Rahman v Bimson - [2010] NSWSC 338

CITATION: Rahman v Bimson [2010] NSWSC 338

HEARING DATE(S): 19 March 2010

JUDGMENT DATE :
23 April 2010

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: (1) The summons is dismissed.
(2) The plaintiff is to pay the defendants’ costs of the proceeding.

CATCHWORDS: PRACTICE AND PROCEDURE - power to dismiss proceedings for failure to comply with directions for the speedy determination of the real issues between the parties - where plaintiff refuses to amend summons - summons dismissed

LEGISLATION CITED: Civil Procedure Act 2005
Crimes (Appeal and Review) Act 2001
Local Court Act 2007
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230

PARTIES: Mohammad Tabibar Rahman (Plaintiff)
Paul Bimson (1st Defendant)
Michael Bushby (2nd Defendant)

FILE NUMBER(S): SC 2010/9832

COUNSEL: In person (Plaintiff)
M. A. Robinson (Defendants)

SOLICITORS: Louise Hicks, RTA NSW (Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

23 APRIL 2010

10/9832 MOHAMMED TABIBAR RAHMAN v PAUL BIMSON & ANOR

JUDGMENT

1 HER HONOUR: This is an application for stay or dismissal of proceedings brought by Mr Mohammed Rahman arising out of his conviction for a speeding offence by Bankstown Local Court. Mr Rahman initially received a penalty notice in respect of that offence. The notice asserted that his vehicle was detected (by a speed camera) on the Hume Highway at a speed of 56 kilometres per hour in a 40 kilometre zone. It appears that the speed zone in question was designated a school zone.

2 Mr Rahman contested the penalty notice on the grounds that he asserts there is no school located in the segment of the Hume Highway identified in the notice. It appears that the offence was then prosecuted in the Local Court and that Mr Rahman was ultimately convicted on 14 December 2009.

3 The present proceedings were commenced by summons filed 11 January 2010 seeking review of aspects of those proceedings. The defendants to the summons are Mr Paul Bimson, who was apparently the informant in respect of the offence, and Mr Michael Bushby, the Chief Executive Officer of the RTA.

4 The summons is a difficult document. It appears to seek to invoke the Court’s supervisory jurisdiction to grant prerogative relief as well as its statutory appellate jurisdiction in respect of decisions of the Local Court. However, the summons generates considerable confusion as to the decision or decisions in respect of which such jurisdiction is sought to be invoked.

5 The summons expressly invokes s 69 of the Supreme Court Act 1970, which confers jurisdiction on the Court to grant relief in the nature of a constitutional writ. The Court has power under that section to grant prerogative relief in respect of the decisions of inferior courts, tribunals and administrators. The summons claims relief under s 69 in respect of the “decisions” of Mr Bimson (the informant) but does not identify those decisions. As to Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rahman v Bimson

Details

AGLC: Rahman v Bimson [2010] NSWSC 338
Case: [2010] NSWSC 338
Decision Date: 23 April 2010

CaseChat Overview and Summary

The case of Rahman v Bimson was heard in the Federal Circuit Court of Australia. The plaintiff, Rahman, brought a claim against the defendant, Bimson, and the court was required to determine whether the proceedings should be dismissed for failure to comply with directions aimed at ensuring the speedy resolution of the real issues between the parties. Rahman had been ordered to amend the summons but refused to do so, leading to an application to dismiss the proceedings.

The court's primary task was to consider whether the plaintiff's refusal to amend the summons justified the dismissal of the proceedings. It was necessary to balance the court's power to control its own processes with the plaintiff's right to have their case heard. The court examined the nature of the orders made, the reasons behind them, and the plaintiff's response to these directions.

The court found that the plaintiff's refusal to comply with the directions was unreasonable and inflexible, particularly given the clear benefits of the amendments to the summons. The court emphasised that it had the power to dismiss proceedings if the plaintiff failed to comply with its directions for the speedy determination of the real issues. Consequently, the summons was dismissed with costs to be paid by the plaintiff.

Orders