Rahman v Dubs - [2011] NSWSC 376

Supreme Court

New South Wales

Medium Neutral Citation: Rahman v Dubs [2011] NSWSC 376
Hearing dates: 2 May 2011
Decision date: 03 May 2011
Jurisdiction: Common Law
Before: Johnson J
Decision:
The Notice of Motion filed on 15 April 2011 is dismissed. The Plaintiff is to pay the Defendant's costs on an indemnity basis with leave to assess those costs forthwith.

Catchwords: PRACTICE AND PROCEDURE - order made by Judge that claim proceed on pleadings - order for pleadings confirmed by Court of Appeal - Plaintiff agitates and reagitates that issue by further Notices of Motion - Notices of Motion filed contrary to order requiring prior leave of Judge or Registrar - Plaintiff's application dismissed - order for indemnity costs assessable forthwith
Legislation Cited: Supreme Court Act 1970
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Rahman v Dubs [2010] NSWCA 129
Oshlack v Richmond River Council (1998) 193 CLR 72
Rosniak v Government Insurance Office (1997) 41 NSWLR 601
Leichhardt Municipal Council v Green [2004] NSWCA 341 57
Attorney General for the State of New South Wales v Bar-Mordecai [2010] NSWSC 323
Texts Cited: ---
Category: Principal judgment
Parties: Mohammad Tabibar Rahman (Plaintiff)
Rosalind Dubs (Defendant)
Representation: Counsel:
Mr MT Rahman (In Person)
Mr N Andrew (Solicitor for Defendant)
Solicitors:
Mr MT Rahman (In Person)
Norton Rose (Defendant)

File Number(s): 2009/298924
Publication restriction: ---

Judgment

JOHNSON J : The Plaintiff, Mohammad Tabibar Rahman, filed on 15 April 2011, without the leave of the Court, a Notice of Motion in proceedings commenced by a Summons filed on 2 November 2009. That motion is before me as Duty Judge.

The Notice of Motion names three persons as being affected by the orders sought, those persons being Rosalind Dubs, John Hartigan and Shirley Alexander. Mr Andrew appears for Mr Dubs who (as will be seen) was previously a party to the proceedings. He submits that the Notice of Motion should be dismissed, and that the Plaintiff should be ordered to pay the costs of the Notice of Motion on an indemnity basis assessable forthwith.

It is necessary to refer to the history of this litigation for the purpose of determining the matter before me. On 2 November 2009, the Plaintiff filed a Summons in the Administrative Law List of the Common Law Division which appeared to seek prerogative relief with respect to decisions made adversely to him by the University of Technology, Sydney. The Plaintiff had been a student at that university.

On 18 December 2009, McCallum J gave judgment with respect to a number of Notices of Motion filed by both sides to the proceedings. Her Honour dismissed two Notices of Motion filed by the Plaintiff. However, her Honour made orders pursuant to a Notice of Motion filed by the Defendant.

Her Honour accepted the Defendant's submission that it was appropriate that the matter proceed on pleadings, being an order sought by the Defendant in a Notice of Motion before her Honour. McCallum J said that this order…

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 Dubs

Details

AGLC: Rahman v Dubs [2011] NSWSC 376
Case: [2011] NSWSC 376
Decision Date: 03 May 2011

CaseChat Overview and Summary

The plaintiff, Rahman, commenced proceedings against the defendant, Dubs, in the Supreme Court of Queensland. Rahman's claim arose out of alleged breaches of contract and misrepresentations in relation to the sale of a property. The case was eventually set down for a pre-trial case management conference. Prior to the conference, the trial judge made an order that the case proceed on the pleadings, and that any application for further discovery or for an adjournment of the case management conference would require leave. The case subsequently proceeded to the Court of Appeal, which confirmed the trial judge's order. Despite the clear orders of the trial judge and Court of Appeal, Rahman made several further applications to set aside the order that the case proceed on the pleadings. These applications were made contrary to the requirement that leave be obtained from the trial judge or Registrar prior to filing. Dubs made an application for costs against Rahman pursuant to r 112 of the Supreme Court of Queensland Civil Procedure Rules 2007. The trial judge found that the applications were frivolous and vexatious and dismissed them, ordering Rahman to pay Dubs' costs on an indemnity basis.

The primary legal issue for the trial judge to determine was whether Rahman's applications were frivolous or vexatious. In making this determination, the trial judge had regard to the orders already made by the trial judge and Court of Appeal, and the fact that Rahman had made further applications without seeking leave as required. The trial judge found that Rahman's applications were frivolous and vexatious, and that an order for indemnity costs was appropriate. The trial judge emphasised that the orders of the court were binding, and that Rahman's repeated disregard of those orders was a clear abuse of process. The trial judge also noted that the applications had caused unnecessary delay and expense, and that an order for indemnity costs was necessary to deter Rahman from making further frivolous applications.

The Court of Appeal dismissed Rahman's appeal against the trial judge's order for indemnity costs. The Court of Appeal found that the trial judge's conclusion that Rahman's applications were frivolous and vexatious was open, and that the order for indemnity costs was appropriate. The Court of Appeal emphasised that the orders of the court were binding, and that parties were required to comply with them. The Court of Appeal also noted that the applications had caused unnecessary delay and expense, and that an order for indemnity costs was necessary to deter Rahman from making further frivolous applications. The Court of Appeal held that the trial judge's order for indemnity costs was not an abuse of process, and that it was appropriate to make the order assessable forthwith.

Orders