Rahman v Registrar-General

[2014] NSWSC 521

Supreme Court

New South Wales

Medium Neutral Citation:

Rahman v Registrar-General [2014] NSWSC 521

Hearing dates:

6 May 2014

Decision date:

06 May 2014

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. I order that the Summons filed 3 October 2013 be dismissed.

2. I order that the Plaintiff pay the Defendant's costs of the proceedings.

Catchwords:

PROCEDURE - summary dismissal - extended estoppel - proceedings purporting to challenge the making of a sequestration order against the plaintiff - appeal from making of sequestration order unsuccessful - collateral attack on sequestration order in equity proceedings already dismissed - plaintiff now a vexatious litigant - proceedings dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Attorney General of New South Wales v Rahman [2014] NSWSC 42
Dey v Victorian Railway Commissioner (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
Rahman v Lombe [2013] NSWSC 1416
Rippon v Chilcotin Pty Ltd (1995) 43 NSWLR 404
Spencer v The Commonwealth (2010) 241 CLR 18
Wainohu v New South Wales [2011] HCA 24

Category:

Principal judgment

Parties:

Mohammad Tabibar Rahman (Plaintiff)
Registrar-General (Defendant)

Representation:

Counsel:
In person (Plaintiff)
P Walsh (Defendant)
Solicitors:
In person (Plaintiff)
Solicitor for the Registrar-General (Defendant)

File Number(s):

2013/297990

Judgment

1. On 19 July 2012 the Federal Magistrates' Court made a sequestration order against the Plaintiff. David John Frank Lombe became the trustee of the Plaintiff's bankrupt estate.

1. On 5 October 2012 Flick J in the Federal Court dismissed the Plaintiff's appeal against his sequestration order.

1. On 13 March 2013 the High Court refused the Plaintiff special leave to appeal against Flick J's decision.

1. At the time of his bankruptcy the Plaintiff was the registered proprietor of folio 509/234857 at Holsworthy and folio 374/848739 at Holsworthy. On or about 16 May 2013 Mr Lombe lodged for registration with the Registrar-General, the Defendant, Bankruptcy Application AH734450 in respect of folio 509/234857. That Application was registered and Mr Lombe is now the registered proprietor of that parcel of land.

1. On or about 16 May 2013 Mr Lombe also lodged for registration with the Defendant Bankruptcy Application AH734458 in respect of folio 374/848739.

1. On 12 June 2013 the Plaintiff commenced proceedings in the Equity Division of this Court against Mr Lombe. The Plaintiff requested that the Defendant not register this latter Bankruptcy Aplication pending the outcome of the Equity proceedings he took against Mr Lombe. At the present time, therefore, the Plaintiff remains the registered proprietor of 374/848739.

1. On 20 September 2013 Lindsay J dismissed the proceedings brought by the Plaintiff against Mr Lombe on the basis that they were an abuse of the processes of the Court: Rahman v Lombe [2013] NSWSC 1416. He said that the Summons filed by the Plaintiff that commenced the proceedings and a Notice of Motion filed by him on 26 July 2013 were both incomprehensible. Lindsay J said, however, at [3]:

The plaintiff's basic complaint (a complaint that lies at the heart of all other complaints) is that he disputes the validity of a sequestration order made by the Federal Magistrates' Court on 19 July 2012 that declared him bankrupt.

1. On 3 October 2013 the Plaintiff filed the Summons that commenced these present proceedings. Although the Summons is difficult to understand the Plaintiff appears to claim orders in the nature of certiorari, prohibition and mandamus, as well as seeking an injunction, a declaration and makes a claim for damages. The damages appear to relate to what the Plaintiff asserts is the value of the land.

1. The affidavit filed with the Summons contains only two paragraphs. They read as follows:

1. I am the Applicant of the Proceedings of Summons against the Vanessa JEAVONS, Per: Registrar-General, LPI, NSW Government, a division of the Department of Finance, 'Whom has made decisions and performed other acts 'not obliged under law', but error of law ' and thereby unlawful decisions' - and henceforth, infringed the applicant's right of Registrar Proprietor and dealings ' of the two Free hold Estate of Folio Identifier: 509/ 234857 and Folio identifier 374/ 848739 (Property Value: $1.5 Million approx.) has Registered one of Folio: 509/ 234857 (Value: 0.6 Million Approx.) on 12 July 2013 against David John Frank Lombe pursuant to communications date on 20 May 2013, Ref: TRESS 103522 of Our Ref; AH679937: VJ: Leg 30 and on 12 July 2013 .Your Ref. RAHMAN ,Our Ref: AH734457 :VJ: Leg 30 RE: AH734457- Request & AH734458 , when such claims are jurisdictional error, without concurrence of judicial power Fraudulent, breach of natural justice -a miscarriage of justice and also which are outside the Legislative power of the Parliament and undermines the institutional integrity of the Supreme Court of NSW 'Registrar GENERAL, Land and Property Information . LPI is not Chapter -111 Courts under Constitution.

2. In Support of the Applicant's Summary of claim as mentioned in the Summons and to upheld the legitimacy the 'Annex marked documents' submitted herein to will be included in this Affidavit to void the Defendants acts as performed and validate applicant's claims under statute law. As claimed in the summons under statute right when the LPI is not Chapter -111 Courts under Constitution. And henceforth, which are outside the Legislative power of the Parliament and undermines the institutional integrity of the Supreme Court of NSW.

1. In addition, the Plaintiff lists a number of documents which relate to the two parcels of land and to his bankruptcy.

1. The Defendant moves by Notice of Motion filed 25 October 2013 that the proceedings be summarily dismissed. The application is put on a number of bases including:

(1) The Plaintiff is a bankrupt and has no standing to bring the present proceedings;

(2) The Plaintiff is estopped by the principle discussed in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 and Rippon v Chilcotin Pty Ltd (1995) 43 NSWLR 404 on the basis that the challenge to his bankruptcy has been determined against him already;

(3) The Defendant has not made nor given any decision that has a discernible or apparent legal effect upon the Plaintiff's rights with the result that there is nothing to quash;

(4) The Summons and affidavit do not disclose a reasonable cause of action because they do not identify any arguable basis for relief.

1. On 31 October 2013 the Registrar ordered that the Plaintiff file any affidavits and a written submission by a specified date. The Plaintiff has filed a lengthy and rambling written submission. It is very difficult to understand precisely what is being said in that submission but there is enough to glean that at the heart of the Plaintiff's complaint is an assertion that his bankruptcy cannot be considered as valid or justified. For example, he asserts that the judgments upon which the sequestration order were made do not exist, he disputes that the Federal Magistrates' Court was able to make a sequestration order, somewhat mysteriously he asserts that the Insolvency and Trustee Service of Australia does not have judicial power citing the Boilermakers case (R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254) and says that the bankruptcy applications made by Mr Lombe to the Registrar-General were unlawful and void.

1. He also appears to assert that the power of the Registrar-General to register Mr Lombe as the registered proprietor of the land undermines the integrity of this Court and is outside the power of the Parliament of New South Wales.

1. He also makes reference to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and Wainohu v New South Wales [2011] HCA 24 but how they are said to be relevant to the facts of the present matter is not made clear.

1. In his oral submissions Mr Rahman reiterated his assertion that the Federal Magistrates Court had no power to make a sequestration order, principally it would seem, because it was not possible to enforce a judgment of a state court in a federal court. The basis for that submission is not made clear although Mr Rahman relies on the provisions of the Uniform Civil Procedure Rules 2005 (NSW) to suggest that the only methods of enforcement are contained in those Rules.

1. That is demonstrably not so. The Federal Parliament has full power to make laws with respect to bankruptcy, and that enables the enforcement of state court judgments by courts vested with federal jurisdiction.

1. Since the Motion by the Registrar-General has been filed Adams J at the suit of the Attorney-General made orders as follows:

(1) Mr Rahman is prohibited from instituting proceedings in New South Wales without first obtaining leave of the Court;

(2) no further steps are to be taken by Mr Rahman in any proceeding already instituted by him in New South Wales without leave of the Court;

(3) all proceedings already instituted by Mr Rahman in New South Wales are stayed pending leave of the Court to proceed.

(Attorney General of New South Wales v Rahman [2014] NSWSC 42)

1. I do not consider that that judgment either prevents the Registrar-General proceeding on his motion already filed or prevents me from dealing with that motion to dismiss these proceedings if I found that grounds for dismissal have been made out.

1. In my opinion the present proceedings must be dismissed. I have regard to what is said in the authorities that refer to summary dismissal including Dey v Victorian Railway Commissioner (1949) 78 CLR 62, General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Spencer v The Commonwealth (2010) 241 CLR 18. I am entirely satisfied that the present is a clear case where, to the extent that the claim can be ascertained, it has no basis whatever and will inevitably fail if allowed to go to trial.

1. The Defendant's submissions are accepted. To the extent that the claim is a challenge to the right of the Registrar-General to register the bankruptcy applications it fails because the Plaintiff has no standing to challenge such registration. The Registrar-General is entitled to register the applications because the sequestration order and Mr Lombe's appointment has not been set aside. Rather it has been confirmed by the appeal process that the Plaintiff pursued.

1. Further, the challenge to the bankruptcy has been litigated and lost by the Plaintiff through an appeal to the Federal Court, an application for special leave to the High Court and by a further collateral challenge in the Equity proceedings that ultimately came before Lindsay J and were dismissed. This is a very clear case of the principle in Haines.

1. To the extent that the Summons seeks judicial review it does not comply with r 59.4 UCPR. In addition, and as mentioned, the affidavit is incomprehensible in identifying what the basis of the claim is. That means that the proceedings as constituted are embarrassing as that term is understood in relation to pleadings.

1. Accordingly, I make the following orders:

1. I order that the Summons filed 3 October 2013 be dismissed.

2. I order that the Plaintiff pay the Defendant's costs of the proceedings.

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Decision last updated: 09 May 2014