Poly and Statutory Interpretation

In Paul v Mead [2020] NZHC 666 Hinton J offers New Zealand's first judicial consideration of whether a Court has jurisdiction to determine the property rights of three persons in a polyamorous relationship under the Property (Relationships) Act 1976 (NZ), holding that it does not.

It is of interest to scholars of statutory interpretation, equity, family law and identity.

The Court indicates that the NZ legislature clearly chose to base the Act on the concept of "coupledom" that does not apply to relationships of more than two persons. The statutory scheme as enacted does not anticipate such relationships being divided into dyadic relationships to 'fit' the Act. The Court considers that although there is a forcible policy argument the Act should be extended, it is for Parliament, not the Court, to revisit the scope of the Act. However, until that happens, equity may offer some relief.

The judgment states

[1] This case raises an interesting and contentious issue over whether the Property (Relationships) Act 1976 applies to a “polyamorous relationship”. 

[2] The point arises as a question of law referred to this Court by way of case stated by Judge Pidwell sitting in the Family Court at Waitakere as follows: Does the Family Court have jurisdiction to determine the property rights of three persons in a contemporaneous polyamorous relationship under the Property (Relationships) Act 1976?   

[3] The two effective claimants appear to accept that the Property Relationships Act 1976 (the Act) does not provide for polyamorous relationships as such. They do not claim jurisdiction on that basis. Rather, they seek to break their three-way relationship down into contemporaneous qualifying relationships. I have therefore restated the question slightly as follows: Does the Family Court have jurisdiction under the Property (Relationships) Act 1976 to determine the property rights of three persons in a polyamorous relationship, either on the basis of that relationship or by dividing that relationship into dyadic parts? 

Background 

[4] The parties accept the following excellent summary of the facts by Judge Pidwell, to which I have added only in small part and where uncontentious. 

[5] Lilach and Brett Paul were legally married in New Zealand on 28 February 1993. They have no children. [ 

6] In 1999, Lilach met Fiona Mead. 

[7] In 2002, the three parties formed a polyamorous relationship. 

[8] In November 20023 the parties moved into a four-hectare property in Kumeu which had just been purchased in Fiona’s name for $533,000. She paid the deposit of Pursuant to s 13 of the Family Court Act 1980 and pt 21 of the High Court Rules 2016. The phrase “polyamorous relationship” is not defined in the case stated. It has a potentially wider meaning, but given the facts of the case, I treat it as a relationship between three persons or more. The Judge noted a date of March 2003 but the parties agree it was November 2002. Nothing turns on the date for present purposes.   The parties describe the property as a farm. It had a QV of $2,175,000 in 2017. This is the property in dispute. 

[9] For the next 15 years, the parties lived together at the Kumeu property. Their polyamorous relationship continued. For the most part they shared the same bed. 

[10] Fiona practised as a veterinarian throughout the relationship. Brett established a paintball business on the property. Brett and Lilach had a lawn mowing business. Lilach also practised as an artist. 

[11] Each party contributed to the household and to activities which occurred on the property (being general maintenance of the property and helping each other with their respective businesses). The parties differ as to what extent the contributions occurred. 

[12] While the relationship between Lilach, Brett and Fiona was the primary relationship, there were other secondary relationships between each party and other individuals. Some of these secondary relationships were between one party and the secondary party, while others involved more than one party (again, either individually at different points of time or forming a secondary polyamorous relationship). At-least one of these secondary relationships appears to have lasted for three years. 

[13] I think it helpful to add the following from Lilach’s affidavit, which seems undisputed: 

For [...] 15 years we were in a relationship and lived together at the property. We had an understanding that although we were free to love others, the relationship between the three of us was the main relationship. For the large majority of the relationship all three of us have been sharing the same room and same bed until about a year before our separation when I moved into the guest room. When we moved into the property Fiona, Brett and I committed to a shared life with each other. In particular, soon after we moved into the Property, we had a private ceremony during which Brett and I gave a third ring to Fiona. The ring was identical to the ring that Brett and I had with the exception of the stone in the middle and it was made by the same jeweller 

[...] We all wore our rings throughout our 15 year relationship, but I did lose my ring about two years ago. The pictures [attached to the affidavit] show the ceremony and our rings. 

[14] Lilach separated from Fiona and Brett in November 2017. 

[15] Brett and Fiona subsequently separated in early 2018. Fiona remains living in the Kumeu property. 

Procedural History 

[16] On 15 February 2019 Lilach applied to the Family Court at Waitakere naming Fiona and Brett as respondents and seeking orders determining the parties’ respective shares in relationship property. In her narrative affidavit of the same date, Lilach records that she had been in a de facto relationship with Fiona, Brett had been in a de facto relationship with Fiona, and the three of them were “in a committed relationship for more than 15 years”. She records that they lived together in the Kumeu property, which was their family home, and indicates that she seeks a one-third share. 

[17] On 11 March 2019 Fiona appeared under protest to object to the Family Court’s jurisdiction on the basis that Lilach’s application was founded on a relationship of three people and thus does not relate to a de facto relationship as defined by the Act. 

[18] On 22 March 2019 Brett filed a notice of defence and also a cross-application for orders determining the parties’ shares in the relationship property “arising as a consequence of the contemporaneous relationships” and for a declaration that the parties were in three contemporaneous qualifying relationships under the Act as follows: (a) Brett and Lilach as husband and wife; (b) Brett and Fiona as de facto partners; and (c) Fiona and Lilach as de facto partners. 

[19] On 29 March 2019 Lilach applied for orders setting aside Fiona’s protest to jurisdiction on the grounds that the three parties were “in a relationship of 15 years duration” and the application relates to three ‘triangular’ contemporaneous relationships, being those described by Brett. Relying on ss 52A and 52B of the PRA,   DM v MP [2012] NZHC 503, and Chapman v P Chapman v P (2009) 20 PRNZ 330 (HC), the application records that the Family Court has jurisdiction to determine the division of relationship property “where there is more than one contemporaneous de facto relationship and/or marriage.” 

[20] By Minute dated 7 June 2019, Judge Pidwell referred the case to this Court by way of case stated, recording that she was not aware of any case law that assists on the issue. The Judge framed the question herself after the parties failed to agree on the specific terms of reference. She records that Lilach and Brett claim equal shares in the relationship property. However, it is now clear they each claim a one-third share and the subject of the claims is the Kumeu property. 

Discussion No claim can be made under the Act based on a polyamorous relationship per se 

[21] It is clear on the face of the Act that parties cannot bring a proceeding based on a polyamorous relationship per se. That is not possible as a result of the definitions in the Act. Such a relationship does not ‘qualify’ under the Act. 

[22] As noted, that position appears to be accepted by Lilach and Brett, who do not advance their claims on that basis. They instead rely, by way of analogy, on the application of the ‘contemporaneous relationship’ provisions of the Act, ss 52A and 52B. I consider the applicability or otherwise of these below. 

[23] For completeness however, I first record that the relationships that do qualify under the Act are marriages, de facto relationships and civil unions, as defined. Each of these is plainly limited, for the purposes of the Act, to relationships between two people only. 

[24] The definition of “marriage” in s 2 provides that “marriage” has the meaning given to it in s 2A. That is an inclusive definition provision only. The provision does not purport to define the concept of “marriage” in and of itself. But it supposes that marriage is a dyadic relationship; referring to a “married couple” and “both spouses”.   This is consistent with the definition of “marriage” in s 2 of the Marriage Act 1955 (as amended) as “the union of 2 people, regardless of their sex, sexual orientation, or gender identity” (emphasis added). 

[26] The definition of de facto partner and de facto relationship is similarly dyadic in effect. A person is a person’s de facto partner “if they have a de facto relationship
  and a de facto relationship is “a relationship between two persons” both aged eighteen years or older, “who live together as a couple”  (emphasis added), with each other”, and are not married to, or in a civil union with, one another. 

[25] “Civil union” is similarly defined and limited to two people. 

[27] Plainly, more than two people cannot be married to each other, and, at least for the purposes of the Act, more than two people cannot form a qualifying de facto relationship. That would be even more so here, where two members of the polyamorous relationship are married. The definition of a de facto relationship excludes persons who are married to each other. So, such people could not form part of a single qualifying de facto relationship also comprised of one or more others. 

Separate concurrent claims 

[28] As noted above, Lilach and Brett’s respective cases rest on the Court being able to divide the polyamorous relationship into three parts and consider concurrent claims in respect of each. 

[29] In this instance, while Lilach and Brett each plead there were three separate relationships, which conceptually would involve three separate claims, there are only two. Lilach and Brett, although a married couple who would have a qualifying relationship, make no claim against each other. 

[30] Lilach and Brett say the Court can find that each of them was in a de facto relationship with Fiona. 

[31] That however is still not ostensibly the case because of the definition of “de facto relationship”. As set out earlier, a de facto relationship under the Act requires two persons to be living together as a couple. While s 2D of the Act sets out factors that may be relevant to that inquiry, the fundamental question the Court must answer is not whether a given relationship exhibits any or all of those indicia, but whether the parties lived together as a couple. On their own clear evidence and on the basis of the case stated, neither Lilach nor Brett was living with Fiona “as a couple”. Each was living with her as part of a threesome (or sometimes more). While the requirement to be living together “as a couple” does not preclude another person living with the couple, nor one of the couple living with a third person, it does in my view exclude a scenario where all three are participating in the very relationship at issue. That is not living together as a couple. 

[32] I note that if the “couple” requirement could be circumvented in this case in the proposed manner that would have to similarly apply to a “foursome” or more. There would be no logical limit to the numbers who could be involved in the overlying polyamorous relationship. 

[33] Lilach and Brett rely heavily by analogy on ss 52A and 52B of the Act. They say these provisions recognise that there may be “more than one contemporaneous de facto relationship” for purposes of the Act, which supports the approach they have adopted here. There is no doubt as to the basic proposition, though interestingly such contemporaneous relationships seem to have been found to qualify on very few  occasions. 

[34] Sections 52A and 52B address the priority of competing claims where there are contemporaneous relationships: either a marriage and a de facto relationship or two de facto relationships, respectively. The sections are in substantively identical terms. Section 52B is the relevant provision here and I set it out in full:

52B Priority of claims where 2 de facto relationships 

(1) This section applies in respect of relationship property if— (a) competing claims are made for property orders in respect of that property but in relation to different de facto relationships; and (b) there is insufficient property to satisfy the property orders made under this Act. 

(2) If this section applies, the relationship property is to be divided as follows: (a) if the de facto relationships are successive, then in accordance with the chronological order of the de facto relationships: (b) if the de facto relationships were at some time contemporaneous, then,— (i) to the extent possible, the property orders must be satisfied from the property that is attributable to each de facto relationship; and (ii) to the extent that it is not possible to attribute all or any of the property to either de facto relationship, the property is to be divided in accordance with the contribution of each de facto relationship to the acquisition of the property. 

[35] The plain language of s 52B (and s 52A) does not suggest that it would apply to three contemporaneous relationships, which is the position alleged here (albeit there happens to be no claim arising out of one of them). 

[36] A more significant difficulty in the applicants’ placing reliance on ss 52A and 52B is that these sections do not expand the scope of the Act. Rather they recognise the potential for conflicting claims arising out of the 2002 extension of the Act to de facto relationships and attempt to resolve that conflict. Beforehand the Act applied only to married couples. It is of course unlawful to be married to two people at once, so the possibility of competing claims under the Act did not arise. Extension of the law to de facto relationships opened up that potential. But the key point is that ss 52A and 52B still purport only to establish priority between competing claims where there are two discrete qualifying relationships. 

[37] Leaving to one side the fact there are three relationships here, the question remains whether the relationships at issue are “qualifying” under the Act. For the reasons identified previously, on the face of it, those pleaded here are not. 

[38] I also consider it relevant that while ss 52A and 52B are recognised as troublesome, they would, as discussed below, almost invariably produce a result discordant with the Act if applied to a deconstructed polyamorous relationship. 

[39] There have been a number of cases which have considered these provisions. None, or at-least no reported decisions, seem to have resulted in the provisions being applied. I suspect this is largely because of the difficulty in establishing a qualifying second relationship. As Sargisson AJ, reviewing these cases in Ngavaevae v Harrison, noted:

It would be fair to say that to establish a contemporaneous de facto relationship is likely to be difficult in practice. On my reading of recent authorities, assumptions of exclusivity still linger on in judicial interpretations of a ‘qualifying relationship.

[40] Because such claims have generally foundered at the second relationship point, the question of how ss 52A and 52B actually operate has not been addressed by the Courts. Both academics, and the Law Commission, also having identified no examples of application of these provisions, have expressed concerns as to how they would work:  

[...] the draft provisions on which sections 52A and 52B are based were developed in the context of succession law. They were not designed to be inserted into the PRA or to apply to situations involving three (surviving) people. As a result, several problems arise when applying sections 52A and 52B within the PRA framework [...] . 

[41] The acknowledged difficulties with application of these provisions do not encourage a broad interpretation of the Act in reliance on them, even if it were available. 

[42] Ms Taefi says that, in this particular case, while the Court can draw on 52B for jurisdiction, it would not be necessary to actually apply the section because Lilach and Brett are only claiming one-third each. They have adjusted their case to fit as it were. There would be no need to prioritise the claims because there would be sufficient property to meet the orders as sought, in terms of s 52B(1). 

[43] However, that approach is not accepted by Fiona and in any event the Court would have to apply the provisions of the Act, not some broad notion of what might be fair. 

[44] On my view of the application of s 52B, it would lead to a result materially different to that claimed. As might be expected where the relationship is in reality polyamorous, there would be only one family home, in this case the Kumeu property. Each of Lilach and Brett would have to bring or be treated as bringing a separate proceeding. Applying the presumption of equal division, the Court would likely order in each proceeding that each partner was entitled to 50 per cent each. That would mean that Fiona was entitled in total to 100 per cent (50 per cent in each case) and Brett and Lilach 50 per cent each. There would be insufficient property to satisfy the orders in terms of s 52B(1)(b), and the home could not be said to be “attributable” to either de facto relationship in particular in terms of s 52B(2)(b)(i), whatever meaning is given to that word. Therefore, under s 52B(2)(b)(ii) the property would have to be divided in accordance with the contribution of each de facto relationship to the acquisition of the property. If each de facto relationship is assumed to have contributed equally, and it is difficult to see how it would not be given Fiona is a member of both relationships, that would result in Fiona’s receiving 50 per cent and Lilach and Brett 25 per cent each. 

[45] This is materially different to Lilach and Brett’s claimed 33 per cent shares, and is materially at odds with the general policy of the Act that couples share the family home equally. Yet, that outcome would likely be standard in respect of a polyamorous relationship. Because the property pool in respect of each dyadic relationship will likely be the same, the same unequal outcome will likely result in respect of all types of relationship property. [46] Ms Taefi submits these difficulties could be circumvented by consolidation of proceedings, but that is procedural only. The Court would still have to consider each case separately. The outcome would be unchanged. 

[47] These problems do not arise to the same extent with couples in contemporaneous qualifying relationships, who, living together as a couple, would generally be living in separate homes, which would therefore be “attributable” to each relationship, such that division would fit better with the scheme of the Act. There could still be cases, as Ms Taefi argues, which have a result similar to the present. She gave the example of one partner spending lengthy periods overseas and in their absence a third person moving in with the partner at home and living with them as a couple. She gave another example of a live-in caretaker having a long-term relationship with one or other of the partners living in a house. These cases would however be extremely rare. 

[48] In my view the likely outcome of the division process in a case such as the present speaks strongly against expanding the application of the Act by analogy to s 52B, rather than in favour of it. 

Academic and other commentary on polyamory and the Act 

[49] Ms Taefi referred me to academic commentary which suggests that a polyamorous relationship can be approached in the way the claimants argue. However, I have not found any of the commentary to be of particular assistance. Counsel for Brett referred me in particular to Professor Henaghan’s discussion of the treatment of multiple relationships on death, in relation to which the Professor suggests: A gap in the definition of a de facto relationship is the situation where three people live together in a “ménage à trois”. This is not literally living together as a “couple”. It is living together as a “threesome”. Such relationships are not common, but they do create a problem in terms of the Act. The most likely practical classification for such relationships is to treat them as two contemporaneous relationships. 

[50] It is clear from the brevity of this passage that these are thoughts in passing. While an intuitive response to the “problem in the Act” is to divide relationships into dyadic couples, this does not bear close scrutiny for the reasons given above. Furthermore, I do not consider it clear the Professor had in mind a case such as the present. He refers to a “threesome”, but also to treating that relationship as “two contemporaneous relationships”, when dividing a threesome into its dyadic elements produces three couples, as noted above. It is possible that by “threesome” and “ménage à trois” the Professor was referring to a case like the example of the live-in caretaker described above, where reference to two contemporaneous relationships is apt. 

[51] I note that the Law Commission, in their recent review of the Act, stated that it does not apply to relationships between three or more people. Lilach and Brett’s argument is of course more nuanced, but the Commission refers to the same fundamental considerations I noted at the outset of this judgment, and which also apply to the constituent relationships under s 52B:  The PRA is premised on the notion of "coupledom". It applies only to marriages, civil unions and de facto relationships that are intimate relationships between two people. The PRA does not apply to intimate relationships between three or more people (multi-partner relationships). 

The argument for liberal interpretation and reform 

[52] Whether the Act should be “premised on the notion of ‘coupledom’” is of course another matter. In this regard, the Law Commission observed that:  

Multi-partner relationships may share many of the hallmarks of a qualifying relationship, such as common residence, raising children together, financial dependence or interdependence, ownership, use and acquisition of property, mutual commitment to a shared life and the performance of household duties. Excluding multi-partner relationships that are functionally similar to qualifying relationships from the PRA may therefore be difficult to justify. 

[...] Two members of the public [who made submissions to the Commission] described diverse relationship and family structures that differ from the traditional couple structure and nuclear family. They felt that, as diverse structures become more common, legal recognition and rights need to be available. They noted that the current law strongly favours the 'primary' couple who may be married or in a civil union and largely excludes any secondary partners who may still contribute significantly to the family. One person noted that the current law provides for multiple relationships but that these tend to be interpreted as illicit 'cheating' relationships when the reality can be more consensual and nuanced than that. 

[...] A broader theme from Community Law’s submission was that the polyamorous community wanted a clear way to have their relationships recognised by the law when they desired those relationships to be recognised. 

[53] Appealing to similar sentiments, counsel for both Lilach and Brett submit that the Act ought to be interpreted liberally, referring inter alia to Sargisson AJ’s observation that:

The Act is social legislation: it reflects, or at least should reflect, contemporary social mores. The Act, and its judicial interpretation, must therefore be responsive to developments in social mores. In that regard, these are interesting times. The Law Commission observes that “relationships are now much more diverse and this diversification is expected to continue”. In fact, ‘unorthodox’ relationships are more often than not the ones that end up under the judicial microscope. [...] [...] at least in principle, the Act makes room for situations such as we find in this case, which the court must be careful not to down play in favour of personal bias. 

[54] Sargisson AJ’s comments were made in respect of the limited application to date, as noted above, of the contemporaneous relationship provisions because of apparent judicial reluctance to find the second relationship to be qualifying. I agree that the Act is a liberal piece of legislation and should be interpreted in a way that achieves its liberal purpose. In this respect, I acknowledge that the Act was amended in 2002 to broaden significantly the range of qualifying relationships and that a number of different relationships are now encompassed by the Act in addition to the married couples to whom it used to exclusively relate. 

[55] Those who have decided to live in polyamorous relationships have an understandable desire, as indicated by the submissions received by the Law Commission, and by this case, for the clarity that recognition of their relationships within the statutory scheme might offer. As also emerges, at least some submitters believed that would offer their relationships a degree of legitimacy in the eyes of society at large which they currently do not possess. As the Commission identified, excluding multi-partner relationships that are functionally similar to qualifying relationships (and in this case of longer duration than many) may be difficult to justify. 

[56] Nonetheless, Parliament has premised the Act on the notion of coupledom, as the scheme of the Act makes clear. Whether this is difficult to justify as a matter of policy is a matter for Parliament. Statutory interpretation must always have regard to the text and scheme of the Act in question. 

[57] Reform of the sort required by this case cannot be accomplished through the Courts. While many relationships are complex, polyamorous relationships are likely to be even more so. As the Commission has noted:  

There are [...] a number of practical considerations that would need to be addressed if a property regime were to be extended to multi-partner relationships. Policy would need to be developed on which relationships should be captured, whether the regime should be opt in or opt out and what the property entitlements should be. Careful consideration would also need to be given to the implications of recognising multi-partner relationships for other areas of the law. The PRA is premised on an intimate relationship between two people, and we consider that this should also be the premise of the new Act. 

Hinton J comments in parenthesis

I record, for completeness, that the claimants also advanced an argument, as I understand it, that this distinction discriminates between polyamorous and monogamous couples on the prohibited grounds of family status, as described in s 21(1)(l)(iii) of the Human Rights Act 1993, and that an interpretation consistent with that Act’s prohibition on discrimination on that ground should be preferred. As I identify, there is a forcible policy argument that distinction should not be drawn. However, inconsistency with the policy of the Human Rights Act 1993 is not, without more, a basis for departing from the clear effect of the statutory scheme and language of the Property (Relationships) Act 1976. regime to multi-partner relationships would be a fundamental shift in policy and should be considered within a broader context involving more extensive consultation about how family law should recognise and provide for adult relationships that do not fit the mould of an intimate relationship between two people.

Equity

Hinton J concludes

[58] For all of the above reasons, not only does the Act on its face not apply to a polyamorous relationship such as the parties’, but it would be unworkable to stretch the legislation to ‘fit’ this case. 

[59] This issue having arisen by way of a question of law referred to this Court, I am required to remit the matter to the officer who stated the case together with the opinion of the Court. I answer the restated question of law as follows: The Family Court does not have jurisdiction to determine the property rights of three persons in a polyamorous relationship under the Property (Relationships) Act 1976, nor does it have jurisdiction to do so by dividing the polyamorous relationship into dyadic parts. 

[60] The position will be different if as a matter of fact more than two people are cohabiting but can properly be described as living together as couples. That is not the case in a polyamorous relationship in the sense used here. 

[61] I conclude by saying that the claimants here are not without remedy. The issues between them can be addressed at equity. it is incomplete, would be relevant in that context. It will be a matter for the Judge hearing the case, but in my view it would be appropriate to pay regard to the principles expressed in the Act, such that judge-made law properly develops in response to the guidance offered by statute law. After all, as noted above, the relationship here has many of the hallmarks of a qualifying relationship, albeit, fatally in terms of the guidance offered by statute law. Most of the evidence filed, acknowledging application of the Act, one between three persons. Development of the law informed by the principles of the Act may help those in polyamorous relationships and afford them some clarity as to their property arrangements pending any future legislative review.

Privacy Boilerplate

'Best Practices' in the Design of Privacy Disclosures: An Experimental Test' by Omri Ben-Shahar and Adam S. Chilton comments 

One of the primary goals of privacy regulations is to transform privacy disclosure into relevant, accessible, and clearer information aids for consumers. Laws, industry standards, and consumer groups have coalesced around a list of “best practice” guides that advocate several formal properties to be used in drafting privacy disclosure. But would such formal properties actually change behavior? This question has not been rigorously studied. We conducted a survey experiment designed to test whether altering the formal properties of privacy disclosures affects respondents’: (1) willingness to disclose personal information; (2) comprehension of the disclosure; and (3) understanding of their legal rights. Our results reveal that altering the formal properties of privacy disclosures have [no/a limited/a substantial] effect on the information respondents understanding, willingness to disclose information, or understanding of their rights.

Refugees

''Unable to Return' in the 1951 Refugee Convention: Stateless Refugees and Climate Change' by Heather Alexander and Jonathan Simon in (2015) 26(3) Florida Journal of International Law comments 

 it is not only a point of literal construction, but also inherent in the object and purpose of the 1951 Refugee Convention, that displaced stateless persons unable to return to their countries of former habitual residence may be eligible for refugee status even if unpersecuted. 'Unable to return' as it occurs in the clause following the semi-colon of 1(A)2 of the 1951 Refugee Convention must be understood as a term of art subject to appropriate canons of construction in its own right. Its construal must therefore be more restrictive than many commentators have suggested, though not so strict as to preclude all but persecuted persons. Then argues that, as a case study, those who are displaced from their island nations because those nations have submerged beneath the sea will count as 'unable to return' in the relevant sense, and so will qualify for Convention refugee status, if they count as lacking a nationality, i.e. as stateless.

Legal Common Knowledge, c1360

'Common knowledge of the common law in later medieval England' by C.J. Neville in (1994) 29(3) Canadian Journal of History 461 comments

Despite their complexity, the rules and regulations governing the substance and procedure of common law in later medieval England were surprisingly well understood by the medieval men and women who appeared in court as defendants. This paper examines records of sessions of gaol delivery, before which accusations of felony were put to trial, for the northern circuit in the years 1354-1460. It explores the ways in which a significant number of defendants were able to avoid altogether onus of trial by claiming exceptions to the law and more particularly, by arguing that the formal indictments under which they had been charged were "insufficient in law." The varied nature of these claims is reviewed, and emphasis is placed on tracing the source of what was in most instances highly technical information. The public venue of medieval trials undoubtedly contributed to the dissemination of a rough and ready familiarity with the law among persons of all ranks and the presence of trained lawyers at the sessions must also have made available to plaintiffs, defendants, and bystanders alike a well informed source of legal knowledge. But it is further argued that jurors of presentment, the men responsible in the first instance for bringing forward bills of indictment, may have played a crucial role in determining which defendants would be subjected to the rigours of a full trial and the possibility of death by hanging consequent on it, and which would not. The deliberate omission of factual details in the formulation of the written charges may in this sense have reflected more than merely a casual attitude on the part of the jurors towards statutory requirements enacted to regulate indicting documents. They may also be interpreted as one of a variety of means by which medieval jurors winnowed out of the legal process individuals whom they did not believe merited the full sanction of trial at gaol delivery.

Neville states that the article explores

a number of instances in which defendants were able to avoid the full rigours of trial at gaol delivery, not thanks to the acumen of royal justices, but on the basis of exceptions they put forward themselves in the course of their appearance in court. The source materials upon which this study is based are the records of trials for felony heard before justices of assize on the northern judicial circuit between 1354 and 1460. At least once a year, these justices travelled to the county towns of York (Yorkshire), Newcastle-upon-Tyne (Northumberland), Carlisle (Cumberland), Appleby (Westmorland), and Lancaster (Lancashire); they also presided over sessions held in the ecclesiastical liberties under the jurisdiction of the Archbishop of York and the Bishop of Durham. The commissions under which they operated gave them authority to put to trial suspects accused of, and detained in gaol for, a wide variety of felonious offences.

The northern records of gaol delivery, like those from the other judicial circuits, suffer from large gaps resulting from the ravages of time and the vagaries of poor storage, but as a body they reflect a substantial portion of the work performed by the justices responsible for trying felonious offences in the century or so under consideration. Altogether, the cases recorded there number 10,246 charges laid against 11,380 persons; they represent the business conducted at 416 separate sessions. The study begins with the middle years of the fourteenth century, when legislation of Edward III had begun to exert a powerful and lasting influence on the shape and form of written charges. From the mid-1350s their structure remained standard. The year 1460 has been chosen as a terminus post quem for the simple reason that the rolls of gaol delivery for the northern circuit end abruptly then.

It should be clear from the outset that sessions of gaol delivery dealt almost exclusively with suspects who belonged to the lower ranks of English society. Gentlemen and gentlewomen were only rarely indicted, and even more seldom brought to trial, in this venue. The aspect of the trial process with which this paper is concerned is the stage at which suspects were asked to plead in respect of a charge, as required by common law procedure in trial on indictment. On occasion, they did not do so. Instead of declaring themselves guilty or not guilty, they challenged the validity of the charge made against them, a process that would later become formalized as pleading in bar. The number of such exceptions is not insignificant. In the years between 1354 and 1460, some 725 were made, representing 7 per cent of the total number of charges known to have been laid. In every instance, the judges dismissed the defendants from custody, and the court never proceeded to a determination of their guilt or innocence.

The impressive knowledge of common law procedure demonstrated by those defendants is of some interest. Changes to the law were often enacted in parliament, and were almost always the result of scrutiny and discussion by highly skilled royal justices in the rarefied atmosphere of the chambers in which trials before Kings Bench and Common Bench were conducted and, by the fifteenth century, of the nascent Inns of Chancery and Court. Legal historians have been able to trace the effect of these substantive and procedural alterations to the workings of the law in the voluminous series of judicial records that survive from the later medieval period. But knowledge of these changes seems also to have been surprisingly current among contemporary folk, who had little or no access to masses of trial record, who had no opportunity to sit in parliament when new rules and procedures were promulgated, and who can hardly have counted among their familiars justices of assize based in Westminster.

The extent of common knowledge of the common law among a largely illiterate populace and, in the case of the north, one situated far distant from the central courts, poses some challenging questions about the dissemination of highly technical information in that society. This paper cannot claim to provide definitive answers to these questions. It is intended, rather, to stimulate discussion of the link it posits between the transmission of learned culture to the masses and current research on the role and the function of the jury in the criminal trials of medieval England. The findings of that research are reviewed below. The first section examines the wide variety of exceptions that defendants in the medieval north were able to call to the attention of the justices and which, when successfully claimed, virtually assured them avoidance of the onus of trial for felony. In the second section, the significance of these exceptions is explored. Traditional theories about the dissemination of technical information go some way towards explaining the source of the northerners' knowledge of common law procedure. But the further argument is made in the third section that juries of presentment may have played a crucial part in determining why some accusations reached the stage in the criminal process of formal indictment and subjection to trial that was its normal consequence, and why others failed to conform to the standards required of written charges, and so were adjudged insufficient in law. It is the contention of this last section that to the current debate on the voice of the jury in the records of the English medieval courts should be added the evidence of spoiled indictments.

Related to issues of jury behaviour and jury attitudes, moreover, are larger questions concerning the tenor of communal life in English medieval communities. Historians have long been aware of the profound tensions that informed rural life in the late Middle Ages, when demographic and economic changes affected relationships between local elites and their less powerful neighbours. An examination of the phenomenon of spoiled indictments reveals that the criminal trial process itself provided an opportunity -- one among many -- for the men who acted in the capacity of jurors of indictment in northern England to give meaningful expression to communal sentiment.

Neville goes on to note

The kind of knowledge of common law procedure required to challenge successfully a formal charge of felony was, in the instances cited above, widespread by the Mater medieval period; it had become by then part of custom, of what might, indeed, be termed "folk custom." But common knowledge of the common law extended far beyond a rudimentary familiarity with the well worn procedures surrounding benefit of clergy and pardon, and the rules governing sanctuary and its eventual outcome, abjuration. Unlettered men and women were surprisingly competent in positing more complex errors of procedural and substantive law as well. The late medieval period boasted no clear definition proper of felony, misdemeanour, and trespass; the distinction between felony and the two latter categories lay, rather, in the means by which they were prosecuted and the penalties attached to them. The tribunals in which each would be tried was a decision most often left to the determination of men learned in the law. Nevertheless, by the fourteenth and fifteenth centuries, royal justices had devised a rough and ready category of offences that they treated as felonies; these included homicide, rape, arson, larceny, burglary, robbery, and prison breaking.

The views held by common folk regarding the definition of felony generally echoed those of the lawyers, but defendants did not hesitate to remind justices of a shared climate of opinion on the subject when they thought it appropriate. More particularly, suspects sometimes queried the justices of gaol delivery about the nature of an offence alleged against them. In the Newcastle sessions convened in 1363 a defendant successfully argued before the presiding justices that his indictment, which accused him in vague terms of receiving a known thief, did not constitute a genuine charge of felony, and that he should be released from prison. A similar argument was made in a York court in 1410 -- again, convincingly -- when three men were released after demonstrating that the indictment laid against the principals in the alleged offences "made no mention of what felony in particular the principals committed." By the fifteenth century, the crown's continued inability to define clearly the status of some unlawful activities was permitting an increasing number of accused misdoers to avoid answering formal indictments altogether. This was especially true with respect to the charge of lying in ambush with intent to assault or commit homicide, which in the medieval period was most often, but not universally, left to the jurisdiction of justices working in county sessions or to commissions of oyer and terminer. At the Newcastle gaol delivery of 1428 one shrewd yeoman, accused of lying in wait "on the king's road at Herle with bows, arrows, swords and cudgels in order to slay Thomas Docheson, so that he was in danger of death," calmly pointed out to the justices that the indictment should be adjudged null and void, "because the manner and form in which it was taken makes it an indictment of trespass, and it makes no mention of what felony in particular the accused is said to have perpetrated."[30] He was released from custody a free man. On another occasion, the clerk who drafted an indictment before a coroner bungled a charge of larceny when he noted, more in the manner of an indictment of trespass than of felony, that an accused had "with force and arms" taken and carded off wheat worth 2s. The defendant challenged the wording of the document by arguing that it constituted a charge of trespass rather than felony, and was released from custody . . .

The success with which suspects were able to proffer challenges based on ambiguous points of law is sometimes astonishing, both in its perspicacity and audacity. At the delivery of Newcastle gaol in the Summer of 1441, the vicar of the church of Emildon avoided the obligation to place himself on the verdict of the country thanks to a claim that must have struck even the seasoned justices of assize with its ingenuity. When asked to plead, Master Thomas Eland stated that the indictment "does not charge him with 'raping' Elizabeth [wife of Adam Coke], because [the word] 'raped' in that document is not Latin." What he meant by this claim is that the verb had been misused by a scribe whose command of the Latin language was faulty, and who had thereby reduced the allegation to one of mere trespass. At the same delivery the justices were further confounded when two men indicted as receivers pointed out that the principal's indictment included a misspelling of the verb "to rob," and so lacked "the notion of felonious intent."

Procedure, Evidence and Proceeds of Crime

If you are using a hammer to crush an eggshell it is wise not to hit your toes. Procedure and drafting matter.

Seven West Media has had a victory in the Federal Court, which in applying s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) has quashed the search warrants used by the Australian Federal Police in that agency's high profile and ineptly managed visit to Seven West's offices.

The Age refers to "a dramatic raid", reporting

The AFP raided the Sydney offices of Seven last month in relation to the Proceeds of Crime Act, which prevents people from profiting from a criminal offence, because of speculation the network had paid convicted drug smuggler Schapelle Corby for an interview. 

No evidence of a deal with Corby, who spent nine years in an Indonesian jail, was found and Seven has since decided not to pursue an interview. 

Seven was successful, on Wednesday, in having search warrants used for the raids quashed. 

The Court found that errors contained in the warrants and orders - which said Seven legal representatives and personnel had been reasonably suspected of having committed criminal offences - affected the decision of the Magistrate to issue the warrants. 

The AFP had later admitted that nobody from Seven was suspected of committing a criminal offence, blaming a “word-processing error.”  

The traditional 'law enforcement dog ate my homework' excuse is unpersuasive.

Seven West's statement [PDF] indicates

The Court found that errors contained in the warrants and orders, which referred to Seven personnel and solicitors as “suspects” of an investigation and as being reasonably suspected of having committed criminal offences, could not be brushed aside as trivial or insignificant as the AFP had submitted. 

Instead, the errors were material and serious and affected the decision of the Magistrate to issue the warrants. 

Seven will seek payment of its legal costs from the AFP and is considering other options available to us to redress the costs of the AFP’s failed investigation.

From a justice perspective it is reassuring that Australian courts continue to be underwhelmed by poor procedure on the part of law enforcement agencies.

In Seven West Media Limited v Commissioner, Australian Federal Police [2014] FCA 263 [PDF] Jagot J states

The following search warrants issued under s 225 of the Proceeds of Crime Act 2002 (Cth) (the search warrants) be quashed as invalid and of no effect:

(a) CMO 14/035 in relation to the premises of Seven West Media Limited; 

(b) CMO 14/037 in relation to the premises of “Pacific Magazines (New Idea), Media City”; 

(c) CMO 14/039 in relation to the premises of Addisons Lawyers; 

(d) CMO 14/043 in relation to the premises of Justine Munsie, each issued on 17 February 2014; and 

(e) CMO 14/045 in relation to the premises identified as “Media City”, issued on 18 February 2014. 

2. The following orders issued under s 246 of the Proceeds of Crime Act 2002 (Cth) (the s 246 orders) be quashed as invalid and of no effect:

(a) CMO 14/036 to “Seven West Media Ltd (Seven Network)”; 

(b) CMO 14/038 to “### or or any other employee, Pacific Magazines (New Idea)”; 

(c) CMO 14/040 to “Justine Munsie or any other employee, Addisons Lawyers”; and 

(d) CMO 14/044 to Justine Munsie or any other resident, ###.

3. In the event of any request by a non-party to access to documents filed in the proceedings, all parts of documents filed in the proceedings (including pleadings, affidavits and submissions) which identify the names of:

(a) the natural persons identified as suspects in condition two of the search warrants; or 

(b) the natural persons the recipient of a s 246 order, other than the names Justine Munsie, Vasilios Kalantzis, Schapelle Corby and Mercedes Corby,

not be disclosed other than to the parties and their legal representatives. ...

The Court explains -

On 17 February 2014 the second respondent, a magistrate, issued five search warrants in respect of premises occupied by Seven West Media Limited (Seven West), Pacific Magazines Pty Limited (Pacific Magazines), Addisons Lawyers, Justine Munsie, a partner at Addisons Lawyers, and Kalantzis Lawyers. At the same time the second respondent issued five s 246 orders to provide information and assistance to Seven West, “[a named individual], or any other employee Pacific Magazines (New Idea)”, “Justine Munsie or any other employee, Addisons Lawyers”, “Justine Munsie or any other resident” at Ms Munsie’s residential address, and “Kalantzis Lawyers”. On 18 February 2014 the third respondent, a magistrate, issued a search warrant in respect of premises identified as “Media City” and which are occupied by Seven West’s wholly owned subsidiaries, including Pacific Magazines. 

The applicants are persons aggrieved by the issue of the search warrants being, in proceeding NSD 201 of 2014, Seven West , Addisons Lawyers, Ms Munsie and Pacific Magazines and, in the second proceeding NSD 207 of 2014, Mercedes Corby and her lawyer Vasilios Kalantzis, the principal of Kalantzis Lawyers. The applicants contend that the search warrants and s 246 orders are invalid on numerous grounds most of which relate, one way or another, to the propositions that the s 246 orders identified the recipients as “reasonably suspected of having committed the offence stated in the warrant” when, in fact, none of them were or at any time had been suspected of having committed an offence, and that the search warrants identified individuals who were the applicants or their employees or partners as being “suspects…that are the subject of the investigation” when, in fact, none of them were, or at any time had been, suspected of having committed an offence or suspects the subject of an investigation. ...

it is common ground in this proceeding that none of the 33 people, entities and things identified in the second condition of the search warrants, other than Schapelle Corby in respect of the offence committed in Indonesia in 2005 for which she had been convicted and was on parole, was or had ever been a “suspect”. Further, none of the recipients of the s 246 orders was or had ever been “reasonably suspected of having committed the offence stated in the relevant warrant”

What went wrong?

the applicants’ primary contentions of invalidity are founded upon the propositions that the s 246 orders wrongly asserted the recipients were reasonably suspected of having committed an offence and the search warrants wrongly identified numerous individuals as “suspects”. According to the applicants, as a result of these matters, the s 246 orders and search warrants are bad on their face as they show the second and third respondents addressed the wrong question, and the decisions to issue the s 246 orders and search warrants should be vitiated for error of law as those decisions: - (i) were based on facts which did not exist, (ii) disclose a failure of any consideration of the statutory conditions for the issue of the s 246 orders and search warrants, (iii) disclose the taking into account of an irrelevant consideration, and (iv) were so unreasonable that no reasonable person could have made the decisions. 

The AFP answered the applicants’ primary contentions in a number of ways. 

The AFP submitted that while the s 246 orders contained a clear clerical error (the statement that “[y]ou are reasonably suspected of having committed the offence stated in the relevant warrant”), the same could not be said of the search warrants. The second condition in the search warrants involves three alternatives – suspects, entities or other matters that are the subject of the investigation. Some of the items appearing in the list are plainly not capable of being “suspects” (for example, the item the “Mercedes CORBY Exclusive Agreement”). It is not tenable, according to the AFP, to construe “entities” and “other matters” as excluding natural persons as to do so would “suggest that individuals who were not suspects were intended to be excluded from the Second Condition (in circumstances where non-suspect entities were included”.

Jagot J states

It may be accepted that the search warrants identify Schapelle Corby as having committed an offence. However, the second condition of the warrants also identifies “suspects, entities or other matters that are the subject of the investigation”. I do not accept the submission that a natural person may fall within the descriptions “entities or other matters”. The natural and ordinary reading of the second condition is that all of the individuals named in the list are “suspects… that are the subject of the investigation”. The ordinary meaning of a “suspect”, in the context of a search warrant, is a person suspected of having committed an offence. 

The AFP’s submission that no person in the list “could even conceivably be regarded as a “suspect” in the commission of an offence” ignores the terms of the second condition. The submission also assumes both knowledge of the PoC Act (specifically that, despite its title, the Act provides a civil scheme for the recovery of literary proceeds and does not create any offence in connection with the payment of funds which might be recovered as literary proceeds) and that such knowledge would trump the plain words of the second condition. Neither assumption is justified. The AFP called no evidence explaining what occurred before the second and third respondents. No inference may be drawn in the AFP’s favour that the second and third respondents knew about the scheme of the POC Act insofar as it applies to literary proceeds or, if they held that knowledge, that it meant they did not give the search warrant its natural and ordinary meaning that each of the individuals appearing in the list under the second condition were “suspects … that are the subject of the investigation”. 

Damningly, Jagot J states

The issue of a search warrant and a s 246 order are solemn acts issued under the hand of the individual magistrate. They authorise actions which would otherwise constitute trespass and, insofar as searches of the person are concerned, an assault. They represent serious intrusions into private and property rights of which the common law “has long been jealous” (George v Rockett (1990) 170 CLR 104 at 110). Accordingly, the orders and warrants would not have been issued lightly by the second and third respondents. 

These circumstances make it exceedingly unlikely that the second and third respondents failed to consider the terms of what they were issuing (the first possible explanation). It is equally exceedingly unlikely that the second and third respondents considered the terms of what they were issuing and, because they knew the scheme of the PoC Act, knew also that the terms included errors involving accusing numerous people of being suspected of having committed an offence or being suspects in an investigation when there is no offence under the PoC Act, and yet dismissed those matters as “mere clerical errors” and decided to issue the orders and warrants in any event (the second possible explanation). If that was the decision-making process, then it was so unreasonable that no reasonable magistrate could have made the decisions. Yet, accepting this last proposition – attributing to the second and third respondents manifest unreasonableness – is what the AFP’s submissions necessarily involve, once properly analysed. How else can it be said that the erroneous statements – such a prominent part of the s 246 orders and plainly disclosed in the search warrants – played no part in the second respondent’s reasoning process, as the AFP would have it? 

Against these extremely unlikely possibilities is the third possibility identified – that the erroneous and ambiguous statements in the AFP’s material were considered by the second and third respondents as part of a proper consideration of the material as a whole and, in the circumstances of urgency and a lack of any cogent explanation in the material of how the PoC Act operated in respect of literary proceeds, led the second and third respondents to assume the AFP’s statements were correct and that there thus was some offence relating to literary proceeds in the PoC Act, thereby justifying the issue of the s 246 orders and warrants. 

While I have said it is not necessary to make a finding as to which of the three possibilities is correct because each involves legal error sufficient to quash the s 246 orders and search warrants, I have considered these matters because of the way in which the hearing proceeded. In short, the AFP was critical of the applicants for identifying the alternative ways in which they asserted there must have been legal error by the second and third respondents. What the AFP did not acknowledge was that, when analysed, its own submissions – that the second and third respondents must be taken to have considered what was before them and treated the statements in issue as “mere clerical errors” – would have the second and third respondents acting in a manner in which no reasonable magistrate could have acted (that is, by issuing solemn documents identifying people as suspected of having committed and offence and as suspects, who could not be suspects or suspected of any offence given the terms of the legislation on the basis that those statements were a “mere clerical error”). Nor did the AFP acknowledge the fact that, had the second and third respondents done exactly what they could be expected to have done in the circumstances – that is, rely on the AFP to provide cogent and accurate information about the investigation in terms of the scheme in the PoC Act – it is not at all difficult to see how and why the second and third respondents were led into error by the AFP. 

Third, the AFP said that no evidence was placed before the second or third respondents relevant to the commission of any offence by any person other than Schapelle Corby. As discussed above, the material placed before the second and third respondents did identify that Schapelle Corby had committed an offence. However, the problem is the combination of the erroneous statements and what the material did not say. The material did not explain that the PoC Act created no offence in respect of the derivation of literary proceeds, whether by Schapelle Corby in deriving such proceeds or by another person in facilitating that derivation. The material did not explain that a literary proceeds order is not founded upon any such offence, the scheme created by the PoC Act being a civil, rather than criminal, regime. The material did not do these things in the face of statements that the recipients of the s 146 orders were reasonably suspected of having committed an offence and the individuals listed in the third condition of the search warrants were suspects the subject of the investigation. In these circumstances, the fact that the material did not identify the commission of any offence by any person other than Schapelle Corby does not support the AFP’s submission that the erroneous statements played no part in the reasoning process of the second (or, for that matter, the third) respondent. 

Fourth, the AFP said that the erroneous statement appears in each and every one of the s 246 orders and it is “highly improbable” that the second respondent was declaring himself satisfied that each recipient was reasonably suspected of committing an offence. I disagree. The submission assumes that the second respondent, despite the urgent circumstances, the errors and ambiguities in the AFP’s material, and the lack of any cogent explanation in the affidavit as to how the PoC Act operated, knew that the PoC Act did not create any offence relating to the derivation of literary proceeds yet issued orders and warrants asserting that numerous people connected with the Corby family perhaps deriving literary proceeds were suspected of having committed an offence. It is that assumption which is highly improbable. What is not highly improbable is that the second respondent was misled by the AFP, albeit by innocent errors, and wrongly assumed that there was an offence relating to the derivation of literary proceeds and that those involved in facilitating that derivation, accordingly, were reasonably suspected of having committed an offence and were suspects in the investigation.

Earlier this month the Government introduced the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014 (Cth), reflecting recommendations by the Parliamentary Joint Committee on Law Enforcement, "to take tough steps to strike at the heart of organised crime” through "the toughest framework possible to target criminal proceeds".

The Minister for Justice has promoted the Bill as

• ensuring that in all circumstances Federal law enforcement is able to seize relevant material such as bank statements, financial records and payslips as evidence in ascertaining the total wealth of the suspect, and what income is legitimate or dirty; 
• ensuring that unexplained wealth proceedings will not be stalled by a suspect simply because they fail to turn up to court; 
• expanding the circumstances in which Federal law enforcement is able to share information obtained under the Proceeds of Crime Act 2002 with appropriate state, territory and foreign authorities; 
•  introducing a new process to lock down dirty money and assets so a suspect can’t hide, spend or offload what the Commonwealth can confiscate.

WA Vexation

Another sad judgment regarding a vexatious litigant, following up the items on Mohammed Tabibar Rahman and on the Vexatious Proceedings Bill 2014 (Vic).

In Attorney General v Keating [2000] WASC 93 the Court states that

Between 15 September 1998 and 26 September 1999 the respondent instituted a total of 101 complaints alleging a conspiracy to defeat justice by preventing his application for special leave to the High Court from being dealt with. One or more complaints was laid on each of 15 September 1998, 22 March 1999, 5 May 1999, 21 May 1999, 4 June 1999, 30 June 1999 and 20 September 1999.

Mr Keating had apparently perceived a conspiracy involving a doctor at St John of God Hospital, a person at the Applecross Nursing Home, the officer in charge of the High Court Registry in Perth, a mere five ophthalmologists, the Central Office Coordinator of the WA Supreme Court, an officer of the Commonwealth Attorney General's Department in Perth, the Commonwealth Attorney General, the Inspector General of Intelligence and Security, ASIO, a retired High Court Judge, the Commonwealth Ombudsman,a psychiatrist, three Federal police officers and sundry others. Alas, no legal partridge in a pear tree.

The WASC states that the

complaints were manifestly groundless. They could not have been founded on any reasonable belief that the defendants named in the complaints had committed the offence with which each was charged and in that sense they were plainly vexatious. I am satisfied that the respondent's conduct with respect to these complaints was persistent. A number of defendants had been repeatedly charged by the respondent with the same offence, after the earlier complaints had been discontinued by the Director of Public Prosecutions. The officer in charge of the High Court Registry in Perth, Mr Martin Jan, was charged four times. That is, he was the defendant in four successive complaints laid by the respondent. Of the 44 defendants charged in the last group of complaints, 26 had been the subject of earlier proceedings. 

In summary, the respondent has commenced two civil actions and within those actions which, for the most part, contained claims which were groundless, he made many groundless applications and launched a number of groundless appeals. By laying complaint after complaint, he charged a large number of persons, many repeatedly, with a very serious criminal offence - conspiracy to pervert the course of justice - without any reasonable foundation. I accept the Attorney General's submission that the concern and distress and the potential for damage to reputation and professional embarrassment which the institution of these proceedings would be likely to cause the defendants, many of whom hold high office, must be very substantial. It is appropriate that they be protected from further abuse of the processes of the courts.

Other WA Orders include Attorney General v Hunter [2002] WASC 189, Attorney General & Anor v Shaw [2004] WASC 280 and Legal Aid Western Australia v Wheaton [2006] WASC 219.

Hermeneutics

'Hermeneutics, Jurisprudence and Law' by Ralf Poscher in Jeff Malpas and Hans-Helmuth Gander (eds) Routledge Companion to Philosophical Hermeneutics (Routledge, Forthcoming) offers

an overview of the discussion of hermeneutics in legal theory from the beginning of the 19th century to the present. It organizes the different scholarly strands along the lines of the distinction between interpretation and construction, which runs like a clear thread through the hermeneutical discussion from its beginning to its present in both the continental and the Anglo-Saxon tradition. Examining authors as diverse as Friedrich Karl von Savigny, Francis Lieber, Emilio Betti, Hans-Georg Gadamer, Paul Ricoeur, Ronald Dworkin and Michael Moore an attempt is made to get an analytical grip on the distinction by emphasizing the categorical difference between the two hermeneutical activities. Pursuing the analytical distinction, however, is only the first step of the analysis. In the third part, the relations and the interconnectedness of legal interpretation and legal construction come into focus. They can help to explain some of the major controversies in legal hermeneutics and also why the analytically clear cut distinction is so difficult to draw in the actual legal practice. At the level of legal doctrine the interconnectedness of legal interpretation and legal construction cautions against tendencies especially in administrative but also in constitutional law to define the role of courts with the help of the distinction.

Poscher comments that

Hans Georg Gadamer famously referred to the law and its application as revealing a general feature of hermeneutics, which by the time of his “Truth and Method” had developed – Martin Heidegger’s lead – into a fundamental ontological concept. For Heidegger and Gadamer, our most fundamental relation with the world is hermeneutical. Heidegger insisted that we are ontologically situated in a world that is always already interpreted, that always already comes with a certain meaning. There are no uninterpreted objects, no objects as such (Heidegger 2010: § 32). A hammer is the object it is because we interpret it as such with respect to certain purposes and usages (cf. ibid. § 18). Our understanding of the world is thus hermeneutical in the most fundamentally ontological way. One feature of this existential hermeneutics is what Heidegger called the “fore‐structure of understanding” (ibid. § 32), which Gadamer coined into the famous “fore‐understanding” (Vorverständnis) of the hermeneutical subject (Gadamer 1989: 265–307). Our world is shaped by the hermeneutical fore‐understanding with which we encounter it. We see a hammer as a hammer only if we already know about hammering, nails and so forth. The involvement of the hermeneutical subject, its situatedness in the present, its particular hermeneutical fore‐understanding became a central theme for Gadamer. He rejected the concept of Romantic hermeneutics as developed by Schlegel, Schleiermacher, Ast, and others and taken up in large part not only by legal methodology but also by nineteenth‐ century historiography. He rejected the idea that interpretation should aim to reconstruct the intentions or experiences of the author, since this did not take into account the importance of the situatedness and fore‐understanding of the hermeneutical subject.

For Gadamer, the case in point for showing that understanding always involves situatedness and fore‐understanding is law. The central task in law is the application of a – historical – text to a present case. Due to changing historical contexts, for Gadamer the application of a legal text to the present always requires that the normative content of the law be determined anew (Gadamer 1989: 327). The application of the law amounts to more than the historical or psychological reconstruction of legislative intentions. It requires the mindful and prudent adaption or “appropriation” (Ricœur 1981) of the law to present circumstances and cases. It not only requires technical legal skills but practical wisdom: Aristotelian phronesis not mere techne (Gadamer 1989: 317–324). For Gadamer, „legal hermeneutics is no special case but is, on the contrary, capable of restoring the hermeneutical problem to its full breadth and so re‐establishing the former unity of hermeneutics“ (Gadamer 1989: 328). In this perspective, legal hermeneutics brings the applicational element of any hermeneutics into the spotlight, which Gadamer sees at work in historical interpretation as well. First, a historian too cannot help but approach a historical text from the perspective of his contemporary understanding (Gadamer 1989: 327) and can – following Gadamer – only bridge the gap by a fusion of horizons (Gadamer 1989: 307). Second, Gadamer points to the fact that historiography is not interested in historical facts as such, but in their meaning in an emphatic sense, which can only be construct ed by relating it to our present interests and concerns (Gadamer 1989: 328) 

Gadamer’s account of legal hermeneutics has been quite influential. Even critics of Gadamer’s views on historical hermeneutics like Emilio Betti (Betti: 81–84) stress that legal hermeneutics show the specific constructive elements mediating between the historical horizon of the text and its present application. But unlike Gadamer, Betti regards legal hermeneutics as a special form of hermeneutics, which he describes as “value‐oriented” or “normative”.

 “That the application of the law demands a legal interpretation that is related to the present and to contemporary society follows by necessity out of the function of the law as the ordering of co‐existence in a human community. It is part of its essence, therefore, that it should achieve a concretion of the law; it should be practically relevant in that it is called upon to provide a legally adequate direction and directive for communal existence and behaviour.”

Drafting

In considering declaration that a litigant is vexatious, noted in the preceding post, it is worth noting one of the documents quoted by the NSW Supreme Court in Attorney General of New South Wales v Rahman [2014] NSWSC 42 -

As mentioned in the above submissions the nature of whole spectrum of NSW Judiciary and its Officials [ except few] are in continuous practices of violations and transgress of the substantive enactments against the Ethnic citizens for favour to their social'GENOMES' -the Officials of the Government Department . They are acting as lawmaker and make laws of their whim of minds whatever He /SHE [McCallum J, P.Garling, Johson , Facferling and others and Registrar Bradford C. Deputy Registrar James Howard ] thinks for the validly for the Officials who are the perpetrators violated and acted Crimes against Humanity -are same by the Federal Court -Judicature and its Officials-Judges and Registrars...

Under the above submission it is evident that the NSW Judicature has transformed into a ' Institutional mafia' 29 and its employed judicial members (except few- Hon. David Kirby J , NSW, & Hon. Schinder J, Brisbane) as' judicial mafias' 30 and doing a continuous practices of 'crimes against humanity' as practised with the Applicant as well as other social class, ethnic and racial group against the unlawful and transgress decisions by the Officials , Government Departments , (Both States and Commonwealth) as did with the Aborigines whom took away from those classes the property, children and other belongs in favour of them in the name of justice (Document enclosed).

A continuum of crimes by Australian Judicature members -both States and Commonwealth ( except few) - are continuous in CRIMES practice against the humanity whom the applicant are not their lineage and brought proceedings under statutory rights violations by the Executives , and the Government Officials of the States and Commonwealth . And in such scenario to deal and turn away from justice 'the rule of law as the constitutions prescribes under statutes the 'Judicial mafia's such crimes in the name verdict -a practice that has given birth to a 'neo-'Jus Cogens'' a law 'Dismissed with costs' (unconstitutional compelling law by the Australia's' Judicial mafias) by abusing both Nations States Domestic law and International treaty laws.

As a Democratic Nation States Australia and the Judicature - High Court of Australia are the' guardians of the 'fundamental Universals Human rights and the issues under 'Constitutional provisions of Writs s69 Writs ' Supreme Court 1970 [NSW] and under s75(v) : of certiorari, mandamus , habeas corpus. Injunctions , prohibitions , 'Commonwealth of Australian Constitution Act ' 1900 Civil court , and impartial treatment of ethnic and racial group and even international agreements that are designed to protect human rights under the International Covenant on Civil and Political Rights (ICCPR), one of the main international human rights treaties, and as such has failed to protect its citizens and exposed to in great vulnerable of danger for such -penalisation - as per se / pro se 'Unrepresented Applicant 'Dismissed ' and Dismissed with costs' when violations has occurred by the judicial mafias. In 1990 Australia acceded to the First Optional Protocol to the ICCPR, which allows individuals to take complaints about violations of their human rights to the UN Human Rights Committee against the perpetrators- responsible for commit crimes as mentioned.

The Applicant made submission on 25 May 2011 to Hon. Spigelman, Ex-Chief Justices, Attorney-General Greg , Governor, NSW to address of such Offences each of which is called a crime under s8 (1) (a) (b) (c) ICCA Act 1988, S31 ,s32 & s34 Crimes Act 1914 and Division 268 .1 (1) (2) (3) and 268.2 (2) and (4) Criminal Code Act (Clth) 1995 and International Criminal Court Act -2002 'Crime against humanity and crime against the administration of the justice of the International Criminal Court' for the abuse of covenant of Human rights against the Judicial officers under s3 Judicial Officers Act 1986 (NSW): as mentioned above , and the Registrar Bradford in the 'Civil Claim' Administrative Law, under statutory right s69 -Writs- Supreme court for the above violations as well as 'Neo-holocaust ( non white lineages) 'of all the applicable statutory enactments of NSW and Commonwealth Legislations of the proceedings above 'constitute fundamental breach of the principles of Rule of law'- The natural justice that has been violated by those Officer that has given birth - injustice , crimes under acts mentioned and judicial bias -judicial racism' by the judicial mafias of Supreme Court of NSW must be restrict, restrained and restraining order be made for the applicant and other citizens - (for all Ethnic Australians) under Internal Criminal Court Act ( Ratified as Nation State )for the true administration of justice under International standard order be made and therefore for its relief accordingly.

As it is evident all the above decision by the those 'Quorum of Judges' ' JUDGE in the High Court and Supreme Court ' are of the violation and breach of 'procedural fairness and rules of law the Supreme Court of NSW as well as High Court of Australia as it is established that those Judicial mafias has hijacked the Justices and engaged in taking the life , wealth and property of the Ethnic Australian whom sought justice for the cause of unlawful acts by those white lineage but in the name of justice take away property, from them , incarceration for default of payment , or any other hardships and render into homeless , property less ,breaking of families and children , other social norms of customs and bereft them from happy life but enormous tragedy living in a country whom - Government declares for Australia 's Democratic ethics by ratified the International Treaties for human dignities but Judicial members [ except few] are in continuous practices of 'Crimes against humanity; as they did by the Nazi to its Jews - Holocaust .

Likewise Australia is in constant practice of 'Neo -Holocaust against its Ethnic Australian ' [' when there no law as like the s 127 [ Aborigines not to be counted as citizens) and Aborigines - (Stolen Generations- by the Judges , Supreme Courts [States] and High Court of Australia , Commonwealth Government in disguise through its Judicature members(s) [ whom employment are racial and without transparency but political motives] since long time Specially Supreme Court and High Court engaged by such crimes against the domestic law and International Human rights covenants and other International law by breaching and transgress as a neo-holocaust and it must be arrested without impunity and thereby relief for the victim -Ethnic Australian by the International Criminal Court under statutes.

The Court in Rahman referred to the following-

Dubs v Rahman [2012] FMCA 664

Rahman v Ashpole [2007] FCA 883

Rahman v Ashpole [2007] FCA 1067

Rahman v Bimson [2010] NSWSC 338

Rahman v Dayeh [2007] FMCA 98

Rahman v Dayeh and Ors (No 2) [2007] FMCA 234

Rahman v Dayeh [2007] FCA 786

Rahman v Dayeh & Ord [2008] HCASL 23

Rahman v Department of Education, Employment and Workplace Relations [2009] FCA 239

Rahman v Director-General Department Of Education & Training [2005] NSWCA 285

Rahman v Director-General NSW of Education & Training [2004] NSWIRComm 1036

Rahman v Director-General NSW of Education and Training in the State of NSW [2004] NSWIRComm 303

Rahman v Director-General NSW Department of Education and Training [2004] NSWIRComm 370

Rahman v Director-General Department of Education and Training [2005] NSWCA 158

Rahman v Director-General of Dept of Education and Training [2006] HCATrans 188

Rahman v Dubs (Supreme Court (NSW), McCallum J, 18 December 2009, unrep)

Rahman v Dubs [2010] NSWCA 129

Rahman v Dubs (Supreme Court (NSW), Hidden J, 1 February 2011, unrep)

Rahman v Dubs [2011] NSWSC 376

Rahman v Dubs [2012] NSWCA 98 Rahman v Dubs [2012] NSWSC 1065

Rahman v Dubs [2012] FCA 849

Rahman v Dubs (No 2) [2012] FCA 1081

Rahman v Dubs [2013] HCASL 23

Rahman v Eagle (District Court (NSW), Neilsen DCJ, 2 December 2011, unrep)

Rahman v Edward T David [2005] NSW 1251

Rahman v Hooper (District Court (NSW), Judicial Registrar Smith, 17 January 2012, unrep)

Rahman v Institute of Languages New South Global Pty Ltd (Supreme Court (NSW), Hulme J, 28 November 2005, unrep)

Rahman v Institute of Languages, New South Wales Global Pty Limited (Court of Appeal (NSW), Ipp JA, 6 February 2006, unrep)

Rahman v Institute of Languages New South Global Pty Limited [2007] HCA Trans 174

Rahman v John Robert Marsden trading as Marsdens Law Group & Ors [2005] NSWSC 1306

Rahman v Marsdens Law Group [2005] NSWSC 529

Rahman v New South Global Ltd (Administrative Decisions Tribunal (NSW), Innes G - Judicial Member, 7 November 2003, unrep)

Rahman v New South Global Ltd (EOD) [2003] NSWADTAP 46

Rahman v New South Global Pty Ltd [2004] NSWADTAP 49

Rahman v New South Global Pty Ltd [2005] NSWSC 1249

Rahman v New South Global Pty Ltd (Supreme Court (NSW), Giles and Bryson JJA, 3 August 2006, unrep)

Rahman v Riordan (Supreme Court (NSW), 15 April 2010, McCallum J, unrep)

Rahman v Riordan [2010] NSWCA 288

Rahman v Riordan [2010] NSWCA 375

Rahman v Riordan & Anor [2011] HCASL 16

Rahman v Riordan [2011] NSWCA 54

Rahman v Riordan [2011] NSWCA 142

Rahman v Secretary, Department of Education, Employment and Workplace Relations [2006] AATA 960

Rahman v Secretary, Department of Employment and Workplace Relations [2007] FCA 1013

Rahman v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 187

Rahman v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1634

Rahman v Secretary, Department of Employment and Workplace Relations [2008] HCASL 401

Rahman v Sharpe (District Court (NSW), Delaney DCJ, 13 February 2012, unrep)

Rahman v Sharpe (No 1) [2012] NSWDC 48

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

Vexation

Mohammed Tabibar Rahman has been declared a vexatious litigant, joining 11 other people on the NSW vexatious litigant register.

Rahman has reportedly responded "This is a crime against humanity, I will take them to the International Criminal Court if I have to".

The Daily Telegraph states that Rahman has featured in "50 cases in just 10 years". AustLII provides 43 judgments.

The Telegraph states that

Rahman’s legal battles began when he failed an English exam to allow him to teach in NSW in 2001. When his complaint of racial bias was rejected by the Anti-Discrimination Board, Mr Rahman began legal proceedings.

Since then he has commenced numerous cases in NSW courts and tribunals, the Federal Court, and appealed to the High Court. He has taken legal action over social security payments, speeding tickets, a failed job interview with the Department of Immigration and his 12-month suspension from studying law at the University of Technology.

On one occasion he even took his legal team to court to challenge them over their bill — and ended up paying even more.

Mr Rahman, who blames his epic losses on a “corrupt” and “racist” judicial system, is paying a high price for his doomed legal battles. With estimates that his litigious excursions have cost anywhere between $500,000 and $1 million, his bank account has been stripped of $57,000 and his two homes at Holsworthy, valued at about $980,000, are now at risk.

Rahman appears to have taken action - unsuccessfully - against at least two law firms that had previously acted on his behalf.

In Rahman v Director-General of Dept of Education and Training [2006] HCATrans 188 Gummow J states

The applicant’s special leave application to this Court is embarrassing, vexatious, abusive and very difficult to follow. It is not directed to the two reasons given by McKenna C for dismissing the original application, and it does not expose any error of jurisdiction. It has no prospects of success.

 In Rahman v Institute of Languages New South Global Pty Limited [2007] HCATrans 174 Gummow J stated

The applicant's draft notice of appeal in this Court is largely unintelligible and is embarrassing in the technical sense. There would be no prospect of success on any appeal to this Court against the orders of the Court of Appeal. Special leave is refused.

Rahman v Ashpole [2007] FCA 883 concerned Rahman's complaint to the Privacy Commissioner that the Commonwealth Bank had disclosed his personal information to Centrelink. Rahman v Secretary, Department of Employment and Workplace Relations [2007] FCA 1013 indicates that his parenting payment was cancelled by Centrelink in February 2006 because his assets had been assessed as exceeding the assets value limit. That decision was affirmed by the Social Security Appeals Tribunal and the Administrative Appeals Tribunal. Moore J commented that

The notice of appeal in this case falls well short of those requirements. What the applicant has done is to identify various legislation which may be relevant to his application, set out at some length certain provisions of that legislation, and to make some assertions and general complaints about the decisions of the Centrelink, the SSAT and the AAT. To the extent that the applicant has attempted to identify any appealable errors on the part of the AAT, they were in terms verbose, repetitive and difficult to understand. In other respects, they were in terms so general as to be meaningless (as in the case of those mentioned at [18]), at least in the absence of any intelligible grounds having been identified.

Some allowance must be made both for the fact that the applicant is not legally represented (although he claimed at the hearing that he had legal training) and for the evident fact that his first language was not English. However, even allowing some latitude in these respects, there is nothing in the material the applicant has filed that can sensibly be accepted as a question of law upon which an appeal might be founded, nor grounds linking the questions of law to the facts, such as to satisfy the requirements of the Rules. 

More bad news for Rahman in Rahman v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 187, with Emmett J stating

Mr Rahman filed extensive written submissions, running to some 14 pages. They do not address grounds of appeal. I find them quite incomprehensible. They do not address the grounds to which Mr Rahman alluded in the course of oral argument this afternoon. I endeavoured to explain to Mr Rahman that the primary judge’s conclusion was based on the proposition that the Court does not have jurisdiction to deal with an appeal from the Tribunal, except on a question of law. Mr Rahman was unable to formulate or identify the question of law that he says he wishes to raise. The reference to s 192 of the SSA Act is meaningless because that is not a provision to which the primary judge referred in the course of his reasons. 

Back to the High Court, where in Rahman v Dayeh & Ors [2008] HCASL 23 Kirby J stated

The applications to this Court are embarrassing in a technical sense. For the most part they are not intelligible, other than so far as they contend that the court below pre-judged the applications. There is no evidence to support a conclusion that the Federal Magistrate exhibited actual or ostensible bias against the applicant. Nor is reason shown to doubt the correctness of Madgwick J's refusal to grant an extension of time within which the applicant could apply for leave to appeal from the orders of the Federal Magistrates Court. The first application relates to nothing more than a simple interlocutory question. No issue of principle requiring the intervention of this Court is demonstrated. Similarly, the second application is devoid of demonstrated legal merit. There are no reasonable prospects of success in either matter, were special leave granted. We have endeavoured to understand the substance of the applicant's complaints, realising that as a self-represented litigant, he is at a disadvantage in prosecuting legal proceedings. However, he is now seeking to enter this Court, which is the final court of this nation. He has not made out a case to warrant the grant of special leave. Specifically, his argument that costs were ordered below as a punitive measure, is not correct, given the law and normal practice on costs in this country. The applications fail.  

Rahman v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1634 refers to rejection of Rahman's application for Austudy assistance - in relation to undertaking the Graduate Certificate of Australian Migration Law and Practice at the Australian National University. Cowdroy J stated

The applicant has provided written submissions to the Court which, together with his application, raise numerous matters. The applicant claims that an ‘unlawful act, transgress and abuse of power’ has occurred; that the rules of natural justice have been breached; that the respondent made the decision of 27 March 2008 ‘based on forgery and false instruments’ relating to the applicant’s financial assets; and that the decision of 27 March 2008 ‘involves an error of law and must be void as the determination was affected by into [sic] corroboration of false instruments’ relating to the financial assets of the applicant. The applicant also submits that the respondent’s decision constitutes an attempt to disadvantage the applicant’s Austudy claim ‘by making a statement known to be false or misleading "in a material particular" or made with reckless disregard as to whether it is’.

McCallum J in Rahman v Bimson [2010] NSWSC 338 regarding a speeding ticket somewhat tartly stated that It is not clear from that assertion whether any decision of the Magistrate in respect of the subpoena is intended to be included in Mr Rahman’s farrago of complaints. That is but one example of the confusion generated by the difficult language of the summons. It is impossible to understand the claim as it is presently articulated.

Back in the High Court in Rahman v Riordan & Anor [2011] HCASL 16 Heydon J stated

Nothing in the papers filed in support of the application for special leave to appeal calls that conclusion into question. If special leave were granted the appeal would have no prospect of success. 

In Rahman v Riordan [2011] NSWCA 54 MacFarlan JA stated

Much of what Mr Rahman has said and written in support of his notice of motion is difficult to understand. It is at times unintelligible. As best I can determine, the effect of his contentions is as follows. First Mr Rahman alleges that one or more of the courts that made the earlier decisions or orders was not properly constituted under the provisions of the Supreme Court Act 1970. I can discern no sensible argument to support that contention. Secondly Mr Rahman contends that one or more of the judges concerned has participated in more than one decision concerning Mr Rahman. However, Mr Rahman has not identified any arguable basis upon which any such judge should have disqualified himself. Thirdly Mr Rahman contends that "judicial racism" has infected the decisions. There is no basis for this allegation. Fourthly Mr Rahman contends that in a variety of ways the judges hearing his applications have failed to perform their duties or committed errors in reaching their decisions. To a large extent these contentions concern matters raised and rejected in previous decisions of this Court. In any event Mr Rahman has not persuaded me that it is arguable that any of the previous decisions were erroneous or decided by courts that were not properly constituted, nor, to use the words of Uniform Civil Procedure Rules r 36.15 upon which Mr Rahman relies, that any of the decisions were made "irregularly, illegally or against good faith". In these circumstances Mr Rahman's notice of motion should be dismissed with costs. 

Tobias JA in the same judgment stated

 I agree and would simply add this. As I understand Mr Rahman's argument today, or the essential part of it, it is, first, that the bench that is now sitting to hear his notice of motion is illegally constituted under the Supreme Court Act and, second that he has no confidence in any decision that this Court may make. So far as the first matter is concerned, there is no rational basis whatsoever for the assertion that this Court is improperly or illegally constituted for the purpose of hearing the notice of motion. So far as Mr Rahman's lack of confidence in this Court giving him a fair hearing and giving him what he refers to as justice, then all I can say is that we do our best to carry out our duties and if he has no confidence in us then that unfortunately is regrettable but a matter for him. 

Further downhill, in Dubs v Rahman [2012] FMCA 664 Raphael FM states

On 25 June 2012 this matter came before me in the Bankruptcy Duty List. The applicant sought a sequestration order against the estate of respondent. The respondent came to court with two documents filed on 7 June 2012. The first purported to be a notice stating grounds of opposition to the application. The second was an affidavit in support. Both documents remain in the file. Both documents are embarrassing as that term is known to the law. An extract will give the flavour:

“I, Mohammad Tabibar Rahman, a Juris Doctor, Post Graduate , Final Year Law student, University of Technology, Sydney –UTS as claimed alleged ‘Debtor’ by the alleged ‘Rosalind V Dubs, [false personification] ... pursuant to a decision made by a Statute body – University of Technology, Sydney for relief and compensation for infringement of educational rights to be qualified for Solicitor/Barrister specialised in the modern Jurisprudence of :-f Administrative Law, International law, Human Rights law and International Treaties and not Rosalind v Dubs, Non- Executive Director, Norton Rose Australia , a false personification. And as such the applicant do not owe any money and not a Bankrupt.”

In Rahman v Dubs [2012] FCA 849 Jacobson J states

Mr Rahman addressed me at great length during which he made a number of very strong, if not scandalous, allegations against the judgment creditor and the solicitors who represent the judgment creditor. He did not put anything to me today to suggest other than that the issues which he wishes to agitate on the appeal are identical to those on which he lost comprehensively before the Federal Magistrate. Notwithstanding the fact that the appeal in the Supreme Court appears to be ongoing, nothing has been put before me today to show why I ought to grant a further stay of proceedings under the sequestration order.

I note that Mr Rahman told the Federal Magistrate that the matter was before the Supreme Court on the day after his Honour delivered judgment. It does not seem to me that anything which was put to me today shows any prospect of success on that appeal, or at least sufficient prospect to warrant the grant of a stay. I do not need to say anything about the notice of appeal, but the observations made by the Federal Magistrate as to the difficulties in understanding the documents and the submissions put by Mr Rahman apply equally to today’s application. 

For law academics the comments by Garling J in Rahman v Dubs [2012] NSWSC 1065 are of particular interest.

In Rahman v Lombe [2013] NSWSC 1416 Lindsay J states that

Both documents are incomprehensible.

The plaintiff's basic complaint (a complaint that lies at the heart of all other complaints) is that he disputes the validity of a sequestration order made by the Federal Magistrates' Court on 19 July 2012 that declared him bankrupt.

He has unsuccessfully challenged the validity of that order in the Federal Court of Australia and in the High Court of Australia.

On 13 March 2013 the High Court dismissed his application for special leave to appeal.

The present proceedings must be characterised as an abuse of the processes of the court on three bases. First, they seek to re-litigate an issue previously litigated to finality in the Federal Court and the High Court. Secondly, they disclose no reasonable cause of action or claim to relief. Thirdly, they are frivolous and vexatious.

An opportunity has been given to the plaintiff in the course of the hearing of the present notice of motion to adduce evidence and make submissions. That opportunity has been taken up, inter alia, in the form of written submissions handed up to the court and the tender of a bundle of documents.

Neither the submissions nor the evidentiary material can reasonably be taken as elaborating any form of relief independent of, or going beyond, the plaintiff's challenge to the sequestration order made against him. 

In Attorney General of New South Wales v Rahman [2014] NSWSC 42 the Court stated that

Mr Rahman has instituted a large number of proceedings, both in the New South Wales and Federal jurisdictions. It was submitted by the plaintiff, generally speaking, that these proceedings demonstrated several consistent elements and themes. In many of them, Mr Rahman sought to re-litigate issues that had previously been determined. Mr Rahman also instituted proceedings to harass, annoy or achieve another wrongful purpose. Some were instituted after being ordered by the Court not to do so without first obtaining leave of the Court or a Registrar.

Furthermore, the plaintiff submits, in many cases, Mr Rahman made outrageous allegations and offensive remarks concerning members of the judiciary, members of the AAT and the ADT, government bodies, his opponents, and practitioners of the Court, all of which have been considered utterly baseless and without foundation. ...

Mr Rahman made extensive written submissions in this proceeding. They deal, directly or indirectly, with the particular cases or decisions relied on by the plaintiff, sometimes in general language that, so far as I can discern, is intended to apply to all those matters. I have quoted some parts of these submissions to demonstrate what Mr Rahman wishes to say about the litigation but I have not set out the entirety: they are rambling, repetitive and, on occasions, incomprehensible. However, I have given careful consideration to everything he has said. It is fair, I think, to characterise them as a robust defence of his conduct in commencing and maintaining every piece of litigation to which the plaintiff has referred. That defence has included not only insisting that each adverse decision was wrong, not only for legal reasons but also was motivated by bias against him, incompetence and, in some cases corruption. ...

In this case I have reached the conclusion, which I think is inevitable, that Mr Rahman has habitually and persistently instituted and conducted proceedings that are an abuse of process and have been conducted without regard to the real issues. Furthermore, it is evident from his submissions in this case that he has no insight into his behaviour and no intention of changing his approach to the institution or conduct of proceedings.

An example of Rahman's drafting follows.