failing, however, to to provide any sensible reasons why that should occur. Allsop P dismissed the Notice of Motion with costs on 1 November 2010.
The plaintiff contends that these proceedings were vexatious on the basis that they had no real prospects of success.
Rahman v Riordan [2010] NSWCA 375
On 15 November 2010 Mr Rahman filed a notice of motion seeking to have the orders of 23 September 2010 and the orders of Allsop P on 1 November 2010 set aside. The motion was heard by Tobias, Macfarlan JJA and Handley AJA on 16 December 2010. Macfarlan JA (Tobias JA and Handley AJA agreeing) held (at [3]) that the President was "plainly correct" in his view that he did not have the power to set aside the judgment of Giles JA and Sackville AJA and (at [4]) noted that the President was also correct regarding the number of judges on that application as also (at [5]) on the question of remittal. Mr Rahman also claimed that the President heard his Notice of Motion as the "referrals judge" which Mr Rahman claimed to invalidate his Honour's decision. Macfarlan JA dismissed both appeals, noting (at [10]) the matters agitated by Mr Rahman "do not in my view have any substance". Tobias JA added at [12] that Mr Rahman "agreed that on 19 October 2010 he filed an application for special leave to appeal to the High Court ... against the orders of Giles JA and Sackville AJA refusing him leave to appeal against the decision of the primary judge" which, his Honour noted, would be an added reason why the Court would not remit the matter for the purpose of having the matter re-opened.
The plaintiff submits that this proceeding also is vexatious as it had no prospects of success and that Mr Rahman sought to re-litigate matters that had already been decided against him.
Mr Rahman's written submissions in the present proceedings contend Sackville AJA was not a valid judge and the Court was not properly convened, citing s 101 (2) of the Supreme Court Act 1970 as follows -
"An Appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from - an erroneous and transgress and violation of statutes has "given birth" of eternal sense of injustice offence, crimes against the citizens not from his social lineage."
He refers also to s 37 (Acting Judges) and s 43 (Sittings) but does not explain how they assist his argument: in fact they do not. General allegations are also made against the judges of misconduct and crimes against humanity. No evidence for such serious allegations is provided.
Rahman v Riordan & Anor [2011] HCASL 16
Mr Rahman sought special leave to appeal the decisions of McClellan CJ at CL and the Court of Appeal to the High Court on 9 February 2011. After setting out the scope of Mr Rahman's argument, Heydon and Bell JJ stated -
"[2] Giles JA was unable to see legal merit in either contention and concluded that there were no prospects of successfully appealing from the orders below. Nothing in the papers filed in support of the application for special leave to appeal calls that conclusion into question. If special leave were granted the appeal would have no prospects of success."
The plaintiff contends that it was a vexatious proceeding as it was doomed to failure.
Mr Rahman submits that he went to the Registry of the High Court and that the determination and judgment of Heydon and Bell JJ was not made "observing Due process of law- 'rule of law'". Mr Rahman also speaks of -
"in the regime by His Hon Franchis, CJ [sic] as appointed by Labor Government by violations of statute rights, human rights under International law and thus trespass and later the whole Judicature of Australia has compounded that sin and crimes- / transgress unlawful decisions without statute and thus falls under 'crimes against humanity and without notifying the applicant for such unlawful process , when no defence was made by the Defendants in the High Court."
This, Mr Rahman asserts "has given birth to injustice and crimes against humanity and trespass of all domestic, international law, treaty and convention law as ratified by the Australian Government".
Mr Rahman also contends that the decision of the Court in refusing special leave was made (emphasis original) -
"'without justiciability and without 'rule of law, procedural fairness, interpretations of statute laws, error of law -an act of institutional racism by violations of statute law as transgress, tyrannical ruler ,made self -eccentric law and Institutional racism that infringed and violated the statutory right by defying applicant's statutory submissions".
Rahman v Riordan [2011] NSWCA 54
On 23 December 2010 Mr Rahman filed a Notice of Motion seeking to set aside the orders made in the Court of Appeal on 23 September, 1 November and 16 December 2010 and for an order fixing a date for the rehearing of his application for leave to appeal the judgment of McClellan CJ at CL of 20 April 2010. The motion was heard (Tobias, Macfarlan JJA and Sackville AJA) on 9 March 2011 and dismissed with costs. Macfarlan JA commented at ([3]) that much of what Mr Rahman had said and wrote in his submissions was difficult to understand and at times unintelligible but that, as best as his Honour could determine, Mr Rahman contended that one or more of the earlier courts were not properly constituted, that one or more of the judges had participated in earlier decisions concerning him and should have disqualified himself, that "judicial racism" infected the decisions and that, in a variety of ways the judges failed to perform their duties or committed errors. These contentions, his Honour noted, had been raised and rejected by previous decisions of the Court: they were baseless. Agreeing with Macfarlan JA, Tobias JA observed that that "there is no rational basis whatsoever for the assertion that this Court is improperly or illegally constituted" (at [10]). Sackville AJA also agreed, pointing out that s 37 of the Supreme Court Act 1970 authorised the appointment of acting judges.
The plaintiff submits that this proceeding was vexatious as it sought to re-litigate matters that had already been determined, especially so as the motion was heard after the refusal by the High Court of special leave to appeal. The plaintiff also contends that the proceedings were instituted to harass, or annoy or achieve another wrongful purpose light of the very serious allegations made against members of the judiciary.
Rahman v Riordan [2011] NSWCA 142
Mr Rahman on 16 March 2011 filed another Notice of Motion seeking to have orders of the Court of Appeal of 23 September 2010, 1 November 2010, 16 December 2010 and 9 March 2011 set aside. The motion was dismissed with costs. Macfarlan JA (with whom Young JA and Tobias AJA agreed) said -
"[2] [M]uch of what Mr Rahman has said and written in support of the present Notice of Motion is difficult to understand. It is at times unintelligible. As best as I can determine, the effect of his contentions is however as follows.
[3] First, Mr Rahman alleges that one or more of the Courts that made the earlier decisions or orders was not properly constituted under the provisions of the Supreme Court Act 1970. An argument to the same effect was rejected by this Court on 9 March 2011. I can still discern no sensible argument to support that contention.
[4] Secondly, Mr Rahman contends that various of the judges involved in the decisions to which I have referred were guilty of "judicial behaviour" that was "erroneous, trespass, transgress, judicial racism and abuse of statutes" and also lacked "intellectual honesty". Mr Rahman has not identified any arguable basis for these allegations.
[5] Thirdly, Mr Rahman contends that the Court has been prejudiced against him because of his "social class". Again there is no basis for this allegation.
[5] Fourthly, Mr Rahman requested that his Notice of Motion be adjourned for hearing before a different panel of judges. There is no basis for this to be done."
The plaintiff submits that this proceeding was vexatious because it had no real prospects of success and was re-litigation of matters that had already been determined on a number of occasions. The plaintiff further contended that the proceeding was conducted in such a way as to either harass or annoy, or achieve another wrongful purpose, which it submits is evident by the serious but baseless allegations made by Mr Rahman.
In relation to these proceedings, Mr Rahman maintains the allegations which have already been quoted above, mentioning, in addition, particular members of the judiciary -
"The applicant construe that the judiciary of NSW and High Court of Australia must produce such order as made by the Governor-General of Australia, / Parliament of Commonwealth Government -Federal / Governor or Parliament of NSW for such order that empowered Justices J.Dyson Heydon , V. Margaret Bell , High Court of Australia and Justices MacFarlan, PW. Young , R.Giles, Acting Justices H.M.Tobias, Kenneth Handley , R.Sackville Court of Appeal , Justice PD McClellan, Supreme Court and Registrar Bradford C for such measures against other social class whom they seek justice against the Government Officials for the corruptions and unlawful acts under law ..."
(d) The legal fees proceedings
The submissions of the plaintiff usefully set out the context for the institution of this set of proceedings -
"Mr Rahman retained John Marsden and others trading as Marsdens Law Group (MLG) to prepare submissions for him in the hearing before the ADT in 2003. MLG rendered a bill for the work performed. Mr Rahman disputed this bill. MLG brought proceedings in the Local Court and, on 22 October 2009, obtained a judgment in its favour for the outstanding sum plus interest.
Mr Rahman retained the services of Edward T Davis & Co Pty Ltd trading as Davis Breen Conti Solicitors (DBC) to answer a number of questions regarding his employment or possible employment by the DET in a conference in April 2003. DBC rendered a bill for the work performed. Mr Rahman disputed this bill. DBC offered to accept payment of their bill in the sum of $160 in order to settle any dispute. Mr Rahman rejected that offer. Ultimately, DBC obtained a judgment in their favour in the Local Court in the sum of $236.78."
Rahman v Marsdens Law Group [2005] NSWSC 529
On 22 November 2004 Mr Rahman commenced proceedings by way of summons to challenge various interlocutory decisions (which were out of time) and the judgment entered in the Small Claims Division of the Local Court in favour of Marsdens. Mr Rahman's contended that the judgment was unjust and unfair because it failed to account of all the areas of law raised by him. The Master held that Mr Rahman submissions on this point were without any substance and, at all events, the appeals lay only for denials of natural justice and not for errors of law (at [16]). Mr Rahman had also made strong "insulting or offensive" allegations (including racial bias) against judicial officers together with allegations of harassment and intimidation. The Master held, in effect, that nothing relied on by the plaintiff supported these assertions (at [19]) and the appeal was "devoid of merit" (at [14]).
The plaintiff submits that this proceeding was vexatious as the plaintiff claims that the proceeding was conducted in such a way as to either harass or annoy or achieve some other wrongful purpose by, once again, making unfounded and baseless allegations of judicial bias.
Rahman v John Robert Marsden trading as Marsdens Law Group & Ors [2005] NSWSC 1306
On 18 February 2005 Mr Rahman began contempt proceedings against Mr John Marsden and the members of his firm for allegedly failing to comply with a subpoena that was issued at Mr Rahman's request on 24 January 2005. McClellan CJ at CL dismissed the notice of motion: the Rule requiring a statement of charge to be filed had not been complied with and the affidavit relied on "provides no foundation for the allegation that the order of the Court had been breached"; nor was there evidence of service of the subpoena.
The plaintiff again contends that this proceeding was vexatious as it had no prospects of success.
Mr Rahman in the present proceedings makes a number of allegations against his Honour, including, inter alia, "abuse & transgress by McClellan... as racial discrimination - against the administrations of justices and human right".
Rahman v Edward T David [2005] NSWSC 1251
In March 2005, Mr Rahman appealed to this Court (James J) against decisions of the Local Court in respect of DBC's costs, the first (7 October 2004) being the judgment against him for $236.78, the second (also 7 October 2004) from the refusal to set aside a writ of execution and the third (10 March 2005), a refusal to set aside the judgment of 7 October 2004. Mr Rahman contended that the assessor was not properly appointed. This was rejected (at [20)]. He complained about the solicitor's unsatisfactory conduct of a conference and the standard of legal services he had provided, as well as a mistake of fact made by the assessor. This last was irrelevant, since appeal lay only in respect of a denial of natural justice (at [22], [23]). His allegation that the assessor, being a solicitor, was biased in favour of the claimants who were solicitors, was rejected as without substance (at [24]) as was his submission (at [25]) that the refusal to permit him to cross-examine the solicitor was a denial of natural justice, this being a procedural characteristic of the jurisdiction exercised by the Small Claims Division of the Local Court. Mr Rahman alleged from the bar table the assessor had been comatose at times during the hearing and this constituted a denial of natural justice. James J found no evidence to support the allegation (at [30]). A submission that the assessor was biased was also rejected as a misconstruction of a remark made by him during the hearing (at [31]). As to each impugned decision the appeal was dismissed with costs.
(e) The traffic offences proceedings
The plaintiff's submissions usefully set out the background to these proceedings -
"On 14 December 2009, Mr Rahman was convicted for a speeding offence by the Bankstown Local Court. The informant in that proceeding was Paul Bimson.
On 27 June 2011, Mr Rahman was convicted for a traffic offence by the Sydney Local Court. The informant in that proceeding was Darrin Hooper."
Rahman v Bimson [2010] NSWSC 338
On 11 January 2010 Mr Rahman sought a stay or dismissal of his conviction of speeding on 14 December 2009. Mr Rahman sought prerogative as well as appellate relief but as to decisions which were nowhere clearly specified. Preliminary hearings before the Registrar and McCallum J did not solve the problem. Mr Rahman simply refused to amend his summons, despite its problems being pointed out to him on a number of occasions, seeking rather to challenge the directions. Ultimately, the defendants sought summary dismissal. Following submissions from Mr Rahman seeking to have McCallum J disqualify herself (he having "no confidence in [her Honour] as a person able to determine any issue in the proceedings" (at [80])) and declining to amend his summons, her Honour dismissed it with costs.
The plaintiff submits that this proceeding had no real prospects of success and that Mr Rahman's seeking to have McCallum J disqualify herself without any basis was conduct as to achieve a wrongful purpose.
Rahman v Hooper (District Court (NSW), Judicial Registrar Smith, 17 January 2012)
Mr Rahman sought to challenge the conviction of 27 June 2011 in the District Court, by way of "summons commencing an appeal" in the civil jurisdiction filed on 21 November 2011. He did not institute proceedings in the criminal jurisdiction. He made a number of allegations in the summons, including that the informant Mr Hooper was under some sort of intoxication or that he was not the driver whom Mr Hooper had pulled over. The Registrar informed Mr Rahman, at the hearing on 17 January 2012, that the only civil jurisdiction that the Court had was in relation to appeals from the Small Claims Tribunal. Mr Rahman insisted that the fine of $145 fell into this category, despite being informed that it was considered to be a criminal, not civil matter. Accordingly, the summons was dismissed by the Registrar as an abuse of process.
The plaintiff submits that the summons was doomed to failure and, in accordance with the Registrar's decisions, the proceeding was vexatious.
By way of history, I note that Mr Rahman sought to set aside the Registrar's decision by Notice of Motion in the District Court. This was summarily dismissed by Armitage DCJ on 29 March 2012.
(f) The UTS Proceedings
The submissions of the plaintiff usefully set out the background to this set of proceedings -
"In 2009, Mr Rahman was enrolled at the University of Technology Sydney (UTS). Whilst enrolled, Mr Rahman received a letter dated 28 April 2009 advising him that he was to be temporarily excluded from using "UTS on line" for seven days while an investigation of non academic misconduct proceeded. That letter was signed by Rosalind Dubs, UTS's Registrar at the time.
In a letter dated 9 June 2009 (also signed by Ms Dubs),the UTS gave formal notification of a decision of the Deputy Vice Chancellor to impose conditions on Mr Rahman as a student.
By letter dated 10 November 2009, Mr Rahman was advised that the Deputy Vice Chancellor of the UTS had accepted a recommendation that he be excluded from the UTS for a period of 12 months, and that he receive a reprimand. This was signed by John Hartigan, Registrar (Ms Dubs no longer holding that position).
In a letter dated 30 November 2009, Mr Rahman was advised that he had 30 days from 4 December 2009 in which to lodge an internal appeal within the UTS from the decision to exclude him from the UTS for 12 months."
Rahman v Dubs (Supreme Court (NSW), McCallum J, 18 December 2009, unrep)
On 2 November 2009 Rahman commenced proceedings in this Court against Ms Dubs seeking prerogative relief, essentially to restrain implementation of the decision to exclude him for a year. However, the summons did not seek review of the relevant decision. On 18 December 2009 McCallum J dismissed two notices of motion filed by Mr Rahman, one relating to directions by Registrar Bradford and the other seeking an injunction, ordered the University be substituted as a defendant and directed that the matter proceed by way of a statement of claim. Mr Rahman was also ordered not to file any further notice of motion in the proceedings without leave. He was ordered to pay costs.
The plaintiff submits that this was a vexatious proceeding as it was manifestly misconceived and a waste of the Court's time and unnecessarily joined Ms Dubs as a party without any reasonable ground. The plaintiff contends that Mr Rahman conducted the proceedings in such a way as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
In his submissions in this case, Mr Rahman has continued his allegations against Ms Dubs, asserting "unlawful practices" of the review committee and that Ms Dubs acted "without any statutory right but chauvinistic prejudice for the retaliations of the applicant's challenges" and makes other allegations about "academic mafias". He also asserts that Registrar Bradford made "unlawful acts" and that there was "absolute judicial racism being a 'judicial 'mafia'". He further claims in his written submissions -
"The applicant claim and construe that by doing so, the Judicature, NSW has transgress the due process of law- procedural fairness, absence of constitution entrenchment , act of arbitrariness , abuse of power that has that give birth to the crime, immoral and abuse of power for the sheer ,Institutional judicial racism -a perversion for the administration of justice 'rule of law' in Australia by the 'judicial mafias' as it operated in Nazi Germany against certain social class as well as in the 'Apartheid Regime of 'Ian Botha's 'in South Africa- as judicial racism that must be restrained.
As the matter was sent to the alleged perpetrator 'McCallum J 'whom did judicial crimes under the above mentioned enactments in other proceedings mentioned the applicant reinforced the claimed of challenge ' No Confidence' for her authority' for administration of justice in this issues as claimed to be a 'Duty Judge', when the judicature authority are engaged unfair practices in the name sham procedural fairness but she refused to relinquish her authority as she did before and pronounced that all three NOM will be listed on 18 December 2009 . The applicant submitted notice for attention to the Principal Registrar for such unlawful.
13. The Judicature authority remains silent about such practices of 'Duty Judge' as by McCallum J and others when applicant submitted Motion' of No confidence' - of such planned Procedural unfairness and without International standard made verdict -dismissal of the two Notice of Motions of the 7 and 8 December 2009 and other orders by violations of statute law as transgress , tyrannical ruler ,made self -eccentric law that infringed and violated the statutory right by defying applicant's statutory submissions". [Emphasis original].
It will be seen that these submissions echo the other allegations made by Mr Rahman in response to the present proceedings.
Rahman v Dubs [2010] NSWCA 129
Mr Rahman sought leave to appeal from McCallum J, asserting a denial of natural justice as to which Hodgson JA (with whom Tobias JA agreed) held (at [2]) "[t]here is no evidence and no relevant submission suggesting any denial of natural justice." Mr Rahman also submitted that her Honour erred in substituting the University as the defendant and in ordering the matter proceed by way of statement of claim. No basis was demonstrated for supposing these orders were wrong and leave was refused with costs.
The plaintiff contends that this was vexatious as it "had no real prospects of success".
Mr Rahman in his written submissions states -
"The applicant took this proceedings in the Court of Appeal for justice that was violated -rule of law' and was determined by the Hodgson JA and Tobias JA on 28 May 2010 when for procedural legitimacy written and verbal 'No Confidence of Motion' submitted for relinquishing their authority of Quorum for such judges, but they defied for such renunciation while they left the court room and came back at the end from indoor secret meeting in the court room and delivered ex-tempore decision by Tobias J by violation, transgress , of all the applicable enactments and such jusiciability .
15. The applicant to make an end of such arbitrariness, unfairness and unlawful acts by the Judicatures of NSW for relief- justice -submitted right". [Emphasis original].
Rahman v Dubs (Supreme Court (NSW), Hidden J, 1 February 2011, unrep)
Despite McCallum J's order requiring leave before filing further notices of motion, Mr Rahman filed a notice of motion on 14 December 2010 without leave. The matter came before the Registrar, who referred the matter to Hidden J in the Duty List. Although Mr Rahman's submissions were obscure, it seems he wished to challenge the jurisdiction of the Registrar to refer interlocutory matters to a judge and of the duty judge to deal with them. He also challenged the competence and impartiality of the Registrar and McCallum J. Hidden J stated, "I say no more than there is clearly no substance in any of it ... [and the] motion is simply without foundation". The motion was dismissed with costs.
The plaintiff submits that this was also a vexatious proceeding as it was initiated contrary to a Court order and that it was doomed to fail as the matter had already been determined by the Court and the Court of Appeal.
Rahman v Dubs [2011] NSWSC 376
On 21 February 2011 Mr Rahman filed another notice of motion without leave complaining, inter alia, of the "illegitimate order" made by Hidden J, all the "unlawful interlocutory decisions made by McCallum J" and making allegations of the same or similar character to those cited above. This was unsurprisingly dismissed by Registrar Bradford with costs.
On 15 April 2011 Mr Rahman again filed a notice of motion without leave seeking to have the orders of McCallum J, Hidden J and Registrar Bradford set aside. This was referred to Rothman J as duty judge, who adjourned it as Mr Rahman was not ready to proceed. The matter was heard by Johnson J on 2 May 2011 and judgment was delivered the following day. His Honour noted Mr Rahman continued to agitate the matters that had previously been determined against him and relied on no new matter. The motion was without merit and was dismissed with indemnity costs.
The plaintiff contends that the proceeding was vexatious as Mr Rahman sought to re-litigate matters that had already been determined and did so without any proper basis or justification.
Mr Rahman asserts here that this was a challenge of "such recurring unlawful practices - violations of Human Rights and denial of 'justice by those Justices reiterate to defy such acts of 'Duty Judge' Johnson J". In relation to the hearing, Mr Rahman complains that the matter was listed at 9 but was not heard until that afternoon and that his Honour did not have the authority to do so. Mr Rahman submits -
"when nearly at 11.55 hours called for such proceedings and advised to come back again at 14.00 when the matter was listed at 09.00 hours and applicant refuted to come back again at 14.00 and reiterated 'this Court - Johnson J has no authority for such adjudications .
17. Nevertheless, the applicant came back after 14.00 hours and until 15.48 hours Johnson J called for such proceedings and the applicant challenge for such authority to be a 'Duty judge' when His Hon. failed to produce any instrument."
I note that on 30 March 2012, Mr Rahman again filed a notice of motion in the proceedings without obtaining leave. It was rejected by the Manager, Listing Services.
Rahman v Dubs [2012] NSWCA 98
On 4 July 2011 Mr Rahman filed a notice of motion in the Court of Appeal seeking to set aside the orders of Hodgson and Tobias JJA in Rahman v Dubs [2010] NSWCA 129. The grounds were articulated by Barrett JA (Meagher JA and Tobias AJA agreeing) as the failure of Hodgson and Tobias JJA to disqualify themselves as they had made or agreed in decisions adverse to Mr Rahman and were guilty of "'fraudulent judicial practice', 'erroneous trespass', 'abuse of statutes', 'judicial racism' and 'corrupt conduct'", the orders of McCallum J, subject to the same criticisms, were unlawful, the fact that only two judges heard the application for leave, and the decision were not based on the law. Each of these complaints was inevitably rejected, it being observed also that the allegations against the propriety of the judges were made without any basis whatever. The notice of motion was dismissed with costs.
The plaintiff submits that this proceeding was vexatious as it was doomed to fail and Mr Rahman sought to re-litigate matters that had already been determined without "any fresh basis or reason" and parts of it were conducted in such a manner as to annoy or harass or achieve another wrongful purpose, when he made a number of egregious baseless allegations against sitting members of the judiciary and, in respect of McCallum J, without any relevance".
Rahman v Dubs [2012] NSWSC 1065
This proceeding came before Garling J on 20 July 2012 as List Judge in relation to the summons filed by Mr Rahman on 2 November 2009. Garling J brought to Mr Rahman's attention that he had still not complied with the order of McCallum J to file a statement of claim and gave him until 4pm on 26 July 2012 to do so, standing the matter over until 27 July 2012, indicating that the proceedings would be dismissed if the direction was not complied with.
Mr Rahman filed the statement of claim on 26 July 2012. Garling J noted that the order of McCallum J relating to changing the defendant to the UTS and removing Ms Dubs was not complied with. Rather, Mr Rahman added another two individuals to the proceedings - Mr Hartigan (who had replaced Ms Dubs) and Ms Shirley Alexander. Garling J held that leave was required to add any additional parties, no such leave had been granted and the additional defendants could not be joined. His Honour also noted that the statement of claim did not comply with the Supreme Court Rules and that "large slabs" of the summons had been copied into a form that appeared to have been derived from High Court forms. His Honour commented that the statement of claim paid no attention to the UCPR, rr 14.6, 14.7, 14.8 and 14.9 and did not comply with "other more obvious requirements". His Honour ultimately found -
As was inevitable, the remaining defendants except for Ms Dubs were also removed. There was never a proper basis for joining them. The judge described the summons as -
"[12] ... a rambling hotchpotch of complaints about a wide range of matters, none of which appear to relate to the assessment, itself. The numbering is confused and it is impossible to filter out of the mass of material in the Summons just what the precise grounds of appeal might be."
Dealing with the so-called grounds of appeal, his Honour said -
"[25] None of these three grounds of appeal, so far as I can discern, raises a decision as to a matter of law arising in the assessment proceedings.
[26] But the saga does not end there."
His Honour then summarised 18 further complaints in the Summons, saying of them -
"[45] ... It is apparent from this summary of the matters set out in the Summons that the document is embarrassing and vexatious, and a clear abuse of process.
[46] There is no doubt in my mind that the Summons should be struck out on this basis alone.
[47] None of the matters to which I have referred identifies any decision, let alone any error, on the part of the costs assessor on a question relating to a matter of law that could ground an appeal under s 384 of the LPA 2004 and as presently "pleaded" the appeal is utterly unarguable and has no prospects of success at all.'
His Honour found -
"[53] ... [Really] all Mr Rahman wants to do is to re-litigate all the grievances he thinks or believes or perceives have been visited upon him by the University of Technology, by the Supreme Court, and by the costs assessment process. No doubt, in due course, the District Court will be included amongst those persons."
and concluded -
"[59] In my view the appeal never had any prospects of success and was totally hopeless from the outset. To the extent that the plaintiff sought to rely upon s 384 of the LPA 2004 in relation to an appeal as of right, such an appeal never had any prospects of success. No application was made for leave to appeal under s 385."
The summons was dismissed with indemnity costs.
The Plainitff submits that the whole of the proceedings, including the unnecessary joinder of the additional five defendants, was a vexatious proceeding as there were no prospects of success. Mr Rahman's allegations of serious offences against the parties showed that the proceedings were designed to harass or annoy them.
Rahman v Eagle (District Court (NSW), Neilsen DCJ, 2 December 2011, unrep)
On 2 December 2011, when he failed to appear, a Notice of Motion naming Mr Eagle and five other defendants Mr Rahman seeking orders related to a costs assessment made in Mr Eagle's favour was dismissed by Neilson DCJ. His Honour removed the third, fourth and fifth defendants as parties and, stating that the appeal "is both frivolous and vexatious", dismissed it and ordered indemnity costs. Mr Rahman then filed notices of motion seeking to relitigate the matter, as well as the summary dismissal. These were similar in most respects to the claims made in relation to Ms Dubs assessment.
(e) The Bankruptcy Proceedings
After obtaining a judgment following the costs assessment, Ms Dubs issued a Bankruptcy Notice and, consequential upon non-compliance, sought a sequestration order. In relation to the Bankruptcy proceedings, Mr Rahman, I think, submits in this proceeding that the Federal Court and the Federal Magistrate's Court do not have the jurisdiction to deal with these matters as they are "violations for the whole class of people who are always vulnerable". Mr Rahman also says -
"Noble Solicitors/ Counsels of Australia [social lineage of colonial backgrounds] have lost their morals and ethics in such areas of law . They never have brought such challenge what the Federal Court of Australia and Federal Magistrates Court of Australia ,- and its employee -Judges / Magistrates are engaged not moral acts but corrupt practices and such challenges under sovereignty of the Constitutions."
Dubs v Rahman [2012] FMCA 664
The application came before Raphael FM in the Bankruptcy Duty List on 25 June 2012. Mr Rahman objected to the application for a sequestration order and filed a notice purporting to state grounds of opposition and an affidavit in support. His Honour said, "Both documents are embarrassing as that term is known to the law" and ordered Mr Rahman to file and serve his grounds again. He did so but, as his Honour said, "with no greater clarity".
Mr Rahman objected to Raphael FM hearing the matter, as he was not happy with the orders previously made by his Honour. Raphael FM rejected the suggestion and also rejected his application to have the proceedings transferred to the Federal or High Court for determination on the basis that the Federal Magistrates Court did not have jurisdiction.
In relation to the new document filed and served by Mr Rahman, the Court noted that "the document is not easy to comprehend". The points distilled in oral argument were that the Court had no jurisdiction in the matter, that Constitutional issues were raised that required referral to the Federal Court or the High Court, that the debt was created in a state court and thus outside Federal jurisdiction, that the solicitors had changed their name, that the Bankruptcy Notice had not been properly served, and he wished to seek leave to appeal the judgment upon which the debt was based, this application being due to be heard on the following day. Raphael FM was, however, satisfied that there was no merit in the notice of objection and dismissed it. His Honour made the sequestration order but stayed it for 21 days to give Mr Rahman an opportunity to argue that the judgment should be set aside.
It was submitted by the plaintiff that the proceeding, despite not being instituted by Mr Rahman, was conducted in a vexatious manner so as to harass or annoy, given his application that Raphael FM should disqualify himself.
Rahman v Dubs [2012] FCA 849
On 2 August 2012, the date upon which the stay expired, Mr Rahman filed an application in the Federal Court applying for a stay of the orders made by Raphael FM "up to and including the hearing of an appeal". Jacobson J said -
"[7] Mr Rahman addressed me at great length during which he made a number of very strong, if not scandalous, allegations against the judgment creditor and the solicitors who represent the judgment creditor. He did not put anything to me today to suggest other than that the issues which he wishes to agitate on the appeal are identical to those on which he lost comprehensively before the Federal Magistrate. Notwithstanding the fact that the appeal in the Supreme Court appears to be ongoing, nothing has been put before me today to show why I ought to grant a further stay of proceedings under the sequestration order.
[8] ... It does not seem to me that anything which was put to me today shows any prospects of success on that appeal, or at least sufficient prospect to warrant the grant of a stay. I do not need to say anything about the notice of appeal, but the observations made by the Federal Magistrate as to the difficulties in understanding the documents and the submissions put by Mr Rahman apply equally to today's application."
The application was dismissed.
The plaintiff submits that this application was vexatious on the basis that Mr Rahman clearly only sought to re-litigate points that had already been determined against him by Raphael FM. Further, Mr Rahman had made serious allegations against Ms Dubs and her solicitors without evidence to support them.
Rahman v Dubs(No 2) [2012] FCA 1081
On 5 October 2012 the appeal from Raphael FM's decision on 19 July 2012 was decided by the Federal Court (Flick J). Mr Rahman had appeared unrepresented on 12 September 2012 and sought an adjournment on two grounds - being that a challenge to one or more of the underlying proceedings were still on foot and that he wished to be represented telling the Court that counsel had agreed to represent him, but was "unwilling to name the counsel". Flick J said, "with some considerable hesitation, the hearing was adjourned", so that Mr Rahman could be represented. When the matter next came before the Court on 26 September 2012, Mr Rahman was still unrepresented, but told the Court "that he was ready to proceed".
In relation to the oral and written submissions made by Mr Rahman, Flick J said -
"On many occasions during his oral submissions Mr Rahman repeated himself and the content of his written submissions. On a number of occasions he was invited to confine himself to making only new or different submissions. Even though considerable latitude should (perhaps) be extended to an unrepresented party to develop his submissions in the manner that he sees fit, Mr Rahman trespassed well beyond the boundaries of what was appropriate."
His Honour went on (emphasis original) -
"[8] The Notice of Appeal filed in this Court on 2 August 2012 fails to comply with the Federal Court Rules 2011 (Cth). The purported "Grounds of Appeal" are, to say the least, difficult to comprehend. To the extent that meaning can be given to them, it would appear that Mr Rahman seeks to contend (inter alia) that:
- Ms Dubs is "not the official of the UTS" and that there has been some form of "fraud" committed by the solicitors for the Respondent;
- there are outstanding challenges pending in the Supreme Court of New South Wales to the costs orders that resulted in the Bankruptcy Notice;
- there has been non-compliance by the Federal Magistrate with the requirements of s 78B of the Judiciary Act 1903 (Cth);
- there are matters "arising under sovereignty of the Constitutional questions", including whether the Constitution "give[s] power for the ITSA, Official Receiver and Federal Magistrate Court for such arbitration"; and
- a denial of procedural fairness.
The purported "Grounds of Appeal" extend to some three pages and the above is by no means an exhaustive account of what is there set forth. The "Orders Sought" are also difficult to comprehend. But it is understood that Mr Rahman seeks:
- an order setting aside the judgment of the Federal Magistrate, including the sequestration order;
- an order that he be awarded costs "for fixed amount ... 'as your Honour pleases' ..." under the Uniform Civil Procedure Rules 2005 (NSW); and
- the conviction of the Respondent and her solicitor pursuant to (inter alia) the Crimes Act 1914 (Cth).
It certainly does not advance whatever case Mr Rahman may have to repeat his assertions in the Notice of Appeal that Ms Dubs is a "fugitive party in these proceedings whom made false Affidavit ..." or his assertion that there has been "fraud identity and acts of crime". It should be noted, however, that such assertions find absolutely no support in any of the evidence and are entirely without merit.
[9] The confusing manner in which the "Grounds of Appeal" and the "Orders Sought" are expressed is such that the preferable course is to consider the Federal Magistrate's reasons for decision afresh. If some appellable error is discernible, the fact that an unrepresented party has poorly expressed his arguments - or has failed to identify an available argument - should not stand between him and success. Separate consideration should also be given to those arguments that can be discerned from his Notice of Appeal or the written submissions he has filed.
[10] Approached in such a manner, it is considered that the appeal should be dismissed."
As to other arguments made by Mr Rahman, the Court (at [14]) held that "no question arises as to the constitutional competence of the Commonwealth Parliament to enact the Bankruptcy Act or to make provision for the issue of a bankruptcy notice or the making off the sequestration order" and, (at [16], [18], [19]) the Federal Magistrate's conclusion that his Honour "was not satisfied that Mr Rahman had an "arguable case" and, in making the sequestration order, had committed no appellable error, indeed "it is respectfully concluded that the Federal Magistrate was manifestly correct in the order made." The Court dismissed the appeal (with costs, including the costs thrown away by the adjournment on 12 September 2012), holding (at [24]) that it was "without substance".
It is submitted by the plaintiff that this was a vexatious proceeding as the appeal clearly had no real prospects of success. It also contends that Mr Rahman, again, made a number of baseless allegations against his opponent, which had the effect of the proceedings being conducted in such a way as to harass or annoy or achieve another wrongful purpose.
Mr Rahman asserts here that there were "false notions" by Flick J in respect of the jurisdictional issue and adds -
"As mentioned in the above submissions the nature of whole spectrum of NSW Judiciary and its Officials [ except few] are in continuous practices of violations and transgress of the substantive enactments against the Ethnic citizens for favour to their social'GENOMES' -the Officials of the Government Department . They are acting as lawmaker and make laws of their whim of minds whatever He /SHE [McCallum J, P.Garling, Johson , Facferling and others and Registrar Bradford C. Deputy Registrar James Howard ] thinks for the validly for the Officials who are the perpetrators violated and acted Crimes against Humanity -are same by the Federal Court -Judicature and its Officials-Judges and Registrars...
Under the above submission it is evident that the NSW Judicature has transformed into a ' Institutional mafia' 29 and its employed judicial members (except few- Hon. David Kirby J , NSW, & Hon. Schinder J, Brisbane) as' judicial mafias' 30 and doing a continuous practices of 'crimes against humanity' as practised with the Applicant as well as other social class, ethnic and racial group against the unlawful and transgress decisions by the Officials , Government Departments , (Both States and Commonwealth) as did with the Aborigines whom took away from those classes the property, children and other belongs in favour of them in the name of justice (Document enclosed).
A continuum of crimes by Australian Judicature members -both States and Commonwealth ( except few) - are continuous in CRIMES practice against the humanity whom the applicant are not their lineage and brought proceedings under statutory rights violations by the Executives , and the Government Officials of the States and Commonwealth . And in such scenario to deal and turn away from justice 'the rule of law as the constitutions prescribes under statutes the 'Judicial mafia's such crimes in the name verdict -a practice that has given birth to a 'neo-'Jus Cogens'' a law 'Dismissed with costs' (unconstitutional compelling law by the Australia's' Judicial mafias) by abusing both Nations States Domestic law and International treaty laws.
As a Democratic Nation States Australia and the Judicature - High Court of Australia are the' guardians of the 'fundamental Universals Human rights and the issues under 'Constitutional provisions of Writs s69 Writs ' Supreme Court 1970 [NSW] and under s75(v) : of certiorari, mandamus , habeas corpus. Injunctions , prohibitions , 'Commonwealth of Australian Constitution Act ' 1900 Civil court , and impartial treatment of ethnic and racial group and even international agreements that are designed to protect human rights under the International Covenant on Civil and Political Rights (ICCPR), one of the main international human rights treaties, and as such has failed to protect its citizens and exposed to in great vulnerable of danger for such -penalisation - as per se / pro se 'Unrepresented Applicant 'Dismissed ' and Dismissed with costs' when violations has occurred by the judicial mafias. In 1990 Australia acceded to the First Optional Protocol to the ICCPR, which allows individuals to take complaints about violations of their human rights to the UN Human Rights Committee against the perpetrators- responsible for commit crimes as mentioned.
The Applicant made submission on 25 May 2011 to Hon. Spigelman, Ex-Chief Justices, Attorney-General Greg , Governor, NSW to address of such Offences each of which is called a crime under s8 (1) (a) (b) (c) ICCA Act 1988, S31 ,s32 & s34 Crimes Act 1914 and Division 268 .1 (1) (2) (3) and 268.2 (2) and (4) Criminal Code Act (Clth) 1995 and International Criminal Court Act -2002 'Crime against humanity and crime against the administration of the justice of the International Criminal Court' for the abuse of covenant of Human rights against the Judicial officers under s3 Judicial Officers Act 1986 (NSW): as mentioned above , and the Registrar Bradford in the 'Civil Claim' Administrative Law, under statutory right s69 -Writs- Supreme court for the above violations as well as 'Neo-holocaust ( non white lineages) 'of all the applicable statutory enactments of NSW and Commonwealth Legislations of the proceedings above 'constitute fundamental breach of the principles of Rule of law'- The natural justice that has been violated by those Officer that has given birth - injustice , crimes under acts mentioned and judicial bias -judicial racism' by the judicial mafias of Supreme Court of NSW must be restrict, restrained and restraining order be made for the applicant and other citizens - (for all Ethnic Australians) under Internal Criminal Court Act ( Ratified as Nation State )for the true administration of justice under International standard order be made and therefore for its relief accordingly.
As it is evident all the above decision by the those 'Quorum of Judges' ' JUDGE in the High Court and Supreme Court ' are of the violation and breach of 'procedural fairness and rules of law the Supreme Court of NSW as well as High Court of Australia as it is established that those Judicial mafias has hijacked the Justices and engaged in taking the life , wealth and property of the Ethnic Australian whom sought justice for the cause of unlawful acts by those white lineage but in the name of justice take away property, from them , incarceration for default of payment , or any other hardships and render into homeless , property less ,breaking of families and children , other social norms of customs and bereft them from happy life but enormous tragedy living in a country whom - Government declares for Australia 's Democratic ethics by ratified the International Treaties for human dignities but Judicial members [ except few] are in continuous practices of 'Crimes against humanity; as they did by the Nazi to its Jews - Holocaust .
Likewise Australia is in constant practice of 'Neo -Holocaust against its Ethnic Australian ' [' when there no law as like the s 127 [ Aborigines not to be counted as citizens) and Aborigines - (Stolen Generations- by the Judges , Supreme Courts [States] and High Court of Australia , Commonwealth Government in disguise through its Judicature members(s) [ whom employment are racial and without transparency but political motives] since long time Specially Supreme Court and High Court engaged by such crimes against the domestic law and International Human rights covenants and other International law by breaching and transgress as a neo-holocaust and it must be arrested without impunity and thereby relief for the victim -Ethnic Australian by the International Criminal Court under statutes.
Such a neo- holocaust as devised and are in practises by the judicial mafias of Australia as did by the Nazi Court of Germany to penalise the non-German ethnicity -Jews and consequent holocaust and for the Aborigines -Stolen Generations' by the Regimes - inhuman crime against humanity, when Hon.Spigelman , Ex-Chief Justice , Supreme Court, NSW (Resign on 30 June 2011) is one the survivor of such holocaust remains silence when knowing every affairs within his jurisdictions as being Chief of the Judicature NSW Supreme Court as well Hon. Robert Fanchis, Chief Justice High Court, as appointed by the Labor Government - after retirement of the Hon.Gleeson CJ as Political principles and as transparency.
Long time spans of time the Australian Judiciary has compounded that 'sin' / transgression [unlawful decisions without statute] by legitimising all the acts of the Executive -Departmental Officials who took law in to their own hands- a decisions based not on points of law- ' but a frightening signal from the Australian judiciary'.
As it is evident that Gregory .Smith, A.G, the Applicant has totally failed and frustrated His Ministerial responsibility- as Attorney-General, for the Good Government of Liberal' for the 'Administrations of Justice'. But on the contrary he has applied ' A declaratory relief' against the Defendant to infringe' the Right' Justice -Human Dignity - under International covenant for an Ethnic minority , having different social, cultural and education background- doing a Juris Doctor, Post -Graduate , Law, UTS [ to qualify for Solicitor / Barrister ] having profound knowledge and skills in Administrative law, Constitutional Law, International Law, Human Rights Law and Jurisprudence.
But His Hon.G.E.Smith ,Attorney-General is seeking a 'significant curtailment of a citizen's right; whom the order is sought in good faith against the Defendant(s) proceedings from Judicature members who are in practices of:' 'jus cogens 'discretions by not obedient to the 'rule of law' for binding norms of adjudication -Jones v Skyring (1992) 109 ALR 303 at 306 ,Toohey J-High Court Rules 0.36 rule 6(1)
In submitting such Dictum of Statutory and substantive law' the Defendant is seeking order for himself and on behalf of common citizens of the Australia [whom have constrain of access to the judiciary is such right issues] that Your Hon will frustrate and prohibit such notions of ' encroachment of Human Dignity ' by Gregory Smith for serious crimes of concern to the Defendant and, other Ethnic Citizens of distinct educational, socio-cultural and religious affiliations and as well did with the Aborigines by Australian Judiciary for centuries - Crimes of 'Stolen Generation' legalise for penalty and took over their wealth , pecuniary and property ownership by the Judiciary's' identical pronouncement / judgments are nothing but absolutely crimes as well as to the whole international community". [Emphasis original].
Rahman v Dubs [2013] HCASL 23
On 1 November 2013 Mr Rahman applied for special leave to appeal from the judgment of Flick J. Amongst other things, the application states -
"The judgment Order as made by the FLICK J on 5 October 2012 are the violation of the' Legality of Party' in these proceeding - Respondent ' Rosalind v Dubs 'is of FRAUD" identity as claimed 'Non - Executive Director' C/ Norton Rose, Australia , is ' misnomer' ( a Simile like 'Hobo or Immoral woman') having no 'Permanent Residence' for legal correspondence , in Australia . But R V Dubs under care of an Agents' -Paul Baram, who is also under 'cover of fraud identity. Both of them are engaged in 'Crimes 'as perpetrator under both State (s) and Commonwealth Crimes Act" .When evidence of Judgments were made by the Judges of the NSW Supreme Court and Court of Appeal for'Fraud Respondent-RV Dubs,and thereby order sough for penalty -s327- liable to imprisonment for 10 years but was denied as discretions.
...
But His Hon. FLICK J, made wrong order as favour toward the Respondent RV Dubs,-DOC18, as of 'discretions' by not obedient to the 'rule of law as liable for penalties for -Conviction, imprisonment s327-Perjury, s329,s333 -subornation of perjury - is liable to imprisonment for 14 years under Crimes Acts for crimes of 'FRAUD' as perpetrator, DOC.Y and DCOC.Z". [Emphasis original].
Since the decision on the application was given after the hearing in this matter concluded, I have not given it any consideration. However, I think I am entitled to consider this application with all the other material given that Mr Rahman, in his written submissions in this Court, referred to the case, submitting that Flick J had erred in respect of the Constitutional issues he had raised and alleging fraud by Ms Dubs. The application for special leave is all of a piece with the other documents created by Mr Rahman in complaining about the decisions of the courts which are adverse to him and shows a consistent attitude both to those decisions and the response which he believes he is entitled to make respecting them.
Discussion
I bear in mind the considerations to which Davies J referred in Gargan, quoted above, in particular the caution with which the issue of making vexatious proceedings order must be undertaken. The three main elements here relied on by the plaintiff are the habitual, frequent and persistent undertaking of proceedings which were "an abuse of process" and or "instituted or pursued without reasonable ground" (vide s 6(a) and (b)) and proceedings which were "conducted in such a way as to harass or annoy, cause delay or detriment or achieve another wrongful purpose" (vide s 6(d)). In relation to the last of these, the plaintiff has pointed to the scandalous and baseless allegations he has made of both judicial officers, and persons involved in the litigation he has instituted. This habit has continued its expression in the submissions made by Mr Rahman in the present proceedings. Whilst I do not doubt that, so far as the non-judicial persons against whom such allegations were made would have been likely to harass and annoy them and, I think, intentionally so, I would not make such a finding in respect of judicial officers, whose duty is to disregard such calumnies though no doubt with the irritation that the introduction of baseless or irrelevant material creates.
I take into account that Mr Rahman has come to this country, as I understand it, when he was an adult and might therefore have some difficulty in understanding the legal system. Although it is obvious that English is not his first language, he is quite fluent, has a substantial vocabulary and, though the formulation of his notions is somewhat disorganized, he is well capable of conveying the thrust of what he wants to say. I am quite satisfied that he understands fully what he says and what is said to him. I have given careful consideration to whether his possible ignorance of the legal system and difficulty with language provides any explanation or possible excuse for his frequent unsubstantiated allegations, insults and abuse. Making every possible allowance, however, I have concluded that neither of these factors have played any significant role in his conduct or the substance of his contentions.
It is clear from Mr Rahman's submissions in this proceeding that he still considers, as stated above, he was entirely justified in undertaking the proceedings which form the basis of the plaintiff's application and, moreover, making the allegations to which I have referred. I should, in all justice, make the point that not only has he never produced the slightest iota of evidence to prove these allegations, the record shows that he has consistently been treated with patience and courtesy. Whether he actually believes the allegations does not matter very much. He is clearly unwilling to accept any adverse decision made by persons having statutory or judicial responsibilities and refuses to accept the finality of litigation.
In my view it is plain, when the course and character of the proceedings undertaken by Mr Rahman is considered at as a whole, that he has persistently undertaken proceedings which were bound to be futile as they had no proper basis either in law and fact and, to bolster his cases, has resorted to allegations of corruption, bias and incompetence. He is unable, or unwilling, to accept that any view other than that for which he contends can be correct and has continually attempted to bypass adverse decisions by commencing fresh proceedings dealing with the same issue.
Mr Rahman's abuse and manipulation of the system of justice has resulted in the incurring of substantial costs by those who have been unfortunate enough to have fallen afoul of his interests or indignation. Though costs orders have been made (leaving aside orders for indemnity costs), it is obvious that the entire expense of resisting his claims cannot be recovered. Further, other costs in time and trouble are simply thrown away. There has also been a massive waste of judicial resources in dealing with his futile claims.
I take into account, of course, that granting the orders sought will present a significant obstacle for Mr Rahman in obtaining access to the courts and tribunals of this State. However, this follows from the appropriate application of the Act in his case. All these cases present issues of degree. There is no bright line that marks the boundary indicating that a litigant has acted vexatiously. In this case I have reached the conclusion, which I think is inevitable, that Mr Rahman has habitually and persistently instituted and conducted proceedings that are an abuse of process and have been conducted without regard to the real issues. Furthermore, it is evident from his submissions in this case that he has no insight into his behaviour and no intention of changing his approach to the institution or conduct of proceedings.
Conclusion
The orders of the Court are as follows -
(1) Mr Rahman is prohibited from instituting proceedings in New South Wales without first obtaining leave of the Court;
(2) no further steps are to be taken by Mr Rahman in any proceeding already instituted by him in New South Wales without leave of the Court;
(3) all proceedings already instituted by Mr Rahman in New South Wales are stayed pending leave of the Court to proceed;
(4) the defendant is to pay the plaintiff's costs.
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Decision last updated: 11 February 2014
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