Rahman v Dubs [2012] NSWSC 1065

Supreme Court New South Wales

Medium Neutral Citation: Rahman v Dubs [2012] NSWSC 1065 Hearing dates: 27/07/20112 Decision date: 13 September 2012 Jurisdiction: Common Law Before: Garling J Decision: (1) Proceedings dismissed. (2) Plaintiff to pay the defendant's costs. Catchwords: PRACTICE AND PROCEDURE - statement of claim manifestly an abuse of process and must be struck out - no reasonable cause of action disclosed - proceedings dismissed Legislation Cited: Civil Procedure Act 2005 Supreme Court Act 1970 Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 18 Category: Procedural and other rulings Parties: Mohammad Tabibar Rahman (P) Rosalind Dubs (D1) John Hartigan (D2) Shirley Alexander (D3) Representation: Counsel: In person (P() T Maltz (D) File Number(s): 2009/298024

Judgment 1Mr Mohammad Tabibar Rahman commenced proceedings in this Court by filing a summons on 2 November 2009. 2He nominated, as the defendant, Ms Rosalind Dubs, whom he claimed was the Registrar of the University of Technology Sydney ("UTS"). 3So far as it is possible to tell from the terms of this first version of the summons, Mr Rahman claimed relief under s 69 of the Supreme Court Act 1970 against a decision of UTS, communicated to him by a letter from the Registrar to exclude him for a period of seven days form the use of the UTS On-line facilities. 4Mr Rahman was at that time, enrolled as a post-graduate student in the Faculty of Law at UTS, undertaking a juris doctor course in 2008. 5Its seems also that he seeks relief, in this summons, with respect to a further decision of the Deputy Vice Chancellor of UTS communicated to him by the Registrar, the effect of which was to impose a number of conditions upon him, in respect of his on-going attendance at the University. 6The relief claimed is stated in the following terms in the summons: "1. An order in the nature of a prohibition and/or an injunction restraining the Rosalind V Dubs, Registrar, University of Technology Sydney, of unlawful decision of 'alleged Non-academic misconduct by the Applicant which is without salutatory Legal provisions of any statutes of UTS Act or any other enactments made on 9 June 2009 on behalf of :Shirley Alexander, Deputy-vice Chancellor (Teaching and Learning Equity), from acting upon the impinge and infringe the applicant's dignity: under Art 19, Freedom of expression, Art 26 (1) and ((2) Right to education, Art 27 (1) & (2), Art 28 of Covenant Statute of Universal Declaration of Human Rights under UN Charters. 2. An order in the nature of certiorari quashing the: the Rosalind V Dubs, Registrar, University of Technology Sydney, unlawful decision of 'alleged Non-academic misconduct' by the applicant which is without salutatory Legal provisions of any statutes of UTS Act or any other enactments made on 9 June 2009 on behalf of: Shirley Alexander, Deputy-Vice Chancellor (Teaching and Learning Equity), from acting upon the impinge and infringed the applicant's dignity: under Art 19(1)&(2), Art 18 Freedom of thought, conscience &, Art 17 Arbitrary or unlawful on Civil and Political Rights. 3. An order to grant any relief or remedy or to do any things by the way of mandamus or of any other description under Art 13 Para 1, State Parties...recognize the right of every to education, Para 2, (c) Higher education ... equally accessible to all of International Covenant on Economic, Social and Cultural Rights, restraining the Rosalind V Dubs, Registrar, University of Technology Sydney, of unlawful decision of 'alleged Non-academic misconduct by the Applicant which is without statutory Legal provisions of any statutes of UTS Act or any other enactments made on 9 June 2009 on behalf of: Shirley Alexander, Deputy-Vice Chancellor (Teaching and Learning Equity), from acting upon the impinge and infringed the applicant's dignity of educational life and the Professional Carrier of damage caused under such act. 4. An order for declaration of right for Procedural fairness - as are required by enactments in all legal disputes as well as under: 's17 UTS Act Register of Standing Delegations: s5. In exercising any delegation the delegate must have regard to any relevant principles of procedural fairness. 5. An order for the determination of any question or matter which may be determined by the Supreme Court of the applicant's submission. 6. An order for the recovery of damages or other money; and incidental costs as restrained and infringed and caused damage and harmful effect the applicant's learning achievement for the Juris Dictor, Post-Graduate awards in the stipulated time frame. 7. An order for the compliance under s s6 Object and functions of University Sub rule (f) the provision of teaching and learning that engage with advanced knowledge and inquiry UT, Sydney, Act has been under seized by the employment of not functionally qualified lecturer and Tutor: Leanne Houston, Subject Coordinator, Greg Weeks, Tutor, Administrative law and Tracey Booth, Lecturer, Legal Method and 'remedial for the alleged unlawful low marking of: Awarded: Fail, Criminal law, by Ian Dobinson, Lecturer Awarded: Fail Contract law. By: Angella Dwyer, Lecturer and David Thrope, Lecturer Awarded: Pass, Administrative law, by: L Houston, Lecturer, R Fisher, A/Professor and G.Week. 8. Any other order (whether legal, equitable or otherwise) justiciable by the Hon Judges." 7This judgment deals with the following issues: (a)whether an order ought to be made pursuant to r 12.8(2) of the Uniform Civil Procedure Rules 2005 ("UCPR"), that the proceedings be dismissed as inactive proceedings; (b)whether an order ought to be made, pursuant to r 13.4 of the UCPR, that the proceedings be dismissed generally; or in the alternative (c)whether an order ought to be made pursuant to r 14.28 of the UCPR, that the statement of claim by Mr Rahman be struck out.