Rahman v Rahman (No 1)

[2024] NSWCA 108

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rahman v Rahman (No 1) [2024] NSWCA 108

Hearing dates:

2 May 2024

Decision date:

02 May 2024

Before:

Leeming JA at [1], [18];
White JA at [16];
Mitchelmore JA at [17]

Decision:

1. Notice of motion filed 19 April 2024 dismissed.

2. Costs reserved.

Catchwords:

PRACTICE – application for adjournment – separate proceedings challenging separate decisions of District Court concerning apprehended domestic violence orders – one decision refused an order sought by husband against estranged wife – other decision granted an order sought by wife against estranged husband – husband sought judicial review of both decisions – whether proceeding set down for hearing months earlier should be vacated so as to be heard together with other proceeding which did not have a hearing date – despite parties to proceedings being same, each raised different issues and turned on different evidence – application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Category:

Procedural rulings

Parties:

Fahmid Rahman (Applicant)
Mita Farjina Rahman (Respondent)

Representation:

Counsel:
Applicant (self-represented)
M J Lewis and K Hooper (Respondent)

Solicitors:
MIC Lawyers (Applicant)
N Reuben (Respondent)

File Number(s):

2023/345709

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 August 2023

Before:

M L Williams SC DCJ

File Number(s):

2020/00104318

JUDGMENT – EX TEMPORE

1. LEEMING JA: The matter listed before the Court today is Mr Fahmid Rahman’s summons filed on 27 October 2023 seeking judicial review of a decision of the District Court constituted by his Honour Judge M L Williams SC made on 14 August 2023. The matter was set down for hearing as long ago as 19 February 2024. By notice of motion filed on 19 April 2024, Mr Rahman seeks orders that this proceeding and what he says is an inter-related proceeding, 2024/104774, should be heard together. The reason given in the motion is to “to protect the said individual and minors”.

2. The substance of the notice of motion, which was listed concurrently with the final hearing of the summons, is to adjourn the summons which is listed for hearing today. That is the effect of the motion, because the second summons, filed on 15 March 2024, has not as yet been given a hearing date. It is next before the Court, so we have been told, on 20 May and it is possible that it will be allocated a hearing date then.

3. The active parties to both proceedings are identical and that is prominent in Mr Rahman’s submissions in support of his motion. Both motions result from applications for apprehended domestic violence orders in the Local Court, both of which were the subject of appeals to the District Court.

4. Both summonses purport to have been filed by Mr Muhammad Iqbal Chaudhry of MIC Lawyers. Notwithstanding that, it is plain from an email from Mr Rahman, who today has appeared for himself with the assistance of Mr John Chopailuk, that Mr Rahman personally has been filing documents by email to two addresses within the Supreme Court of New South Wales.

5. One issue that has arisen during the some 50 minutes that the Court has spent hearing Mr Rahman develop his application is the delay of the notice of motion. He says, against this, that for much of the proceedings this year he has been asking the Registrar to set down this summons and the 2024 summons at the same time. For present purposes, I will, favourably to Mr Rahman, not rely upon the delay.

6. However, Mr Rahman has said orally and in writing that on some six to eight occasions the matter has been before the Registrar and the respondent, who is his estranged wife Ms Mita Farjina Rahman, has not appeared. That does not reflect the records of the Court. Her representatives have consistently appeared on all or perhaps all save one occasion and, indeed, a series of directions were made for the applicant, Mr Rahman, to file a white book. Those directions were not complied with, and the result has been that the respondent’s representatives have filed the white book for the hearing of the applicant’s summons that is listed today.

7. As I said, at the forefront of Mr Rahman’s application is his proposition that both proceedings emerge from the same facts, namely, his estranged wife’s concern at violence at his hands and his concern on behalf of himself and his children of violence at her hands. So much may be accepted. However, as was pointed out to him during the hearing, notwithstanding the fact that both of the summonses proceed on materially identical grounds of the jurisdictional errors said to have been made by the District Court, including a denial of natural justice, the hearings at which those two decisions were made were on different days, involve different evidence, and were before the Court constituted by different judicial officers who gave separate reasons for their decisions. Accordingly, in order to either make out or defend the various grounds that each summons propounds, it will be necessary to have regard to the different proceedings, the different reasons and the different evidence.

8. One example which was at the forefront of Mr Rahman’s applications concerns whether his estranged wife gave evidence. In the summons which is listed for hearing before this Court today, she did not give evidence. To the extent that some of his submissions deal with her credibility, it is plain (as was pointed out to Mr Rahman) that any issue going to jurisdictional error concerning her credibility when she gave evidence in support of an ADVO on her own application is substantially different from the position in the proceedings listed for hearing today, where she did not give evidence.

9. Although I can understand that Mr Rahman sincerely accepts that the proceedings emerge from the same underlying facts, and in a sense they do, the fact of the matter is that this Court is not rehearing on the merits whether or not either or both of Mr Rahman and his estranged wife should receive ADVO’s. Instead, what is happening is an examination of whether judgments of the District Court disclose jurisdictional error.

10. Mr Rahman also maintained that it would be efficient, in that it would save time and money, if both summonses were heard together. No such efficiency is made out. One summons is ready to be heard today and all the parties, including the legal representatives briefed to appear for the respondent, are here. They have exchanged written submissions and are ready to proceed. The other summons is not ready to proceed. The consequence of acceding to Mr Rahman’s motion would be that the time that the Court and the parties have made available today would be wasted. Mr Rahman has made it plain that he would be unwilling to pay the costs of the respondent that would be thrown away which would be the consequence of the orders that he seeks.

11. Mr Rahman has also said that there is no particular urgency in the summons today proceeding. That may be doubted. If, as he says, it is necessary to protect him and his children, then the sooner that his summons is resolved and, if he is successful, the sooner the matter is returned to the District Court, the better.

12. In short, all of the considerations in s 56 of the Civil Procedure Act 2005 (NSW) support the conclusion that the matter that was listed for hearing on 19 February proceed today.

13. In his oral submissions in reply, Mr Rahman introduced two matters. One was, so it was said, that there was a barrister who was unable to appear today. I mention this because it was not in evidence, nor was it in reply to anything that had been put against him, nor had it been introduced in anything that Mr Rahman said in support of his application. In the absence of evidence, it is not possible to have regard to that and I have not done so.

14. Secondly, Mr Rahman elaborated at some length what he said were difficulties in the transcript in the District Court. It is true that in his submissions in chief he had mentioned those difficulties, but this point was developed much more substantially in submissions in reply, although it was not responsive to anything that had been put against him. It was made clear at the commencement of the hearing that it would be necessary for Mr Rahman to identify the evidence upon which his application was based. There is no evidence before this Court of any difficulty with the transcript in the District Court and, indeed, the parties have exchanged submissions in relation to the transcript. In any event, it is difficult to see that any of the difficulties which Mr Rahman has suggested would have any great bearing upon whether or not jurisdictional error has been established. I have referred to those submissions, which likewise purported to have been made in reply but were not in reply, principally as a matter of transparency.

15. For all of those reasons, I propose that the notice of motion filed 19 April 2024 be dismissed.

16. WHITE JA: I agree with the orders proposed by Leeming JA and with his Honour’s reasons. In short, the two summonses raise different cases. There is no advantage in delaying the hearing of the summons which has been listed for hearing today, and for the reasons given by Leeming JA, there is no evident prejudice to Mr Rahman if his summons listed for hearing today is heard and determined.

17. MITCHELMORE JA: I also agree with the order that Leeming JA has proposed and with his Honour’s reasons.

18. LEEMING JA: The order of the Court, therefore, is that the notice of motion filed 19 April 2024 will be dismissed. We will reserve the question of costs for the time being.

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Decision last updated: 09 May 2024