Supreme Court New South Wales Medium Neutral Citation: Application of Mohammad Tabibar Rahman [2014] NSWSC 1161 Hearing dates: On the papers Decision date: 22 August 2014 Jurisdiction: Common Law Before: Button J Decision: Leave to institute proceedings is refused. Catchwords: PROCEDURE - application to institute proceedings under s 14 of the Vexatious Proceedings Act 2008 - affidavit does not comply with s 14(3)(a) - proceedings would be an abuse of process of the Court Legislation Cited: Vexatious Proceedings Act 2008 (NSW), ss 4, 5, 6, 14, 15,16 Cases Cited: Attorney-General of New South Wales v Rahman [2014] NSWSC 42 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 227 ALR 425 McGuirk v University of New South Wales [2009] NSWSC 1424 Category: Principal judgment Parties: Mohammad Tabibar Rahman (Plaintiff) Representation: Counsel: Solicitors: File Number(s): 2014/155894 Judgment 1On 10 February 2014, Adams J made the following orders: (1) Mr Rahman is prohibited from instituting proceedings in New South Wales without first obtaining leave of the Court; (2) no further steps are to be taken by Mr Rahman in any proceeding already instituted by him in New South Wales without leave of the Court; (3) all proceedings already instituted by Mr Rahman in New South Wales are stayed pending leave of the Court to proceed; (4) [Mr Rahman] is to pay the [Attorney General of New South Wales'] costs. 2His Honour delivered a judgment in support of those orders: Attorney-General of New South Wales v Rahman [2014] NSWSC 42. 3On 23 May 2014, Mr Rahman ("the applicant") filed a summons in this Court. On the same date, he filed an affidavit that he had affirmed before a Justice of the Peace. 4On 26 June 2014, the applicant filed an affidavit with regard to service upon four persons who are named as defendants in the summons. 5Due to the orders made by Adams J on 10 February 2014, the matter was referred to me for determination in Chambers. In short, the question for determination is whether the applicant, having been declared a vexatious litigant, should nevertheless be granted leave to institute proceedings. Overview of the applicable statutory structure 6Section 14 of the Vexatious Proceedings Act 2008 (NSW) ("the Act") is relevantly as follows: 14 Application for leave to institute proceedings (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or ... (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or ... (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16 (1) (a), and (b) the copy is served in accordance with the order. (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. (6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application. 7Section 15 is as follows: 15 Dismissing application for leave (1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings. (2) The application may be dismissed even if the applicant does not appear at the hearing of the application. 8"Proceedings" are inclusively defined in s 4 of the Act as follows: 4 Meaning of "proceedings" In this Act, proceedings includes: (a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way. 9"Vexatious proceedings" are inclusively defined in s 6 of the Act: 6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 10"Institute proceedings" is inclusively defined in s 5 of the Act: 5 Instituting proceedings (1) In this Act, institute, in relation to proceedings, includes: (a) for civil proceedings-the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and (b) for proceedings before a tribunal-the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and (c) for criminal proceedings-the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and (d) for civil or criminal proceedings or proceedings before a tribunal-the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. (2) A reference in this Act to instituting proceedings includes a reference to instituting: (a) proceedings generally, and (b) proceedings in relation to a particular matter, and (c) proceedings against or in relation to a particular person, and (d) proceedings in a particular court or tribunal. Summary of effect of legislation 11In short, there can be no doubt that s 14(1)(a) of the Act applies to the applicant. Section 14(2) applies to the summons that he has filed. Pursuant to s 15, leave to institute proceedings must be refused if the applicant has not filed an affidavit that substantially possesses the three attributes set out in s 14(3); or if the proceedings are vexatious; or if the proceedings lack a prima face ground. Extracts from documents filed by applicant 12The summons and affidavit are lengthy, and I do not propose to recount them in their entirety in this judgment. I consider that the following extracts are sufficient to convey their flavour. They have been precisely replicated. 13The first order sought in the summons is as follows: 1. Your Hon. would be pleased enough 'for granting Application for leave ' of Applicant's Summons, for relief against the 'three Defendant's acts' under s12 Authorised Court and s16 Granting applications for leave VPA2008 for 'upheld the ,Rule of Law ' and Natural justice' that has been infringed the fundamental core of rights 'protections under law' against any kind of incursions' to a member of Australian citizens and also under International law- UNHR Covenants as His Hon ..ADAMS J, made order Date: 10 February 2014, Hearing Date on 28 November 2012[ After two years 'Judicial hibernations' ] pursuant to Ex- Gregory Smith, Attorney General, ('Whom has been expelled from Cabinet on 20 April 2014 ') Summons Case No. 2012/140230, submitted on 02 May 2012 against the Applicant , for 'seeking orders under s8(7) Vexatious Proceedings Act 2008. His Hon's decisions , the applicant' as construe are violations of the " Core functions and responsibility of Judiciary is to that 'The Law should protect the rights and freedoms of members of the community -irrespective of races- as applied in Australia (but was initially excluded in our Constitutions that Aborigines are not). The administrations of law should be just under law . Such responsibility has been entrusted to the Australian Judges / Registrars for the administrations of any rights incursions against the community by the Executives and dominant social class (as submitted). And henceforth such role (Justice (s)/ Registrar (s) to upheld the rule of law and serve the community. 14Order two is as follows: 2. Your Hon. would be pleased enough to make appropriate order for relief against the unlawful acts by the ' Four Defendant's Collaborative acts of':- Mr. Aaron Garry , Grarry Dun property Agent's, whom put the applicant's Property of 30 Lae Road ,Holsworthy ,NSW , Folio Identifier 509/2345857 , of Market Vale $0.7 Million (Approx.) on market for sale on Auction on 03 May 2014 , as instructed by the Kristen Farmer, Mr. Guy MOLONY ,Tress Cox Lawyers, MLC Centre ,Martin Place , CBD , NSW , whom as of 'fraudulently transferred the applicant Proprietary Rights and Dealings of the Property on 19/10 2012 for' David J.Frank Lombe , alleged claims Trustee, of Address Level 2-18, 225 George Street, Grosvenor Place Sydney as of false claim of Court orders . When there are no Court orders as well as no orders under Reg. 40.3 Leave for issue: 'Sequestration, UCPR 2005 , for the alleged LOMBE, when applicant's investment Home Loan Repayment of the above property Mortgaged with the Commonwealth Bank of Australia are up to date as of 2014 and the Bank is not the Party for such claims. s104 Judgment for possession of land, s114 Entry onto land for sale by auction s115 Effect of sale of property Uniform Civil Procedure Act 2005 and Regu..36.8 Possession of land; Reg. 39.6 Order in which property to be sold and Divisions 2-Enforcement of writs against land -Reg.39.21 to 39.28 and Reg. 40.3 Leave for issue: 'sequestration, UCPR 2005 and Further, when Registration Notice of CAVEAT :Dealing Numbers : AI534815 ,Title Reference: 509/234857, is in force as submitted by the Applicant on 29 April 2014.. 15Order four is as follows: 4. An order as of item No. 1, 2 and 3 pursuant to s92 Judgments for possession of Land, s104 - Enforced by Writ of possession of land and s106 (1) (A)- and s106 Judgment for payment, Civil Procedure Act 2005 when "NO SUCH ORDER was made' Reg: Reg. 40.3 Leave for issue: 'sequestration, UCPR 2005 and by the Supreme Court, NSW Civil Procedure Act and UCPR 2005 NSW. As there are no provisions under Ch-111 ,s73-79 Constitutions and Judiciary Act 1903 or any other NSW Acts "Does not not invest jurisdictions' 'States Courts - to - Federal Courts -' in Federal Magistrates Court or Federal Court of Australia is 'invalid'-as ruled 'Unconstitutional'. The Constitution contemplates Federal -to -States vesting of Jurisdictions. But it has nothing to say about 'State - to - Federal' vesting of Jurisdiction : Case Ref: Attorney-General (Cth) v Colonial Sugar Co Ltd (1913) 17CLR 644 at 653. ,and R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 168. And thereby any acts by the Federal Magistrates Court , Federal Court of Australia and ISTA' are invalid and unlawful in applicant's proceedings, and Hon. would be pleased enough to granting for such orders for the applicant of administrations of justice to upheld Rule of law. 16The first paragraph of the affidavit of the applicant of 23 May 2014 is as follows: 1. I am the Applicant of the Proceedings of Summons seeking orders under s12 authorised Courts & s16 Granting application for leave VPA 2008 for' appropriate order for relief against the four Defendants' unlawful acts of : Mr. Aaron Garry , Grarry Dun property Agent's, whom place advertisement in different media for 'Sale on Action ' Date: on 03 May 2014 of the applicant's Property of 30 Lae Road ,Holsworthy ,NSW , Folio Identifier 509/2345857 , of Market value $ 0.7 Million (Approx. Seven hundred thousand dollars ) on market for sale on Auction .. The property for Sale on Auctions was 'instructed' by the Kristen FARMER, pursuant to Guy MOLONEY ,whom with Solicitor, Legal Unit, Registrar General, LPI has transferred the Property on 19 October 2012 to DAVID LOMBE under fraud - and both are of TressCox Lawyers, MLC Centre ,Martin Place , Sydney, and for such acts are crimes and liable for justice under: Crimes Act 1900 NSW of:- Fraud: Part PART 4AA - FRAUD, s 192B Deception, s192C Obtaining property belonging to another; s192D Obtaining financial advantage or causing financial disadvantage, and s192E Fraud (1) (a) (b) is guilty of the offence of fraud. , Maximum penalty: Imprisonment for 10 years ,has 'transferred' unlawfully' of the applicant Proprietary Rights and Dealings of the Property on 19/10 2012 , with the collaboration of Solicitor, Legal Unit, Director General, LPI, NSW for' David J.Frank Lombe , alleged claims Trustee, of Address :Level 2-18 , 225 George Street, Grosvenor Place Sydney as of false claim of Court orders . When there are no Court orders as well as no orders under Reg. 40.3 Leave for issue: 'Sequestration, UCPR 2005 , for legitimacy of clams for due process of law and rule of law that has been infringed will satisfy under s16 VPA 2008 for the administrations of justice with jurisprudential interpretations of any 'statutory provisions to' Invest States Courts Jurisdictions to Federal Magistrates and Federal Court of Australia and ISTA for Bankruptcy Notices and 'relief -Sequestrations; not by the 'Commonwealth Bank of Australia- for default of Repayment of Investment Property of 30Lae Road is Mortgaged in 2002. But Hon. ADAMS J's decisions are of which is of 'per curiam' and 'gratis dictum', or fable after a long two years of 'Judicial hibernation. 17The third paragraph of the affidavit is as follows: 3. In Support of the Applicant's Summary of claim as mentioned-tirihe Summons and to upheld the legitimacy and in compliance under s14 ( 3) (a) (i), (3) (b) & (3) (c) VPA 2008 and the lists of'EXHIBITS ' marked documents' submitted herein to will be included in this Affidavit and to satisfy the ' unlawful orders as made on 10 February 2014 as mentioned above of infringement of rights - a 'violations of citizens right for protection under law' that was imposed for the benefit of the Three White Collar offenders'-David Lombe, Paul Baram Maurice , Solicitor and Rosalind V Dubs , Non -Executive Directors, C/ 0 Address: Level 1-18, 225 George Street, Grosvenor Place, Sydney [ All of them have the same official address-whom are related to ' Mr. Gregory E Smith, Ex-AG, [ Dumped on 20 April 2014 by the new Premier Hon.Blair for corruptions ] ' would be waived, and not in force and being fully comply under s16 VPA thereby Your Hon. would be pleased enough to grants the rights before the NSW Judiciary for relief as sought in the summons against such ' incursions' by the Defendants' act and henceforth to void the Defendants acts asperformed and upheld the administration of justice that has been overlooked being unrepresented Applicant and ethnic community. But Hon. ADAMS J's decisions under s8VPA are of which is of 'percuriam' and 'gratis dictum', or fable after a long two years of 'Judicial hibernation and - a non - Judicial power, which is 'Offensive to Ch 111 of the Constitution, and not under any inherent substantive acts or expressed power invest in the NSW Supreme Court under Supreme Court Act 1970. And henceforth, it is invalid. 18Paragraph 3A of the affidavit is as follows: 3A. And 'henceforth none of the applicant's proceedings are not vexatious proceedings and will be included in these affidavit for Judicial interpretations-rule of law-The supremacy of law .And in applicant's proceedings,' when Hon, Justices failed to adhere to the principles of jurisprudence , the nature of law and normative questions about the relation between law and morality and the justification for such decisions- infringements of citizens 'core right 'protections under law from incursions from the community, against the ConsgtitutiOons will be included for legitimacy in these affidavit and henceforth the proceedings 'are not vexatious proceedings' 19The sixth paragraph is as follows: 6. Doctrines of Case References-High Court And States Court KABLE DOCTRINE- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 5. Kable Principle' that State Legislature as of s8 VPA 2008 'was not a law for the purposive - but 'Non-purposive characteristic' as a law ' for peace, welfare and good government of NSW ' within s5 of the Constitution Act 1902 NSW ( but to protect by the initiative of Gregory E, Smith , Attorney General, Chief executive , Judiciary NSW, of the White Collar ;Perpetrators- LOMBE, Paul Baram , R. V dubs And Vanessa Jeovana , Solicitor for DG, LPI) and did not amount to an exercise of judicial power by the Parliament., and not validly enact a law which could 'effect an impermissible Executive Intrusions - as performed by Gregory Eugene Smith AG , into the process of decision of a court which would authorize the Executive to enlist a court to implement the decision of the executive in a manner with the court's institutional integrity. (Toohey J,) High Court of Australia. 20Paragraph 7 is as follows: 7. List of Court of Appeal proceedings applied for Leave, in the Court of Appeal: With compliance of s14 ((3) (a) VPA 2008, NSW Australia. CATEGORY A: Employment NSW DET and Post Graduate Studies in the University of UTS ADMINISTRATIVE LAW. S69 WRIT PROVISIONS AGAINST GOVERNMENT OFFICILAS' **Two main Government, NSWDET, Employed as Science and Mathematics Teacher, Worked 2001 - 2003 AND ** UTS enrolled and studied in 2008-2009, Juris Doctor, Post Graduate studies, Faculty of Law, toward eligible for Solicitor and Barrister. No Leave was granted by the Court of Appeal. 21Paragraphs 7B and 7C are as follows: 7B. Lists all other proceedings the applicant has instituted in Australia: s14 (3) (b) VPA 2008 7B. (1). Case No. 2013/297990 - Mohammad Tabibar Rahman v Registrar General, LPI, NSW, (2). Case No.2013/179362 -Mohammad Tabibar Rahman v David Lombe ( Solicitor, Legal Unit, LPI, NSW, in collaboration with 'Guy MOLONEY, TressCox Lawyers under fraud - Crimes Act 1900 ,transferred the Applicant's ownership- Proprietary Right- 30 Lae Road , Holsworthy, NSW to David Lombe on 19/10/12 ]- Proceedings in the Court of Appeal, is pending for relief. 7C. EXHIBIT EE 'Supreme Court New South Wales, Common Law Division, Case Title: Attorney General of New South Wales v Rahman [2014] NSWSC 42, Hearing Date 28 November 2012 , Decision Date :10 February 2014 by Hon. ADAMS J's in Expressions of statements for reasons of Judgment - The Defendant's litigation history at Page 10, Para12 to Page 72, will be included to satisfy the provisions of s14(3) (b) at Para : 7B .Page 6 in these Affidavit will be include and for legitimacy. 22Paragraphs 8 and 8A are as follows: 8. CONSTITUTIONAL QUESTIONS, AND NOTICE UNDER S78 JUDICIARY ACT (Cth) A -1903 THE ATTORNEY-GENERAL(S) FOR INTERVENTIONS WHEN JUDICARY TRANSGRESS OR INFRINGE CONSTITUTIONAL DICTUMS. 8A., Hon. ADAMS J, in giving his reasons of judgment after long Judicial hibernation / Seclusion of 439 days , as mentioned at Para -1 to Para 185 , misconstrued the constitutional provisions of the issues and challenges made in the appellant's proceedings including present proceedings for hearing in the Supreme Court and Court of Appeal against the David Lombe (claiming Trustee) and Registrar-General, Land and Property Information ,NSW for their acts have no legitimacy under NSW Legislations or by the Federal enactments, when there are no provisions : (iii). Neither the Commonwealth nor States have power to confer 'State jurisdiction on a Federal Court. (vi) Vesting of State Jurisdictions is constitutionally invalid' 23Paragraph 9E is as follows: 9E. And 'henceforth none of the applicant's proceedings are not vexatious proceedings and will be included in these affidavit for Judicial interpretations-rule of law-The supremacy of law .And in applicant's proceedings, ' when Hon, Justices failed to adhere to the principles of jurisprudence ,the nature of law and normative questions about the relation between law and morality and the justification for such decisions- infringements of citizens 'core right 'protections under law from incursions from the community, against the Consgtituti0ons will be included for legitimacy in these affidavit and henceforth the proceedings 'are not vexatious proceedings' .And Hon. would be pleased enough for granting leave under s16 VPA for administration of justice against the acts by the Four Defendants and as expressed by the Defendant [Third] David Lombe, Deloitte Date: 13 March 2014 to Garry Dunn Property Agent' ;As you are aware and to briefly....NSW Supreme Court has declared the bankrupt as vexatious litigant, the effect of which now means that I can sale the property knowing that the bankrupt no longer has the capacity to aggravate the process; "EXHIBIT J ". Should leave be granted? 24Turning to the statutory preconditions for a grant of leave, the applicant has filed an affidavit that he affirmed before a Justice of the Peace on 23 May 2014. The document is typewritten and in general conformity with the technical requirements of the Rules of the Court. 25In short, I consider that the chapeau of s 14(3) of the Act has been the subject of general compliance. 26It seems that the applicant has served the purported defendants to the summons with copies of the documents that he has filed, contrary to s 14(4) of the Act. However, I am prepared to proceed on the assumption that that was an unintended contravention, and I do not regard it of itself as disentitling the applicant to a grant of leave. 27By way of paragraph 7C of his affidavit, the applicant has sought to incorporate in his affidavit the extensive review of all of his litigation contained in the judgment of Adams J, itself based (I infer) on extensive evidence tendered before his Honour by the Attorney General of New South Wales in the proceedings that culminated in that judgment. In that sense, the applicant has brought to my attention the highly adverse fact that he has been engaged in a vast amount of litigation in the past. To my mind, it could be onerous and fruitless to call upon an applicant, pursuant to s 14(3)(b) of the Act, mechanistically to recount in an affidavit material that is readily available in a detailed judgment with regard to the same subject matter. In the absence of submissions to the contrary, I am prepared to proceed on the assumption that the applicant has complied with s 14(3)(b) of the Act by incorporating portions of the judgment of his Honour. 28As for s 14(3)(c) of the Act, it is impossible to assess whether the applicant "discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant". I am prepared to proceed on the assumption that the applicant has done his best to comply with it, and reveal the facts of which he has knowledge and that he regards as material. 29However, the applicant has not complied with s 14(3)(a), in that he has not deposed to all of the occasions upon which he has applied for leave under this section since he was declared a vexatious litigant. 30I infer from paragraph 7 of the affidavit (which is extracted above) that that failing is the result of a misunderstanding on the part of the applicant, in that he has listed occasions upon which he has sought leave from the New South Wales Court of Appeal, and not leave pursuant to s 14(3)(a)(i) of the Act. 31On this basis alone, the precondition for mandatory dismissal of the application for leave contained in s 15(1)(a) is established. 32There is a further basis upon which the application for leave must be refused; namely, that the proceedings are vexatious. That is because, to my mind, they are an abuse of the process of the Supreme Court of New South Wales. I say that making due allowance for the fact that the applicant is unrepresented; that English is not his first language; and that a sense on his part of having suffered a serious injustice may have affected the documents that he has drafted and filed. 33The summons filed by the applicant seems to suggest that the applicant claims that, on 19 October 2012, some persons in some fraudulent way dealt with a piece of real property in which he had an interest. 34The affidavit seems to suggest that Adams J was wrong in declaring the applicant a vexatious litigant, and that the legislation under which his Honour did so is constitutionally invalid in any event. 35Although it is possible to understand to a degree the contentions of fact and law that the applicant is putting forward, I respectfully consider that the two documents as a whole are verbose, repetitive, and garbled to the point of incoherence. 36If the applicant were granted leave to institute proceedings, the summons would be immediately liable to be struck out by an opponent. And the affidavit, if there were an opponent, would be the subject of countless successful objections. 37I consider that the determination of this threshold question in Chambers does not call for a detailed analysis by me of what proceedings may be characterised as an abuse of process. In any event, it is well established that the concept of abuse of process cannot and should not be reduced to defined or closed categories: see for example Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 227 ALR 425. Speaking generally, that phrase has been defined to include proceedings in which the pleadings are so unintelligible, incoherent, or inconsistent that they fail to disclose the material factual allegations relied upon, or a reasonable cause of action: see the summary of "embarrassing pleadings" set out by Johnson J in McGuirk v University of New South Wales [2009] NSWSC 1424 at [30]-[35]. 38It suffices to say that I am satisfied that the summons and affidavit fall soundly within the concept of "vexatious proceedings" in the Act. I consider that the extracts from the filed documents amply demonstrate that proposition. 39It follows that a second precondition for mandatory dismissal, namely that contained in s 15(1)(b) of the Act, has been established. Leave must also be refused on that further basis. Conclusion and order 40In short, on two separate bases, the Act commands that I must not grant leave to the applicant to institute proceedings. 41I make the following order: (1)Leave to institute proceedings is refused. ********** 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: 22 August 2014