Rahman v Attorney General of New South Wales

[2016] NSWCA 261

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Rahman v Attorney General of New South Wales [2016] NSWCA 261
Hearing dates:	14 September 2016
Decision date:	19 September 2016
Before:	Meagher JA; Payne JA
Decision:	1. Dismiss the Summons seeking leave to appeal. 2. Order that the applicant pay the respondent’s costs of the proceedings.
Catchwords:	APPEAL – application for leave – where orders made against applicant under Vexatious Proceedings Act 2008 (NSW) – where applicant seeks to appeal from those orders – where leave required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) as no money or property in issue – where more than two year extension of time required for making of application for leave – where no material error identified or apparent in first instance judgment – where appeal sought to be pursued for misconceived and improper purpose of challenging validity of sequestration order made in earlier bankruptcy proceedings – where applicant previously sought leave to commence proceedings on the premise that existing orders correct – application dismissed
Legislation Cited:	Bankruptcy Act 1966 (Cth), ss 27, 43 Constitution, ss 51(xvii), 77 Judiciary Act 1903 (Cth), s 40 Supreme Court Act 1970 (NSW), s 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW), r 51.10 Vexatious Proceedings Act 2008 (NSW), ss 8, 14
Cases Cited:	Application of Mohammad Tabibar Rahman [2014] NSWSC 1161 Application of Mohammad Tabibar Rahman [2015] NSWSC 164 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Mohammad Tabibar Rahman v Rosalind V Dubs [2013] HCASL 23 Mohammad Tabibar Rahman v Peter Blair & Ors [2015] HCASL 210
Category:	Procedural and other rulings
Parties:	Mohammad Tabibar Rahman (Applicant) Attorney General of New South Wales (Respondent)
Representation:	Counsel: In person (Applicant) D Galbraith (Solicitor) (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2016/209534
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2014] NSWSC 42 Date of Decision: 10 February 2014 Before: Adams J File Number(s): 2012/140230

Judgment

1. THE COURT: On 10 February 2014 Adams J made orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) with respect to the applicant (Mr Rahman): Attorney General of New South Wales v Rahman [2014] NSWSC 42.

2. The relevant orders were:

(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;

3. By a Summons filed on 11 July 2016 Mr Rahman seeks leave to appeal from those orders. It is accepted that leave is required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) because the appeal is not about money or property and accordingly cannot satisfy the condition in that paragraph: Clyne v New South Wales Bar Association (1960) 104 CLR 186.

4. Mr Rahman also requires, and applies for, an extension of the time for the filing and service of that summons: Uniform Civil Procedure Rules 2005, r 51.10(2). The extension of time he requires is for a period of two years and five months.

5. The Attorney General does not consent to the extension of time sought and submits that in any event leave to appeal should be refused.

6. In support of his application Mr Rahman relies on an affidavit of 8 July 2016 (of 5 pages), a draft notice of appeal (of 20 pages) and his written summary of argument (of 10 pages).

7. It is sufficient to record, as has similarly been observed in many of the decisions involving Mr Rahman referred to by the primary judge, that it is not possible from Mr Rahman’s writings to discern a legally sensible basis on which he contends that his Honour’s decision involved error so as to justify a grant of leave.

8. That this is so is illustrated by Mr Rahman’s description at page 3 of his written summary of argument of the question involved in the proposed appeal as being as follows:

1. The Applicant construe that The High Court Decisions in the Proceedings Case No. 31/2015 Rahman v Peter Blair & ORS [19 Respondent] Judgment on 11 November 2015 by Hon. Nettle J and Gordon J ' will validate that the judgment of ADAMS'J, are of gross violations for' His Reserved Judgments after 439 days which baffled him to validate the challenge of defence submissions made by the appellant on 14 December 2012 are without legal light of jurisprudential analysis as with the passage of times .But it has given birth 'Judgments of ' wrong , contraventions of statutory, Constitutional law S75(v) ,.administrative law under .69-; Certiorari, mandamus provisions Supreme Court Act and with Reference to Doctrine of Case Laws of USA Supreme Court , Court of Appeal as favour of Third Parties for protections against convictions for crimes that has done by the David Lombe, Deloitte and others Cohorts who has transferred, and sale the Appellant's property House No.30 Lae Road, Holsworthy. Further ,also put Caveats on Appellant's Residence Property :Home Address: 15 Troopers Mews, Holsworthy, values $1.5 Million Dollars as made orders as of abettor by the NSW Judiciary by dispersions of Summons -a violations as made wrong decisions by Federal Magistrates Court -Bankruptcy -Sequestrations by Raphael FM on 19 July 2012, as triggered decisions initially by McCallum J, Duty Judge on 18 December 2009 as persuaded by Registrar Bradford C, for Rosalind V Dubs, a Non -Executive Director, C/o Paul Baram , Solicitor,Norton Rose, Australia having prejudices for the appellant applied 'discretion. And Hon.ADAMS J, has failed to identify the issues of Writs provision of for the Fraud Four Costs Orders of $56,298.46 dollars -are questions involved that what the NSW Judiciary has done are 'error, perverted, violations ,discretions and prejudices and must be void and annulled with compensations for all the Victims of the Austrian citizens since 2000 the creations of Federal Magistrates Court.

9. The primary judge’s reasons address, on our count, more than 50 proceedings instituted by Mr Rahman between 2003 and 2015. Those proceedings concerned, in his Honour’s analysis, disputes with respect to 10 or so different subjects, some of which were related, involving Federal and State courts or tribunals.

10. The evidence before the primary judge included “copies of files, transcripts and judgments of [those] various courts and tribunals”: [10]. Having considered that material at [16]-[178] the primary judge concluded at [185]:

… 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.

11. In his oral argument before this Court, Mr Rahman expressed more clearly his purpose in seeking to appeal from the primary judgment. He did so by reference to the reasons of the High Court (Nettle and Gordon JJ) given when dismissing his application pursuant to s 40 of the Judiciary Act 1903 (Cth) that proceedings 2014/371482 in the Common Law Division of this Court be removed into the High Court. Those reasons did not relate to the conclusions of the primary judge but rather to earlier bankruptcy proceedings against Mr Raham. Indeed it became apparent that the purpose of Mr Rahman’s application in this Court was directed primarily towards vindicating his position in those proceedings. It is therefore necessary to refer to them in some detail.

12. The bankruptcy proceedings are dealt with by the primary judge between [164] and [179]. They were brought to enforce cost orders made in proceedings between Mr Rahman and Ms Dubs. Before the primary judge Mr Rahman submitted, as is recorded at [164], that the Federal Court and the Federal Magistrates Court (known from 28 November 2012 as the Federal Circuit Court) did not have jurisdiction to deal with that matter as they were “violations for the whole class of people who are always vulnerable”.

13. A sequestration order was made against Mr Rahman’s estate on 19 July 2012. He appealed to the Federal Court (Flick J) from that order, and sought special leave to appeal from the decision dismissing that appeal. In their reasons dismissing that application (Mohammad Tabibar Rahman v Rosalind V Dubs [2013] HCA SL23), Kiefel and Gageler JJ said:

[1]   The applicant was a student at the University of Technology, Sydney. In 2009, he was notified by the Registrar of the university, the respondent, that he was being investigated for "non-academic misconduct" and he was subsequently excluded from communicating with other students in his course for a period of seven days. The applicant commenced proceedings against the respondent in the Supreme Court of New South Wales which made a number of costs orders against the applicant. The applicant failed to pay the costs and a bankruptcy notice was served on him on 17 March 2012. On 5 May 2012, after he failed to comply with the bankruptcy notice, he was served with a creditor's petition.

[2]   On 19 July 2012, a sequestration order was made against the applicant's estate by the Federal Magistrates Court of Australia (Raphael FM). His Honour refused the applicant's request for an adjournment of the hearing of the petition, pending the hearing of his application for leave to appeal the orders for costs, for the reason that the applicant's case was not arguable. His Honour held that there was no "sufficient cause" preventing the making of the sequestration order. The Supreme Court subsequently dismissed the application for leave.

[3] On 5 October 2012, the Federal Court of Australia (Flick J) dismissed an appeal from the sequestration order. His Honour reviewed the reasons of Raphael FM, because the applicant's grounds of appeal were difficult to comprehend, but found no appealable error in them. His Honour held that Raphael FM was under no duty not to proceed because the applicant had given a notice under s 78B of the Judiciary Act 1903 (Cth), since the notice failed to identify any constitutional matter. The applicant's assertion that it was not competent for the Commonwealth Parliament to enact the Bankruptcy Act 1966 (Cth) or make provision for bankruptcy notices and sequestration orders lacked foundation. Claims of fraud and criminal acts did not advance the applicant's appeal and were, in any event, without merit.

14. Following the primary judge’s decision in February 2014, Mr Rahman brought two applications for leave to institute fresh proceedings. Those applications were made under s 14(2) of the Vexatious Proceedings Act on the premise that he was, within s 14(1), a person “subject to a vexatious proceedings order prohibiting [him] from instituting proceedings”.

15. The first application was dismissed by Button J on 22 August 2014 (Application of Mohammad Tabibar Rahman [2014] NSWSC 1161). The second, made in proceedings 2014/371482, was dismissed by Garling J on 13 March 2015 (Application of Mohammad Tabibar Rahman [2015] NSWSC 164). The 19 parties named as respondents in that second action had some connection or relation to the events leading to or following the making of the sequestration order in July 2012.

16. As Garling J records at [1], the claim sought to be made with leave, was described by Mr Rahman as follows:

Administrative law (inherent power of court [individual rights and financial rights]), real property – freehold title [transfer of propriety rights], jurisdiction of federal courts, charge of crimes against the defendants – incohort [white collar economic offenders] …

17. Those proceedings were the subject of the application for removal into the High Court. In their reasons rejecting that application (Mohammad Tabibar Rahman v Peter Blair & Ors [2015] HCA SL210) Nettle and Gordon JJ said:

[4] … [By his application, Mr Rahman] also seeks a range of further or other relief including a declaration that the sequestration order by which he was made a bankrupt was "not Constitutionally permissible on the ground that neither the Commonwealth Constitution nor the States have Constitutional power to confer State Jurisdiction on Federal Court, as it is outside the Legislative powers of the Parliament".

[5]   The orders of Garling J which were made on 13 March 2015 put an end to proceeding 2014/371482 and, therefore, there is no longer any proceeding to remove to this Court. For that reason, the application for its removal is incompetent. The idea that the sequestration order was unconstitutional is equally misconceived and is devoid of merit. The application does not raise an arguable Constitutional Issue.

18. Returning to Mr Rahman’s purpose for pursuing the appeal in this Court, he identified the question that he seeks to have addressed as that raised by the declaration described in [4] of their Honours’ reasons. As their Honours also observed that argument is misconceived and devoid of merit. Under s 51(xvii) of the Constitution the Commonwealth Parliament may make laws for Australia with respect to bankruptcy. It has done so by enacting the Bankruptcy Act 1966 (Cth). That Act applies to debts, howsoever arising, including under State laws and by reason of judgments and orders of State courts. Under s 77 of the Constitution the Parliament may also make laws conferring jurisdiction on a federal court in any matter arising under a law made by the Parliament. The Bankruptcy Act is such a law and by s 27 confers concurrent and exclusive jurisdiction in bankruptcy matters on the Federal Court and the Federal Circuit Court. That jurisdiction includes the power to make sequestration orders (s 43).

19. In the circumstances Mr Rahman’s application for leave to appeal should be dismissed. First, his written and oral submissions do not identify any arguable basis on which it might be said that the primary judge’s conclusion involved material error. On the contrary a consideration of the material extracted in his Honour’s reasons confirms the correctness of his conclusion at [185]. Secondly, Mr Rahman does not seek to prosecute the appeal to establish any such error. Instead he seeks to use the appeal for a misconceived and improper purpose; namely as a basis for challenging the validity of the July 2012 sequestration order and judgments and other actions which followed it. That challenge could not have been made in this Court, either directly or in the guise of contesting conclusions of the primary judge. Furthermore it is sought to be made where an appeal against the sequestration order has been dismissed, and an application for special leave to appeal rejected because it “lacked foundation”. Finally, it is too late for Mr Rahman now to challenge the orders of the primary judge. He has not only delayed for over two years in making his application to do so, but also made two applications for leave to institute proceedings that necessarily assumed the correctness of the primary judge’s orders. To allow Mr Rahman now to appeal from those orders would permit him to pursue inconsistent courses of action.

20. The Court makes the following orders:

1.   Dismiss the Summons seeking leave to appeal.

2.   Order that the applicant pay the respondent’s costs of the proceedings.

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Decision last updated: 22 March 2018