Mahmoud v Sutherland and Anor

[2013] HCATrans 8

[2013] HCATrans 008

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

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 11 FEBRUARY 2013, AT 9.32 AM

Copyright in the High Court of Australia

MR T. MAHMOUD appeared in person.

MR V. SUTHERLAND appeared in person.

HIS HONOUR:   You want an adjournment, Mr Mahmoud?  On what ground?

MR MAHMOUD:   Yes, I have two document to hand you, please, because he only served me yesterday.  He should have served me ‑ ‑ ‑

HIS HONOUR:   Mr Mahmoud, just answer my questions.  On what ground do you want an adjournment?

MR MAHMOUD:   This is – everything is in here, sir, the submission and the ground and the short minutes of orders.

HIS HONOUR:   Has Mr Sutherland seen these documents?

MR MAHMOUD:   I will give him a copy of what I have given you. 

HIS HONOUR:   Can I ask you this question, Mr Mahmoud?  Are you a bankrupt?

MR MAHMOUD:   Yes, but ‑ ‑ ‑

HIS HONOUR:   Just one moment, are you an undischarged bankrupt?

MR MAHMOUD:   I am an undischarged bankrupt but the statement of affair has not been given and I was told by the trustee that my bankruptcy did not start yet.  That is what I was told, since 2005.

HIS HONOUR:   What I am going to do is this, Mr Mahmoud.  I am going to adjourn these proceedings until 11 March and I am going to direct that you notify the trustee in bankruptcy of these proceedings and file a document indicating what the attitude of the trustee in bankruptcy is for these proceedings.  Thirdly, I am going to direct that you reconsider the grave allegations you have made against the Court of Appeal, the magistrate and those responsible for the recording of the proceedings in front of the magistrate because those allegations render your application for special leave to appeal liable to be removed from the file because they contain embarrassing matter.  So what do you have to say against adjourning the proceedings until 11 March?

MR MAHMOUD:   Regarding the point of filing document here, what is the name of the document, just a document to say the outcome?  It is called submissions, it is called affidavit, or ‑ ‑ ‑

HIS HONOUR:   Ideally a document which is annexed to an affidavit sworn by you and the annexure would be a letter or statement from the trustee in bankruptcy indicating either that he consents to you conducting these proceedings or that he does not consent or that he has some other position – just an authentic document.

MR MAHMOUD:   Yes, right, informal affidavit?

HIS HONOUR:   Yes.

MR MAHMOUD:   Yes, but, your Honour, how come I went to all the courts and this matter about the bankruptcy has not been obstructed anything, so how come now I – the justice can be relying on whether what their attitude is, despite the fact that I have written 470 pages to the Prime Minister saying that this bankruptcy is a corrupt bankruptcy and I did not hand my statement of affair and he took me to court for that because I said I am not a bankrupt person.  I was victim of a corrupt agent and they have taken my unit, but I am told until now your bankruptcy had not started.

HIS HONOUR:   I am not going to argue with you, Mr Mahmoud.  These proceedings will be stayed unless you procure an indication of the trustee in bankruptcy’s attitude to the proceedings.

MR MAHMOUD:   Okay, I will do that.  The Court order that, that is fine.  That is the idea, I will do that, of course, why not, yes, okay.  About the allegation - sorry, about the allegation you said about, there was not any intention at all – it might sound to a person that it is abusive or embarrassment, but the fact of the matter is, sir, that I was subjected to severe, unprecedented, shocking injustice by those judiciary officers.  What I ‑ ‑ ‑

HIS HONOUR:   What you are talking about now is the third direction I flagged.  It is simply a direction that you reconsider the allegations.  You cannot lightly say that the Court of Appeal of the Supreme Court of New South Wales acted in bad faith and was biased against you or that they acted maliciously, deliberately and with bad intention.

MR MAHMOUD:   One moment, I have to write ‑ ‑ ‑

HIS HONOUR:   No, please, just listen to what I am saying.

MR MAHMOUD:   I have to write it down.

HIS HONOUR:   You cannot lightly allege against a magistrate of the Local Court that he deliberately lied and acted corruptly and you cannot lightly allege that the transcript authorities deliberately falsified the transcript.  I am just asking you to reconsider those allegations between now and 11 March.

MR MAHMOUD:   I would like to take note of them.  I think I can remember that but if I can take note of them so I can do something about it to - not to obstruct my case.

HIS HONOUR:   Just one moment.  I will give you some references to the paragraphs in your application for special leave to appeal.

MR MAHMOUD:   All right.

HIS HONOUR:   I draw your attention to ground 2A.

MR MAHMOUD:   2A, yes.

HIS HONOUR:   2B.

MR MAHMOUD:   Yes, in the line or something?

HIS HONOUR:   Pardon?

MR MAHMOUD:   In the line or ‑ ‑ ‑

HIS HONOUR:   No.

MR MAHMOUD:   No, okay, 2A and 2B, yes, in the affidavit of course.

HIS HONOUR:   No, no, in the application for special leave to appeal which you filed on 24 October 2012.

MR MAHMOUD:   Application for – just a minute, please – special leave, yes, all right.

HIS HONOUR:   The next reference is 2F.

MR MAHMOUD:   Yes.

HIS HONOUR:   And 2G.

MR MAHMOUD:   What is supposed to happen to them?  I mean, I already – you mean I re‑file the ‑ ‑ ‑

HIS HONOUR:   You just consider whether you want to make those allegations, because if you make them without any basis, the document is liable to be removed from the file.

MR MAHMOUD:   But I have the tape recording showing that I am right in the falsification of the transcript, sir.  The hearing of the tape show that very clearly.

HIS HONOUR:   I am not going to argue with you about this now.  I am just inviting you to reconsider your position.

MR MAHMOUD:   If I consider I would change, how can I change?  I mean, how – shall I make a new application for leave to appeal, or what is it?

HIS HONOUR:   If you wish to amend your current application for special leave to appeal, you should either file or turn up on 11 March with an amended application that you wish to file.

MR MAHMOUD:   I see, all right, yes, okay, and this is one direction?  The other direction is adjourn it to 11th?

HIS HONOUR:   Yes.

MR MAHMOUD:   The third one is trustee matter?

HIS HONOUR:   Yes.

MR MAHMOUD:   Okay, sir, all right - 2A, 2B, 2F, 2G.  Right, okay, thank you very much.

HIS HONOUR:   Thank you.  Yes, Mr Sutherland, do you have any attitude to those proposed directions?  I think if you can manage it, it is best to go to the middle so that the remarks you make can be recorded.

MR SUTHERLAND:   No, I welcome your comments.  Mr Mahmoud seemed to indicate that this question of bankruptcy had not come up before.  In my submission ‑ ‑ ‑

HIS HONOUR:   Just a minute, Mr Sutherland.  Do you oppose those three directions?  Do you oppose any of those three directions?

MR SUTHERLAND:   No, your Honour.

HIS HONOUR:   Thank you.  Take a seat.  I make the following directions:

1.Adjourn these proceedings until 11 March 2013.

2.Direct that the applicant notifies his trustee in bankruptcy of these proceedings and files a document indicating what the attitude of the trustee in bankruptcy to them is.

3.Direct that the applicant reconsider the allegations 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.

That concludes the matter.

AT 9.43 AM THE MATTER WAS ADJOURNED