Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Mahmoud v Sutherland [2012] NSWCA 280
• Hearing dates: 3 September 2012
• Decision date: 03 September 2012
• Before: Beazley JA

Decision

Notice of motion filed 24 August 2012 dismissed;

Confirm that the hearing of the appeal is to proceed on 12 September 2012.

[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: PRACTICE AND PROCEDURE - Application to strike out notice of motion - Insufficient material to determine whether reasonable case made out - No tendency to cause prejudice, embarrassment or delay in appeal proceedings - Insufficient material to determine whether abuse of process - Uniform Civil Procedure Rules 2005, r 14.28.
• Legislation Cited: Civil Procedure Act 2005; Uniform Civil Procedure Rules 2005; Vexatious Proceedings Act 2008
• Category: Interlocutory applications
• Parties: Tosson Mahmoud (Applicant); Vincent Sutherland (Respondent)
• Representation: Counsel: In person (Applicant); In person (Respondent); Solicitors: N/A (Applicant); N/A (Respondent)
• File Number(s): CA 2011/316382
• Publication restriction: No

Decision under appeal

• Date of Decision: 2011-05-06 00:00:00
• Before: Knox DCJ
• File Number(s): DC 2009/327342

Judgment

1 HER HONOUR: The applicant, Mr Tosson Mahmoud, has filed a notice of motion dated 24 August 2012 in which he seeks the following orders:

"01-That the date of the hearing of the notices of motion of the appellant and the respondent on 08-10-2012 be vacated.

02-That the notice of motion of the respondent filed on 08-08-2012 be heard and disposed of as quickly as possible.

03-That the notice of motion of the respondent filed on 08-08-2012 be struck out with costs in accordance with UCPR, Part 14, Division 5, Rule 14.28, subrule (1) (a), (b) and (c) which is also cf SCR Part 15, Rule 26 on the grounds outlined in the affidavit of this notice of motion of the appellant.

04-That the date of the hearing of the case of the appeal No. 2011/316382 in the Court of Appeal on 12-09-2012 be vacated."

2 The notice of motion was supported by an affidavit of Mr Mahmoud affirmed the same date, that is, 24 August 2012. The affidavit contained material that was largely, if not totally, inadmissible. However, I considered that it was appropriate to treat the affidavit as Mr Mahmoud's submission in support of his notice of motion. In that regard the affidavit was set out in a form that precisely followed the orders sought in the notice of motion.

3 However, much of the material in the document was personally abusive of the respondent, Mr Sutherland, or irrelevant to the orders sought. Accordingly, I informed Mr Mahmoud that I proposed to disregard portions which I identified to him.

4 Mr Mahmoud made submissions in regard to the matters I had identified. As a result of those submissions, I determined that there were two matters that I had indicated to him I would disregard to which I ought to have regard. Those matters are identifiable from the transcript.

5 Before dealing with the submissions in the form advanced in the affidavit (being those matters to which I indicated I would have regard), Mr Mahmoud raised two matters in his oral submissions which I should put on the record.

6 The first was his understanding that the further directions hearing ordered by the Registrar to be held on 8 October 2012 was in respect of an application for pro bono assistance. That was not an entirely accurate understanding of the orders that the Registrar made on 20 August 2012. The Registrar's note indicates that on that date the following notations and orders were made: (1) that the hearing of the appeal was set down for 12 October 2012; and (2) that the notice of motion was stood over to 8 October 2012.

7 It is clear from the record that the notice of motion to which the Registrar was referring was Mr Sutherland's notice of motion of 8 August 2012. The Registrar further directed that any notice of motion for pro bono assistance may be made returnable on 8 October 2012.

8 Mr Mahmoud has indicated that he does not propose to make any application for pro bono assistance. I have not ascertained from Mr Sutherland whether he proposes to do so and I do not consider it is necessary for me to make that enquiry at this point. If Mr Sutherland wishes to make an application for pro bono assistance he can do so and in accordance with the Registrar's direction he should do so on 8 October 2012.

9 In the meantime, what is clear is that Mr Sutherland's notice of motion of 8 August 2012 is before the Registrar for directions on 8 October 2012.

10 The second matter which Mr Mahmoud raised in his oral submissions was his concern that at the hearing of the appeal on 12 September 2012, Mr Sutherland will seek to agitate his application that an order should be made against Mr Mahmoud under the Vexatious Proceedings Act 2008. That is the subject of the notice of motion of 8 August 2012. That is not before the Court of Appeal on the hearing of the appeal of 12 September 2012. I indicated to Mr Mahmoud that if Mr Sutherland sought to agitate such a case, the Court would not deal with it on that day. I ascertained from Mr Sutherland that he fully understood that he was not to agitate that case on the hearing of the appeal on 12 September 2012 and Mr Sutherland informed me that he understood that was the position. Against that background, I will deal with the arguments Mr Mahmoud raised in support of the orders in the notice of motion.

11 The first order sought was "[t]hat the date of the hearing of the notices of motion of the appellant and the respondent on 08-10-2012 be vacated". I have already indicated that 8 October 2012 is an allocated directions hearing date in respect of the only notice of motion in existence at the moment, that is, the notice of motion of 8 October 2012. I except from what I have just said the notice of motion with which I am presently dealing.

12 The legal arguments Mr Mahmoud advanced in support of order 1 essentially boiled down to the proposition that an error of law has been made by the Registrar in accepting Mr Sutherland's notice of motion of 8 August 2012, in circumstances where the orders sought in that notice of motion should have been the subject of a new proceeding and could not be brought by way of notice of motion in the proceedings on the appeal.

13 It is not necessary for me to determine on the hearing of Mr Mahmoud's notice of motion the question of whether proceedings under the Vexatious Proceedings Act must be brought by way of initiating process.

14 Pursuant to the Civil Procedure Act 2005, s 16 the Court is empowered to give directions with respect to any aspect of practice or procedure for which rules of court or practice do not provide, and anything done in accordance with such a direction is taken to have been validly done. In addition, the Court has wide powers under the rules to regulate the processes before it.

15 It is apparent that the Registrar, in standing over the notice of motion of 8 August 2012, did so to enable the appeal in this Court to proceed on the allocated date. Whilst I am not aware of the Registrar's thinking on the matter, it does seem to me that the Court's determination of the appeal may in any event make the notice of motion of 8 August 2010 otiose. I do not know. It may be that Mr Sutherland may wish to proceed with the notice of motion in any event. Alternatively, he may be advised not to proceed with it. The present point I wish to make is that that notice of motion will not be before the Court on 12 September.

16 Mr Mahmoud, both in the oral submission to which I have referred and in subpara (b) of para 1 of his affidavit, referred to prejudice in having to meet the additional case raised by Mr Sutherland's application under the Vexatious Proceedings Act. I have already dealt with that and I do not need to say anything further about it.

17 The second order sought on the notice of motion is "[t]hat the notice of motion of the respondent filed on 08-08-2012 be heard and disposed of as quickly as possible". Mr Mahmoud advances in support of that order a submission that he wishes Mr Sutherland's notice of motion to be heard as quickly as possible so as to clear the way for him to prepare his case on the appeal. He referred to his poor state of health and, in particular, his chronic cardiovascular disease, as being a reason why he needs not to be under stress in the preparation of his case in the Court of Appeal. I have already indicated that Mr Sutherland's notice of motion of 8 August 2012 will not be before the Court of Appeal on the hearing on 12 September 2012. Mr Mahmoud does not need to do anything in relation to that notice of motion at this stage. It is still at the stage of being before the Registrar for directions only.

18 The third order is:

"That the notice of motion of the respondent filed on 08-08-2012 be struck out with costs in accordance with UCPR, Part 14, Division 5, Rule 14.28, subrule (1) (a), (b) and (c) which is also cf SCR Part 15, Rule 26 on the grounds outlined in the affidavit of this notice of motion of the appellant."

19 In circumstances where the Registrar considered it appropriate to refer the matter back before him for directions on 8 October 2012, I do not consider it appropriate to entertain the application that Mr Sutherland's notice of motion be struck out under Uniform Civil Procedure Rules 2005, Pt 14, r 14.28. There is insufficient material before me to know whether any reasonable case has been made out as required by Pt 14, r 14.28(1)(a). For the reasons I have already given, I do not consider that the notice of motion of 8 August 2012 has a tendency to cause prejudice, embarrassment or delay in the Court of Appeal proceedings, as I would be required to find in order to strike it out under Pt 14, r 14.28(1)(b). Nor is there sufficient information before me to determine that the notice of 8 August 2012 is otherwise an abuse of the process of the Court as I would be required to find, should I strike it out, under Pt 14, r 14.28(1)(c).

20 The final order sought by Mr Mahmoud in his notice of motion is "[t]hat the date of the hearing of the case of the appeal No. 2011/316382 in the Court of Appeal on 12-09-2012 be vacated". In support of that order, Mr Mahmoud raises the same arguments as he raised in support of the first argument, namely, that there was an error of law in having a notice of motion still subsisting, notwithstanding a final hearing in the Court of Appeal and that he does not wish to be under the stress of running two cases at the same time. For the reasons I have already given, neither of those grounds is made out. Insofar as Mr Mahmoud is concerned with the stress of running both cases, I indicated to him during the course of the proceedings that he did not need to give any attention to Mr Sutherland's notice of motion at this time, and certainly not prior to, or for the purposes of, the hearing of the appeal.

21 For those reasons, I dismiss Mr Mahmoud's notice of motion filed 24 August 2012 and, so that there be no confusion about the matter, I confirm that the hearing of Mr Mahmoud's appeal is to proceed on 12 September 2012.

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Decision last updated: 07 September 2012