Rahman v Attorney General of New South Wales (No 2)

[2016] NSWCA 357

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Rahman v Attorney General of New South Wales (No 2) [2016] NSWCA 357
Hearing dates:	On the papers; written submissions dated 4 November 2016 (Mr Rahman) and 5 December 2016 (Attorney General)
Decision date:	15 December 2016
Before:	Meagher JA; Payne JA
Decision:	Applicant’s notice of motion filed 28 September 2016 dismissed with costs.
Catchwords:	APPEAL – application for leave to appeal – where application dismissed and motion to set aside or vary that order – no question of principle – motion dismissed
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16
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

Judgment

1. THE COURT: On 19 September 2016 this Court as presently constituted dismissed the applicant’s (Mr Rahman) summons seeking leave to appeal from orders made by Adams J declaring him a vexatious litigant. Those orders were made on 10 February 2014: Attorney General of New South Wales v Rahman [2014] NSWSC 42.

2. On 28 September 2016 Mr Rahman filed a notice of motion in the summons proceedings seeking that the orders made on 19 September 2016 be set aside or varied under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.15 or 36.16. By the remaining paragraphs of that motion Mr Rahman seeks further orders or relief which it is impossible sensibly to discern.

3. Mr Rahman has filed an affidavit sworn 28 September 2016 (of seven pages) and a written submission dated 4 November 2016 (of five pages) in support of his application to set aside or vary this Court’s earlier orders. The Court has also received written submissions on behalf of the Attorney General (of five pages) which oppose the orders sought.

4. Mr Rahman’s affidavit, like the written material referred to in our earlier judgment (Rahman v Attorney General of New South Wales [2016] NSWCA 261), focuses on events leading to or following the bankruptcy proceedings brought against him in May 2012 in respect of unpaid costs orders made in proceedings involving Ms Dubs: see [2016] NSWCA 261 at [12]-[13].

5. For example, para 5 of that affidavit states:

Further to such validity of Appellant's claims Hon. ADAMS J, himself has admitted that -"All references to statutory provisions, without identifying the Act, are to this legislation' invalidate such decisions, as manifest the:

The Attorney-general __ 'that has determined the law for such decisions against the appellant by means of Judiciary, ADAMS J, This has been expressed ( in Media- The Daily Telegraph on 16 February 2014) by Respondent , AG Gregory Smith, where ‘ the actual power structure - as used for the beneficial of His members of Executives and Mafia Gang -White Collar Economic Offender- Paul Baram , Solicitor , for Dubs , TressCox Lawyer, Guy Moloney, Solicitor for - David Lombe , Vanessa Jeovana, Solicitor, LPI for the David Lombe, Counsel Grey .Stain , counsel , Attorney [  whom has produced false documents as of evidences that attracts convictions] ), but infringe common ethnic citizens for common good orders in the society, ,will be included in the affidavit to upheld claims of the Plaintiff/ appellant and to void and legal nullity of the Judgements made on 19 September by Meagher J and Pavne J. [emphasis in original]

6. The references to Mr Lombe are to Mr Rahman’s trustee in bankruptcy. The same theme is the subject of Mr Rahman’s written submissions, which relevantly commence (by para 4):

The proceedings entered from 2005 -2016 in the Judiciary's both State, Federal , except one High Court decisions , all have engaged 'miscarriage of justice, erred , ambiguous violations and treasons of Constitutional provision , Judiciary Acts, and applicable legislations of both States , Federal and High Court. It is against the Core functions -'Rules of law of Ch-lll Courts under s 70- S 77 (iii) Constitutions and Judiciary Act 1903, Jurisdictional error ,whether inalienable rights protection or infringement of legislative power and protection of civil and human rights available and applicable has breached by Justices. [emphasis in original]

7. Those written submissions conclude in the same vein (at para 8):

8. CONCLUSION

1.   Set aside the Judgment orders of Meagher JA & Payne JA ,[2016 ] NSCA 261, on 19/09/2016,

2.   Applicant's Appeal will allow, as fundamental appeal rights submitted at M5 [at P3,-not 5N];

3.   Seeking Extension of time will be granted by at 5BF, 5BG & REG. 1.12 Extension of time at [P4] as there is no impediment arising from any Constitutional requirement for the enactment." And no 'Time Clause' for such prohibition orders ' made by ADAMS J,

4.   Judgments of Orders as sought in the Submissions under entrenchment clause of a basic law and by Constitutional provision submitted for Justicibility& competency of appeal is established.

5.   Seeking Orders under S32 Complete relief to be granted- Judiciary Acts for compensatory damages, under Judiciary Act 1903

6.   The Appeal will be succeed,

7.   Seeking for Proclamations of Declaratory orders for reopening of all proceedings for nullity and new trials. Submissions made to CJ Bathurst & AG on 14/04/16 ,CJ .Allsops CJ,French on 02/05/2016 [emphasis in original]

8. UCPR r 36.15 permits this Court to set aside an order or judgment which has been given or made “irregularly, illegally or against good faith”. Mr Rahman has produced no evidence and makes no argument which raises as a possibility that the orders made on 19 September 2016 answer that description. Accordingly his claim to relief on that basis must be refused.

9. The power to set aside or vary a judgment or order under UCPR r 36.16 is, in circumstances where the application is made after the entry of that judgment, or order, limited to the circumstances in r 36.16(2) or (3). The judgment entered on 19 September 2016 was not a default judgment or given in the absence of Mr Rahman and did not concern proceedings for possession of land. Accordingly UCPR r 36.16(2) is not engaged.

10. UCPR r 36.16(3) permits the Court to set aside or vary any judgment or order, irrespective of whether the application for that relief is made before or after the entry of the judgment or order, except so far as the judgment or order determines any claim for relief or dismisses proceedings. The order made on 19 September 2016 dismissing Mr Rahman’s summons seeking leave to appeal is within that exception. For that reason r 36.16(3) is not engaged.

11. In any event, Mr Rahman’s affidavit and submissions do not identify or describe any principled basis on which the power in r 36.16(2) or (3) might have been exercised.

12. It follows that Mr Rahman’s notice of motion filed 28 September 2016 should be dismissed with costs. We make that order.

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Decision last updated: 15 December 2016