Rahman v Bimson [2010] NSWSC 338

New South Wales Supreme Court

CITATION : Rahman v Bimson [2010] NSWSC 338

HEARING DATE(S) : 19 March 2010

JUDGMENT DATE : 23 April 2010

JURISDICTION : Common Law

JUDGMENT OF : McCallum J

DECISION : (1) The summons is dismissed. (2) The plaintiff is to pay the defendants' costs of the proceeding.

CATCHWORDS : PRACTICE AND PROCEDURE - power to dismiss proceedings for failure to comply with directions for the speedy determination of the real issues between the parties - where plaintiff refuses to amend summons - summons dismissed

Civil Procedure Act 2005 LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 Local Court Act 2007 Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings

CASES CITED : Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230

Mohammad Tabibar Rahman (Plaintiff) PARTIES : Paul Bimson (1st Defendant) Michael Bushby (2nd Defendant)

FILE NUMBER(S) : SC 2010/9832

COUNSEL : In person (Plaintiff) M. A. Robinson (Defendants)

SOLICITORS : Louise Hicks, RTA NSW (Defendants)

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

McCALLUM J

23 APRIL 2010

10/9832 MOHAMMED TABIBAR RAHMAN v PAUL BIMSON & ANOR

JUDGMENT 1 HER HONOUR: This is an application for stay or dismissal of proceedings brought by Mr Mohammed Rahman arising out of his conviction for a speeding offence by Bankstown Local Court. Mr Rahman initially received a penalty notice in respect of that offence. The notice asserted that his vehicle was detected (by a speed camera) on the Hume Highway at a speed of 56 kilometres per hour in a 40 kilometre zone. It appears that the speed zone in question was designated a school zone. 2 Mr Rahman contested the penalty notice on the grounds that he asserts there is no school located in the segment of the Hume Highway identified in the notice. It appears that the offence was then prosecuted in the Local Court and that Mr Rahman was ultimately convicted on 14 December 2009. 3 The present proceedings were commenced by summons filed 11 January 2010 seeking review of aspects of those proceedings. The defendants to the summons are Mr Paul Bimson, who was apparently the informant in respect of the offence, and Mr Michael Bushby, the Chief Executive Officer of the RTA. 4 The summons is a difficult document. It appears to seek to invoke the Court's supervisory jurisdiction to grant prerogative relief as well as its statutory appellate jurisdiction in respect of decisions of the Local Court. However, the summons generates considerable confusion as to the decision or decisions in respect of which such jurisdiction is sought to be invoked. 5 The summons expressly invokes s 69 of the Supreme Court Act 1970, which confers jurisdiction on the Court to grant relief in the nature of a constitutional writ. The Court has power under that section to grant prerogative relief in respect of the decisions of inferior courts, tribunals and administrators. The summons claims relief under s 69 in respect of the "decisions" of Mr Bimson (the informant) but does not identify those decisions. As to Mr Bushby, the summons does not make reference to any separate decision. He appears to have been joined on the basis of speculation that Mr Bimson is his delegate, but the summons is not clear in that respect. 6 The second source of the Court's jurisdiction identified in the summons is s 39 of the Local Court Act 2007. That section creates a limited right of appeal to this Court from a judgment or order of the Local Court exercising civil jurisdiction in its General Division. No judgment or order of that kind is identified in Mr Rahman's summons. If it was intended to rely on s 39 as the source of a right of appeal against the conviction for the speeding offence, the appeal is misconceived. An appeal against a conviction for an offence in the Local Court lies as of right to the District Court under s 11 of the Crimes (Appeal and Review) Act 2001 but not to this Court. However, it is not clear from the summons whether that is the decision sought to be appealed against. 7 A close examination of the summons discloses many other possibilities. The heart of Mr Rahman's grievance in respect of his conviction is that he could not have been speeding in a school zone, since there is no school in the relevant area. A possibility is that Mr Rahman seeks to impugn some administrative decision relating to the designation of the relevant speed zone, but no such decision is identified in the summons. 8 Some of the grounds stated in the summons appear to be directed to impugning aspects of the proceedings in the Local Court, possibly including the Court's treatment of the prosecution as falling within its criminal jurisdiction (see the first paragraph numbered 9 in Part II of the summons); the Court's treatment of a subpoena issued to Mr Bimson (see the first paragraph numbered 10 in Part II of the summons and the second paragraph numbered 9) and, possibly, the refusal by a Magistrate to grant prerogative relief in respect of the classification of the relevant speed zone (see paragraph 12 of Part II of the summons). However, Mr Rahman's contentions in respect of those matters are extremely confusing. 9 For example, the subpoena is the subject of oblique reference in paragraph 3 of the statement of grounds. That paragraph states (as written): "The applicant in the proceedings reiterate the questions of the 'dictum '- School Road' and asked the Magistrate to bring the evidences that the alleged claim of School - 'Bankstown North Public School' is on the Western side of Hume Highway and the road is passing through the School and produce the subpoena documents by RTA as evidence but she could not defend being Magistrate's role ' but acted f as de-facto, de-jure surrogate for the RTA - a government agency of the Minister for the Transport and Roads (Document attached - B)" 10 It is not clear from that assertion whether any decision of the Magistrate in respect of the subpoena is intended to be included in Mr Rahman's farrago of complaints. That is but one example of the confusion generated by the difficult language of the summons. It is impossible to understand the claim as it is presently articulated. 11 Shortly after the commencement of the proceedings, the defendants wrote to Mr Rahman identifying some of those problems. In that letter (dated 20 January 2010), the defendants invited Mr Rahman to amend the summons so as to identify the precise decisions sought to be challenged and the jurisdiction sought to be invoked. The letter also asserted that Mr Rahman should join the Local Court of New South Wales and the Roads and Traffic Authority of New South Wales as parties, and should remove Mr Bushby as a party, in any amended summons. 12 Since then, the proceedings have become bogged down by a series of applications which have distracted Mr Rahman from the critical task of amending his summons so as to distil his claim to a comprehensible form. At the first return of the summons on 25 January 2010, orders were made by Registrar Bradford including the following: "1. Leave granted pursuant to section 64 of the Civil Procedure Act 2005 (NSW) to the plaintiff to file and serve an amended summons by 8 February 2010. 2. The plaintiff to join the "Local Court of New South Wales" and the "Roads and Traffic Authority of NSW" as parties to the proceedings and remove the second defendant as a party to the proceedings in any amended summons. 3. The plaintiff is to specify with some particularity the grounds of judicial review or appeal or any questions of law or other grounds relied upon that are said to support any relief claimed in the amended summons." 13 The Registrar also granted the parties liberty to restore the matter to the list on 3 days' notice. 14 Mr Rahman did not amend the summons by 8 February 2010 in accordance with the leave granted in order 1 (or at all) but chose, rather, to move the Court by notice of motion filed 17 February 2010 to have the Registrar's orders set aside for illegality. That notice of motion was filed in the Registry and made returnable on 15 March 2010. Before that date, however, the defendants had the proceedings re-listed pursuant to the liberty to restore granted by Registrar Bradford. The application to restore the proceedings to the list was made by letter dated 22 February 2010. The proceedings were re-listed by the Registrar on 25 February 2010 and referred to me that day in my capacity as the duty judge. 15 When the proceedings came before me, Mr Rahman did not appear, apparently disputing the defendants' entitlement to restore the matter to the list. The defendants sought to move on a notice of motion filed in Court that day seeking to have the proceedings stayed on the grounds of Mr Rahman's failure to comply with the orders of the Registrar. In the absence of Mr Rahman, I was not prepared to grant the relief sought. I was persuaded, however, to make an order that would stay the proceedings from 4 March 2010 if Mr Rahman had not complied with the Registrar's orders within that further period. I stood the proceedings over to 19 March 2010 before me. I also vacated the return date of Mr Rahman's motion to have the orders of the Registrar set aside and stood that motion over to the same time before me so as to afford Mr Rahman an opportunity to be heard as to whether the orders of the Registrar should be set aside and whether the stay (if it had come into force) should be continued. I directed the defendants to notify Mr Rahman of my orders and that was done the following day. Mr Rahman did not avail himself of that further opportunity to amend the summons. 16 When the proceedings came back before me on 19 March 2010, Mr Robinson, who appeared for the defendants, sought to have the proceedings dismissed in the alternative to the continuation of the stay. Mr Rahman appeared on that occasion but did not seek to address the issues raised either by his application to have the Registrar's orders set aside or by the defendants' application to have the proceedings stayed or dismissed. 17 When I called on Mr Rahman to address me, he asked me to disqualify myself on the grounds set out in a document provided to the Court that day headed "No confidence in the proceedings against Justice Lucy McCallum and Registrar Bradford C" (MFI1). Mr Rahman contends, among other things, that the orders previously made by me are evidence of my mind and intellect "in a state of gallimaufry". Whether or not that is so, I determined that it was neither necessary nor appropriate for me to disqualify myself from hearing the matter. 18 After I refused to disqualify myself, Mr Rahman left the courtroom. In his absence, I then made directions as to the provision of written submissions, indicating that I would determine the defendants' application on the papers. I stood the matter over to today for judgment in respect of that application. I made no orders in respect of Mr Rahman's notice of motion dated 17 February 2010. 19 On 25 March 2010, Mr Rahman filed a further notice of motion seeking to have all of my previous orders set aside and renewing his earlier application (which remains extant in any event) to have the orders of Registrar Bradford set aside. Mr Rahman did not avail himself of the opportunity to provide written submissions by 16 April 2010 in respect of the substantive issues as to the form of his summons. His most recent notice of motion was filed in the Registry and made returnable on 12 April 2010 before a Registrar. The Registrar stood the motion over to today before me, presumably to coincide with my having listed the defendants' motion for judgment today. 20 In so far as the defendants' application seeks dismissal of the proceedings, Mr Robinson relied on s 61(3)(a) of the Civil Procedure Act 2005 and, alternatively, rule 13.4(1) of the Uniform Civil Procedure Rules 2005. 21 Section 61(3)(a) of the Act confers an express power to dismiss proceedings where a party to whom a direction has been made for the speedy determination of the real issues in dispute fails to comply with that direction. 22 The first order made by Registrar Bradford on 25 January 2010 did not, in terms, require Mr Rahman to file an amended summons. However, that requirement was implicit in the orders made. The orders addressed the circumstance identified in the correspondence from the defendants that amendments were necessary so as to identify the decisions sought to be impugned by Mr Rahman's claim and properly articulated grounds for reviewing those decisions. The order granted Mr Rahman leave to amend in that context: cf s 64(1)(b) and s 64(2) of the Civil Procedure Act. 23 The deficiencies in the summons are manifest. However, Mr Rahman has resolutely refused to address them, choosing rather to focus his energies on challenging any directions made to advance the proceedings. As submitted by Mr Robinson, Mr Rahman has rejected two opportunities to amend the summons. His resistance to that course is inimical to the speedy determination of the real issues between the parties. 24 The Court's discretion to dismiss the proceedings under s 61(3)(a) in those circumstances is to be exercised with mandatory regard to the overriding purpose and the objectives of case management: Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [38] to [41]. The requirement is to give weight to those matters as fundamental elements in the decision-making process. 25 Having regard to ss 56 and 57 of the Civil Procedure Act, I do not think the determination of the defendants' application should be deferred to abide Mr Rahman's persistent challenges to orders made for the purpose of advancing the progress of the proceedings. Subject to one qualification, I am satisfied that the point has been reached where it is appropriate to dismiss the summons. 26 The only reservation I have in respect of the conclusion I have reached is that Mr Rahman's most recently filed notice of motion was stood over by a Registrar for hearing before me today. That may have created an expectation that Mr Rahman would be heard further before the final determination of the defendants' application. Subject to anything further Mr Rahman has to say, the orders I propose are: