M T Rahman v Marsdens Law Group [2005] NSWSC 529

New South Wales Supreme Court

CITATION : M T Rahman v Marsdens Law Group [2005] NSWSC 529

HEARING DATE(S) : 2 June 2005

JUDGMENT DATE : 10 June 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Master Malpass at 1

DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS : Appeal - decision said to be unjust and unfair - claim of bias - harassment and intimidation by judicial officers - need for legislative changes.

Mohammed Tabibar Rahman (Plaintiff) PARTIES : John Robert Marsden, James Herbert Marsden, John Burnett Adam, Kenneth James Searle, Andrew Ian Percival, Adam Joseph Seton, Elyse White, Peter Joseph Crittenden, David Robert Baird, Tom Charles Reeve and Grant Patrick Butterfield t/as Marsdens Law Group (Defendants)

FILE NUMBER(S) : SC 13875/04

In person (Plaintiff) COUNSEL : Mr G Anderson (Defendants)

In person (Plaintiff) SOLICITORS : Marsdens Law Group (Defendants)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 700/04

LOWER COURT JUDICIAL OFFICER : Maiden LCM

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

10 June 2005

13875 of 2004 M Tabibar Rahman v John Robert Marsden & Ors t/as Marsdens Law Group

JUDGMENT 1 Master: The plaintiff came to Australia from Bangladesh. He sought approval from the Department of Education and Training (the Department) to be employed as a teacher. He was required to undertake the Professional English Assessment for Teachers test (PEAT). 2 The test was administered by the Institute of Languages at the University of New South Wales. The plaintiff unsuccessfully sat the test. Thereafter, he complained that his low score on the test was due, inter alia, to racial bias. 3 He took his complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal (the Tribunal). He was unhappy with certain interlocutory decisions of that division and brought an appeal before the Appeal Panel. 4 The plaintiff retained the defendants to, inter alia, prepare written submissions for use by him in the hearing before the appeal panel. The defendants rendered a bill in the sum of $1,191.30 (being a balance due and owing) for that work. 5 The plaintiff appeared in person before the Appeal Panel. His appeal was dismissed. The Appeal Panel has given written reasons for its decision. 6 The plaintiff disputed payment of the defendants' fees. Proceedings were brought against him in the Local Court (Small Claims Division). In the course of the conduct of the proceedings in the Court they came before a number of judicial officers. The defended proceedings resulted in a judgment given on 22 October 2004 against the plaintiff to pay the sum of $1,854.11. 7 On 22 November 2004, the plaintiff filed a summons in this Court. It is brought to challenge and have set aside various matters including the judgment entered in the Small Claims Division of the Local Court. 8 The appeal was given a special fixture. It was heard on 2 June 2005. The plaintiff appeared in person. The defendants were represented by counsel. 9 In the case of proceedings in the Small Claims Division, an appeal lies only on the grounds of lack of jurisdiction or denial of natural justice (no appeal lies because of error in point of law). In this case, there can be no question that the Local Court had jurisdiction. The only available area for challenge is that of denial of natural justice. 10 Generally speaking, questions of denial of natural justice turn on the circumstances of the particular case before the Court. What is involved is the concept of fairness. The onus rests with the plaintiff to demonstrate denial of natural justice which justifies the disturbing of the decision that is challenged. 11 The summons seeks to challenge, inter alia, interlocutory decisions that were made prior to 22 October 2004. The appeal, insofar as it seeks to challenge any of these matters, is incompetent. It has been brought well out of time. No application has been made for extension of time and evidence has not been placed before the Court which would support any such application. 12 The challenge to these matters is incompetent because it has been brought out of time. Further, the challenge could only be ventilated upon the granting of leave. In this case, in respect of all of the matters, no entitlement to leave has been demonstrated by the plaintiff. 13 The only matter that can be ventilated in this appeal is the challenge to the judgment or order made for the payment of the sum of $1,854.11. 14 I have carefully read the material filed and relied on by the plaintiff. Further, I have carefully listened to the oral submissions made by him in Court. In my view, this appeal is devoid of merit. The onus borne by him has not been discharged. 15 Generally speaking, what is said by the plaintiff falls into one of two categories. 16 There is a broad allegation that the judgment was unjust and unfair. It is said that there was a failure to look at the case in its entirety and to take into account all areas of law that related to submissions made by the plaintiff. Whilst nothing that has been said gave any substance to these sweeping allegations, in any event, they cannot assist the plaintiff in this case because there is no appeal available in respect of error in point of law. 17 The plaintiff makes very strong allegations of bias (including racial bias) against the judicial officers. At their highest, they are pitched at the level of the judicial officers acting on behalf of the other parties. In addition, there are assertions of harassment, intimidation and the like. 18 The assertions could be regarded as either insulting or offensive. They are such that they should not be made in the absence of supporting evidence. 19 In this case, what is relied on by the plaintiff gives no support whatsoever to any of the many assertions. The Court is left with unfounded assertions. 20 The plaintiff was asked by the Court to be taken to any passages in the transcript which he relied on in this appeal. He failed to do so. Indeed, he did not even place the transcript in evidence. 21 Before disposing of the appeal, I should mention two other matters. One concerns another application made by the plaintiff. The other concerns the matter of the hearing of appeals involving small disputes in this Court. 22 The plaintiff appears to place great significance on the service of a subpoena on Mr Marsden and what he perceives as being contempt in relation to that subpoena. On 18 February 2005, he filed in Court a notice of motion. It claims an order for contempt on the basis of a failure to comply with a subpoena. 23 The notice of motion raised a matter that was separate and distinct from the appeal. It had not been set down for hearing on 2 June 2005. There may be jurisdictional considerations as to who can hear it. Accordingly, it was not dealt with by the Court on the day fixed for the hearing of the appeal. 24 The Court sees as a serious problem the numerous appeals being brought to it concerning small disputes. Many of them are being brought by unrepresented litigants. 25 As in many other cases, what is involved in this case is extremely modest when regard is had to the monetary jurisdiction of this Court. It is in the interests of both the public and the parties that such cases be dealt with in a more appropriate forum. There are powerful reasons for legislative change to take place so as to avoid the situation where so much of the valuable time of this Court is being taken up by numerous small claims which put the parties to legal expense which may exceed or at least be grossly disproportionate to what is in issue. 26 The summons is dismissed. The plaintiff is to pay the costs of the summons. **********