Mohammad Tabibar Rahman v David John Frank Lombe
[2013] NSWSC 1942
•28 November 2013
Supreme Court
New South Wales
Case Title: Mohammad Tabibar Rahman v David John Frank Lombe Medium Neutral Citation: [2013] NSWSC 1942 Hearing Date(s): 28 November 2013 Decision Date: 28 November 2013 Jurisdiction: Equity Division Before: Rein J Decision: Dismissed motion to set aside Lindsay J's judgment of 20 September 2013. Refused relief sought.
Catchwords: PRACTICE AND PROCEDURE - whether a decision of a trial judge should be set aside under rules 36.15 and 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) on the basis that the trial judge did not take into account all matters and the judgment was irregular, illegal and against good faith Legislation Cited: Bankruptcy Act 1966 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Rockote Enterprises Pty Ltd v F S Architects Pty Limited; Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 Category: Principal judgment Parties: Mohammad Tabibar Rahman (plaintiff)
David John Frank Lombe (defendant)Representation - Counsel: Counsel: S. Gray (defendant) - Solicitors: Solicitors: Plaintiff in person
TressCox Lawyers (defendant)File Number(s): 2013/179362
EX TEMPORE JUDGMENT
REIN J: On 20 September 2013, Lindsay J dismissed the proceedings commenced by the plaintiff in this Court on 12 June 2013, and also dismissed the plaintiff's notice of motion dated 3 October 2013. The defendant had, on 23 August 2013, filed a notice of motion seeking the dismissal of the proceedings. The plaintiff represented himself at the hearing before Lindsay J, as he does again today.
His Honour noted that the plaintiff's documents were incomprehensible, but discerned that the plaintiff's basic complaint involved a dispute as to the validity of a sequestration order made by Federal Magistrate Raphael in the Federal Magistrates Court on 19 July 2012, by which the plaintiff was declared bankrupt as a result of his failure to pay costs orders made against him in connection with proceedings brought in this Court against the Registrar of the University of Technology, Sydney ("UTS") and Ms Rosemary Dubbs, an executive officer of UTS.
A copy of the order of sequestration is found at p 82 of the Exhibit 1 and a copy of the subsequent certificate of appointment of Mr David John Frank Lombe, the defendant in these proceedings, given by the official receiver dated 19 October 2012 is at p 92 of Exhibit 1. Lindsay J noted that the plaintiff had, in the Federal Court, challenged the validity of the orders made in the Federal Magistrates Court, and that his appeal to the Federal Court was unsuccessful (see Exhibit 1, pp 86-91 for a copy of Flick J's judgment).
The Federal Court judgment included consideration of matters pertaining to the validity of the Bankruptcy Act 1966 (Cth) and some alleged constitutional issues which Mr Rahman had raised in the proceedings, and also included the questions of the power of the Federal Magistrate to make the decision which he did. On all bases, the Court, as I have said, rejected Mr Rahman's appeal.
Mr Rahman then sought leave to appeal in the High Court (see Exhibit 1, p 93 for the disposition of that application). The High Court, Kiefel and Gageler JJ, in their reasons for refusing leave, noted that Mr Rahman had asserted that it was not competent for the Commonwealth Parliament to enact the Bankruptcy Act or make provision for bankruptcy notices or sequestration orders, and saw no reason to doubt the correctness of Flick J's conclusion that Mr Rahman claims had no foundation and that his assertions of fraud and criminal acts were without merit.
Lindsay J, after a contested hearing, dismissed the proceedings and the summons effectively on three bases. First, that the issues which the plaintiff sought to agitate against Mr Lombe had been determined adversely to Mr Rahman in the Federal Magistrates Court, in the Federal Court and by refusal of leave in the High Court, and hence were res judicata. Secondly, that the summons and the notice of motion disclosed no reasonable cause of action. Third, that the proceedings were frivolous and vexatious.
The plaintiff has on 3 October 2013 filed a fresh notice of motion and he seeks to set aside Lindsay J's judgment relying on Uniform Civil Procedure Rules2005 (NSW) ("UCPR") 36.15, 36.16(3A) and (3B) of the rules. Rule 36.15 power to set aside judgment or order permits:
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
Rule 36.16(3A) provides that:
If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
Sub-rule (1) permits the Court to set aside or vary a judgment or order if the notice of motion seeking to set aside or vary is filed before entry of the judgment or order. That subrule is not relevant.
Sub-rule(3) places limits on the circumstances in which the Court may set aside or vary a judgment under sub-rules (1) and (2). On a first reading of this rule I thought that sub-rule (3A) was constrained by what is stated in sub-rule 36.16(3), but Mr Gray, counsel for the defendant, has quite properly drawn to my attention the decision of Court of Appeal in Rockote Enterprises Pty Ltd v F S Architects Pty Limited; Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205, [10] per Handley AJA, with whose decision McColl JA and Campbell JA concurred, that sub-rule (3A) is not constrained by sub-rule (3).
I should note that the plaintiff did file his latest motion within the requisite 14 day period, the judgment having been entered on 20 September 2013.
The plaintiff's present motion like his previous motion, his summons and his submissions are very difficult to understand but I draw from them, and Mr Rahman confirmed this in Court today, that he regards the judgment of Lindsay J as erroneous, and that he contends that Lindsay J did not take into account all of the matters that were before him with the consequence that the judgment was irregular, illegal and against good faith. Mr Rahman also seemed to suggest at one stage today that Lindsay J was not empowered to deal with the motion that was before him by reason of, I interpolate, his being the Applications List Judge, but I do not understand the point, and it did not seem to be pressed by Mr Rahman. If it was pressed it is wholly without foundation.
So far as reliance is placed on UCPR rule 36.16(3B) that is a provision which applies where the Court of its own motion wishes to set aside or vary a judgment. That is not an applicable rule and I pay it no further attention.
In connection with both rule 36.15 and rule 36.16(3) I invited Mr Rahman to identify the matters of law and fact which he claimed which Lindsay J had not considered or misapplied in arriving at the result at which he did arrive.
All of the points Mr Rahman enumerated revolve around the same axis of complaint which infuses Mr Rahman's proceedings, namely,
(1)that he is not a bankrupt,
(2)that the decision that he be made a bankrupt was wrong and constitutionally invalid and illegal, and
(3)Mr Lombe cannot act as his trustee, and that anything done by Mr Lombe in the role of trustee is invalid and even fraudulent
(4)The LPI, the Land and Property Information Office, cannot transfer property to Mr Lombe because it would, in so doing, be acting as a court
(5)that Ms Dubbs was not a creditor of his because the real creditor is UTS, and
(6)the claim that there is a constitutional issue arising as to the relationship between State courts and Federal courts.
In relation to the assertion that Ms Dubbs was not a creditor, that is a point which first of all seems to be entirely misconceived in that there are in the court book (Exhibit 1) judgments of this Court in which orders for costs were made against Mr Rahman in favour of Ms Dubbs. Although Mr Rahman seems to think that because application was made successfully by Ms Dubbs to be removed as a party to the proceedings, this meant that she was not entitled to orders for costs, it is clear from the judgments that Mr Rahman was ordered to pay her costs whilst she was still a party wrongly joined by Mr Rahman.
The second problem is that the whole matter including [15](1)-(6) has been dealt with in the Federal Magistrates Court which made Mr Rahman bankrupt. As I said, his appeals in relation to that have been unsuccessful.
Mr Rahman also made a claim that Mr Lombe was not appointed by a court. Federal Magistrate Raphael made the sequestration order, as I have noted, and the official receiver appointed Mr Lombe as the trustee. My understanding is that that is the usual process and it is a process for which there is statutory support. There is no requirement that but Mr Lombe be appointed by the Court directly. Even if that were not so, the place for that issue to be raised was in the Federal Magistrates Court (and now the Federal Circuit Court).
Section 27 of the Bankruptcy Act provides:
Sub-section (1) the Federal Court and the Federal Circuit Court have concurrent jurisdictions in bankruptcy and that jurisdiction is exclusive for jurisdictions of all courts.
(a) jurisdiction of the High Court under section 75 of the Constitution, and
(B) the jurisdiction of the Family Court under section (3) or (3A) of this Act.It is not open to this Court to consider the validity of Mr Lombe's appointment. It is not clear whether that matter was raised before Lindsay J, but even if it was not, it certainly is not a basis for any different result to that which his Honour arrived.
As the Federal Court has determined finally that Mr Rahman is a bankrupt, it follows that Mr Lombe is validly appointed as Mr Rahman's trustee and as trustee, he is entitled by law to have the property transferred to him in order to set about satisfying the creditors of Mr Rahman's bankrupt estate.
Mr Rahman has tendered as exhibits today three documents which I should mention. The first, which is Exhibit A, is a document which is, in effect, a search from the Land and Property Information Office. That search shows that the property was transferred from Mr Rahman's name into Mr Lombe's name. The search shows that the property was stated to have been acquired by a court order. I understand that the court order in question is the court order made by the Federal Magistrates Court. The second document which has been handed up is a court attendance notice which shows that a prosecution has been commenced again Mr Rahman for what is said to be his failure to give the official receiver a statement of his affairs. Mr Rahman relies on these of steps taken by or at the behest of Mr Lombe as trustee to support his entirely erroneous contention that Mr Lombe is acting illegally and fraudulently. The third document which he handed up is a document which appears to be a page from a book or service entitled "All Briefs Administrative Law". Mr Rahman handed that up to show the structure and the constitutional framework in this country. The latter document does not shed any light or provide any support for the arguments which Mr Rahman advances and the first two documents do not support his contention that something has been misunderstood or misapplied by Lindsay J.
Mr Rahman did contend that LPI is not a Court which I accept but that fact however has no consequence.
I am unable to discern any misapplication or misapprehension of the facts or issues in Lindsay J's approach to the matter. I am persuaded that his Honour did indeed consider all the material before him. It would seem that the essential assertion made by Mr Rahman is that it is Lindsay J's failure to accept Mr Rahman's contention and to accede to Mr Rahman's entirely flawed view of matters which renders the judgment illegal, irregular and against good faith. Mr Rahman is really seeking to relitigate the matters upon which he has failed in the Federal Magistrates Court and the Federal Court.
I am therefore not satisfied there is any basis for setting aside the judgment either under Pt 36.15 or 36.16 of the UCPR. Indeed, the notice of motion really seem so be in the nature of and has the character of an appeal from Lindsay J's decision. I pointed out to Mr Rahman that if he is dissatisfied with Lindsay J's judgment he is entitled to, or was, provided the rules were complied with, entitled to appeal (or seek leave to appeal if that is necessary) from that decision, but rather what he has sought inappropriately to do is rely on Pt 36 to set aside his Honour's judgment.
I refuse the relief sought in the motion and dismiss that motion. I order that the defendants costs of motion be paid out Mr Rahman's bankrupt estate.
**********
1
2