Rahman v Sharpe (No 2) [2012] NSWDC 49

Rahman v Sharpe (No 2) [2012] NSWDC 49

The 3rd, 4th and 5th defendants had no rational basis for joinder because they were not parties to the Supreme Court proceedings in which the costs order was made or to the costs assessment. The summons was a rambling, embarrassing, vexatious and abusive document that failed to identify any decision or error by the costs assessor on a question of law capable of supporting an appeal as of right under s 384 of the Legal Profession Act 2004. Given the history, the content of the summons, the plaintiff's withdrawal from the hearing and the likelihood of further unnecessary costs, the appeal was hopeless from the outset and should be struck out and summarily dismissed, with indemnity costs...

Jurisdiction
Australia
Judgment Date
05 April 2012
Procedural Posture
Costs Assessment Appeal From Assessment by a Costs Assessor of Party/party Costs Payable Pursuant to Court Orders / Interlocutory Applications; Motion by the 3rd, 4th, 5th and 6th Defendants to Remove Parties and Summarily Dismiss or Strike Out the Summons
Outcome
The 3rd, 4th and 5th defendants were removed as parties, the summons was struck out, the appeal was dismissed, and the plaintiff was ordered to pay the costs of the 3rd, 4th, 5th and 6th defendants on an indemnity basis.
Legal Topics
['appeal Under S 384 of the Legal Profession Act 2004' 'removal of Parties' 'summary Dismissal' 'abuse of Process' 'indemnity Costs']
['civil Procedure' 'costs Assessment' 'legal Profession'] ['appeal Under S 384 of the Legal Profession Act 2004' 'removal of Parties' 'summary Dismissal' 'abuse of Process' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Assessment Appeal From Assessment by a Costs Assessor of Party/party Costs Payable Pursuant to Court Orders / Interlocutory Applications; Motion by the 3rd, 4th, 5th and 6th Defendants to Remove Parties and Summarily Dismiss or Strike Out the Summons

Legal Issues

  1. 1 ['Whether the 3rd, 4th and 5th defendants should be removed as parties to the appeal under r 6.29 of the UCPR.' "Whether the plaintiff's summons was embarrassing, vexatious and an abuse of process and should be struck out under r 13.4(1) of the UCPR." 'Whether the summons identified any decision or error by the costs assessor on a question relating to a matter of law capable of grounding an appeal under s 384 of the Legal Profession Act 2004.' 'Whether the plaintiff should be given an opportunity to re-plead or whether the appeal should be summarily dismissed in its entirety.' 'Whether costs should be ordered against the plaintiff on an indemnity basis.']

Ratio Decidendi

The 3rd, 4th and 5th defendants had no rational basis for joinder because they were not parties to the Supreme Court proceedings in which the costs order was made or to the costs assessment. The summons was a rambling, embarrassing, vexatious and abusive document that failed to identify any decision or error by the costs assessor on a question of law capable of supporting an appeal as of right under s 384 of the Legal Profession Act 2004. Given the history, the content of the summons, the plaintiff's withdrawal from the hearing and the likelihood of further unnecessary costs, the appeal was hopeless from the outset and should be struck out and summarily dismissed, with indemnity costs...

Court Disposition

The 3rd, 4th and 5th defendants were removed as parties, the summons was struck out, the appeal was dismissed, and the plaintiff was ordered to pay the costs of the 3rd, 4th, 5th and 6th defendants on an indemnity basis.

Orders

  • ['Paul Baram, John Hartigan and Shirley Alexander are removed as defendants.' 'The originating process as against the 3rd, 4th and 5th defendants is set aside.' 'The Summons is struck out.' 'The appeal is dismissed.' 'The plaintiff is to pay the costs of the 3rd, 4th, 5th and 6th defendants of the motion and of the...