Rahman v John Robert Marsden Trading as Marsdens Law Group

[2005] NSWSC 1306

CITATION:	Rahman v John Robert Marsden Trading As Marsdens Law Group & Ors [2005] NSWSC 1306
HEARING DATE(S):	23 November 2005
JUDGMENT DATE :	23 November 2005
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	1. Dismiss notice of motion; 2. Order Mr Rahman to pay the defendants' costs of the motion.

CATCHWORDS:	MOTION FOR CONTEMPT - failure to comply with subpoena - applicant failed to comply with Pt 55 Supreme Court Rules 1970
PARTIES:	Tabibar Rahman (Pltf) Marsdens Law Group (Defs)
FILE NUMBER(S):	SC 13875/04
COUNSEL:	Tabibar Rahman (in person) M Bowe (Def)
SOLICITORS:	Tabibar Rahman in person Marsdens Law Group (Def)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

WEDNESDAY 23 NOVEMBER 2005

13875/04 RAHMAN v JOHN ROBERT MARSDEN T/A MARSDENS LAW GROUP & ORS

JUDGMENT

1 HIS HONOUR: Mr Tabibar Rahman brings a motion for contempt. The motion is contained in a document in which he seeks orders in accordance with two annexures marked “XY”. In fact there is one annexure bearing that notation which contains a form of orders.

2 The first of those orders is in two parts and it is expressed in the Following terms:

“An order for contempt of Part 37, S37.6(5) - Compliance with Subpoena - Under Part 37, S37.12 - Supreme Court Rules 1970 - Failure to comply with Subpoena ‘Contempt of Court - arrest’”

3 The second paragraph is in the following terms:

“S37.12(3) Subrules (1) and (2) are without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing the arrest of an addressee (John Robert Marsden) who defaults in attendance in accordance with a subpoena).”

4 The front sheet of the notice of motion indicates that it is filed for Mr Rahman, the defendants being identified as John Robert Marsden and J H Marsden, John B Adam, K J Searle, A I Percival, Adam J Seton, Elyse White, Peter J Crittenden, David R Baired, Tom C Reeve and Grand P Butterfield trading as Marsdens Law Group.

5 The subpoena which has been referred to is in evidence before me as Ex A, and was issued on 24 January 2005 at Mr Rahman’s request. The subpoena is said to be issued to John Robert Marsden, Marsdens Law Group, 29 Dumaresq Street, Campbelltown, New South Wales, 2560.

6 As I understand the position, the subpoena was issued in proceedings which relate to a dispute with respect to fees claimed by the law firm Marsdens for work done for Mr Rahman. The amount in issue is referred to in a judgment of Master Malpass, who heard an appeal from a decision of a Local Court magistrate, where the sum in dispute is said to be $1191.30.

7 The order which was challenged in the appeal proceedings was an order in the Local Court for $1854.11, which I understand was Marsdens’ fee in respect of work done for Mr Rahman in the Equal Opportunities jurisdiction of the Administrative Appeals Tribunal.

8 The bringing of a motion for contempt is a serious step. For that reason the Rules of the Court have, with particularity, provided the steps which must be fulfilled before the motion will be considered by the Court.

9 The relevant part of the Rules is Pt 55. Part 55 provides that an application for punishment for contempt is to be made by notice of motion.

10 Rule 7 provides that a statement and charge “specifying the contempt with which the contemnor is alleged to be guilty, shall be subscribed to, or filed with the notice of motion...”.

11 Rule 8 provides that subject to any further order of the Court that “the evidence in support of the charge shall be by affidavit.”

12 Rule 9 provides that “the notice of motion or Summons the statement of charge, and the affidavits are to be personally served on the alleged contemnor.”

13 Mr Rahman filed his motion for contempt with an affidavit which contains two paragraphs as follows:

“1. I am the Appellant of the proceeding of the above File Reference.
2. The information in Notice of Motion of No 1 and 2 - Annexure Marked - XY in regards of order sought for - Under part 37, S37.12 Supreme Court Rules 1970 - Failure to comply with Subpoena ‘Contempt of Court’ - Subpoena both to attend to give evidence and to produce by John Robert Marsden, Marsdens Law Group on 9 February 205 (sic) is true and true to the best of my knowledge, wisdom and sincere belief.”

14 Mr Rahman appears for himself and in order to ensure that there was no misunderstanding as to the nature of the proceedings and the obligations of the Rules, I have discussed with him the content of Pt 55. That discussion has examined each of the Rules in that Part to which I have earlier referred. Following that discussion, Mr Rahman confirmed to me that the evidence upon which he relied in support of his motion was that contained in the affidavit.

15 He endeavoured to tender the tape recording of the Local Court proceedings and some documents by way of challenge to the decision of Master Malpass but I rejected those.

16 It follows from the evidence that has been brought before me that the current proceedings have significant deficiencies. Apart from the lack of clarity which the motion itself exhibits, there is no statement of charge filed with the notice of motion. Furthermore, the affidavit evidence provides no foundation for the allegation that the order of the Court has been breached. In addition, there is no evidence before me which supports service of the original subpoena. There is no evidence of personal service on Mr Marsden.

17 Beyond these matters the motion itself raises significant problems. Although Mr John Marsden is identified in para 2 of the affidavit and his name is included in the second paragraph of para 1 of the annexure to the notice of motion, the motion itself appears to have been addressed to Mr Marsden, and in addition his partners in the law firm Marsdens Law Group.

18 It would seem that the intention of the motion may have been, in some way, to make allegations against that firm. As I indicated, those allegations have not been supported by any statement of charge or evidence to support a charge.

19 In those circumstances, in my opinion, the proper order for the Court is to dismiss the notice of motion and, accordingly, I so order. I order Mr Tabibar Rahman to pay the defendants’ costs of the motion.

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