Rahman v Attorney General of New South Wales (No 2)

THE COURT: On 19 September 2016 this Court as presently constituted dismissed the applicant’s (Mr Rahman) summons seeking leave to appeal from orders made by Adams J declaring him a vexatious litigant. Those orders were made on 10 February 2014: Attorney General of New South Wales v Rahman [2014] NSWSC 42.

On 28 September 2016 Mr Rahman filed a notice of motion in the summons proceedings seeking that the orders made on 19 September 2016 be set aside or varied under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.15 or 36.16. By the remaining paragraphs of that motion Mr Rahman seeks further orders or relief which it is impossible sensibly to discern.

Mr Rahman has filed an affidavit sworn 28 September 2016 (of seven pages) and a written submission dated 4 November 2016 (of five pages) in support of his application to set aside or vary this Court’s earlier orders. The Court has also received written submissions on behalf of the Attorney General (of five pages) which oppose the orders sought.

Mr Rahman’s affidavit, like the written material referred to in our earlier judgment (Rahman v Attorney General of New South Wales [2016] NSWCA 261), focuses on events leading to or following the bankruptcy proceedings brought against him in May 2012 in respect of unpaid costs orders made in proceedings involving Ms Dubs: see [2016] NSWCA 261 at [12]-[13].

For example, para 5 of that affidavit states:

The references to Mr Lombe are to Mr Rahman’s trustee in bankruptcy. The same theme is the subject of Mr Rahman’s written submissions, which relevantly commence (by para 4):

Those written submissions conclude in the same vein (at para 8):

UCPR r 36.15 permits this Court to set aside an order or judgment which has been given or made “irregularly, illegally or against good faith”. Mr Rahman has produced no evidence and makes no argument which raises as a possibility that the orders made on 19 September 2016 answer that description. Accordingly his claim to relief on that basis must be refused.

The power to set aside or vary a judgment or order under UCPR r 36.16 is, in circumstances where the application is made after the entry of that judgment, or order, limited to the circumstances in r 36.16(2) or (3). The judgment entered on 19 September 2016 was not a default judgment or given in the absence of Mr Rahman and did not concern proceedings for possession of land. Accordingly UCPR r 36.16(2) is not engaged.

UCPR r 36.16(3) permits the Court to set aside or vary any judgment or order, irrespective of whether the application for that relief is made before or after the entry of the judgment or order, except so far as the judgment or order determines any claim for relief or dismisses proceedings. The order made on 19 September 2016 dismissing Mr Rahman’s summons seeking leave to appeal is within that exception. For that reason r 36.16(3) is not engaged.

In any event, Mr Rahman’s affidavit and submissions do not identify or describe any principled basis on which the power in r 36.16(2) or (3) might have been exercised.

It follows that Mr Rahman’s notice of motion filed 28 September 2016 should be dismissed with costs. We make that order.