Islam & Ors v McCarrolls of Moss Vale Pty Ltd & Ors (No.2)

[2023] NSWDC 523

District Court

New South Wales

Medium Neutral Citation:

Islam & Ors v McCarrolls of Moss Vale Pty Ltd & Ors (No.2) [2023] NSWDC 523

Hearing dates:

On the Papers

Date of orders:

27 November 2023

Decision date:

27 November 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [17]

Catchwords:

CIVIL PROCEDURE – application of slip rule

CIVIL PROCEDURE – application for leave to amend following court order dismissing proceeding

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98(4)(c)

Uniform Civil Procedure Rules 2005 (NSW), r 13.4, 36.15(1), 36.16(2), 36.16(3), 36.17

Cases Cited:

Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300

Islam & Ors v McCarrolls of Moss Vale Pty Ltd & Ors [2023] NSWDC 484

Category:

Procedural rulings

Parties:

Md Rajibul Islam (first plaintiff)
Australian Real Estate Relations Pty Ltd (second plaintiff)
Gulf Bridge Finance Pty Ltd (third plaintiff)
McCarrolls of Moss Vale Pty Ltd (first defendant)
Toyota Finance Australia Ltd (second defendant)
David Levi of Levi Consulting (third defendant)
Australian Financial Security Authority trading as the Commonwealth of Australia (fourth defendant)
Australian Competition and Consumer Commission (fifth defendant)
Australian Prudential Regulation Authority (sixth defendant)
Australian Securities and Investments Commission (seventh defendant)
Commissioner of Taxation trading as the Commonwealth of Australia (eighth defendant)

Representation:

Md Rajibul Islam (first plaintiff, self-represented)
Farrar Lawyers (1st – 3rd defendants)
Australian Government Solicitor (4th – 8th defendants)

File Number(s):

2023/165594

Publication restriction:

Nil

REASONS FOR JUDGMENT

Background

1. On 10 November 2023, I delivered reasons for judgment on motions brought by the defendants to dismiss the proceedings[1] . The first to fourth defendants were instrumentalities or agencies of the Commonwealth. By order 2, I ordered that Mr Islam’s proceedings against those Commonwealth defendants be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

   1. Islam & Ors v McCarrolls of Moss Vale Pty Ltd & Ors [2023] NSWDC 484 (“My Judgment”)

2. In relation to the position of the Commonwealth defendants, by orders 2-3, I acceded to their application that costs be paid in a gross lump sum.

3. Two applications have subsequently been raised concerning the Commonwealth defendants.

4. These reasons assume familiarity with My Judgment.

5. The first application, brought by the Commonwealth defendants by email to my Associate on 10 November 2023 (4:36pm) was simply to correct the order (order 3) identifying the monetary sum to be awarded to them pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). Although at paragraph 88 of My Judgment, I had correctly identified the sum was being $15,683, the amount actually specified in Order 3 was $15,517.

6. The second application, brought by Mr Islam by emails to my Associate on 21 November 2023 was for the Court’s leave to file what he called an ‘Amended Statement of Claim’ against the Commonwealth of Australia and the Australian Securities & Investments Commission.

The application by the Commonwealth defendants

7. On 14 November 2023, the Commonwealth defendants drew my attention to the discrepancy as between the amounts in order 3 made on 10 November 2023 and the amount identified in the reasons for judgment.

8. When the discrepancy was pointed out, I directed my Associate to notify (by emails) the other parties to indicate my inclination to make order under the ‘slip rule’ to correct it and asked that if the other parties’ objected to that course, they should state their objection within 2 days. The first, second and third defendants had nothing to say on that matter.

9. On the other hand, Mr Islam did. He sent a lengthy email on 14 November 2023 (at about 9:24am) in which he had nothing to say, in substance, as to the application of the slip rule; but much to say disapproving of the circumstance that he was subject to any costs order at all. He took the opportunity to take a swipe at the correctness of the judgment overall (he “condemned” it) and effectively foreshadowed that “we” would bring further litigation in the Federal Court. He stated that he “oppose(s) all the illegal fees and charges forced fully applied on us”. The reference to ‘we’ and ‘us’ is obscure: only he was the subject of an adverse costs order; although conceivably he was referring to the circumstance that he had mis-joined other corporate plaintiffs to the proceeding. That, at any rate, had nothing to do with the application of the Commonwealth defendants.

10. Mr Islam has not supplied any reasoned objection to the application of the Commonwealth defendants. The slip rule will be exercised.

The application by Mr Islam

11. At 3:58pm and 4:10pm on 21 November 2023, Mr Islam sent emails to my Associate. His purpose was to apply for the Court’s leave to file an ‘Amended Statement of Claim’. (This was a misnomer: he had not previously filed any valid Statement of Claim in the proceeding).

12. In the covering email, he explained the bases for this application. First, his ‘legal team’ (an expression which struck me as curious given that he has represented himself throughout this proceeding without any solicitor on the record) had discovered new evidence said to be previously unavailable. Second, more arguments had been identified to present a sounder case. Thirdly, the amendments would serve the interests of justice. Perhaps as a reflection of this second basis, I note that a brief perusal of the proposed ‘Amended Statement of Claim’ indicates substantial correspondence with the versions of the Summons that had been dismissed on 10 November 2023.

13. Mr Islam’s application is misconceived. On 10 November 2023, the Court invoked r 13.4 of the UCPR to dismiss the proceeding against the Commonwealth defendants, including, relevantly, the Commonwealth of Australia and the Australian Securities & Investments Commission (‘ASIC’).

14. That was (unless altered on appeal) relevantly a final order. No application was brought to set it aside under r 36.15(1) of the UCPR. No application was (or could) be brought to set it aside under r 36.16(2) of the UCPR. Since it was an order for dismissal of the proceeding, Mr Islam was arguably precluded from setting it aside under r 36.16(3) of the UCPR.

15. With the order for dismissal of the claims against the Commonwealth defendants being final, the Court has no power in this proceeding to ‘amend’ process that Mr Islam brought against the Commonwealth of Australia or the ASIC.

16. Further, or alternatively, there was no indication in the email to indicate that the rare circumstances in which the Court permits a reopening are enlivened: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300. Contrary to Mr Islam’s first basis, the proceeding was not dismissed on the basis of the ‘evidence’ and, in any event, it was not explained why such evidence could not have been obtained in the long period it took to determine the Commonwealth defendants’ application.

Orders

17. For the reasons above:

1. Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, order 3 made on 10 November 2023 is varied so as to substitute $15,683 for $15,517 as the correct sum.

2. Mr Islam’s informal application, notified to the Court on 21 November 2023 is refused.

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Endnote

Decision last updated: 27 November 2023