Rahman v Sharpe (No 2)

[2012] NSWDC 49

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 475
Category:	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

1. I have earlier today given reasons in these proceedings for removing the first and second defendants as parties to the appeal.

1. I refer to those reasons and incorporate them in this judgment.

1. 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.

1. 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 his absence to hear and determine the motion. He withdrew nevertheless. In my view, having regard to s 56 of the Civil Procedure Act 2005, relating to the overriding purpose, and s 60 of that Act, relating to the proportionality of costs, I should proceed to hear and determine the motion notwithstanding his departure.

1. I will deal first with the orders sought in respect of the removal of the third, fourth and fifth defendants.

1. As noted in the earlier judgment, none of those persons was a party to the Supreme Court proceedings in which the order for costs giving rise to the cost assessment was made, nor were they parties to the subsequent costs assessment. The only parties to the costs assessment were Ms Dubs as the costs applicant and Mr Rahman as the costs respondent.

1. The third defendant in this appeal is Mr Paul Baram, a partner in the law firm Norton Rose, formerly known as Deacons, which acted for Ms Dubs in the Supreme Court proceedings involving Mr Rahman that gave rise to the costs dispute and which also acted for Ms Dubs in the costs assessment. I can see no rational or appropriate basis for his joinder as a party to the appeal. I therefore order that Mr Baram be removed as a defendant.

1. The fourth defendant in the appeal is Mr John Hartigan, the Registrar of the University of Technology. The fifth defendant is Ms Shirley Alexander, the Deputy Vice Chancellor of that university. Neither of these persons were parties to the proceedings in which the order was made, nor in the costs assessment that gave rise to the determinations under appeal. I do not know why they were joined. I can see no rational basis for their joinder as parties to the appeal. I therefore order that Mr Hartigan and Ms Alexander be removed as parties.

1. I now come to the second aspect of the motion, that is, dismissal of the summons in its entirety.

1. The first preliminary observation I make is that the appeal is expressed to be an appeal as of right under s 384 of the LPA 2004, on the basis of alleged errors with respect to decisions as to matters of law arising in the costs assessment. The plaintiff does not purport to seek leave to appeal under s 385 of the LPA 2004. If he wished to appeal on matters other than decisions as to matters of law arising in the cost assessment then, as I pointed out in my earlier reasons, he is in the wrong Court. See also McCausland v Surfing Hardware International Holdings Pty Ltd [2010] NSWDC 222 at [22] - [24].

1. The second preliminary observation is this. To the extent that the plaintiff purports to appeal as of right under s 384, it is extremely difficult to discern any decision as to a matter of law arising in the proceedings to determine the application for assessment.

1. The Summons is a rambling hotchpotch of complaints about a wide range of matters, none of which appear to relate to the assessment, itself. The numbering is confused and it is impossible to filter out of the mass of material in the Summons just what the precise grounds of appeal might be.

1. On page 2 of the Summons there appear the following headings:

"Type of Claim

Details of Appeal"

Under each of these headings is a series of rambling statements and assertions. For present purposes the only matters that I derive as relevant to the appeal that are set out under those headings are as follows:

(i) That the appeal is brought pursuant to s 384 of the Legal Profession Act 2004;

(ii) That the appeal is from the whole of the determination of the costs assessor.

1. The plaintiff details the Orders Sought on page 3 of the summons.

1. There are five series of Orders Sought detailed. I will proceed to consider each series of Orders Sought individually.

1. The first series of Orders Sought is that the court should strike out:

"The unlawful determinations of certification of costs assessment of $12,159.13 made by John Sharpe, cost assessor, and James Howard, Deputy Registrar, submitted by costs applicant, Paul Baram, alleged firm Norton Rose, solicitor, (Deacons in November 2009 as evident from the document) for the alleged defendant Rosalind V Dubs, Registrar (sic)."

1. The second series appears to seek remedial or other relief under the New South Wales Crimes Act 1900 and the Commonwealth Criminal Code 1995 against Paul Baram, James Howard and Michael Eagle for the "heinous" crime of submitting false cost assessments. (It would appear that Mr Eagle was a costs assessor in some other cost assessment involving Mr Rahman).

1. The third series appears to seek orders against Rosalind Dubs for alleged perjury.

1. The fourth seeks "an order that shall grant relief or remedy or do that thing by way of judgment or order under acts for the plaintiff (sic)."

1. The fifth series appears to seek orders against John Sharpe, James Howard and Paul Baram pursuant to the ICAC Act, for "corrupt conduct."

1. Page 3 of the summons is headed "Appeal Grounds." There are three appeal grounds detailed.

1. The first ground appears to assert that certain decisions made in the Supreme Court and the Court of Appeal by Registrar Bradford, Justice McCallum, Justice Hodgson and Acting Justice Tobias were wrong and made "without statute, without rule of law and without any authority" in violation of the provisions of the UCPR and the Supreme Court Act 1970. It goes on to evoke such principles as parliamentary democracy, Dicey's Rule of Law, the "precepts of concurrence jurisprudence of the world" and that "Judges do not make law."

1. The second ground appears to assert that Registrar Bradford is not a judicial officer and therefore did not have power to make the costs order which is, therefore, "an error of law and abuse of process".

1. The third ground is particularly Delphic. As far as I can tell it asserts, in summary, that Justice Hodgson, Acting Justice Tobias, Justice McCallum and Registrar Bradford acted arbitrarily and without bona fides, abused their power, favoured their own social class and denied the plaintiff natural justice in breach of Chapter 11 of the Constitution.

1. None of these three grounds of appeal, so far as I can discern, raises a decision as to a matter of law arising in the assessment proceedings.

1. But the saga does not end there. There are a further seven pages of material in the Summons detailing some eighteen further complaints.

1. I shall endeavour to succinctly state the matters raised in those eighteen complaints.

1. The first (page 5) appears to be a complaint that the proceedings instituted by Mr Rahman by way of a Summons filed in the Supreme Court on 9 June 2009 remain unresolved. Accordingly the costs assessment is "pre-operative" and therefore invalid.

1. The second (page 5) appears to complain about actions taken by Ms Dubs and Mr Hartigan as Registrar of the University of Technology, prohibiting the plaintiff from studying at the University.

1. The third complaint (page 5) reads:

"Several documents was submitted to the R V Dubs Registrar, Vice Chancellor and other officials for the intentions of applicant's court proceedings, but no defence was submitted by the administrative authority of UTS as it is the issues of administrative law (sic)".

1. The fourth (page 5) complains that Ms Dubs was a "non-operative" defendant in the Supreme Court proceedings and does not have "legal enforcement" following her dismissal as a Registrar.

1. The fifth (page 5) seems to suggest that an appeal from a Court of Appeal judgment [2010] NSWCA 129 to the Queen in Council with the High Court invalidates the "pre-operative" costs assessment.

1. The sixth (page 6) appears to assert that the "pre-operative" costs assessment is nullified because the plaintiff has not exhausted his rights in the proceedings in which the costs order was made.

1. The seventh (page 6) appears to assert that the costs assessment is invalid because John Sharpe, James Howard and Paul Baram failed to produce their "instruments of authority".

1. The eighth (page 6) appears to assert that John Sharpe and James Howard are liable under the Crimes Act 1900 for fraud, using false documents and supporting false testimony by way of perjury.

1. The ninth complaint (pages 6 to 7) appears to assert that Paul Baram brought proceedings while a partner of Deacons, which is now Norton Rose, and failed to produce the relevant documents under the Business Names Act 2002. It goes on to assert that Mr Baram violated the provisions of that Act in relation to the notification of changes in respect of the business name.

1. The tenth complaint (pages 7 to 8) appears to be a challenge to the costs agreement between the sixth defendant and her solicitors, the disclosures made by the solicitors under the LPA 2004, and the practitioner /client bills.

1. The eleventh (page 8) appears to complain that the plaintiff was not provided with the actual invoice rendered by the solicitors to Ms Dubs.

1. 39.The twelfth (pages 9 to 10) appears to complain about corrupt conduct and social and racial bias and crimes, and refers also to the ICAC Act. It also makes allegations that seem to be in the nature of accepting a false document, forgery, making a false or misleading application and other such matters.

1. The thirteenth (page 10) seems to be a complaint about the engagement of DG Thompson, costs consultants, to prepare the bill of costs.

1. The fourteenth complaint (page 10) reads:

"The applicant construed that in the Certificate of Determination of costs there is no signature of court officials - Deputy Registrar James Howard SC but only cost assessor John Sharpe and thus avoid such documents and upheld nullity of such proceedings (sic)".

1. The fifteenth and sixteenth (page 10) make complaints against the costs assessor Michael Eagle in relation to some other costs assessment.

1. The seventeenth (page 10) complains that the costs assessor in the present matter, John Sharpe, violated and infringed and misled the plaintiff in his Statement of Reasons which it is suggested amounted to a criminal act for which John Sharpe is liable.

1. The eighteenth (page 10) seems to be a complaint about a no confidence motion submitted against Justice McCallum and Registrar Bradford to the Independent Commission Against Corruption in respect of alleged procedural unfairness and transgression of substantive law which it is alleged invalidates the legality of the determinations, which should be therefore annulled.

1. It is apparent from this summary of the matters set out in the Summons that the document is embarrassing and vexatious, and a clear abuse of process.

1. There is no doubt in my mind that the Summons should be struck out on this basis alone.

1. None of the matters to which I have referred identifies 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 LPA 2004 and as presently "pleaded" the appeal is utterly unarguable and has no prospects of success at all.

1. The only question remaining for my determination is whether I should go further and dismiss the appeal in its entirety on a summary basis as opposed to giving the plaintiff leave to attempt to "re-plead" the Summons so as to set out proper grounds of appeal that allege errors with respect to decisions as to questions of law on the part of the cost assessor.

1. In considering this question I have had regard again to s 56 of the Civil Procedure Act 2005 and also s 60 of that Act. I take into account also the history of these proceedings as appears from the material before me, including the underlying Supreme Court proceedings, the conduct of the assessment and, of course, the nature and contents of the Summons to which I have referred in some detail.

1. Ms Ormond submits in particular that the court should proceed under rule 13.4 of the UCPR and maintains, in short, that the plaintiff is clearly attempting to re-litigate matters totally dissociated from the cost assessment itself and that to allow the plaintiff further opportunity to "re-plead" his Summons would only result in further unnecessary costs being incurred by her client.

1. I should observe at this stage that the only defendant left in the appeal is Ms Dubs. Nevertheless, having regard to what I have seen of Mr Rahman so far, and his documents, it is likely that any further steps in these proceedings would result in the incurring of significant costs.

1. The fact that Mr Rahman did not see fit to stay in court and make submissions in relation to the attack on his Summons, the nature and contents of the Summons in its present form, and the other matters to which I have referred, all suggest to me that Mr Rahman will never successfully identify any error with respect to a decision as to a matter of law in the cost assessment itself.

1. As Ms Ormond said, really all Mr Rahman wants to do is to re-litigate all the grievances he thinks or believes or perceives have been visited upon him by the University of Technology, by the Supreme Court, and by the costs assessment process. No doubt, in due course, the District Court will be included amongst those persons.

1. I am satisfied, therefore, that this is an appropriate case in which to summarily dismiss the entirety of the appeal.

1. I therefore order:

1. The Summons is struck out.

2. The appeal is dismissed.

1. Ms Ormond seeks an order for costs on an indemnity basis against the plaintiff. She submitted that the Summons was designed to harass the defendants and contained no reasonable grounds of appeal.

1. Costs follow the event unless some other order is appropriate: rule 42.1 UCPR. Nothing has been put before me, nor is there anything that I can see that would indicate that some other order might be appropriate.

1. I therefore order the plaintiff to pay the costs of the third, fourth, fifth and sixth defendants to the appeal.

1. In my view the appeal never had any prospects of success and was totally hopeless from the outset. To the extent that the plaintiff sought to rely upon s 384 of the LPA 2004 in relation to an appeal as of right, such an appeal never had any prospects of success. No application was made for leave to appeal under s 385.

1. In those circumstances, it is in my view appropriate that the court order that the costs payable by the plaintiff to the defendants be assessed on an indemnity basis.

1. I therefore order plaintiff to pay costs of the third, fourth, fifth and sixth defendants of the motion and of the appeal generally on an indemnity basis.

Decision last updated: 24 April 2012