Supreme Court New South Wales Medium Neutral Citation: Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 970 Hearing dates: 18.07.2014 Decision date: 24 July 2014 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: (1) The defendant's motion is dismissed. (2) The defendant is to pay the plaintiff's costs of the motion. Catchwords: PRACTICE AND PROCEDURE - motion to dismiss proceedings to have defendant declared a vexatious litigant - challenge to retainer of Crown Solicitor - whether legal representation should be provided for defendant - whether proceedings should be stayed because of defendant's ill health - refusal of adjournment application by defendant - defendant's motion dismissed with costs. Legislation Cited: Interpretation Act 1987 (NSW) - s19 Vexatious Proceedings Act 2008 - ss 8(7)(a), 8(7)(b) Cases Cited: Attorney General v Foley and Anor [2000] 2 All E R 609 Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 392 BZAEV v Minister for Immigration and Border Protection [2014] FCA 496 Dietrich v R [1992] HCA 57; 177 CLR 292 New South Wales v Canellis & Ors [1994] HCA 51; 181 CLR 309 Category: Principal judgment Parties: Attorney General in and for the State of New South Wales - Plaintiff Tosson Mahmoud - Defendant Representation: Solicitors: Mr D Galbraith - Plaintiff Defendant appeared in person File Number(s): 2013/266710 Judgment 1HIS HONOUR: Nature of proceedings and factual background On 3 September 2013 the Summons in these proceedings was filed. That Summons sought orders in accordance with sections 8(7)(a) and 8(7)(b) of the Vexatious Proceedings Act 2008 (the Act) against the defendant. 2In support of the Summons was an affidavit affirmed by Daniela Hartman on 2 September 2013. In the preamble to the affidavit, Ms Hartman said: "1. I am a solicitor in the employ of IV Knight, Crown Solicitor, and subject to his supervision and control, I have day to day carriage of this matter, in which he has been instructed by the Attorney General to bring this application against the defendant under the Vexatious Proceedings Act 2008 (the Act)." 3By Notice of Motion dated 26 March 2014 the defendant sought an order for a temporary stay of these proceedings until unrelated proceedings were heard and determined. The outstanding issues in those unrelated proceedings were questions of interest and costs. 4The basis for the application for a temporary stay was that the defendant did not have the time, resources or sufficiently good health in order to deal with both the vexatious litigation and that unrelated matter. The unrelated matter was part heard on 2 May 2014 and has now been stood over for further hearing to 24 July 2014. 5The motion for a temporary stay of these proceedings was heard by Fullerton J on 1 April 2014 (Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 392). Fullerton J dismissed the motion and ordered the defendant to pay the costs of the motion. The defendant has filed a Notice of Intention to Appeal from that judgment. 6By an Amended Notice of Motion filed 4 July 2014 the defendant sought the following orders: 1. That these proceedings be dismissed. 2. In the alternative, that these proceedings be adjourned in order to enable an appeal to be brought and finalised against the decision of Fullerton J. 3. On the assumption that he was successful in the motion, consequential costs orders against the plaintiff to be paid forthwith on an indemnity basis. 7The motion was supported by a substantial affidavit which did not provide evidence in support of the orders sought but comprised lengthy and repetitive submissions. 8It is this motion by the defendant which came before the Court for hearing. The defendant was self represented. Mr Galbraith, solicitor, appeared on behalf of the plaintiff. Order 1 - Dismissal of these proceedings 9A number of submissions, both in writing and oral, were made in support of this order. The defendant submitted that pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2002 (UCPR) the proceedings were frivolous and vexatious, disclosed no reasonable cause of action and were an abuse of the process of the court. 10The basis for the submission was that once the Honourable Greg Smith SC, who was the Attorney General when the Summons was filed, ceased to hold that office and the Honourable Brad Hazzard became his successor to that position, the proceedings ceased to have a plaintiff and abated. 11That submission is not made out. Section 8(4)(a) of the Act gives to the Attorney General standing to bring proceedings under the Act. Section 19 of the Interpretation Act 1987 (NSW) provides a complete answer to the submission. That section relevantly provides: "19 Holders of offices (1) In any Act or instrument, a reference to a particular officer or to the holder of a particular office includes a reference to the person for the time being occupying or acting in the office concerned." 12The effect of s19(1) is that the submission that these proceedings somehow abated when Mr Hazzard succeeded Mr Smith as Attorney General for the State of NSW must be rejected. 13The defendant's next submission purported to rely upon UCPR 51.4 and 51.5. By reference to those rules the defendant submitted that the Attorney General could not be made an applicant or an appellant without his consent. The defendant submitted that in this case, not only was there no plaintiff (referring to the previous submission) but that to the extent that the Attorney General purported to be a plaintiff, there was no evidence that he had given an authority to anyone, including legal representatives, to represent him or his office in the proceedings. 14Leaving aside the fact that UCPR 51.4 and 5 relate to the Court of Appeal rather than to the Common Law Division, the gist of this submission is a challenge to the retainer of the Crown Solicitor to act for the Attorney General. The submission is misconceived. 15A similar submission was considered by the UK Court of Appeal (Peter Gibson, Schiemann LJJ and Wilson J) in Attorney General v Foley and Anor [2000] 2 All E R 609. The question there considered was: "In what circumstances does the Attorney General need to call evidence to satisfy the Court that he has authorised the making of an application for a civil proceedings order against an allegedly vexatious litigant?" The proposition put was: "13 It was submitted on behalf of the appellants that the Attorney General could not succeed in an application under s 42 in the absence of evidence of his authorisation of the proceedings." 16In relation to that proposition, Schiemann LJ, who gave judgment on behalf of the court, said: "13 ... We reject that submission. The Attorney General, like any other litigant, is entitled to employ solicitors and counsel to make an application on his behalf. In the absence of any challenge, solicitors making such an application are assumed to have authority so to do from their client. If there is a challenge to the authority of the solicitor it should be made as soon as possible. If it succeeds then there will be no need to examine the substance of the dispute. This has long been the case. ... 16 The contention of lack of authority is in every sense a preliminary-and, if successful, fatal-point; and it should be taken by early, interlocutory application to stay the proceedings. ... 17 It will be seen that in our judgment it is for him who challenges the fact that the solicitor has authority to commence proceedings to lead evidence which lends support to that assertion. In the absence of such evidence we see no need for the Attorney General to lead evidence in rebuttal. ... ... 19 The challenge was made far too late. ... No ground for any such belief was advanced. In those circumstances there was no need for the Attorney General to file any further affidavits and the Divisional Court was entitled to make the order which it made." 17In this case the first Notice of Motion by the defendant raising this issue was not filed until 14 May 2014. In accordance with Foley the issue was raised far too late, given that the originating Summons was filed on 2 September 2013. Moreover, at no time has the defendant placed before the Court any evidence which in any way casts doubt upon the retainer of the Crown Solicitor by the Attorney General for NSW in this matter. This submission has not been made out. Finally, in the absence of any evidence to the contrary, the averment by Ms Hartman in paragraph 1 of her affidavit is sufficient to establish the Crown Solicitor's retainer. 18The defendant submitted by reference to the decision of Greenwood J in BZAEV v Minister for Immigration and Border Protection [2014] FCA 496 that because there was no plaintiff in the proceedings, they should be dismissed. BZAEV was a case where an appellant had been advised of a hearing date in proceedings but failed to appear when required and the proceedings were struck out. That case provides no assistance for the defendant. The submission should be rejected. 19The defendant submitted that because he was impecunious and was unable to retain legal representation, his circumstances were the same as those considered by the High Court in Dietrich v R [1992] HCA 57; 177 CLR 292. By reference to Dietrich the defendant submitted that it was unfair for these proceedings to be continued against him and that they should be dismissed. 20This submission is misconceived. It is answered by the observations of the plurality in New South Wales v Canellis & Ors [1994] HCA 51; 181 CLR 309. There the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) said in relation to a similar submission brought by potential witnesses to an inquiry: "31 The Solicitor-General's submission that the common law does not recognize an entitlement of an accused at trial to publicly funded legal representation is supported by all the judgments in Dietrich. At the same time, the principle established by the decision in that case is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such. As the majority judgments made clear, that principle is based on, and derives from, the accused's right to a fair trial. 32 There is no suggestion in the majority judgments that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction could be exercised in favour of an indigent person charged with a criminal offence which is other than serious...." Alternative order - adjournment of proceedings 21The defendant acknowledged that the alternative order which he sought was a fall back position which he wished to press if he were unsuccessful in the primary application to have the proceedings dismissed. 22The defendant submitted that his health was such that he was not able to conduct multiple pieces of litigation at the same time. He submitted that if these proceedings were allowed to continue, it would not be possible for him to conduct the appeal from the decision of Fullerton J nor the unrelated litigation to which reference has already been made nor another piece of litigation which apparently involves a dispute between the defendant and a previous solicitor. 23In support of this submission, the defendant placed before the Court two letters from a Dr Dino Fattore, general practitioner, who has seen the defendant on at least two occasions this year. It is not clear from the letters whether Dr Fattore is treating the defendant. 24In a letter dated 24 March 2014 Dr Fattore said: "This is to certify that I have examined the attached reports regarding the patient's request to temporarily stay proceedings of case no 2013/266710 in the Supreme Court. This is largely based on medical grounds. Please refer to my attached report dated 12 September 2013 for details of medical treatment. (The report of 12 September 2013 was not placed before the Court). I strongly recommend that a temporary stay of proceedings be granted regarding this case. The reasons are well documented in the patient's file. He has multiple health concerns. It is not ideal that he should have to address more than one court process at a time. His main health concern is cardiovascular. This limits his capacity to be involved in any court process at this stage due to the high levels of stress involved. The patient's medical impairment will be reviewed at twelve monthly intervals regarding this issue. At this stage I recommend that a temporary stay be granted for the current twelve month period to commence today with a review in early 2015." 25A letter from Dr Fattore of 23 June 2014 was in the following form: "This is to certify that the medical report dated 24 March 2014 remains current and valid despite the nature of any legal proceedings involved. The stated medical report is based solely on physical and mental health parameters as per medical practitioner standards and guidelines from medical reporting. I have explained to the patient that any future medical certification and reporting will be provided only upon written legal representative request. This is as per guidelines and advice provided to me by my medical defence organisation (AVANT)." 26Of the other three pieces of litigation identified by the defendant, at least two appear to be proceedings commenced by him, i.e. the appeal against the decision of Fullerton J and the unrelated proceedings. The Court was not informed of the nature of the dispute between the defendant and a previous solicitor. It is also not without significance that the defendant was the moving party in the application, the subject of this judgment. 27I have had the opportunity of observing the defendant for some hours while this matter was argued. I am not satisfied that his ill health is such as would prevent him from defending these proceedings. If his health is of such a parlous kind, a more appropriate course of action would be for him to request an adjournment of the proceedings in which he is the moving party so as to enable him to defend these proceedings which have been brought by the Attorney General. 28In any event, the content of the medical reports are self-evidently inadequate to justify a stay of proceedings of the kind sought by the defendant. It is not at all clear that Dr Fattore has any clear idea at all of the nature of these proceedings and the other proceedings with which the applicant is presently involved and the very large number of proceedings with which he has been involved in the past and which form a part of the basis for these proceedings. 29In the circumstances, no proper basis has been established for staying these proceedings so as to allow the defendant to pursue the other proceedings which he has identified. The costs orders 30The costs orders which the defendant sought in orders 3 - 6 of his amended motion only arise for consideration if he were successful in obtaining either order 1 or order 2. He has failed in that application and accordingly the question of him obtaining a favourable order for costs simply does not arise. The Adjournment Application 31For completeness, I should note that during the hearing of this application the solicitor for the plaintiff made available to the defendant and to the Court written submissions comprising just over five pages, together with a copy of the United Kingdom Court of Appeal decision in Attorney General v Foley. After the defendant was given an adjournment of 45 minutes during which to read the written submissions and that case, he applied for an adjournment for an unspecified period on the basis that he was unrepresented, unfamiliar with legal matters and needed time to consider the written submissions and Foleys case. The application for adjournment was refused. 32The basis for the refusal was that this application had been brought by the defendant, the hearing date had been known for a considerable period and as the party seeking orders he should have been in a position to meet contrary arguments. I was of the opinion that to grant an adjournment because one party wished to consider a response to a submission would make the orderly conduct of the work of the court impossible. 33The most important reason for refusing the adjournment, however, was that I had formed the opinion that granting the defendant additional time to consider submissions would have served no useful purpose. By the time the application for an adjournment was made, all of the evidence was before the court and primary submissions had been made. Even though the defendant had not made submissions in reply, I had concluded that the motion was bound to fail. Conclusion and orders 34It follows that the defendant's Notice of Motion should be dismissed and that he should pay the plaintiff's costs of this application. The orders which I make are as follows: (1) The defendant's motion is dismissed. (2) The defendant is to pay the plaintiff's costs of the motion. ********** 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: 25 July 2014