Mahmoud v Sutherland and Anor

[2013] HCATrans 48

[2013] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S309 of 2012

B e t w e e n -

TOSSON MAHMOUD

Applicant

and

VINCENT SUTHERLAND

First Respondent

DISTRICT COURT OF NEW SOUTH WALES

Second Respondent

Summons for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 14 MARCH 2013, AT 10.01 AM

Copyright in the High Court of Australia

MR T. MAHMOUD appeared in person.

MR V. SUTHERLAND appeared in person.

HER HONOUR:   Yes, Mr Mahmoud.

MR MAHMOUD:   Yes, I would like to start by very important things, that I am entitled not to take any risk of being exposed to injustice and to make sure that justice will take its course, given that I do not know and I cannot be for sure what runs in the mind of the judiciary officers, and this means ‑ this is an introduction to say that I must alert the Court that this man always comes - for three years - with underarm crutch appears, acting, pretending to be incapacitated.  Please, if you will just let me finish.  This can bring some influence in the Court.  You might argue that this has no influence on you, but you must understand, as a person litigant I cannot be sure of this.  That is why I have to submit – to seek justice – this document.  It explains that phenomena of the misleading underarm crutch appear to influence the Court and to ask for its sympathy or whatever evil purpose that man has.

HER HONOUR:   Mr Mahmoud.

MR MAHMOUD:   Yes.

HER HONOUR:   Are you seeking to place before me a document setting out some concerns respecting the first respondent, Mr Sutherland?  Is that what I am to understand from ‑ ‑ ‑

MR MAHMOUD:   Yes, there appears in the Court, which is a criminal offence, contempt of Court, about the crutch appearing, your Honour; this affected ‑ ‑ ‑

HER HONOUR:   I do not propose to receive the document, Mr Mahmoud.  Now, may we return to ‑ ‑ ‑

MR MAHMOUD:   Can you give us a reason please, because I am just…..help me…..stress this thing to safeguard myself against any possible injustice.  This man is acting for three years and I see him all the time without any crutch appearing…..comes to the Court…..incapacity.

HER HONOUR:   Mr Mahmoud, court proceedings are subject to a privilege which is not to be abused.  I do not propose to allow this proceeding to become a forum for ventilating allegations critical of the first respondent or of any other person.  Rather, I intend to deal with the matter that is listed before the Court today.  That is a summons by which you seek to have reinstated an application for special leave to appeal against certain of the orders made by the Court of Appeal.  Now, on the last occasion this matter was before the Court a question was raised respecting your status as an undischarged bankrupt and the Court directed you to notify your trustee in bankruptcy of the proceedings.  Have you done that?

MR MAHMOUD:   Your Honour, in answer to your questions, there were actually two orders.  One, this order you have just said was order No 2, and order No 3 was to consider the words I used in my application for special leave.  Regarding these two points I have prepared an extensive document to answer your question on these two orders, and this is a document consisting of five pages, and at the end of it I am requesting the disqualification of Justice Heydon from having anything to do with my case in the High Court.  So, I would like to hand this…..question in five pages which explains everything about the orders and what happened to them and why and whatever, instead of just speaking, wasting time - reading saves everybody’s time.

HER HONOUR:   Mr Mahmoud, do I understand you wish to place a document before me in support of an application that Justice Heydon be disqualified from the further hearing of proceedings on your application for special leave to appeal?  Is that right?

MR MAHMOUD:   No, excuse me, your Honour, this is not right.  What I have said in just really part of the document.  The document basically answers your questions about my response to the second and the third order of Justice Heydon.  This is what the document is about.  But I do not want the document to be just ‑ ‑ ‑

HER HONOUR:   I will ask you to pause for a moment.  There seems to be a difficulty with the recording of the proceedings.  Mr Mahmoud, there has been some difficulty with the recording mechanism of the proceedings.  You would have noticed a moment ago my microphone appeared to cut out.  I have been advised that when my microphone is not working the proceedings are not being correctly recorded.  I am mindful that you have in the past been concerned about the accuracy of the recording of proceedings.  At the moment my microphone appears to be working and I propose to continue with the proceedings.

MR MAHMOUD:   Sure.

HER HONOUR:   If there is a difficulty I will reconsider that position.  Mr Mahmoud, I do not intend at this stage to receive the document to which you have referred.  I would rather you simply answer my question, which is directed to the order No 2 made by Justice Heydon on the last occasion, and that is simply to inquire whether in compliance with the order you did notify your trustee in bankruptcy of the proceedings.

MR MAHMOUD:   Your Honour, I must say that given your statement just now I am denied natural justice, I am being dealt with in bias because my full answer, which does set everything clear, you are refusing to receive it and you prefer only to say it orally and this is not reasonable in any reasonable mind who can think about justice.  So, this, I recorded that the second order says, “The applicant notify his trustee” ‑ and this is the answer to your question ‑ the second order, “The applicant notify his trustee in bankruptcy of these proceedings and files a document indicating the trustee’s attitude to them”.  This is a text of the order made by Justice Heydon on 11 February 2013.

The answer of the applicant is as follows.  That order has been fulfilled about two years ago when this case of my application of an APVO was running in the other lower courts.  Vincent Sutherland has contacted the trustee of bankruptcy many times and tried as hard as he could to get the trustee in bankruptcy involved in my case and to take whatever action against my case, but the trustee in bankruptcy always refused to intervene in my case.  It has been explained many times to Vincent Sutherland that the trustee in bankruptcy does not intervene in any APVO case, that an APVO case is about an application by Tosson Mahmoud against Vincent Sutherland seeking an APVO for the protection of Tosson Mahmoud, that such a case has nothing to do with the trustee in bankruptcy and has nothing to do with the Bankruptcy Act 1966.

HER HONOUR:   Mr Mahmoud, I am just going to interrupt you for a moment.  I understand from that that the matter that you raise by way of answer to my question is that you understand that the trustee in bankruptcy is aware of these proceedings; secondly, you contend that the proceedings are not an action for the purpose of the Bankruptcy Act in that the proceedings in the Court of Appeal were proceedings by way of judicial review of proceedings in the District Court having a quasi‑criminal character, namely, an appeal from the refusal of a magistrate to issue an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007. Is that the position?

MR MAHMOUD:   Your Honour, with respect to you, you have acted actually now beyond your jurisdiction because your jurisdiction does not allow you to stop me explaining and fully answering your question.  I did not fully answer the question, you did not allow me to fully answer the question, you interrupted me and concluded on only partially the text of the answer and that is a severe injustice to me and I resent it very much and I complain about it and I ask you to review your decision not to let me complete my answer to your question.

HER HONOUR:   I do not intend to afford you that opportunity, Mr Mahmoud.  Perhaps it would assist if I drew this to your attention.  I understood from as much of your answer to my question as you stated that you were raising that the permission or attitude of your trustee in bankruptcy to the maintenance of an application for special leave to appeal, were that application to be reinstated, would not be necessary…..it would not be necessary ‑ ‑ ‑

MR MAHMOUD:   I understand.

HER HONOUR:   Mr Mahmoud, there is a difficulty with the recording of the proceedings.  I will just see if some – I understand that it may be necessary to reset the mechanism.  What I am going to do, Mr Mahmoud, in light of the concerns that you have in the past expressed, I am going to go off the Bench for a short time to permit the officer to reset the equipment.  Do you understand?

MR MAHMOUD:   Okay, sure.

HER HONOUR:   Yes.  Very well, I will adjourn.

AT 10.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.36 AM:

HER HONOUR:   I am informed that the difficulty has been rectified.  Mr Mahmoud, to return to the matter that was the subject of your submissions just before that brief adjournment, I should draw this to your attention.  I have given consideration to the provision of the Bankruptcy Act which operates to stay an action commenced by a person who subsequently becomes a bankrupt. This is the provision of section 60(2) of the Bankruptcy Act 1966 ‑ ‑ ‑

MR MAHMOUD:   Excuse me, I would like to record this again ‑ section?

HER HONOUR: Section 60(2) of the Bankruptcy Act.  My provisional view, subject to anything that Mr Sutherland wishes to put to me, is that the

proceedings that are the subject of your proposed application for special leave to appeal are not an action within the meaning of that subsection and

that nothing in that subsection or in other provisions of the Bankruptcy Act requires the consent of your trustee in bankruptcy to the continuation of the proceedings.  Do you understand that?

MR MAHMOUD:   I do understand, but because of the importance of your statement if you kindly please repeat it again because I would like to record it.

HER HONOUR:   I do not propose to do that.  What I propose to do is to ask Mr Sutherland if he wishes to make any submissions to me on that topic, all right?

MR MAHMOUD:   I did not finish my answer, your Honour.

HER HONOUR:   Mr Mahmoud, I will control the conduct of the proceedings.  A preliminary issue raised, as I understand it, in consequence of a submission filed by Mr Sutherland on the last occasion, concerned your status as an undischarged bankrupt.  My provisional view is favourable to you on that topic.  I intend to seek Mr Sutherland’s submission, if any, on the matter and I will then determine that preliminary issue and we will continue.  You will take a seat at the moment.

Yes, Mr Sutherland, I do not know how much of that exchange you have followed.  Let me take it through step by step with you.  I understand that you raised as an issue for the Court to give consideration to, that the applicant is an undischarged bankrupt.  It is certainly the case, Mr Sutherland, that actions of many kinds are stayed under the Bankruptcy Act where a person becomes bankrupt and it then becomes a matter for the trustee to determine whether or not the proceedings are to be continued.

The proceedings that are the subject of the applicant’s application are proceedings which, it seems to me, are not covered by those provisions of the Bankruptcy Act, the reason for that being the proceedings in the Court of Appeal were administrative law proceedings reviewing the legality of the conduct of proceedings in the District Court.  Those proceedings were proceedings in the criminal jurisdiction of the District Court arising out of a magistrate’s refusal to issue an apprehended violence order against you and in the applicant’s favour.  Proceedings of that character do not seem to me to be covered by the provision of the Bankruptcy Act to which you have heard me make reference.  Do you wish to be heard on that topic?

MR SUTHERLAND:   I wish to stress that I did not graduate in law so I do not fully understand every detail of what you are trying to get across.  My original purpose in bringing the matter of bankruptcy to the Court’s attention was in relation to the costs.  I have had costs awarded against Mr Mahmoud of around four and a half thousand dollars, which in terms of interest is probably about $6,000 by now, and I understand in my lay capacity that as an undischarged bankrupt he would have a requirement under law, presumably, to get the trustee’s permission to take on a new likely debt.  That was the reason behind my reference ‑ ‑ ‑

MR MAHMOUD:   Objection, your Honour, there is something wrong here.  A wrong statement – false statements made.  It is ordered by the court not to make me pay the costs.  He refused to tell you the truth about that.  Order by the Court of Appeal to say Tosson Mahmoud is not to pay those costs ‑ ‑ ‑

HER HONOUR:   Mr Mahmoud, I will ask you not to interrupt.  You will note that Mr Sutherland paid you the courtesy of not interrupting when you were speaking.  I will also note that I have read in full the judgment of the Court of Appeal and I am familiar with the orders that were made.  I am sorry, Mr Sutherland. 

Now, may I say, Mr Sutherland, there is no criticism of you for drawing the matter to the Court’s attention.  At the moment I am simply concerned to address, as a preliminary issue, whether there is utility in my hearing Mr Mahmoud’s application to reinstate a special leave application.  There would not be utility if he required the consent of his trustee in bankruptcy and he did not have that consent, but as I apprehend the matter, he does not require that consent.  I am simply raising the matter with you in case you wish to put some submission to the contrary.

MR SUTHERLAND:   As a layman, I am not quite sure how to respond there.  I presented my case before to you that it was a question of costs, right.  Now, I understood that if Judge Heydon would have understood the point I was putting to him about ‑ Mr Mahmoud should get the permission of the trustee to engage in an action which is likely to increase a debt.  Now, if what I said had nothing to do with it, Justice Heydon would not have made his order, I presume.

HER HONOUR:   Yes.  Mr Sutherland, I wonder if I might just draw this to your attention.  The proceedings at the moment are an application by Mr Mahmoud to reinstate his application for special leave to appeal against a part of the orders made by the Court of Appeal.  It is an application that in the ordinary course would be dealt with under provisions of the rules of the High Court governing applications for special leave brought by people who are unrepresented.

In such a case the application does not, in the first instance, involve the service of the application on the responding party or parties.  The application is considered by two Justices and the Justices determine whether

or not the application will be served on the responding party and proceed to a determination, having heard from the respondent party, or the Justices determine that it is not a suitable matter for the grant of special leave and direct that it be dismissed, in which case the responding party incurs no costs and knows, in essence, nothing of the application.  It has not been served on them.  It has been dealt with in that way.  Do you understand?  The matter that I am raising with you is your consideration of costs may well be ‑ ‑ ‑

MR SUTHERLAND:   That is all, yes.

HER HONOUR:   ‑ ‑ ‑ somewhere premature.  This is a matter for consideration somewhat further down in the course of proceedings.  I say that to you not to indicate any view about the merits or otherwise of the application that is sought to be reinstated, but simply to draw to your attention that the question of costs, in relation to the application itself, may be thought somewhat premature.  Do you understand?

MR SUTHERLAND:   Yes, I understand the question of leave to appeal is a different matter, and I also would like to point out that if Mr Mahmoud had put in these details, to my attention and to the Court’s beforehand, I would have had a greater chance to think about it, because as a layman I might want to discuss some of those things.

HER HONOUR:   All right.  Well, thank you, Mr Sutherland.  Now, I will return to Mr Mahmoud.

MR SUTHERLAND:   Thank you.

HER HONOUR:   Mr Mahmoud, the second aspect of the orders made by Justice Heydon on the last occasion invited you to give some consideration to certain paragraphs in your special leave application.  Have you done that?

MR MAHMOUD:   Your Honour, in answer to your question, yes, I did do that in writing, and because of the very serious nature of that specific order which may or may not lead to refusal of my application for special leave on the ground of causing embarrassment, that is why my original text in reply specifically to safeguard the justice in my favour, it is written here, the point I made in response to that specific order of Justice Heydon.  Now, I request from your Honour to accept this document answering in full the question about the further order which on page 2 in my document says:

the applicant reconsider the allegation against the Court of Appeal, Magistrate Heilpern and those responsible for the transcript in the Local Court which are made in his application for special leave to appeal. 

The applicant, that is myself, responding at number 3, 4, 5, 6, 7, 8 in details, and 9, and 10 as well as number 11.

HER HONOUR:   Mr Mahmoud, I take it from that response that you have given consideration, as Justice Heydon asked you to do, to the paragraphs in your special leave application to which he directed your attention.  That is so?

MR MAHMOUD:   Your Honour, I must say not precisely, because the nature of the order is such as to suggest that it seem better ‑ it is in my favour to make an amendment application, it means the wording of the order or the nature or the spirit of the order means that I must respond to clarify my position as to show the Court why I say causing me embarrassment is not to be taken into account in this area, so ‑ ‑ ‑

HER HONOUR:   Mr Mahmoud, do you make an application in the event you are given leave to reinstate your special leave application to amend it in any way?  Do you make that application or not?

MR MAHMOUD:   I say I could not fully comprehend the question.

HER HONOUR:   I will say it again.  In the event you are given leave to reinstate your special leave application do you ask for leave to amend it, to amend the application?

MR MAHMOUD:   Your Honour, with respect to you, the question is premature, does not touch on this issue.  That issue – the question is – I object to the nature of the question, your Honour, and I must say at this stage the position I am in is as follows.  I am confronted with the High Court telling me directly or indirectly we are not just – we may not be just happy – excuse me, your Honour ‑ we are not be just happy with your wording, I must – your Honour, the fundamental principle of justice, I have the right to be heard, and if you refuse this submission then this means it is a blow to the fundamental principle of natural justice.  I must defend myself on this possibility of my application for special leave being rejected on the ground of causing embarrassment and so on.  I am not allowed to defend myself on this point; this is the issue, your Honour.  The order ‑ ‑ ‑

HER HONOUR:   Mr Mahmoud, I do not propose to have you develop this present submission at any greater length.  Instead I take your response to my question to be that you do not propose to ask that your application be amended and I will treat the matter upon the basis of an application to reinstate proceedings S309 of 2012.  Now, can you tell me this?  You filed an affidavit on 26 November last to which you attached a number of

documents, including copies of reports from Dr Dino Fattore.  Do I take it you rely on your affidavit in support of the relief that you claim in the

summons, namely, that the Court reinstate your application, taking into account the material annexed to your affidavit concerning your health?  Is that the position?

MR MAHMOUD:   Exactly, your Honour.

HER HONOUR:   Just one moment, thank you, Mr Mahmoud, I am going to ask Mr Sutherland.  Mr Sutherland, have you seen Mr Mahmoud’s affidavit?

MR SUTHERLAND:   Last November?

HER HONOUR:   Yes.

MR SUTHERLAND:   Yes, I have seen that.

HER HONOUR:   Yes.  Do you have any objection to any part of the affidavit?  I am not suggesting you should have, Mr Sutherland, I am asking you if ‑ ‑ ‑

MR SUTHERLAND:   I cannot remember in detail now because I did not think this would all come up again like that.

HER HONOUR:   Mr Sutherland, Mr Mahmoud, in his affidavit, says that at the time when attention should have been given by him to the preparation of his written case in accordance with the Court’s rules he had a serious health condition and he had been advised by his doctor of the need to rest and to avoid stress.  In support of that claim he annexes to his affidavit copies of reports by Dr Fattore which would appear to support that assertion, namely, that in November 2012, by reason of his cardiac condition, he was not in a fit state to be attending to matters such as the preparation of legal documents for filing with the Court. 

Mr Sutherland, in the ordinary course, given evidence of that nature, the Court would be inclined to dispense with the requirements of the rules respecting time and give a person who was shown to be sick an opportunity when well to attend to matters, do you understand?

MR SUTHERLAND:   Yes, your Honour.

HER HONOUR:   Do you wish to put anything to me as to why I would not adopt that approach in this case?

MR SUTHERLAND:   So that he can put in an amended submission about the points that Justice Heydon asked him to reconsider?  Is that the reason?

HER HONOUR:   No, Mr Sutherland.  His application is simply to reinstate an application for special leave to appeal.  The reason that the application was deemed to have been abandoned was because of a failure to comply with a timetable that is provided under the rules.  There is, if you like, a rigid cut‑off date and that cut‑off date was 21 November last year.

Now, as I have, I think, indicated to you in the course of this exchange, Mr Mahmoud has produced some evidence to show that he was unwell at that time.  Ordinarily, that would be a proper basis for granting the indulgence of dispensing with the time requirement, reinstating the application, then requiring Mr Mahmoud to comply with the rules and to file what is called a written case.

Having done that, the application would be referred to two Justices to consider its merits.  I understand, from submissions that you filed on 7 February this year, that you contend no indulgence of the sort that is sought by Mr Mahmoud should be granted to him because you contend the application is one brought to harass you and is vexatious and without substance.  Do I put it fairly?

MR SUTHERLAND:   Yes, your Honour.

HER HONOUR:   Well, now, Mr Sutherland, I express no view about whether that is right or not, but the matter that I draw to your attention is the matter that I raised earlier with you when you expressed some concerns about legal costs that you might be put to, and the matter that I drew to your attention was that the Court rules provide, in the case of an application for special leave to appeal, for that matter to be referred to two Justices before the application is served on the responding party.  So, before any question of any costs might be occasioned by the responding party the matter is referred to two Justices.

In the event the Justices were to consider that an application was an abuse or wanting in merit, in the way you invite the Court to find it is, the Justices have the power to direct its dismissal and no question of costs is occasioned because as I indicated to you the matter in the ordinary course would not even come to the attention of the responding party.  All that Mr Mahmoud is seeking is to have the opportunity to submit his written case and have it dealt with in accordance with the High Court Rules relating to such applications brought by unrepresented parties.  Do you understand?

MR SUTHERLAND:   Yes, your Honour.

HER HONOUR:   Do you wish to make any submission to me as to why I should not, in light of the evidence concerning the reasons for Mr Mahmoud’s failure to comply with the Court Rules on the last occasion,

why I should not reinstate his application so that it can go forward and be considered in the usual way?

MR SUTHERLAND:   Well, as I understand it, Justice Heydon asked him to reconsider his comments about judicial officers and I understood that this probably meant that he had to put in an amended submission.  Now, Justice Heydon gave him over a month to do this.  If the matter concerns that I feel he has had sufficient time, but other than that I will just have to accept your judgment, your Honour.

HER HONOUR:   Thank you, Mr Sutherland.

MR SUTHERLAND:   I am not qualified enough to understand all the details.

HER HONOUR:   Mr Sutherland, in response to the last matter that you raised, Justice Heydon invited Mr Mahmoud to reconsider the identified paragraphs in the application.  I infer from the things that Mr Mahmoud has said to me this morning that he has given consideration, as Justice Heydon directed him to do, to that matter, but that he is not seeking to take advantage of any opportunity to amend, but rather he wishes the Court to consider the application as filed.  In the circumstances, Mr Sutherland, subject to anything further you wish to put to me, I am inclined to treat the application as it is.  Do I understand there is nothing further you wish to put?

MR SUTHERLAND:   No, I have to accept your judgment there, your Honour.

HER HONOUR:   Thank you, Mr Sutherland.

MR SUTHERLAND:   Thank you.

HER HONOUR:   Yes, Mr Mahmoud, in light of the material that is annexed to your affidavit, affirmed on 26 November 2012, I am disposed to accede to your application to reinstate the application for special leave to appeal and I have in mind to give you 28 days in which to file your written case in compliance with the Court rules.  Is there anything further you wish to put?

MR MAHMOUD:   Just a little concern, if you allow me please.  I am still worried or not really clear in my mind about the Court not receiving my response to the third order about the changing of the words, but I may put it

later to Court, but I am just expressing my concern and worries, but it seems that your decision does not affect much that situation for the moment, but just only I wanted to draw attention to you just in case you would like to make any comment about it to clear my worries.

HER HONOUR:   I have no intention of making any comments about the matters that have been the subject of exchange this morning, Mr Mahmoud.  I consider that my reasons for making the orders that I am about to pronounce are sufficiently clear from the exchanges that have occurred and, for that reason, I do not see the necessity or desirability to give reasons for acceding to your application.  As I have said, they are sufficiently clear from things that have already been said, both in my questions directed to you and to Mr Sutherland.  In the circumstances, and in light of the contents of the reports annexed to your affidavit, I make the following orders ‑ ‑ ‑

MR MAHMOUD:   Make it ‑ sorry, in six weeks ‑ only a little request.  Instead of four weeks, is it possible six weeks - that is all, before you make the order?  Within six weeks instead of four weeks?

HER HONOUR:   Mr Mahmoud, do you wish to put before me any further evidence that would support the extension to six weeks?

MR MAHMOUD:   It is only just that – vulnerability of my health that it may just cause something, but just it is to put me in the safe side to make sure that I am given enough time, but this is as much evidence I can give.  Just six weeks, it makes me feel comfortable just in case, despite the fact that I – yes, that is what it is.  I mean, just makes me feel more comfortable, just in case something happen and I need more time or something.

HER HONOUR:   Well, Mr Mahmoud, four weeks in circumstances in which you have already had a number of weeks to reflect on this matter, including the month since the matter was last before Justice Heydon, during which it is evident to me you have given further thought to your proposed application, in those circumstances I do not consider it reasonable to give you a further indulgence.

The orders that I make are as follows:

1.Application for special leave to appeal in proceedings S309 of 2012 is reinstated.

2.The applicant is to file his written case within 28 days of today.

The Court is adjourned to 9.30 am tomorrow in Sydney and 9.30 am tomorrow in Canberra. 

AT 11.08 AM THE MATTER WAS CONCLUDED