Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rahman v Dubs [2012] NSWCA 98 Hearing dates: 10 April 2012 Decision date: 10 April 2012 Before: Meagher JA (at [20]); Barrett JA (at [1]); Tobias AJA (at [21]) Decision: The notice of motion of 4 July 2011 is dismissed and Mr Rahman, the applicant, is ordered to pay the respondents' costs of that motion. [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: PROCEDURE - application for order setting aside orders previously made - no matter of principle Legislation Cited: Civil Procedure Act 2005, s 18K Supreme Court Act 1970, ss 42, 43, 46B Uniform Civil Procedure Rules 2005, rr 36.15, 36.16 Cases Cited: Rahman v Riordan [2010] NSWCA 288 Category: Interlocutory applications Parties: Mohammad Tabibar Rahman - Applicant Rosalind Dubb - First Respondent John Hartigan - Second Respondent Shirley Alexander - Third Respondent Representation: Mohammad Tabibar Rahman, Applicant, in person T Maltz - Respondents Mohammad Tabibar Rahman, Applicant, in person Norton Rose - Respondents File Number(s): 2009/00298024 JUDGMENT MEAGHER JA: I will ask Justice Barrett to deliver the first judgment 1BARRETT JA: On 28 May 2010, the Court of Appeal constituted by Justice Hodgson and Justice Tobias dismissed Mr Rahman's application for leave to appeal from interlocutory orders made on 18 December 2009 by Justice McCallum in pending Common Law Division proceedings. It was also ordered that Mr Rahman pay the respondents' costs of the application for leave to appeal and that those costs be assessable forthwith. 2On 4 July 2011, Mr Rahman filed in the Court of Appeal a notice of motion expressed in diffuse terms which, on analysis, seeks an order setting aside the orders made by Justice Hodgson and Justice Tobias. It is that notice of motion that is now before the Court. 3The notice of motion shows, and Mr Rahman has confirmed in Court today, that he seeks to invoke provisions within rr 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005. The documents he has filed contain references to rr 36.15(1), 36.15(2), 36.16(1), 36.16(2), 36.16(3)(a), 36.16(3)(b) and 36.16(4). Both r 36.15 and r 36.16 are, of course, concerned with the setting aside of existing orders from which legal rights have already flowed. In the present context, the existing orders are the order of dismissal and the orders with respect to costs made on 28 May 2010. 4Mr Rahman objected today to the inclusion of Acting Justice Tobias as a member of the bench considering his current application. This was on the ground that the orders to which his application relate are orders to which Acting Justice Tobias was a party. It is commonplace for applications under rr 36.15 and 36.16 in respect of a particular order made by a single judge to be heard by that judge. That is part and parcel of the ordinary course of business in the Court. There is no difference when it comes to the Court of Appeal. 5There was also an objection by Mr Rahman to what he called the "quorum of the court". The suggestion seemed to be that three judges are not sufficient. Allied with that was an objection that the members of the Court today have no expertise in administrative law which, he says, is "a new field". The submissions on these matters were made in the context of references to the Judiciary Act 1903 of the Commonwealth. 6APPLICANT: May I interrupt, your Honour. He's half justice not full justice. His Honour is a half justice, not full justice. It says by the Judiciary Act, your Honour. 7BARRETT JA: These matters are irrelevant and entirely beside the point. This Court is not a Federal court. It is not operating under Federal law, there is no aspect of Federal jurisdiction. The Court is properly constituted to hear the application that Mr Rahman has brought. 8The application is advanced by reference to four matters of complaint which are set out in the documents Mr Rahman has filed. The first matter is the refusal of each of Justice Hodgson and Justice Tobias to disqualify himself when invited to do so at the start of the hearing on 28 May 2010. The only articulated basis for the contention that either of the judges should have disqualified himself is the fact that he had on an earlier occasion made or participated in a decision determining some application adversely to Mr Rahman. 9Justice Hodgson, sitting as a single judge of appeal on 9 May 2005, dismissed an application by Mr Rahman for review of a decision of the registrar in proceedings quite distinct from those now before the Court. The parties to those proceedings were Mr Rahman and the Director General of the Department of Education and Training. In the case of Justice Tobias, the basis for the argument that he should have disqualified himself is less clear, although it appears that his Honour had formed part of benches that had dealt with earlier matters involving Mr Rahman. No more is alleged in relation to either judge than his previous involvement in the ordinary course of events in decisions affecting Mr Rahman. The fact of earlier participation of that kind does not preclude a judge from performing judicial functions in later proceedings brought by or against the same party. 10A need for disqualification is indicated only if the judge has in the earlier context demonstrated bias or acted in a way calculated to raise in the mind of a fair and impartial observer a reasonable apprehension of bias. Questions of bias and reasonable apprehension of bias are determined according to established principles. Mere participation and decision making in the ordinary course are of themselves not of that quality. The materials and submissions placed before the Court by Mr Rahman do not identify any disqualifying aspect of the earlier actions of either Justice Hodgson or Justice Tobias. No reason for either judge to disqualify himself or to be invited to do so on 28 May 2010 has been identified. 11In saying what I have just said, I do not lose sight of the fact that Mr Rahman in the documents he has placed before the Court has put that the two judges concerned had been guilty of what he chooses to call "fraudulent judicial practice", "erroneous trespass", "abuse of statutes", "judicial racism" and "corrupt conduct". Nor do I lose sight of the fact that absolutely no basis for any such characterisation is given and that, so far as actual conduct is concerned, nothing whatsoever has been suggested except routine and unexceptionable performance of judicial functions in the ordinary way in open court. 12The second matter Mr Rahman appears to put forward in support of his application for an order setting aside the orders of 28 May 2010 concerns the orders of Justice McCallum that were the subject of the application for leave to appeal determined adversely to Mr Rahman on that date. Justice McCallum made four orders. She dismissed a notice of motion filed by Mr Rahman on 7 December 2009; she dismissed a notice of motion filed by Mr Rahman on 8 December 2009; she made on the application of the defendants in the proceedings before her an order adjusting the parties so that the individual who was the registrar of the university was removed and the university itself was made a party; and she ordered that the matter proceed on pleadings with a statement of claim to be filed within twenty-eight days. 13The making of these orders by Justice McCallum is said by Mr Rahman to have been defective for several reasons. He referred again to the Judiciary Act. He referred also to the Administrative Decisions Judicial Review Act of the Commonwealth, and to the Judicial Review Act of Queensland. None of those enactments is in any way relevant to the proceedings in the Common Law Division. He also referred to non-compliance with s 18K of the Civil Procedure Act, but there is nothing to suggest that there was any such noncompliance. There are references again to "judicial racism" and "corrupt conduct", and to the orders of Justice McCallum being "unlawful". 14It is not relevant on the hearing of the application now before the Court, being the application relating to the orders made by Justice Hodgson and Justice Tobias on 28 May 2010, to enquire into the merits of the orders made by Justice McCallum. The only question before the Court is whether, having regard to the provisions of the Uniform Civil Procedure Rules on which Mr Rahman relies, being provisions in rr 36.15 and 36.16, there are grounds for setting aside the orders made on 28 May 2010. It follows that the merits or otherwise of the orders made by Justice McCallum are currently entirely beside the point. 15The third basis on which the orders of 28 May 2010 are challenged is said in the written materials that Mr Rahman has filed to come from ss 42 and 43 of the Supreme Court Act 1970 and the fact that, for the purposes of the application for leave to appeal, the Court of Appeal was constituted by two Judges of Appeal only. Section 43 lays down the general rule that hearings by the Court of Appeal are to be before three Judges of Appeal, but s 46B(1)(a) provides that an application for leave to appeal, as the relevant application was, may be heard and determined by a court constituted by two Judges of Appeal if the formalities of directions of the Chief Justice under s 46B(2) and the President of the Court of Appeal under s 46B(3) are observed. Mr Rahman complains in the written materials that he did not have notice of such directions. As President Allsop pointed out in another matter involving Mr Rahman, however, lack of such notice does not in any way invalidate the hearing of an application for leave to appeal by two Judges of Appeal: see Rahman v Riordan [2010] NSWCA 288. Where two such Judges in fact act in open court to hear and determine an application for leave to appeal, there is a presumption of regularity. Nothing now before the Court calls that into question. 16Fourthly and finally, Mr Rahman says that the orders of 28 May 2010 are not based on "legal tenets" or "legal doctrine" and are "wrong" and "contrary under statutes." In the absence of any intelligible elaboration, this contention has no meaning. 17Mr Rahman has not identified with any precision the provisions within rr 36.15 and 36.16 of the Uniform Civil Procedure Rules on which he relies. Given that the orders he challenges were entered two days after they were made and that Mr Rahman participated in the hearing on 28 May 2010, none of the provisions of r 36.16 can have any application. That, coupled with the thrust of Mr Rahman's submissions on the particular matters he has raised, indicates that he relies on r 36.15(1) and the proposition that the orders of 28 May 2010 were made "irregularly" or "illegally" or "against good faith." 18Approaching the matter by reference to r 36.15(1), I am of the opinion that the conclusions I have expressed on the several issues raised by Mr Rahman leave no conceivable basis for a finding that any of those r 36.15 criteria is satisfied. 19I am of the opinion that the notice of motion filed by Mr Rahman on 4 July 2011 should be dismissed with costs. 20MEAGHER JA: I agree for the reasons given by Justice Barrett that the notice of motion should be dismissed and Mr Rahman ordered to pay the costs of the motion. This Court has no power to hear an appeal from the orders made by Justices Hodgson and Tobias on 28 May 2010. The present application is made under rr 36.15 and 36.16, and, for the reasons addressed by Justice Barrett, neither of those rules applies in the present case. 21TOBIAS AJA: I also agree with the reasons for judgment delivered by Justice Barrett and the orders that he proposes. I also agree with the additional remarks of the presiding judge. 22APPLICANT: Will you excuse - as I mention, this Court has - and the persons who are here have no experience. Persons was denied-- 23MEAGHER JA: Mr Rahman, will you please sit down for a moment. Please sit down so that the-- 24APPLICANT: I have to say something because-- 25MEAGHER JA: You can speak after I have pronounced the orders of the Court. 26APPLICANT: You've already made some. 27MEAGHER JA: It follows that the orders of the Court are that the notice of motion of 4 July 2011 is dismissed and Mr Rahman, the applicant, is ordered to pay the respondents' costs of that motion. 28APPLICANT: Who is the party? You haven't mentioned these things. As I've indicated in my application, you haven't any function or knowledge to be a judge in these proceedings and this person not worry about-- 29MEAGHER JA: Mr Rahman, please sit down. 30APPLICANT: Yes, I have to go, finish. ********** 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: 18 April 2012