Rahman v Dubs

[2012] NSWCA 98

Court of Appeal

New South Wales

Case Title:

Rahman v Dubs

Medium Neutral Citation:

[2012] NSWCA 98

Hearing Date(s):

10 April 2012

Decision Date:

10 April 2012

Jurisdiction:

Before:

Meagher JA (at [20]); Barrett JA (at [1]); Tobias AJA (at [21])

Decision:

The notice of motion of 4 July 2011 is dismissed and Mr Rahman, the applicant, is ordered to pay the respondents' costs of that motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - application for order setting aside orders previously made - no matter of principle

Legislation Cited:

Civil Procedure Act 2005, s 18K
Supreme Court Act 1970, ss 42, 43, 46B
Uniform Civil Procedure Rules 2005, rr 36.15, 36.16

Cases Cited:

Rahman v Riordan [2010] NSWCA 288

Texts Cited:

Category:

Interlocutory applications

Parties:

Mohammad Tabibar Rahman - Applicant
Rosalind Dubb - First Respondent
John Hartigan - Second Respondent
Shirley Alexander - Third Respondent

Representation

- Counsel:

Mohammad Tabibar Rahman, Applicant, in person
T Maltz - Respondents

- Solicitors:

Mohammad Tabibar Rahman, Applicant, in person
Norton Rose - Respondents

File number(s):

2009/00298024

Decision Under Appeal

- Court / Tribunal:

- Before:

- Date of Decision:

- Citation:

- Court File Number(s)

Publication Restriction:

JUDGMENT

MEAGHER JA: I will ask Justice Barrett to deliver the first judgment

1. BARRETT JA: On 28 May 2010, the Court of Appeal constituted by Justice Hodgson and Justice Tobias dismissed Mr Rahman's application for leave to appeal from interlocutory orders made on 18 December 2009 by Justice McCallum in pending Common Law Division proceedings. It was also ordered that Mr Rahman pay the respondents' costs of the application for leave to appeal and that those costs be assessable forthwith.

2. On 4 July 2011, Mr Rahman filed in the Court of Appeal a notice of motion expressed in diffuse terms which, on analysis, seeks an order setting aside the orders made by Justice Hodgson and Justice Tobias. It is that notice of motion that is now before the Court.

3. The notice of motion shows, and Mr Rahman has confirmed in Court today, that he seeks to invoke provisions within rr 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005. The documents he has filed contain references to rr 36.15(1), 36.15(2), 36.16(1), 36.16(2), 36.16(3)(a), 36.16(3)(b) and 36.16(4). Both r 36.15 and r 36.16 are, of course, concerned with the setting aside of existing orders from which legal rights have already flowed. In the present context, the existing orders are the order of dismissal and the orders with respect to costs made on 28 May 2010.

4. Mr Rahman objected today to the inclusion of Acting Justice Tobias as a member of the bench…