Rahman v Riordan

[2010] NSWCA 375

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Rahman v Riordan [2010] NSWCA 375

FILE NUMBER(S):
2009/298070

HEARING DATE(S):
16 December 2010

JUDGMENT DATE:
16 December 2010

PARTIES:
Mohammad Tabibar Rahman (Appellant)
Peter Riordan (First Respondent)
David McGrath (Second Respondent)

JUDGMENT OF:
Tobias JA Macfarlan JA Handley AJA   

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 2009/298070

LOWER COURT JUDICIAL OFFICER:
McClellan CJ at CL

LOWER COURT DATE OF DECISION:
20 April 2010

LOWER COURT MEDIUM NEUTRAL CITATION:
Rahman v Riordan [2010] NSWSC 409

COUNSEL:
Appellant in person
C Miles (Solicitor for First and Second Respondents)

SOLICITORS:
Appellant in person
NSW Department of Education and Training (First and Second Respondents)

CATCHWORDS:
PRACTICE AND PROCEDURE – no issue of principle

LEGISLATION CITED:
Supreme Court Act 1970

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
The notice of motion filed on 15 November 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.]

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298070

TOBIAS JA
MACFARLAN JA
HANDLEY AJA

16 DECEMBER 2010

Rahman v Riordan

Judgment

1. MACFARLAN JA: There is before the Court today a notice of motion filed by Mr Rahman on 15 November 2010. At the commencement of argument this morning Mr Rahman at the request of the Court identified the substance of what he was seeking today pursuant to his notice of motion. What he identified was that he sought to have set aside, first, orders made by Allsop P on 1 November 2010 ([2010] NSWCA 288) and, secondly, orders made by Giles JA and Sackville AJA on 23 September 2010.

2. The background to this matter is sufficiently set out in the judgments given on those days and in that of the primary judge, McClellan CJ at CL, which is to be found at [2010] NSWSC 409.

1. I turn first to the judgment of Allsop P of 1 November.  There were essentially three matters decided by his Honour.  One was that he had no power as a single judge of the Court of Appeal, whether by reason of his status as President of the Court of Appeal or otherwise, to set aside an order made by two judges of appeal.  Mr Rahman had sought that Allsop P set aside an order made by Giles JA and Sackville AJA refusing Mr Rahman’s application for leave to appeal.  Allsop P was plainly correct in expressing the view that he did as to his lack of power in that respect.

1. Secondly, Allsop P rejected an argument that Mr Rahman put that the application for leave before…