District Court
New South Wales
Medium Neutral Citation: Rahman v Sharpe (No 2) [2012] NSWDC 49 Hearing dates: 5 April 2012 Decision date: 05 April 2012 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Paul Baram, John Hartigan and Shirley Alexander are removed as defendants. The originating process as against the 3rd, 4th & 5th defendants is set aside. The Summons is struck out. The appeal is dismissed. The plaintiff is to pay the costs of the 3rd, 4th, 5th & 6th defendants on an indemnity basis.
Catchwords: COSTS ASSESSMENT - appeal from assessment by a costs assessor of party/party costs payable pursuant to court orders - inappropriate joinder of the 3rd, 4th, and 5th defendants - as against the 6th defendant, the appeal document is embarrassing and vexatious, and a clear abuse of process, and should be struck out - failure to identify any decision, let alone any error, on the part of the costs assessor on a question relating to a matter of law that could ground an appeal under s 384 of the Legal Profession Act 2004 - whether plaintiff should be given an opportunity to "re-plead" or whether the appeal should be dismissed summarily in its entirety Legislation Cited: Crimes Act 1900
Business Names Act 2002
Civil Procedure Act 2005
Legal Profession Act 2004
Uniform Civil Procedure Rules 2005 (UCPR)Cases Cited: Cassegrain v CTK Engineering [2008] NSWSC 457
Dobell v Blue Haven Pools and Spas Pty Limited [2009] NSWCA 77
Gorczynski v AWM Dickinson & Son [2005] NSWSC 277
Lions v Wende [2007] NSWSC 100
McCausland v Surfing Hardware International Holdings Pty Ltd [2010] NSWDC 222
Randall Pty Limited v Willoughby City Council [2009] NSWDC 118
Young v Annis-Brown [2011] NSWSC 475Category: Interlocutory applications Parties: Mohammad Tabibar Rahman (Plaintiff)
John Sharpe (1st Defendant)
James Howard (2nd Defendant)
Paul Baram (3rd Defendant)
John Hartigan (4th Defendant)
Shirley Alexander (5th Defendant)
Rosalind Dubs (6th Defendant)Representation: Mr M Rahman (Plaintiff in person)
Ms Z Hannaford (1st & 2nd Defendants)
Ms Ormond (3rd, 4th, 5th & 6th Defendants)
File Number(s): 2012/69814 Publication restriction: None
Judgment
I have earlier today given reasons in these proceedings for removing the first and second defendants as parties to the appeal.
I refer to those reasons and incorporate them in this judgment.
These reasons relate to the motion filed on 4 April 2012 on behalf of the third, fourth, fifth and sixth defendants in which the following orders are sought:
(i) Pursuant to 6.29 of the UCPR that the third, fourth and fifth defendants be removed as parties.
(ii) Costs
(iii) That the plaintiff's summons commencing the appeal be summarily dismissed pursuant to rule 13.4(1) of the UCPR.
(iv) Such further or other orders as the Court thinks fit.
I note that when I indicated earlier today to Mr Rahman that I would proceed to hear and determine this motion today he withdrew from the Court. I advised him prior to his departure that notwithstanding his departure I would proceed ex parte in…
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- AGLC
- Rahman v Sharpe (No 2) [2012] NSWDC 49
- Case
- [2012] NSWDC 49
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the appeal against the costs assessment was properly founded and whether the plaintiff should be granted an opportunity to re-plead or if the appeal should be dismissed outright. Specifically, the Court had to consider the nature of the appeal document against the third, fourth, and fifth defendants, which was deemed embarrassing, vexatious, and an abuse of process. Additionally, the Court had to determine if there was any identifiable error in the costs assessor's decision that could form the basis of a valid appeal under the relevant legislation.
In its reasoning, the Court found that the appeal document against the third, fourth, and fifth defendants was not only inappropriate but also an abuse of process. The Court observed that there was no identifiable decision or error by the costs assessor that could ground an appeal under the statutory provisions. Consequently, the Court concluded that the appeal was frivolous and should be dismissed. Furthermore, the Court determined that the plaintiff should not be afforded the opportunity to re-plead and that the appeal should be struck out entirely. The Court ordered that the originating process against the third, fourth, and fifth defendants be set aside and that the summons be dismissed. The plaintiff was also ordered to pay the costs of the third, fourth, fifth, and sixth defendants on an indemnity basis.
In summary, the Court of Appeal dismissed the appeal against the costs assessment, struck out the summons, and ordered that the plaintiff pay the costs of the third, fourth, fifth, and sixth defendants. The Court found that the appeal document was an abuse of process and that there was no valid basis for the appeal to proceed.
Orders
Orders of the court
Paul Baram, John Hartigan and Shirley Alexander are removed as defendants. The originating process as against the 3rd, 4th & 5th defendants is set aside. The Summons is struck out. The appeal is dismissed. The plaintiff is to pay the costs of the 3rd, 4th, 5th & 6th defendants on an indemnity basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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