Rahman v Riordan

[2011] NSWCA 54

Court of Appeal

New South Wales

Case Title:	Rahman v Riordan
Medium Neutral Citation:	[2011] NSWCA 54
Hearing Date(s):	9 March 2011
Decision Date:	09 March 2011
Jurisdiction:
Before:	Tobias JA at [1]; [9]; [15] Macfarlan JA at [2] Sackville AJA at [12]
Decision:	The notice of motion dated 23 December 2010 is dismissed with costs. [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:	APPEAL - civil - application to set aside orders dismissing leave application - application refused - no issue of principle
Legislation Cited:	Supreme Court Act 1970 Uniform Civil Procedure Rules
Cases Cited:	Forge v Australian Securities & Investments Commission [2006] HCA 44; (2006) 228 CLR 45
Texts Cited:
Category:	Procedural and other rulings
Parties:	Mohammad Tabibar Rahman (Applicant) Peter Riordan (First Respondent) David McGrath (Second Respondent)
Representation
- Counsel:	Counsel: Applicant in person C Miles (Solicitor for First and Second Respondents)
- Solicitors:	Solicitors: NSW Department of Education and Training (First and Second Respondents)
File number(s):	CA 2009/298070
Decision Under Appeal
- Court / Tribunal:
- Before:	Tobias JA; Macfarlan JA; Handley AJA
- Date of Decision:	15 December 2010
- Citation:	[2010] NSWCA 375
- Court File Number(s)	CA 2009/298070
Publication Restriction:

Judgment

1. TOBIAS JA : I will ask Macfarlan JA to give the first judgment.

1. MACFARLAN JA : This is an application by notice of motion dated 23 December 2010 for orders setting aside orders made by this Court on 23 September, 1 November and 15 December 2010 and for an order fixing a new court date, apparently for the rehearing of an application made by Mr Rahman for leave to appeal against a decision dated 20 April 2010 of McClellan CJ at CL ([2010] NSWSC 409). That application for leave was dismissed by Giles JA and Sackville AJA on 23 September 2010. These various decisions and orders, and the circumstances in which they were made, are sufficiently described in the Court's judgment of 15 December 2010, for which the reference is [2010] NSWCA 375.

1. Much of what Mr Rahman has said and written in support of his notice of motion is difficult to understand. It is at times unintelligible. As best I can determine, the effect of his contentions is as follows.

1. First Mr Rahman alleges that one or more of the courts that made the earlier decisions or orders was not properly constituted under the provisions of the Supreme Court Act 1970. I can discern no sensible argument to support that contention.

1. Secondly Mr Rahman contends that one or more of the judges concerned has participated in more than one decision concerning Mr Rahman. However, Mr Rahman has not identified any arguable basis upon which any such judge should have disqualified himself.

1. Thirdly Mr Rahman contends that "judicial racism" has infected the decisions. There is no basis for this allegation.

1. Fourthly Mr Rahman contends that in a variety of ways the judges hearing his applications have failed to perform their duties or committed errors in reaching their decisions. To a large extent these contentions concern matters raised and rejected in previous decisions of this Court. In any event Mr Rahman has not persuaded me that it is arguable that any of the previous decisions were erroneous or decided by courts that were not properly constituted, nor, to use the words of Uniform Civil Procedure Rules r 36.15 upon which Mr Rahman relies, that any of the decisions were made "irregularly, illegally or against good faith".

1. In these circumstances Mr Rahman's notice of motion should be dismissed with costs.

1. TOBIAS JA : I agree and would simply add this. As I understand Mr Rahman's argument today, or the essential part of it, it is, first, that the bench that is now sitting to hear his notice of motion is illegally constituted under the Supreme Court Act and, second that he has no confidence in any decision that this Court may make.

1. So far as the first matter is concerned, there is no rational basis whatsoever for the assertion that this Court is improperly or illegally constituted for the purpose of hearing the notice of motion. So far as Mr Rahman's lack of confidence in this Court giving him a fair hearing and giving him what he refers to as justice, then all I can say is that we do our best to carry out our duties and if he has no confidence in us then that unfortunately is regrettable but a matter for him.

1. I agree with the orders proposed by Macfarlan JA.

1. SACKVILLE AJA : I agree with the judgment delivered by Macfarlan JA and the orders that his Honour proposes. I also agree with the additional comments made by the presiding judge.

1. I would add this. Mr Rahman's submissions today appeared in part to be directed towards the appointment of acting judges. As I understood his submission, it was that an acting judge could not sit on any case in which Mr Rahman was involved. Mr Rahman appears to have overlooked the provisions of s 37 of the Supreme Court Act 1970, pursuant to which appointments of acting judges are made. He may also have overlooked the decision of the High Court in Forge v Australian Securities & Investments Commission [2006] HCA 44; (2006) 228 CLR 45 which dealt with the question of the validity of appointments of acting judges and confirmed that acting judges can be validly appointed to the Supreme Court of New South Wales.

1. I agree with the orders that have been proposed.

1. TOBIAS JA : The orders of the Court are those proposed by Macfarlan JA.

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