Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rahman v Riordan [2011] NSWCA 54 Hearing dates: 9 March 2011 Decision date: 09 March 2011 Before: Tobias JA at [1]; [9]; [15] Macfarlan JA at [2] Sackville AJA at [12] Decision: The notice of motion dated 23 December 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: APPEAL - civil - application to set aside orders dismissing leave application - application refused - no issue of principle Legislation Cited: Supreme Court Act 1970 Uniform Civil Procedure Rules Cases Cited: Forge v Australian Securities & Investments Commission [2006] HCA 44; (2006) 228 CLR 45 Category: Procedural and other rulings Parties: Mohammad Tabibar Rahman (Applicant) Peter Riordan (First Respondent) David McGrath (Second Respondent) Representation: Counsel: Applicant in person C Miles (Solicitor for First and Second Respondents) Solicitors: NSW Department of Education and Training (First and Second Respondents) File Number(s): CA 2009/298070 Decision under appeal Citation: [2010] NSWCA 375 Date of Decision: 2010-12-15 00:00:00 Before: Tobias JA; Macfarlan JA; Handley AJA File Number(s): CA 2009/298070 Judgment 1TOBIAS JA : I will ask Macfarlan JA to give the first judgment. 2MACFARLAN JA : This is an application by notice of motion dated 23 December 2010 for orders setting aside orders made by this Court on 23 September, 1 November and 15 December 2010 and for an order fixing a new court date, apparently for the rehearing of an application made by Mr Rahman for leave to appeal against a decision dated 20 April 2010 of McClellan CJ at CL ([2010] NSWSC 409). That application for leave was dismissed by Giles JA and Sackville AJA on 23 September 2010. These various decisions and orders, and the circumstances in which they were made, are sufficiently described in the Court's judgment of 15 December 2010, for which the reference is [2010] NSWCA 375. 3Much of what Mr Rahman has said and written in support of his notice of motion is difficult to understand. It is at times unintelligible. As best I can determine, the effect of his contentions is as follows. 4First Mr Rahman alleges that one or more of the courts that made the earlier decisions or orders was not properly constituted under the provisions of the Supreme Court Act 1970. I can discern no sensible argument to support that contention. 5Secondly Mr Rahman contends that one or more of the judges concerned has participated in more than one decision concerning Mr Rahman. However, Mr Rahman has not identified any arguable basis upon which any such judge should have disqualified himself. 6Thirdly Mr Rahman contends that "judicial racism" has infected the decisions. There is no basis for this allegation. 7Fourthly Mr Rahman contends that in a variety of ways the judges hearing his applications have failed to perform their duties or committed errors in reaching their decisions. To a large extent these contentions concern matters raised and rejected in previous decisions of this Court. In any event Mr Rahman has not persuaded me that it is arguable that any of the previous decisions were erroneous or decided by courts that were not properly constituted, nor, to use the words of Uniform Civil Procedure Rules r 36.15 upon which Mr Rahman relies, that any of the decisions were made "irregularly, illegally or against good faith". 8In these circumstances Mr Rahman's notice of motion should be dismissed with costs. 9TOBIAS JA : I agree and would simply add this. As I understand Mr Rahman's argument today, or the essential part of it, it is, first, that the bench that is now sitting to hear his notice of motion is illegally constituted under the Supreme Court Act and, second that he has no confidence in any decision that this Court may make. 10So far as the first matter is concerned, there is no rational basis whatsoever for the assertion that this Court is improperly or illegally constituted for the purpose of hearing the notice of motion. So far as Mr Rahman's lack of confidence in this Court giving him a fair hearing and giving him what he refers to as justice, then all I can say is that we do our best to carry out our duties and if he has no confidence in us then that unfortunately is regrettable but a matter for him. 11I agree with the orders proposed by Macfarlan JA. 12SACKVILLE AJA : I agree with the judgment delivered by Macfarlan JA and the orders that his Honour proposes. I also agree with the additional comments made by the presiding judge. 13I would add this. Mr Rahman's submissions today appeared in part to be directed towards the appointment of acting judges. As I understood his submission, it was that an acting judge could not sit on any case in which Mr Rahman was involved. Mr Rahman appears to have overlooked the provisions of s 37 of the Supreme Court Act 1970, pursuant to which appointments of acting judges are made. He may also have overlooked the decision of the High Court in Forge v Australian Securities & Investments Commission [2006] HCA 44; (2006) 228 CLR 45 which dealt with the question of the validity of appointments of acting judges and confirmed that acting judges can be validly appointed to the Supreme Court of New South Wales. 14I agree with the orders that have been proposed. 15TOBIAS JA : The orders of the Court are those proposed by Macfarlan JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2011