Rahman v Dubs [2010] NSWCA 129 (28 May 2010)

Last Updated: 3 June 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Rahman v Dubs [2010] NSWCA 129


FILE NUMBER(S):
2009/298024

HEARING DATE(S):
28 May 2010

JUDGMENT DATE:
28 May 2010

EX TEMPORE DATE:
28 May 2010

PARTIES:
Mohammad Tabibar RAHMAN (applicant)
Rosalind V DUBS (first respondent)
John HARTIGAN (second respondent)
Shirley ALEXANDER (third respondent)

JUDGMENT OF:
Hodgson JA Tobias JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 30104/09

LOWER COURT JUDICIAL OFFICER:
McCallum J

LOWER COURT DATE OF DECISION:
18 December 2009


COUNSEL:
IN PERSON (applicant)
T MALTZ (respondents)

SOLICITORS:
Norton Rose (respondents)

CATCHWORDS:
PROCEDURE – Application for leave to appeal – Whether open to primary judge to order filing of a statement of claim – Whether open to primary judge to order substitution of a party.

LEGISLATION CITED:
Civil Procedure Act ss 56-59, s 61
Supreme Court Act s 69

CATEGORY:
Procedural and other rulings

CASES CITED:


TEXTS CITED:


DECISION:
Application for leave to appeal dismissed with costs.
Leave granted for costs to be assessed forthwith.



JUDGMENT:

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298024

HODGSON JA

TOBIAS JA

Friday 28 MAY 2010

Mohammad Tabibar RAHMAN v DUBS

Judgment

1 HIS HONOUR: The applicant applies for leave to appeal from the interlocutory decision of McCallum J made on 18 December 2009. Apart from an allegation of denial of natural justice, the proposed appeal grounds allege errors in a number of respects, but without specification of what the alleged errors were.

2 There is no evidence and no relevant submission suggesting any denial of natural justice.

3 In his submissions to us, Mr Rahman has relied particularly on two alleged errors.

4 In the first place, he has 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 it was submitted that s 69 of the Supreme Court Act permits these proceedings to be brought by summons; and it was submitted there was no relevant authority to order a statement of claim.

5 In my opinion, the power to regulate proceedings given by s 61 of the Civil Procedure Act gives ample power for the making of the order made by the primary judge, particularly when read with ss 56-59 of the Civil Procedure Act.

6 The other error relied upon in submissions concerned the removal from the proceedings of Ms Dubbs, and the substitution of the University of Technology Sydney. The situation is that Ms Dubbs was the Registrar at the time certain decisions were made, but she is no longer the Registrar. The view taken by the primary judge 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.

7 Mr Rahman’s submissions give me no cause to think that the primary judge was wrong. Consistently with her decision, it will be open to Mr Rahman to seek to add as parties the relevant office bearers under their title as office bearers. In my opinion, there is no possible injustice to Mr Rahman in that course.

8 The decisions of the primary judge were discretionary decisions in matters of procedure, and adequate reasons were given. In my opinion, no basis is shown for the grant of leave to appeal.

9 The order I propose is that the application for leave to appeal is dismissed with costs.

10 TOBIAS JA: I agree.

11 HODGSON JA: The order of the court is: the application for leave to appeal is dismissed with costs.

12 Mr Maltz for the respondent has asked that leave be given for the costs to be assessed forthwith. In the circumstances, in my opinion it is appropriate to take that course and I propose that that order be made.

13 TOBIAS JA: I agree.

14 HODGSON JA: The Court makes that additional order.

oOo

LAST UPDATED:
1 June 2010