Rahman v Attorney General of New South Wales

THE COURT: On 10 February 2014 Adams J made orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) with respect to the applicant (Mr Rahman): Attorney General of New South Wales v Rahman [2014] NSWSC 42.

The relevant orders were:

By a Summons filed on 11 July 2016 Mr Rahman seeks leave to appeal from those orders. It is accepted that leave is required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) because the appeal is not about money or property and accordingly cannot satisfy the condition in that paragraph: Clyne v New South Wales Bar Association (1960) 104 CLR 186.

Mr Rahman also requires, and applies for, an extension of the time for the filing and service of that summons: Uniform Civil Procedure Rules 2005, r 51.10(2). The extension of time he requires is for a period of two years and five months.

The Attorney General does not consent to the extension of time sought and submits that in any event leave to appeal should be refused.

In support of his application Mr Rahman relies on an affidavit of 8 July 2016 (of 5 pages), a draft notice of appeal (of 20 pages) and his written summary of argument (of 10 pages).

It is sufficient to record, as has similarly been observed in many of the decisions involving Mr Rahman referred to by the primary judge, that it is not possible from Mr Rahman’s writings to discern a legally sensible basis on which he contends that his Honour’s decision involved error so as to justify a grant of leave.

That this is so is illustrated by Mr Rahman’s description at page 3 of his written summary of argument of the question involved in the proposed appeal as being as follows:

The primary judge’s reasons address, on our count, more than 50 proceedings instituted by Mr Rahman between 2003 and 2015. Those proceedings concerned, in his Honour’s analysis, disputes with respect to 10 or so different subjects, some of which were related, involving Federal and State courts or tribunals.

The evidence before the primary judge included “copies of files, transcripts and judgments of [those] various courts and tribunals”: [10]. Having considered that material at [16]-[178] the primary judge concluded at [185]:

In his oral argument before this Court, Mr Rahman expressed more clearly his purpose in seeking to appeal from the primary judgment. He did so by reference to the reasons of the High Court (Nettle and Gordon JJ) given when dismissing his application pursuant to s 40 of the Judiciary Act 1903 (Cth) that proceedings 2014/371482 in the Common Law Division of this Court be removed into the High Court. Those reasons did not relate to the conclusions of the primary judge but rather to earlier bankruptcy proceedings against Mr Raham. Indeed it became apparent that the purpose of Mr Rahman’s application in this Court was directed primarily towards vindicating his position in those proceedings. It is therefore necessary to refer to them in some detail.

The bankruptcy proceedings are dealt with by the primary judge between [164] and [179]. They were brought to enforce cost orders made in proceedings between Mr Rahman and Ms Dubs. Before the primary judge Mr Rahman submitted, as is recorded at [164], that the Federal Court and the Federal Magistrates Court (known from 28 November 2012 as the Federal Circuit Court) did not have jurisdiction to deal with that matter as they were “violations for the whole class of people who are always vulnerable”.

A sequestration order was made against Mr Rahman’s estate on 19 July 2012. He appealed to the Federal Court (Flick J) from that order, and sought special leave to appeal from the decision dismissing that appeal. In their reasons dismissing that application (Mohammad Tabibar Rahman v Rosalind V Dubs [2013] HCA SL23), Kiefel and Gageler JJ said:

Following the primary judge’s decision in February 2014, Mr Rahman brought two applications for leave to institute fresh proceedings. Those applications were made under s 14(2) of the Vexatious Proceedings Act on the premise that he was, within s 14(1), a person “subject to a vexatious proceedings order prohibiting [him] from instituting proceedings”.

The first application was dismissed by Button J on 22 August 2014 (Application of Mohammad Tabibar Rahman [2014] NSWSC 1161). The second, made in proceedings 2014/371482, was dismissed by Garling J on 13 March 2015 (Application of Mohammad Tabibar Rahman [2015] NSWSC 164). The 19 parties named as respondents in that second action had some connection or relation to the events leading to or following the making of the sequestration order in July 2012.

As Garling J records at [1], the claim sought to be made with leave, was described by Mr Rahman as follows:

Those proceedings were the subject of the application for removal into the High Court. In their reasons rejecting that application (Mohammad Tabibar Rahman v Peter Blair & Ors [2015] HCA SL210) Nettle and Gordon JJ said:

Returning to Mr Rahman’s purpose for pursuing the appeal in this Court, he identified the question that he seeks to have addressed as that raised by the declaration described in [4] of their Honours’ reasons. As their Honours also observed that argument is misconceived and devoid of merit. Under s 51(xvii) of the Constitution the Commonwealth Parliament may make laws for Australia with respect to bankruptcy. It has done so by enacting the Bankruptcy Act 1966 (Cth). That Act applies to debts, howsoever arising, including under State laws and by reason of judgments and orders of State courts. Under s 77 of the Constitution the Parliament may also make laws conferring jurisdiction on a federal court in any matter arising under a law made by the Parliament. The Bankruptcy Act is such a law and by s 27 confers concurrent and exclusive jurisdiction in bankruptcy matters on the Federal Court and the Federal Circuit Court. That jurisdiction includes the power to make sequestration orders (s 43).

In the circumstances Mr Rahman’s application for leave to appeal should be dismissed. First, his written and oral submissions do not identify any arguable basis on which it might be said that the primary judge’s conclusion involved material error. On the contrary a consideration of the material extracted in his Honour’s reasons confirms the correctness of his conclusion at [185]. Secondly, Mr Rahman does not seek to prosecute the appeal to establish any such error. Instead he seeks to use the appeal for a misconceived and improper purpose; namely as a basis for challenging the validity of the July 2012 sequestration order and judgments and other actions which followed it. That challenge could not have been made in this Court, either directly or in the guise of contesting conclusions of the primary judge. Furthermore it is sought to be made where an appeal against the sequestration order has been dismissed, and an application for special leave to appeal rejected because it “lacked foundation”. Finally, it is too late for Mr Rahman now to challenge the orders of the primary judge. He has not only delayed for over two years in making his application to do so, but also made two applications for leave to institute proceedings that necessarily assumed the correctness of the primary judge’s orders. To allow Mr Rahman now to appeal from those orders would permit him to pursue inconsistent courses of action.

The Court makes the following orders: