Rahman v Riordan

[2010] NSWCA 288

New South Wales

Court of Appeal

CITATION:	Rahman v Riordan [2010] NSWCA 288
HEARING DATE(S):	1 November 2010
JUDGMENT DATE:	1 November 2010
JUDGMENT OF:	Allsop P at 1
EX TEMPORE JUDGMENT DATE:	1 November 2010
DECISION:	Notice of motion dismissed with costs.
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) ss 24, 69, 42, 43, 46A, 32, 33 Uniform Civil Procedure Rules 2005 Pt 36 rr 15, 16
CATEGORY:	Principal judgment
PARTIES:	Mohammad Tabibar Rahman (Applicant) Peter Riordan (First Respondent) David McGrath (Second Respondent)
FILE NUMBER(S):	CA 2009/298070
COUNSEL:	In Person (Appellant) Mr Easton (Respondents)
SOLICITORS:	In Person (Appellant) NSW Department of Education and Training (Respondents)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2009/298070
LOWER COURT JUDICIAL OFFICER:	Giles JA, Sackville AJA
LOWER COURT DATE OF DECISION:	23 September 2010

2009/298070

ALLSOP P

Monday 1 November 2010

MOHAMMAD TABIBAR RAHMAN v PETER RIORDAN

Judgment

1 ALLSOP P: There is before me a notice of motion filed on 20 October 2010 by the applicant, Mr Mohammad Rahman, which is supported by two affidavits being sworn by him on 20 and 25 October 2010, which affidavits will be taken as read there being no objection to any part thereof.

2 The notice of motion seeks orders setting aside orders made by Giles JA and Sackville AJA on 23 September 2010 in which their Honours, in the exercise of appellate jurisdiction, dismissed the application for leave to appeal with costs from the orders made by the Chief Judge at Common Law on 20 April 2010 dismissing the summons with costs.

3 I raised with Mr Rahman early in the application that he would need to persuade me that I had authority sitting as a single judge to set aside orders of the Court made by their Honours in September. He has referred me to a number of provisions of the Supreme Court Act 1970 (NSW) and the Uniform Civil Procedure Rules 2005, they being Supreme Court Act, ss 24, 69, 42, 43, 46A, 32, 33, and the Uniform Civil Procedure Rules Pt 36 rr 15 and 16.

4 With the utmost respect to Mr Rahman, I will summarise his arguments, I hope accurately: That as the President of the Court of Appeal I have seniority over the other judges in the Court and together with the Chief Justice I have individual power to set aside orders of the Court. I reject that submission. The orders made by the two judges were orders of the Court properly constituted.

5 There was also a submission made by Mr Rahman to the extent that s 46B provides for two judges hearing applications for leave to appeal as directed by the Chief Justice, there was no notice given of that direction by the Chief Justice. That does not invalidate in any way the hearing of the leave application by two judges of appeal, one acting, one full-time.

6 I reject the submission that it lies in the power of a single judge to, in effect, sit on an appeal from a Court properly constituted.

7 If Mr Rahman has a complaint with the orders made by the Court in September he may seek an application for special leave to appeal to the High Court of Australia. That is a matter for him.

8 It is not for the referrals judge on a Monday in this Court to set aside orders made by a leave bench properly constituted.

9 That leaves the question as to whether there has been material placed before me today which persuades me that it is in some fashion useful or appropriate to remit the matter to the bench which heard that matter in September for an application to be made to reopen. I decline to do that.

10 I have heard no matter today which would persuade me that Mr Rahman did not have a full opportunity before Giles JA and Sackville AJA to put his case. Their Honours dealt with the matters put to them in an extempore judgment.

11 If Mr Rahman has a difficulty with that and perceives there to have been error in the Court of Appeal, as I said earlier, he can make an application for special leave to appeal to the High Court of Australia.

12 For those reasons, the notice of motion will be dismissed with costs.

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