New South Wales Court of Appeal CITATION: Rahman v Riordan [2010] NSWCA 375 HEARING DATE(S): 16 December 2010 JUDGMENT DATE: 16 December 2010 JUDGMENT OF: Tobias JA at 11; Macfarlan JA at 1; Handley AJA at 13 DECISION: The notice of motion filed on 15 November 2010 is dismissed with costs.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] CATCHWORDS: PRACTICE AND PROCEDURE – no issue of principle LEGISLATION CITED: Supreme Court Act 1970 CATEGORY: Procedural and other rulings Mohammad Tabibar Rahman (Appellant) PARTIES: Peter Riordan (First Respondent) David McGrath (Second Respondent) FILE NUMBER(S): CA 2009/298070 COUNSEL: Appellant in person C Miles (Solicitor for First and Second Respondents) SOLICITORS: Appellant in person NSW Department of Education and Training (First and Second Respondents) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 2009/298070 LOWER COURT JUDICIAL OFFICER: McClellan CJ at CL LOWER COURT DATE OF DECISION: 20 April 2010 LOWER COURT MEDIUM NEUTRAL CITATION: Rahman v Riordan [2010] NSWSC 409 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298070 TOBIAS JA MACFARLAN JA HANDLEY AJA 16 DECEMBER 2010 Rahman v Riordan Judgment 1 MACFARLAN JA : There is before the Court today a notice of motion filed by Mr Rahman on 15 November 2010. At the commencement of argument this morning Mr Rahman at the request of the Court identified the substance of what he was seeking today pursuant to his notice of motion. What he identified was that he sought to have set aside, first, orders made by Allsop P on 1 November 2010 ([2010] NSWCA 288) and, secondly, orders made by Giles JA and Sackville AJA on 23 September 2010. 2 The background to this matter is sufficiently set out in the judgments given on those days and in that of the primary judge, McClellan CJ at CL, which is to be found at [2010] NSWSC 409. 3 I turn first to the judgment of Allsop P of 1 November. There were essentially three matters decided by his Honour. One was that he had no power as a single judge of the Court of Appeal, whether by reason of his status as President of the Court of Appeal or otherwise, to set aside an order made by two judges of appeal. Mr Rahman had sought that Allsop P set aside an order made by Giles JA and Sackville AJA refusing Mr Rahman's application for leave to appeal. Allsop P was plainly correct in expressing the view that he did as to his lack of power in that respect. 4 Secondly, Allsop P rejected an argument that Mr Rahman put that the application for leave before Giles JA and Sackville AJA was improperly heard by them by reason of the absence of notice being given to him of a direction by the Chief Justice appointing those two judges to hear the application for leave. Allsop P rejected that argument and, with respect, his Honour was plainly correct in doing so. 5 Thirdly, Allsop P was asked by Mr Rahman to remit the matter to Giles JA and Sackville AJA to enable them to reconsider their refusal of Mr Rahman's application for leave to appeal. The transcript of the hearing before Allsop P reveals that on a number of occasions his Honour asked Mr Rahman to identify the basis upon which he contended that that course should be followed. Mr Rahman did not provide any sensible reasons for that to occur and his Honour, in his discretion, declined to list the matter before those other judges. In my view there has not been shown to have been any error in his Honour's exercise of discretion in that respect. 6 I should also add in relation to the judgment of Allsop P that in the Notice of Motion presently before us Mr Rahman refers to Allsop P's status as the referral judge on 1 November 2010. Allsop P so described himself in his judgment of that day. Mr Rahman complains that there are no statutory provisions relating to a referral judge and that, for some reason that does not appear plainly from Mr Rahman's argument, that Allsop P's decision was invalidated. 7 In my view this further argument of Mr Rahman's should be rejected. The description of Allsop P as the referral judge was simply one adopted to reflect the practice of the Court as to the allocation of matters, usually on a Monday, to a single judge. It is of no consequence that there is no specific statutory provision relating to the status of a referral judge. The referral judge simply acts as a single Judge of Appeal and exercises the powers that are granted by the statute to a Judge of Appeal sitting on his or her own. 8 Accordingly, in my view the challenge to Allsop P's judgment must fail. 9 As I have indicated, Mr Rahman also sought today that the dismissal by Giles JA and Sackville AJA of his leave application be set aside. This Court has no power to hear an appeal from an order made by a bench of two judges, such as that made on 23 September by Giles JA and Sackville AJA. Accordingly, that claim by Mr Rahman cannot be entertained. I would add that in any event it is not apparent that there was any error in their Honours' conclusions and further that Mr Rahman has not raised any arguable point to the effect that the Court was not on that occasion properly constituted. 10 For these reasons the matters that Mr Rahman has agitated pursuant to his notice of motion filed on 15 November 2010 do not in my view have any substance and that notice of motion should be dismissed with costs. 11 TOBIAS JA : I agree and would only add two comments. The first is that Mr Rahman correctly sought leave to appeal from the decision of McClellan CJ at CL. Notwithstanding that his Honour's judgment was a final judgment, pursuant to the provisions of s 101(2)(r) of the Supreme Court Act 1970 leave was required to appeal against his Honour's orders 12 Second, Mr Rahman has agreed that on 19 October 2010 he filed an application for special leave to appeal to the High Court of Australia against the orders of Giles JA and Sackville AJA refusing him leave to appeal against the decision of the primary judge. That would be an added reason why, as a matter of discretion, this Court would not remit the matter to their Honours for the purposes of having the matter re-opened. I add that observation to what Macfarlan JA has said and to what the President said in his judgment of 1 November 2010. As appears from the transcript of the proceedings before the President, nothing was put to his Honour (or has been put to us) which would justify the matter being reconsidered by Giles JA and Sackville AJA. 13 HANDLEY AJA : I agree with the judgments of Macfarlan JA and Tobias JA and see no reason to add anything further. 14 TOBIAS JA : The order of the Court is that the notice of motion filed on 15 November 2010 is dismissed with costs. 15 APPLICANT : Your Honour, that's not the law, I'm saying that -- 16 TOBIAS JA : Sorry, the matter is finished. The matter is finished, Mr Rahman, the Court will now adjourn. 17 APPLICANT : I know that, your Honour. But this Court can do this means the case it costs(?). I am not, I am not - I might - understand of who I am. 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