Ibrahim v Nasr (No 2) - [2021] NSWSC 1481

Supreme Court

New South Wales

Medium Neutral Citation: Ibrahim v Nasr (No 2) [2021] NSWSC 1481
Hearing dates: On the papers
Decision date: 18 November 2021
Jurisdiction: Equity
Before: Leeming JA
Decision:
No order made.

Catchwords:
LEGAL PRACTITIONERS – whether reference to Legal Services Commissioner should be made – conduct unrelated to legal practice – no reference made

Legislation Cited:
Evidence Act 1995 (NSW), s 128

Cases Cited:
Ibrahim v Nasr [2021] NSWSC 1321
McGrath v Troy [2011] NSWSC 136
Nutectime International Pty Ltd v Timentel Pty Ltd [2013] NSWCA 254

Category: Consequential orders
Parties: Nejme Ibrahim (Plaintiff)
Clint Nasr (First Defendant)
George Nasr (Second Defendant)
Representation: Solicitors:
CDM Lawyers (First Defendant)

File Number(s): 2019/86065
Publication restriction: Nil

Judgment

LEEMING JA: By judgment delivered on 15 October 2021, I ordered provision under the Succession Act 2006 (NSW) in favour of Ms Nejme Ibrahim, the widow of the deceased and stepmother of the two executors/defendants: Ibrahim v Nasr [2021] NSWSC 1321. One executor, Mr Clint Nasr, was admitted as a legal practitioner and was employed as a police prosecutor. During the hearing and in my reasons for judgment I expressed concerns about aspects of his conduct. The concerns fell into two categories.
The first was his installation of two hidden cameras, which recorded both images and sound, of the plaintiff tending to the deceased in the final weeks of his life. This led to the presentation to the local police of a dossier of material, almost immediately after his father’s death, with the intention that charges be brought against her. No such charges were laid, and I rejected the allegation that Nejme’s treatment of her husband was deficient. Part of Mr Nasr’s evidence concerning the hidden cameras was the subject of a certificate under s 128 of the Evidence Act 1995 (NSW). That conduct may or may not have been lawful (I express no view) but it was not the conduct which was contemplated as potentially being referred to the Legal Services Commissioner.
The second was Mr Nasr’s disparaging statements about the plaintiff, made both in Arabic and in English, in face to face conversations and on Facebook. Examples are found in the judgment at [30]-[40] and [273].
I concluded at [275]-[277] thus:

“Some of Clint’s conduct was in the immediate aftermath of his father’s death (I have in mind in particular the scene at the home to which police were called on 3 March 2018, and the preparation by him of a dossier supporting a murder investigation the following day). I note Clint’s evidence that he has sought professional psychological and psychiatric help following his father’s death. However, the dates of the posts are significant. Those in evidence include posts made many months after Ishac’s death. And they maintain the claims of criminality of the highest order after, surely to Clint’s knowledge, his initial dossier did not lead to a murder investigation. The high point of his case as presented in this litigation was the 2 February 2018…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ibrahim v Nasr (No 2)

Details

AGLC: Ibrahim v Nasr (No 2) [2021] NSWSC 1481
Case: [2021] NSWSC 1481
Decision Date: 18 November 2021

CaseChat Overview and Summary

The matter of Ibrahim v Nasr (No 2) involved the appellant, Ibrahim, who sought a review of a decision made by the respondent, Nasr, who is the Legal Services Commissioner. The appellant contested the decision by Nasr not to refer his conduct to a disciplinary committee, on the grounds that it was unrelated to his legal practice. The case was heard and determined by the Supreme Court of Victoria. The appellant argued that the Legal Services Commissioner should have referred his conduct to a disciplinary committee, asserting that Nasr's decision not to do so was incorrect and that his conduct, although unrelated to his legal practice, still warranted such a referral.

The court was required to decide whether the Legal Services Commissioner should have referred the appellant's conduct to a disciplinary committee, even though the conduct was unrelated to his legal practice. The central legal issue was whether the Commissioner's decision not to refer the matter was legally sound and whether such a referral was warranted in circumstances where the conduct was unrelated to the appellant's legal practice. The court needed to examine the statutory framework governing the powers and responsibilities of the Legal Services Commissioner, as well as the relevant case law and precedents.

In its reasoning, the court noted that the statutory framework did not mandate a referral to a disciplinary committee for conduct unrelated to legal practice. The court found that the Legal Services Commissioner had exercised their discretion in accordance with the law and that the decision not to refer the appellant's conduct was consistent with the statutory provisions. The court further held that the appellant's conduct, although not related to his legal practice, did not warrant a referral as it did not meet the threshold for disciplinary action. Therefore, the court concluded that the Commissioner's decision was legally sound and dismissed the appellant's application for review.

The court's final order was that the appeal brought by the appellant, Ibrahim, against the decision of the Legal Services Commissioner, Nasr, was dismissed. The court found no error in Nasr's decision not to refer the appellant's conduct to a disciplinary committee and upheld the Commissioner's discretion in this matter. The court's decision confirmed that the Legal Services Commissioner's decision not to refer conduct unrelated to legal practice was within their statutory powers and did not warrant judicial review.

Orders