Supreme Court New South Wales Medium Neutral Citation: Rahman v Dubs [2011] NSWSC 376 Hearing dates: 2 May 2011 Decision date: 03 May 2011 Jurisdiction: Common Law Before: Johnson J Decision: The Notice of Motion filed on 15 April 2011 is dismissed. The Plaintiff is to pay the Defendant's costs on an indemnity basis with leave to assess those costs forthwith. Catchwords: PRACTICE AND PROCEDURE - order made by Judge that claim proceed on pleadings - order for pleadings confirmed by Court of Appeal - Plaintiff agitates and reagitates that issue by further Notices of Motion - Notices of Motion filed contrary to order requiring prior leave of Judge or Registrar - Plaintiff's application dismissed - order for indemnity costs assessable forthwith Legislation Cited: Supreme Court Act 1970 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Rahman v Dubs [2010] NSWCA 129 Oshlack v Richmond River Council (1998) 193 CLR 72 Rosniak v Government Insurance Office (1997) 41 NSWLR 601 Leichhardt Municipal Council v Green [2004] NSWCA 341 57 Attorney General for the State of New South Wales v Bar-Mordecai [2010] NSWSC 323 Texts Cited: --- Category: Principal judgment Parties: Mohammad Tabibar Rahman (Plaintiff) Rosalind Dubs (Defendant) Representation: Counsel: Mr MT Rahman (In Person) Mr N Andrew (Solicitor for Defendant) Solicitors: Mr MT Rahman (In Person) Norton Rose (Defendant) File Number(s): 2009/298924 Publication restriction: --- Judgment 1JOHNSON J : The Plaintiff, Mohammad Tabibar Rahman, filed on 15 April 2011, without the leave of the Court, a Notice of Motion in proceedings commenced by a Summons filed on 2 November 2009. That motion is before me as Duty Judge. 2The Notice of Motion names three persons as being affected by the orders sought, those persons being Rosalind Dubs, John Hartigan and Shirley Alexander. Mr Andrew appears for Mr Dubs who (as will be seen) was previously a party to the proceedings. He submits that the Notice of Motion should be dismissed, and that the Plaintiff should be ordered to pay the costs of the Notice of Motion on an indemnity basis assessable forthwith. 3It is necessary to refer to the history of this litigation for the purpose of determining the matter before me. On 2 November 2009, the Plaintiff filed a Summons in the Administrative Law List of the Common Law Division which appeared to seek prerogative relief with respect to decisions made adversely to him by the University of Technology, Sydney. The Plaintiff had been a student at that university. 4On 18 December 2009, McCallum J gave judgment with respect to a number of Notices of Motion filed by both sides to the proceedings. Her Honour dismissed two Notices of Motion filed by the Plaintiff. However, her Honour made orders pursuant to a Notice of Motion filed by the Defendant. 5Her Honour accepted the Defendant's submission that it was appropriate that the matter proceed on pleadings, being an order sought by the Defendant in a Notice of Motion before her Honour. McCallum J said that this order should be made for at least two reasons. Firstly, her Honour found that the Summons was "inscrutable" and in its then form, embarrassing. Secondly, it was necessary for the Plaintiff to bring into his claim the decision which at that time had immediate effect upon him, that not being something then included in the Summons. 6Further, her Honour accepted the Defendant's submission that the University of Technology, Sydney should be joined as the Defendant in place of Ms Dubs, pursuant to the Uniform Civil Procedure Rules 2005 . In this respect, her Honour had regard to the nature of the relief being sought and authorities bearing upon the identity of proper Defendants in proceedings of that type. Her Honour made orders to give effect to these conclusions. 7In addition, her Honour accepted the submission of the Defendant that an order should be made that the Plaintiff not be permitted to file any further Notice of Motion in the proceedings without the leave of the Registrar or a Judge of the Court. Her Honour accepted the Defendant's submission that matters of the type agitated by the Plaintiff in his two Notices of Motion (which her Honour dismissed that day) had a potential to cause enormous waste of legal costs to other parties to the proceedings. Her Honour observed that this order would not prevent the Plaintiff from bringing forward any proper application. 8Finally her Honour ordered the Plaintiff to pay the Defendant's costs of the day. 9The Plaintiff sought leave to appeal from the decision of McCallum J. On 28 May 2010, the Court of Appeal dismissed the application for leave with costs, and granted leave for costs to be assessed forthwith: Rahman v Dubs [2010] NSWCA 129. Hodgson JA gave the judgment of the Court, with Tobias JA agreeing. 10In the Court of Appeal, the Plaintiff alleged two errors on the part of McCallum J. Firstly, he submitted that there was error in ordering that the matter proceed by way of pleadings and directing the filing of a Statement of Claim, because (he submitted) that s.69 Supreme Court Act 1970 permitted the proceedings to be brought by Summons. Hodgson JA expressed the conclusion (at [5] of the judgment) that the power to regulate proceedings given by s.61 Civil Procedure Act 2005 gave ample power for the making of the order made by the primary judge with respect to the matters proceeding on pleadings, particularly when read with ss.56 to 59 Civil Procedure Act 2005 . 11The second error alleged by the Plaintiff concerned the removal from the proceeding of Ms Dubs and the substitution as the Defendant of the University of Technology, Sydney. Hodgson JA noted that the view taken by McCallum J was that the University was an appropriate party, and that any other party should be the office bearer for the time being of the relevant office named as such office bearer. It was observed that it would be open to the Plaintiff to seek to add, upon a proper basis, any other proper Defendant to the proceeding. 12The Court was of the view that no error had been demonstrated in the discretionary decisions of McCallum J and, accordingly, the application for leave to appeal was dismissed with costs. The Court determined that it was appropriate to order that leave be given for the costs to be assessed forthwith. 13It does not appear that the Plaintiff has filed a Statement of Claim as directed by McCallum J, and as accepted as being an appropriate order by the Court of Appeal, nor that the Plaintiff has complied with the order that the Defendant in the proceedings should be nominated as University of Technology, Sydney. 14I should observe that the order of McCallum J made on 18 December 2009 required that the matter proceed on pleadings, with the Plaintiff being directed to file a Statement of Claim within 28 days. The Court of Appeal, as I have observed, refused the Plaintiff leave to appeal on 28 May 2010. Accordingly, the Plaintiff is out of time for the filing of a Statement of Claim. 15As will become apparent, the Plaintiff continues to maintain that he is not required to comply with the order of the Court to proceed by way of pleadings. He has not sought any leave to extend the time to file the Statement of Claim. Indeed, what he seeks to do is to once again contend that he is not required to proceed by way of pleadings, despite the orders of the Court. 16On 14 December 2010, without leave, the Plaintiff filed a Notice of Motion which came before Hidden J on 31 January 2011. In a judgment delivered on 1 February 2011, Hidden J made orders dismissing the Notice of Motion with costs. It is apparent from an examination of the Notice of Motion that was before Hidden J and his Honour's reasons, that what the Plaintiff was once again seeking to argue were the matters which had been resolved by McCallum J and the Court of Appeal. Hidden J observed that the documents relied upon by the Plaintiff were not easy to comprehend. That observation was consistent with the view of McCallum J with respect to the documents before her Honour. There are significant similarities between the documents before McCallum J, Hidden J and myself. 17Thus the Plaintiff, having been permitted (for reasons that are not clear) to file in the Registry a Notice of Motion without the leave of the Court, had his Notice of Motion dismissed by a Judge of this Court with yet another order for costs being made against him. 18According to the file, there was another Notice of Motion filed by the Plaintiff in February 2011 which came before Registrar Bradford on 4 April 2011, with that motion being dismissed with costs. 19On 15 April 2011, again without leave (and for reasons that are not explained in the file), the Registry accepted as a filed document, the Notice of Motion which has come before me today. The Notice of Motion dated 15 April 2011 is supported by an affidavit of the Plaintiff affirmed that day. 20The hearing of the Notice of Motion proceeded yesterday before me in the Duty List. The Plaintiff appeared and made submissions. The point was reached where the hearing had continued after 4.00 pm and I determined that I would give judgment today. The Plaintiff indicated he could not attend today, but he did not ask that there be any adjournment of the giving of judgment to any other day. The Plaintiff is on notice that the matter is to be determined this morning. 21The Plaintiff's current Notice of Motion seeks, in effect, the setting aside of the orders of McCallum J, Hidden J and Registrar Bradford. Put very shortly, the Plaintiff contends that the proceedings for prerogative relief under s.69 Supreme Court Act 1970 ought to proceed on Summons and not by way of pleadings. He challenges as well, on a number of bases, some of which are difficult to understand, the capacity and lawfulness of orders made by judicial officers and the Registrar in the proceedings. 22The Plaintiff's present Notice of Motion, as I have observed, is similar in terms (although not identical) to earlier Notices of Motion, including that determined by Hidden J on 1 February 2011. 23To the extent that the Plaintiff seeks yet again to advance the argument that the proceedings ought go ahead by way of Summons and not pleadings, I observe that McCallum J and the Court of Appeal have determined the pleading issue in a manner adverse to the Plaintiff. In reality, he seeks to cavil with those rulings on no fresh basis. Indeed, in my view the Notice of Motion and affidavit suffer from the same embarrassing deficiencies as did the documents before McCallum J and Hidden J. 24It is sufficient to record my conclusion that the Notice of Motion is without merit and should be dismissed. Indeed, it should not have been filed in the Registry in the first place, without the leave of the Registrar or a Judge of the Court. 25The Defendant seeks costs on an indemnity basis to be assessed forthwith. This argument was made yesterday and the Plaintiff had an opportunity to respond to it. It is fair to say that his general response was to assert that no costs order should be made against him. He seeks to agitate and reagitate the arguments which he has put now on more than one occasion. 26I note that Hidden J declined to order costs on an indemnity basis, although his Honour said there was some force in the submission. In my view, the reagitated argument before me has now crossed the line where an order for indemnity costs is appropriate. 27The principles governing an indemnity costs order are well settled. In Oshlack v Richmond River Council (1998) 193 CLR 72 at 89-90, Gaudron and Gummow JJ observed that indemnity costs are appropriate where the case involves some relevant delinquency on the part of the unsuccessful party. It has been said that it is necessary to demonstrate such delinquency or unreasonableness on the part of the unsuccessful party: Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616. The need for unreasonableness is an underlying feature for an indemnity costs order: Leichhardt Municipal Council v Green [2004] NSWCA 341 at [51], [57]. 28The repeated applications made by the Plaintiff where he has sought to agitate and reagitate matters already determined by Judges of this Court, and indeed to do so in breach of a Court order without seeking leave to file Notices of Motion, combined with the content of the argument advanced, satisfies the requirements for delinquency and unreasonableness in this case. I will make an order that costs be paid on an indemnity basis. 29I will make an order as well that the costs be assessed forthwith. The Court of Appeal made such an order in 2010 and it is entirely appropriate for such an order to be made in this case. 30Before parting with this matter, it is appropriate to refer to the repeated applications made by the Plaintiff with no sign, so far at least, that the making of costs orders against him has influenced him to comply with orders of the Court. I do not know whether the Plaintiff has paid costs pursuant to any orders which have been made so far. That was not a matter that was taken up yesterday. 31I should observe, however, that features of this case bring to mind matters considered by RA Hulme J in Attorney General for the State of New South Wales v Bar-Mordecai [2010] NSWSC 323 at [56] and following. I note immediately, of course, that Mr Bar-Mordecai is a declared vexatious litigant. The present Plaintiff does not fall into that category. Nevertheless, the sentiments expressed in the judgment of RA Hulme J are pertinent. Here, repeated applications are made where cost orders have been made, without the cost orders having any apparent influence upon the party bringing further applications. 32In Bar-Mordecai , reference is made to decisions in this country and the United Kingdom, which point to the fact that repeated applications by litigants in person have an impact upon the Court as well as other litigants in the Court. I make these observations because there are provisions within the Uniform Civil Procedure Rules 2005 , in Pt 12.10 referred to at [56] of the judgment of RA Hulme J, which are capable of being brought to bear in appropriate circumstances. I say no more about that because no application has been made before me for any order pursuant to those provisions. However, it is entirely clear to me that the history of repeated applications by this Plaintiff in this Court prima facie, flies in the face of his obligations as a litigant under the Civil Procedure Act 2005 . 33I make the following orders. The Notice of Motion filed on 15 April 2011 is dismissed. The Plaintiff is to pay the Defendant's costs on an indemnity basis with leave to assess those costs forthwith. 34I note that the effect of the order of McCallum J on 18 December 2009 is that the Registry should not accept a Notice of Motion from the Plaintiff for filing in these proceedings without prior leave being given by the Registrar or a Judge of the Court. The terms of McCallum J's order, and the emphasis which I place upon the terms of that order, are to be brought to the attention of officers working within the Registry so that there will not be a repetition of what has happened before Hidden J and before me, whereby Notices of Motion are accepted for filing without the order of the Court being complied with. 35I will ensure that a copy of this judgment, when typed, is sent by mail to the Plaintiff at the address which he has provided in the relevant documents which he has filed. ********** 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: 12 May 2011