Rahman v Rahman [2024] NSWCA 109 | Case summary

[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.]

JUDGMENT - EX TEMPORE

LEEMING JA: I will ask Justice White to give the first judgment.
WHITE JA: This is a summons for judicial review of a decision of the District Court (his Honour Judge ML Williams SC) of 14 August 2023 (Fahmid Rahman v Mita Farjina Rahman 14 August 2023, no medium neutral citation).
Judge Williams dismissed the applicant's appeal from orders made in the Local Court on 1 November 2022. On that day, Magistrate Miller dismissed the applicant's application for an apprehended domestic violence order. It appears from the learned magistrate's reasons that the application was filed on 6 April 2020 on behalf of the applicant himself and his two children. The respondent is the applicant's former wife.
The magistrate found that the applicant had not demonstrated reasonable grounds to fear violence either against himself or the children and did not in fact fear violence against himself. The magistrate considered that the application was vexatious and brought as a continued harassment of the respondent to try to resolve issues the applicant perceived surrounding her relationship with another man. As well as dismissing the application for an apprehended domestic violence order, his Honour also ordered the applicant to pay the respondent's costs in the sum of $2,970 inclusive of GST.
The applicant appealed from those orders to the District Court (Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84(2)(b)). The appeal is governed by Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW): Crimes (Domestic and Personal Violence) Act, s 84(3).
Pursuant to s 18 of the Crimes (Appeal and Review) Act, the appeal was by way of rehearing on the basis of evidence given in the Local Court proceedings, subject to qualifications not presently relevant.
The notice of appeal to the District Court was not included in the White Book provided to this Court. Nor did the applicant's submissions in this Court identify the grounds, if any, specified in the notice of appeal to the District Court. As appears later in these reasons, it is apparent from the transcript of the hearing in the District Court that no written submissions were prepared and provided to the Court in advance of the hearing.
The hearing in the District Court was short. The transcript runs for fewer than five pages. Much of the exchange was between the judge and the solicitor appearing for the respondent. After the judge read the magistrate's reasons, the applicant's statutory declaration that was before the magistrate, and the transcript of hearing, the judge asked the applicant what evidence, if any, he had on the appeal. Section 18(2) provides that fresh evidence may be given with leave of the District Court, if the Court is satisfied that it is in the interests of justice that fresh evidence be adduced.
In response to the judge's question the applicant made the following submission, parts of which were not transcribable: "HIS HONOUR: --what evidence, if any, do you have-- APPELLANT: Okay, your Honour, firstly I'm letting you know after studying my submission here, justice should be exercised and procedural fairness should be exercised. In here there's no …(not transcribable)… so far to submit both parties. …(not transcribable)… made a submission, exhibit, et cetera, number 1. Number 2 is this is not rehearing, this is appeal. I will, I will present to you what magistrate done …(not transcribable)… of justice what he did …(not transcribable)… I will present to you on how the other side solicitor she is claiming she's a 36(?) years old solicitor and how she behaving and presenting lie before the Court …(not transcribable)… I will go one by one with you. And how magistrate is making …(not transcribable)… and did not give me any fairness of justice. It is just - you can say that …(not transcribable)… miscarriage of justice, these things happening here. It's a gross …(not transcribable)… justice. Slap in the face of the justice what magistrate did. This is not a rehearing. HIS HONOUR: Right. Is that all you want to put, Mr Rahman? APPELLANT: Yep. HIS HONOUR: All right."
Judge Williams then gave ex tempore reasons for dismissing the appeal. He rejected the submission apparently advanced by the applicant that the applicant had been denied procedural fairness in the Local Court. His Honour said that, to the contrary, the magistrate went to great lengths to ensure that the applicant had the opportunity to put what he wished before the Court. His Honour accepted the magistrate's observation that the focus of the applicant's statement in his statutory declaration was about the respondent's relationship with another man and the application had been a continuation of his pursuit of the respondent and continued harassment of her to try and resolve his issues surrounding her relationship with the other man. His Honour concluded: "There is no further evidence sought to be put before the Court beyond what was before the Magistrate, and I would come to exactly the same view as the Magistrate, that is there is no evidence to satisfy the test that is required, namely that Mr Rahman has reasonable grounds to fear, and in fact fears any of the matters set out in s 16(1) of the Act, and I would dismiss the appeal."
After delivering those reasons, the solicitor for the respondent addressed on costs. The judge observed that the applicant had left the court. In the applicant's absence his Honour ordered that he pay the respondent's costs in the sum of $2,000 plus GST.
No appeal lies from the orders of Judge Williams. Section 93 of the Crimes (Domestic and Personal Violence) Act provides that the appeal to the District Court is in its criminal jurisdiction. By reason of s 176 of the District Court Act 1973 (NSW), judicial review to this Court lies only on the ground of jurisdictional error.
The grounds of the applicant's summons in this court are as follows: "1 The learned trial magistrate and judge fell into jurisdictional error by denying the appellant natural justice. 2 The learned trial magistrate and judge failed to take into account a material consideration being the reasons for the appellant's failure to cross examine the wife whatsoever. 3 Procedural unfairness, being not transparent in actions/decisions, made a decision in bad faith, wrong legal 'test'. 4 Taking into account irrelevant considerations or failing to consider relevant considerations."
In so far as ground 3 asserted that the decision of the judge was made in bad faith, then to that extent that ground was withdrawn in oral submissions.
The orders sought in the summons inappropriately describe the application as an appeal, or an application for leave to appeal out of time. It can be taken that the applicant seeks orders in the nature of certiorari and mandamus to quash the decision of the District Court and to order that the District Court determine the appeal in accordance with law.
It is not competent for the applicant to seek judicial review of the orders of the magistrate in the Local Court. Those orders have merged in and been superseded by the orders of the District Court (Dyason v Butterworth [2015] NSWCA 52 at [34]-[35] (McColl JA); Dogramaci v Director of Public Prosecutions (NSW) [2022] NSWCA 83 at [5] (Macfarlan JA); Choi v NSW Ombudsman (2021) 104 NSWLR 505; [2021] NSWCA 68 at [21] (Meagher, White, Brereton JJA); Singh v Hicks and Nissan [2021] NSWCA 80 at [17]-[18], (Gleeson JA)).
This morning the Court heard and dismissed a notice of motion filed by the applicant on 19 April 2024 that the present summons be heard together with another proceeding involving the same parties in which the applicant also seeks judicial review of an order by a different judge dismissing an appeal from orders made in the Local Court which extended an apprehended domestic violence order obtained by the respondent against the applicant. The Court declined to adjourn the hearing of this summons. I have taken into account the applicant's oral submissions made in support of his notice of motion as well as his oral submissions made in support of the summons following the dismissal of that notice of motion. In the course of the latter submissions, the applicant in substance reactivated his application for an adjournment. This was on the basis that he had not received the White Folder until yesterday evening and that, on reading the transcript of the hearing in the District Court, he identified errors or omissions in the transcript. The errors identified were that, according to him, he did not say (twice) that "this is not a rehearing" but said that it was. The omission identified was that, according to the applicant, he said to the judge "you should respect your chair" before he withdrew. That comment is not recorded in the transcript.
Neither of these matters is material.
The judge did conduct the appeal as a rehearing on the basis of the evidence given in the Local Court. The applicant relies on these matters, however, as a basis for his now seeking the sound recording of the hearing in the District Court. But his summons was filed on 27 October 2023, more than six months ago. His first ground of review was that he was denied natural justice. To establish that ground he needed the transcript. He should have obtained it months ago and if he considered that the transcript warranted seeking the sound recordings, he should have applied for them months ago.
As to not having the White Folder until last night, the position was that, on 27 November 2023, the applicant was ordered to file and serve the White Folder by 9 February 2024. On 19 February 2024 that time was extended to 18 March 2024. It was by reason of his default that on 17 April 2024 the respondent was ordered to file and serve the White Folder by 23 April 2024. The White Folder was filed by the respondent on that day but not served. That is, to say the least, regrettable. But the applicant did not ask for it to be served on him at any time after 23 April. Moreover, the White Folder does not contain any material with which the appellant would not have been familiar. Apart from the parties' submissions, the summons and the response to the summons, and the transcript of the hearing in the District Court, it contained the transcript of hearing in the Local Court and the appellant's statutory declaration and exhibits to it that were his evidence in the Local Court. The applicant must have had those documents for the District Court hearing.
For these reasons, I would not accept the applicant's renewed contention that the hearing be adjourned.
In his submissions in support of ground 1 of the summons, the applicant contended that the judge did not allow him to present his case. Orally, he complained that the judge allowed the appeal to proceed. At an early stage in the hearing, Judge Williams said that he was at a loss to understand why there were no orders for written submissions and he asked the applicant what it was that he wanted. The applicant agreed that there were no directions for written submissions and said "I believe this matter is not ready for the court. That should be done first". If the judge understood that to be an application for an adjournment, he did not grant it. Nor would he have been justified in doing so. There was nothing to prevent either party preparing written submissions in advance of the hearing and handing them to the judge. In any event, the matter proceeded on oral submissions.
The submission that the judge did not allow the applicant to present his case is not borne out by the transcript. To the contrary, the applicant was asked whether he wished to lead any evidence and did not say that he did. He was given the opportunity to make submissions but said that he did not have anything further to put. There was no denial of procedural fairness. Nor did the applicant attempt to identify what further submissions he would have made to the judge if the judge had pressed him to do so. From his submissions in this Court, it does not appear that he had anything to say which might have made any material difference to the judge's findings. His written submissions were largely directed to challenging the respondent's credibility, but the magistrate's findings and the judge's findings were not based on the respondent's credibility but on the applicant's own evidence.
Ground 2 of the summons appears to challenge a ruling of the magistrate that any cross-examination of the respondent would have to be done through a person appointed by the Court. The magistrate told the applicant that the applicant would have to formulate in advance the questions he would request be put to the respondent. It may be inferred that the magistrate had in mind s 289VA of the Criminal Procedure Act 1986 (NSW). In that regard it is relevant that the respondent had herself been a complainant in an application for an apprehended domestic violence order against the applicant and such an order had been made and was still on foot.
But this question is moot. The respondent did not give evidence in the Local Court so that the question of her being cross-examined did not arise. More pertinently, no submission was made to Judge Williams about that issue for his Honour to consider.
The balance of ground 3 and ground 4 of the summons lack specificity. In relation to ground 4, neither the applicant's written nor oral submissions identified what irrelevant, that is, prohibited, considerations the judge took into account or what mandatory relevant considerations he failed to consider, let alone how this amounted to jurisdictional error beyond a repetition of his complaints of denial of procedural fairness which arise under ground 1. Nor was anything substantive put in relation to the balance of ground 3 going beyond that complaint of denial of procedural fairness.
Apart from the assertion that the judge did not allow the applicant to present his case, the applicant's written submissions are directed to matters irrelevant to this application. Under the heading "Recent Incidents", the applicant referred to alleged behaviour of the respondent said to have taken place after the conclusion of the appeal in the District Court. The applicant further submitted that the respondent's family history was marked by violence and deception going back to 1977. This was spurious and the applicant must have known that it was spurious on a claim that the District Court committed jurisdictional error. The applicant then devoted 12 pages of submissions to challenge the credibility of the respondent by reference to evidence that she gave in other proceedings which, again, is irrelevant.
In short, the ground of denial of procedural fairness is not made out. No other ground nor submission establishes jurisdictional error.
For these reasons, the applicant has not established any ground for judicial review of the District Court's decision. I propose that the applicant's summons be dismissed with costs.
LEEMING JA: I agree with White JA. I wish to add one thing concerning the principal ground of the applicant's summons: the complaint that the District Court denied him procedural fairness. In large measure, that necessarily was based upon the very short transcript of the hearing that took place on 13 October 2023.
This Court received into evidence exhibit B, which was Mr Rahman's annotated version of the transcript supplementing certain portions which had been described in the transcript as "(not transcribable)". Having heard Mr Rahman for slightly more than two hours this morning, it is easy to see, without any criticism of those taking the transcript, how parts of what he said might not be transcribable. Justice White has referred to his suggestion that in fact there was a mistranscription twice of his saying "this is not a rehearing" as opposed to "this is a rehearing". The significance of this, however, is that there is no suggestion in the transcript that anything that the judge said was inaudible or difficult to transcribe. There is no suggestion in the transcript, nor does Mr Rahman make any suggestion, that it was inaccurate for his Honour to have asked him "what evidence, if any, do you have" to which he made no substantive response. Nor was it suggested by Mr Rahman that there was anything inaccurate about the conclusion of the transcript before the delivery of ex tempore reasons which White JA has reproduced. I would add that, following the delivery of those reasons, the primary judge then said the following: "I will give the opportunity to Mr Rahman to say anything he wishes on the question of costs, given that he had left the court before the application was determined". None of those matters suggests in any way that there was a denial of procedural fairness as alleged by Mr Rahman.
For those additional reasons, and those given by White JA, I agree with the orders his Honour has proposed.
MITCHELMORE JA: I also agree with the orders proposed by White JA and with his Honour's reasons. I also agree with the additional reasons of Leeming JA.
LEEMING JA: The Court therefore will order that the summons filed on 27 October 2023 will be dismissed with costs.
[Discussion concerning costs of motion]
LEEMING JA: Following the delivery of judgment, the parties were asked as to whether the discretion as to costs should be exercised in relation to the reserved costs of the notice of motion seeking an adjournment.
Mr Lewis said that those costs should follow the event of the dismissal of the summons. Mr Rahman has sought to develop with some elaboration the challenge to the order of costs in the District Court. That was not articulated in his summons or in his submissions in support of the summons, and that summons has been dismissed. He also seeks perhaps to rely upon ss 99 and 99A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in relation to the costs in this Court. That legislation does not apply because the proceedings in this Court are proceedings pursuant to s 69 of the Supreme Court Act 1970 (NSW).
In those circumstances, I propose that Mr Rahman pay the respondent's costs of his notice of motion that was dismissed earlier this morning in addition to the costs of the summons which, as indicated, have already been ordered.
WHITE JA: I agree.
MITCHELMORE JA: I agree.

Rahman v Rahman

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