Islam v Fahim Khan

[2023] NSWDC 478

District Court

New South Wales

Medium Neutral Citation:

Islam v Fahim Khan & Ors [2023] NSWDC 478

Hearing dates:

14, 17 August 2023, 5 October, 3 November 2023 (written submissions 6 & 7 November 2023)

Date of orders:

10 November 2023

Decision date:

10 November 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [84]

Catchwords:

CIVIL PROCEDURE – application for summary disposal – self-represented litigant – whether proceeding might be struck out for want of compliance with directions to file a statement of claim compliant with Court rules - discretionary considerations

Legislation Cited:

Australian Consumer Law

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5O

Civil Procedure Act 2005 (NSW), s 61(3)(a), 61(3)(b)

Uniform Civil Procedure Rules 2005, r 6.3, 6.6, 7.36, 12.7, 14.28(1), 31.36(2), Part 14

Cases Cited:

Bechara v Bonacorso (No.4) [2010] NSWDC 234

Greywolf Resources NL v Wilkinson [2011] NSWSC 1604

Islam & Anor v UI Karim [2023] NSWSC 717

Islam v Australian Securities & Investments Commission [2023] NSWSC 1188

Islam v Raine & Horne Corp [2023] NSWSC 1184

Rahman v Bimson [2010] NSWSC 338

Tepko Pty Ltd v Water Board (2001) 206 CLR 1

Category:

Procedural rulings

Parties:

Md Rajibul Islam (plaintiff/respondent)
Fahim Khan (first defendant/applicant)
Matthew Lawry (second defendant/applicant)
Ugur Nedim (former third defendant)

Representation:

Solicitors:
Berrigan Doube Lawyers for the first, second and former third defendant

File Number(s):

2023/162752

Publication restriction:

Nil

REASONS FOR JUDGMENT

Background

1. This proceeding (commenced on 22 May 2023), and proceeding number 2023/165594 (commenced on 24 May 2023), both came before me for the first time in the August 2023 civil sittings list in Parramatta, as the List Judge. Both of them concern claims brought by Mr Islam, who represents himself, against multiple defendants.

2. In both proceedings, applications for summary disposal of the proceedings have been brought.

The summons and motion in this proceeding

3. In this proceeding, the plaintiff, Mr Islam filed a Summons as his originating process. Under the hearing in the prescribed form ‘Type of Claim’ it is said that this is a proceeding which concerns ‘Professional Negligence.’ Underneath, serial references were made to legislation governing the legal profession in NSW, and also the Civil Liability Act 2002 (NSW), among other legislation. Some additional references are made (indirectly) to the actions relating to contraventions of the proscription against misleading or deceptive or unconscionable conduct under the Australian Consumer Law; and other remedies under general law (damages, rescission, equitable relief)

4. For professional negligence proceedings, the originating process should have been the filing of a statement of claim (Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), r 6.3). Be that as it may, the proceeding is not invalidated, per se, because it was wrongly commenced by a summons (UCPR, r 6.6).

5. According to Mr Garan, the solicitor for the first, second and third defendants, who (on 13 July 2023) affirmed an affidavit in support of the summary dismissal application, after the summons was filed on 22 May 2023, there were directions hearings of this matter on 1 June 2023 and 22 June 2023 (which Mr Islam was said not to have attended) in which, amongst other things, directions were made (on 1 June 2023) for Mr Islam to file an amended summons or a statement of claim within 14 days.

6. Mr Garan complained, with good reason, that the defendants cannot identify what the case against them is from the Summons and that, at the time Mr Garan prepared his affidavit, the plaintiff had not availed himself of the opportunity of a filing a statement of claim when given the opportunity to do so. Mr Garan also complains that the plaintiff failed to appear at the directions hearing on 22 June 2023.

7. At the time that Mr Garan prepared his affidavit, these arguments were not compelling grounds for a summary dismissal application. Non-compliance with directions to file and serve a statement of claim can potentially lead to the sanction of an order for dismissal (under the Civil Procedure Act 2005 (NSW), s 61(3)(a)) or strike out (s 61(3)(b)) or dismissal for failing to prosecute a proceeding with due despatch (UCPR, r 12.7), but no applications of those kinds had been brought by the defendants in their motion and, to that point (13 July 2023), it might have been thought premature for sanctions of that kind to be brought to bear, unless and until further significant procedural default occurs. Circumstances can, however, change.

8. When the matter first came before me on 14 August 2023, Mr Islam initially said that no relief was sought against Mr Khan and Mr Lowry (T 4.16 – 4.22). That position changed.

Attempts to procure pro bono legal representation (August – October 2023)

9. On 17 August 2023 I made an order for referral of Mr Islam (in this proceeding and the other proceeding) under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’); specifically, for legal advice regarding the state of his originating process.

10. However, it was only on 4 October 2023 that I was informed that a pro bono solicitor was available to assist Mr Islam in relation to his pleadings in both sets of proceedings. That delay was not Mr Islam’s responsibility.

11. When the matter returned to me on 5 October 2023, in both sets of proceedings, I adjourned the motions (and the proceedings generally) to 3 November 2023 to enable the pro bono solicitor to provide advice to Mr Islam. I also directed that he file and serve a statement of claim “that complied with” the requirements of Part 14 of the Uniform Civil Procedure Rules by 27 October 2023.

12. The transcript of that day (5/10/23, 6.5 – 7.21) indicated that I clearly indicated to Mr Islam that, given his experience in other legal proceedings (many of which had commenced in the Supreme Court), compliance with those rules of Court was to be expected. I also indicated that to the extent that his pleading identified new parties, Mr Islam was expected to serve the new parties with the pleading (as well as the existing defendants) (T 7.42).

Mr Islam’s ‘Amended Summons’ (30 October 2023)

13. Mr Islam obtained pro bono legal advice, in the form of a letter from the pro bono solicitor which, although dated 19 October 2023, was not actually sighted (through no fault of) by Mr Islam until late in the day on 27 October 2023.

14. In lieu of filing a statement of claim that complied with the requirements of Part 14 of the UCPR as he was directed on 5 October 2023, on 30 October 2023, Mr Islam filed an Amended Summons.

15. The Court’s Sydney Registry rejected the filing. Mr Islam was notified that he had not complied with the Court’s direction that he file and serve a statement of claim.

16. It is therefore ineffective as Court process. Nevertheless, because of the nature of summary dismissal applications that I touch upon later in these reasons, I was prepared to have regard to the purported Amended Summons in order to understand the nature of the complaints that he wished to agitate; especially after Mr Islam had received the benefit of legal advice. Amongst other things, the document was also relevant to any determination whether Mr Islam should have further opportunity of filing a pleading.

17. The ‘Amended Summons’ runs for 17 pages. Mr Garan pointed out that this Court process had:

1. removed an existing third defendant from the original summons (Ugur Nedim)

2. added other defendants (the fourth, fifth and sixth defendants).

18. There was no satisfactory proof that any of these proposed fourth, fifth and sixth defendants had been served with the Amended Summons.

19. But since it is ineffective for the reason that I have indicated, no orders need be made concerning the proposed additional defendants. Currently, no valid originating process has been commenced against them. They are not parties to the proceeding.

20. This, then has left the Court to consider the application for summary dismissal by the first and second defendants: Mr Khan and Mr Lowry (the proceeding being withdrawn against the third defendant).

21. In short, for reasons to be elaborated, the identification and elucidation of the plaintiff’s case in the purported ‘Amended Summons’ is no more advanced than what it was in the irregularly filed summons filed on 22 May 2023. This document infringed many pleading rules. Extravagant and expansive allegations were made without an indication of material facts supported by proper particulars. Some allegations were repeated. Quite what the complaints against each defendant actually were unintelligible.

22. In Islam v Raine & Horne Corp [2023] NSWSC 1184, Harrison J said, with reference to passages in a pleading by the plaintiff that was before his Honour:

“They are invariably general, never particularised and conspicuously devoid of any content. They are given no context in terms of date, physical location or specific legislative provisions and the physical acts said to constitute the exploitative conduct or deceptive practices that are alleged are not described.”

23. Most of what his Honour said in that decision applies in this case.

Mr Islam’s oral explanation of case (3 November 2023)

24. Mr Islam represented himself in Court on the ultimate hearing date for the application, as he had done previously. I pressed him to explain his complaints.

25. The substance of his response was as follows. Mr Islam had been charged with certain driving offences in late 2022 or early 2023. He says he retained the first defendant, Mr Khan, as his solicitor to represent him. Mr Lowry, apparently, was a member of the same firm (apparently an Associate, although his precise status is immaterial).

26. Mr Islam’s first complaint against the defendants centres upon what he alleges was a lack of communication and contact between himself and this lawyers in the run up to the hearing of the charges at Burwood Local Court. At a certain point, he received notice that Mr Khan could no longer continue to actively represent Mr Islam so Mr Lowry was carrying as the solicitor. But Mr Islam remained dissatisfied with his representation. Accordingly, he had to engage a different lawyer, Mr Wilson Thigh, from the firm O’Byrne Lawyers.

27. His second complaint was associated with the first. He says that he had asked his lawyers to apply for a variation of his bail conditions in about the middle of January 2022. He asserts that they did not, however, implement those instructions. According to Mr Islam, it was with the assistance of Mr Thigh that Mr Islam succeeded in having the charges against him dropped. But he was left to pay legal costs not only of Mr Thigh, but also legal costs of Mr Khan. He says that this led him to commence the current proceeding on 22 May 2023.

28. His third complaint arises from the following circumstances. After the charges against him were dropped, Mr Islam’s wife delivered a review, apparently of Mr Khan, on Google, which was not flattering to Mr Khan. Mr Islam asserts that in response, Mr Khan threatened to sue Mr Islam’s wife, I infer, unless the Google Review was withdrawn. However the Google review was not withdrawn. The Court was informed that Mr Khan made a complaint to police. Mr Islam asserts that by or through the course of that complaint, Mr Khan made the false accusation against Mr Islam that Mr Islam had made a death threat against Mr Khan. He said that he had been “framed” by Mr Khan. This was said to have occurred on or about 15 June 2023 (which I note post-dated the commencement of this proceeding).

29. Mr Islam goes on to say that for a period of time thereafter, he was displeased by the conduct of police and that eventually, he was arrested in July 2023 and put in jail for two days.

30. Mr Islam verbally indicated that his action against Mr Lowry centred only upon the first complaint.

Mr Islam’s affidavit 22 June 2023

31. For reasons explained below, on 6 November 2023, after judgment was reserved, Mr Islam sent to the Court an affidavit that he had he sworn on 22 June 2023. This was the date when there was a scheduled directions hearing which the Court was informed that he did not attend. Why Mr Islam did not refer to the affidavit in his appearance on 3 November 2023 was not explained.

32. By this affidavit, it is possible to distil some further details about the first and second complaints; although not his third complaint, described above.

33. As to the first of the complaints, in what might be characterised as a complaint about ‘poor communications’ with his solicitors, Mr Islam had deposed to entering into a costs agreement with Mr Khan, of Sydney Criminal Lawyers in December 2022 after being charged with a firearms offence. He had been initially refused custody in August 2022 (although he had deposed – apparently erroneously - to it being August 2023). He deposed to a telephone conversation with Mr Khan, also participated in by his wife, in which advice was sought whether Mr Islam could travel overseas. According to Mr Islam, Mr Khan stated “You should be careful with what you guys do. I don’t want you guys doing anything rash of stupid.” It appears that Mr Islam took umbrage at this comment, feeling disrespected. He thought it was unprofessional. But Mr Khan apologised.

34. A second limb of the same complaint – which was not referred to by Mr Islam in his verbal submissions in Court on 3 November – concerned Mr Lowry. The gist of this was that on 28 February 2023, Mr Islam emailed Mr Lowry to request a teleconference. Although Mr Lowry indicated he was available, the next day (1 March 2023), Mr Islam asked for a later day in the week. But according to Mr Islam, Mr Lowry did not get back to him.

35. A third limb on the same complaint – again not referred to by Mr Islam in his verbal submissions in Court on 3 November – also concerned Mr Lowry. In his affidavit, Mr Islam referred to his being subjected to a second criminal charge. In February 2023, he received correspondence from Mr Lowry’s firm which misstated this second charge as relating to an unauthorised firearm when it was not. Mr Islam described this as causing significant anxiety, distress and psychological suffering.

36. A fourth limb of the same complaint about poor communications – again not referred to by Mr Islam in his verbal submissions in Court on 3 November – also concerned Mr Lowry. This was in March 2023. Mr Islam was arrested and faced a detention application for a driving matter. Mr Islam deposed to Mr Lowry texting his wife that he would call back. But Mr Islam asserted that Mr Lowry did not do so, resulting in significant mental anguish and suffering.

37. As to the second of the complaints, on 15 January 2023, Mr Islam deposed to sending an email to Mr Khan in which he requested a bail variation. Two days later, Mr Islam deposed to his wife receiving a telephone call from Mr Lowry. The latter had indicated that he was to be looking after the matter whilst Mr Khan was on leave. According to Mr Islam, Mr Lowry said that he would consider the email for the bail variation. But Mr Islam deposed to not having heard back from Mr Lowry and appeared displeased that he had not been warned that the matter was being taken over by Mr Lowry. This left him feeling uncertain and with significant anxiety and worry.

38. In his affidavit, Mr Islam deposed that in April 2023, he had decided to seek alternative legal representation. In May 2023 he filed a complaint to the Office of the Legal Services Commissioner (‘OLSC’) against Mr Khan and Mr Lowry.

The applicant’s submissions

39. Mr Garan, who had also appeared for the first and second defendants throughout multiple days on which the present motion was before the Court, pointed out that Mr Islam had not clearly articulated his case in his Amended Summons as he had during the final day of the hearing.

40. He submitted that on the assumption that the Amended Summons could be treated as the functional equivalent to a statement of claim, it remained impossible for his clients to respond to it.

41. He submitted that Mr Islam had had many opportunities to articulate his case, in written form, by a statement of claim and had not done so. Recently, he had received legal advice from the pro bono firm (including a description as to what a statement of claim was) and still the Amended Summons did not replicate what was required in the document.

42. Mr Garan submitted that Mr Islam should not be afforded further opportunity to effectively ‘re-plead’ after all the previous directions for him to file a statement of claim.

Applicable principles for summary dismissal applications

43. When considering an application for summary disposal, the form of the pleading (whether it be an existing pleading, or a proposed amended pleading), although not unimportant, is not conclusive.

44. It is whether the Court can be satisfied in the material placed before the Court that there is, are, reasonably arguable causes of action(s) apparently available to the plaintiff. In practical terms (however the test is expressed) a Court dealing with a summary dismissal application must be satisfied that there is a high degree of certainty about the ultimate outcome of the proceeding if the proceeding went to hearing in the ordinary way. Expressed at a more granular level, if there is a real, or ‘triable’ question of fact or law (or both) that arises, an application for summary dismissal must fail.

Evaluating Mr Islam’s complaints

45. Whether an action of professional negligence is grounded in tort or contract, the essential constituents are the existence of a duty of care (or proof of an express or implied contractual term), breach of duty, causation and loss or damage. (I do not lose sight of the possibility that statutory actions may be available which may be conterminous with common law actions for professional negligence. It is not uncommon, for example, for an action of misleading or deceptive conduct to be based on a similar substratum of facts as the common law action, in the context, at least, of ‘representational’ liability).

46. Some of these elements have been modified by the provisions of the Civil Liability Act 2002 (NSW); and in particular, breach of duty (ss 5B and 5C) and causation (ss 5D and 5E). Potentially, there are also defences, or more accurately, the modification of a standard of care, that the professional may run (s 5O). There may even be scope of the lawyers to rely upon a common law defence of advocate’s immunity; depending upon the identification of the allegedly negligent conduct.

47. A major problem with Mr Islam’s verbalised articulation of his complaints, let alone his Summons and the proposed Amended Summons, is that there is conspicuously missing a document that sets out the material facts that would sustain actions, in tort or contract, in professional negligence. Within the framework of the Civil Liability Act, Mr Islam needed to assert facts that would sustain the contention that outlined the scope of the duties that the lawyers agreed to perform, that he faced a risk of harm, that the said risk of harm was foreseeable and not insignificant and that the solicitors failed to take the precautions that ought reasonably have been taken. With the limited exception of not acting upon an instruction to seek a variation to bail conditions, there is missing the material facts sustaining the conclusion, which Mr Islam would wish to get to, that Mr Khan and/or Mr Lowry unreasonably failed to communicate (or respond to communications) to him.

48. It is one thing to complain about the absence of, or an inadequacy about, communications between lawyer and client. This may ground a complaint that a lawyer has acted in a way that is professionally unsatisfactory (or, at the most extreme level, professional misconduct), which is apparently what Mr Islam had lodged with the OLSC. Unsatisfactory professional conduct can also be, and the cases suggest, is sometimes synonymous with, negligence. As is well-known, it is possible for clients to obtain compensation orders, albeit for limited amounts, if they can substantiate disciplinary complaints against their lawyers.

45. It is another thing to transform a garden variety complaint of a breach of professional standards; based upon a lack of or poor quality of communications from a lawyer, into an action for damages for professional negligence. Mr Islam needs to assert (and eventually prove) that he suffered compensable damage and he needs to assert (and eventually prove) that but for the failure to communicate or inadequacy of communication (however that was to be defined) he would not have suffered the loss or damage that he did.

46. According to what he informed the Court, whatever were the deficiencies in communications did not lead to the harmful result, say, of conviction for the charges. Mr Islam indicated that, albeit, with the assistance of replacement lawyers, the charges against him were dropped. What he deposed in his affidavit that he did – drop Sydney Criminal Lawyers and engage new representation – was the rational reaction of a client (not to mention consumer of professional services) dissatisfied with the services that they received from their lawyer.

47. The only ‘loss’ he verbally referred in his oral submissions to was a contested liability to pay his former solicitors costs. Such contested liability arose, presumably, from a costs agreement, which was not before the Court and whose material content is unknown. But just because a client changes his lawyers does not mean that he thereby discharges his obligation to pay the previous lawyers costs that the lawyers had incurred on the client’s behalf, prior to the termination of the retainer. It is rare for lawyers to enter into ‘entire contracts’ with clients (especially when representing them in criminal litigation), so that the fees would only be recoverable upon the happening of an event. This does not have anything to do with a complaint of professional negligence. It is a costs dispute, and Mr Islam did not articulate what his rights or obligations were about costs with Mr Khan.

48. In his affidavit, he asserts distress and worry, but does not point to any psychiatric illness resultant from the conduct complained of. Although it is not necessary on an application of this kind, on the basis of what he asserts in his affidavit, viewed in the context of complaints about communications with his lawyers, it would be almost certain that on bare assertions of that kind, he would not reach the threshold for obtaining an order (under s 16 of the Civil Liability Act) for non-economic loss.

49. The second of the complaints, not implementing an instruction to seek variation of a bail condition, is more specific than the first complaint. This has its own discrete requirements. Amongst other things, Mr Islam would need to assert the facts which would identify the risk of harm that the solicitors would have to guard against, that the risk was foreseeable and not insignificant, and that the solicitors failed to take reasonable precautions to guard against the risk of harm materialising. Practically speaking, he would need to assert the existing condition, or position as to his bail, that he sought to vary. He would need to assert the facts and circumstances through which he conveyed the instruction and assert how or why it was not acted upon.

50. He would then need to assert facts to establish a reasonable argument of causation; which would involve consideration of the consequences of the solicitors not seeking a variation in bail conditions in terms of establishing any material detriment. Did he lose the opportunity to obtain more favourable bail conditions? Was the solicitor responsible for that state of affairs? Would the prosecutor have contested the application to vary bail and if not, would the Court have likely agreed to it? None of those facts relevant to those questions are apparent in any document.

51. This brings me to his third complaint. There was no reference to this complaint in the Summons. A bare allegation appeared in the ‘Amended Summons’ (p 10), although it is essentially dressed up as an action for negligent misstatement. That is fundamentally misconceived. Liability of that kind arises from advice or information provided in response to a request for advice or information in circumstances involving assumed responsibility (by the professional) and known reliance (by the person receiving the advice or information) (Tepko Pty Ltd v Water Board (2001) 206 CLR 1).

52. In my view, this complaint may be characterised, in legal terms, as a defamation although it may also conceivably generate an action for malicious prosecution, to the extent that that it is suggested that the allegedly defamatory statement effectively instigated an arrest. However, there are also some very specific elements that would need to be asserted and proved and neither the summons, the Amended Summons nor Mr Islam’s verbal explanation of his complaint set out the material facts relied upon to sustain that or those possible actions.

53. Conceivably, a citizen’s complaint to police may give rise to an action in defamation. But as the decision of Judge Gibson in Bechara v Bonacorso (No.4) [2010] NSWDC 234 illustrates, actions of this kind are a prime example of the need for precision in identifying the material facts, supported by particulars. This would be even more important if the ‘publication’ was purely verbal. There is nothing in the proposed ‘Amended Summons’ which could possibly put the defendant(s) on notice of the case he/they would need to meet. Further, there is nothing pleaded to suggest that the serious harm element of the action exists, that is, that the complaint to police has caused, or is likely to cause, serious harm to Mr Islam’s reputation (Defamation Act 2005 (NSW), s 10A).

54. It is unnecessary, for present purposes to anticipate whether there might be viable defences to such actions, including, in the case of the defamation complained of, a defence of qualified privilege, or statutory qualified privilege; or the observation of important procedural matters, such as the making of a concerns notice. A defamation suit cannot commence against someone without a concerns notice (Defamation Act 2005, s 12B).

55. To the extent that it could be suggested that the defendant(s) instigated a prosecution, the facts are not shown giving rise to the elements of the tort, being the institution of a proceeding; termination (favourably to the claimant) of such a proceeding, absence of reasonable or probable cause, malice and the suffering of damage.

56. Putting the matter most favourably for Mr Islam, neither in his existing Summons, the ‘Amended Summons’ or in his oral articulation has he indicated facts that would survive a test of strike out under r 14.28(1)(a) of the UCPR. Given the omissions I have summarised (although not purporting to do in an exhaustive way) the complaints are also embarrassing (r 14.28(1)(b)).

Consequences

61. In the foregoing analysis, I have indicated, on a fairly cursory basis, difficulties or weaknesses with Mr Islam’s claims and how defectively they have been stated. However, it is another step to say that his claims are so flawed as to make them appropriate for summary dismissal. I am not persuaded that they do.

62. This generates the question of where this proceeding is to go from here.

The relevance of Supreme Court decisions

63. After argument had closed and judgment was reserved, I arranged through my Associate to bring to the parties’ consideration (by email on 6 November 2023) three decisions of the Supreme Court of New South Wales this year concerning the state of Mr Islam’s originating process. One of those was referred to earlier in these reasons. The decisions are:

• Islam & Anor v Ul Karim [2023] NSWSC 717;

• Islam v Raine & Horne Corp [2023] NSWSC 1184;

• Islam v Australian Securities & Investments Commission [2023] NSWSC 1188.

64. I invited the parties to make submissions as to the relevance or significance of these decisions in the event, as I have found, that Mr Islam’s originating process in this proceeding does not disclose a reasonably arguable cause of action.

65. Mr Islam not only supplied written submissions in response (filed at 3:44pm on 6 November 2023) and a lengthy email to my Associate (sent at 4:10pm the same day) but, without obtaining the Court’s leave in advance, also supplied the Court with an affidavit sworn 22 June 2023, which I referred to earlier in these reasons..

66. Mr Islam’s submissions (and email) are much to the same effect. He acknowledged that the Supreme Court decisions highlighted ‘issues’ with his pleading. But he said that in each of those proceedings, he did not receive assistance from a legal practitioner. He said that his knowledge of Court proceeding was limited to observing court procedures and drafting legal documents. It was only upon receiving advice from the pro bono firm that he gained a more comprehensive understanding of the drafting of the statement of claim and its purpose.

67. Mr Islam then quoted, verbatim, from the advice he had received from the pro bono panel regarding the requirements for a proper statement of claim. For completeness, at the hearing of 3 November, I cautioned him about the care he might take when disclosing the substance of privileged communications he had received from his pro bono lawyer; although, quite fairly and properly, Mr Garan has not sought the production of written advice on the basis of a waiver of client legal privilege.

68. Mr Islam submitted that the ‘violations and issues’ raised in the Supreme Court decisions did not apply to this case. He urged the Court to accept “my new amended statement of claim” for the proceeding against Mr Khan (he did not mention Mr Lowry). There being no amended statement of claim (or any statement of claim), I take this to be a reference to his purported ‘Amended Summons.’

69. Mr Garan submitted that the Supreme Court proceedings, in conjunction with the events indicated in this proceeding, suggest that Mr Islam does not have the capacity to produce a statement of claim that discloses a reasonable cause of action.

70. By his supplementary submissions, Mr Islam effectively invites the Court to conclude that he has turned the corner, or learnt about pleading requirements after receiving the advice of the pro bono firm. I do not accept that submission. Although in his submission he quoted the description of pleading requirements given by the pro bono lawyer, the fact is that by his purported ‘Amended Summons,’ he did not put into practice what he claims to have learnt. Leaving aside matters of form, the document remains prolix, it omits or obscures material facts. Assertions remain generalised in a way that largely makes the document impenetrable. It needlessly contains propositions of law.

71. Recognising a natural disadvantage through his not being a lawyer, the position remains that nearly 6 months on after the proceeding commenced, the defendants have not fairly been apprised of the material facts for the cases raised against them. This is despite early directions by the Court, going back to 1 June 2023, that he file a pleading, the Court’s efforts to procure advice from a solicitor; my warnings to Mr Islam that, in view of his not insignificant experience in litigation (featuring multiple proceedings in the Supreme Court) he would be held to complying with the rules of pleading under Part 14; the circumstance that he received legal advice and the final circumstance that purported Amended Summons which, even if it was permitted to be filed, is not materially better than the original summons in discharging the fundamental role of pleadings of facilitating natural justice to the opposing party. Mr Islam is not an unintelligent man – a circumstance partly indicated by his resourcefulness in citing a whole raft of legislation in the summons and partly indicated by his extensive experience in commencing litigation and appearing for himself.

72. His failure to file a statement of claim following the direction made on 5 October 2023 would, alone, empower the Court to dismiss this proceeding simply on the basis of non-compliance with the direction I made (Civil Procedure Act, s 61(3)(a)). A precedent for dismissal of an action for non-compliance with a court direction under that provision is Rahman v Bimson [2010] NSWSC 338.

73. I note earlier that he had been directed (on 1 June 2023) to file a statement of claim as well, and had not complied with that either.

74. The issue then becomes whether Mr Islam should be given yet another chance to file a statement of claim.

75. Of prime relevance, in this regard, is that Mr Islam has received legal advice about his claim from a well-regarded firm. This means that the disadvantage of his appearing for himself has been alleviated to a degree in regard to the Court’s expectations for parties to file pleadings that comply with Court rules. The scale of forensic arms were levelled up, as it were, in that particular respect.

76. I have referred to the circumstance of what is revealed in other Supreme Court proceedings and have addressed, and rejected, Mr Islam’s submission that he has turned the corner in his awareness of pleading requirements. In short, the Court does not have confidence in Mr Islam that he is capable of formulating a statement of claim that complies with the requirements in Part 14 of the UCPR and apprehends that the same problem will occur when, as it may be expected, the defendants press for proper particulars of material facts: especially is that important in any right to an action for defamation or malicious prosecution that may exist. The Court is mindful of some of the decisions elsewhere where a recurring theme is Mr Islam’s tendency to make generalised allegations and an inability to descending to stating facts or particulars in a way that will help defendants understand the cases they have to meet. That will very likely, to the point of inevitability, mean that the objectives of procedural management, up to and including a hearing, of there being a just, quick and cheap resolution of real issues will be thwarted.

77. A further difficulty, touched upon earlier, is the circumstance that the litigation has featured something of a shifting of sands. Parties have been loosely added and removed. Allegations at a highly generalised level have been made, but disappear; and new ones emerge. The assertions underlying the asserted negligent misstatement about death threats are an example. All of this is done with Mr Islam heedless of the consequences of his changes of position, including delay and costs incurred by the defendants. Although not all of the delay associated with the resolution of this motion which first came before me in August 2023 can fairly be sheeted home to Mr Islam, especially through the attempt to procure pro bono representation for him, many documents are generated (and filed in Court) in which Mr Islam ventilates complaints, yet there are still serious deficiencies in the formal presentation of the case, let alone some of the weaknesses or difficulties that I have identified which attend the substance of his complaints. There are also consequences in terms of the limited capacity of this Court to deal with multiple iterations of defective court documents, in relation to dealing with the litigation of other parties.

78. I have to take into account that the first and second defendants are both individuals, and professionals for that matter. I infer that they are obliged to notify a professional indemnity insurer of a claim for professional negligence, although I know not whether any indemnity might extend in its scope to complaints about accusations of death threats. At the very least, it is personally aggravating and stressful for professionals to have litigation hanging over them, in the way that Mr Islam has conducted it. This is all the more so in circumstances where, on 14 August 2023, when the matter was first before me, he represented, at that point, that he did not seek relief against Mr Khan or Mr Lowry.

79. I do not know of Mr Islam’s financial position, but note that he has already been the subject to multiple costs orders resulting from the dismissal of many proceedings in the Supreme Court in favour of many defendants. (In the other matter heard at the same time as this application, being Islam v Levi & Ors proceedings 2023/165594, I have already flagged that Mr Islam will be exposed to the costs of the proceeding he brought against four Commonwealth defendants). I suspect, although it is not necessary to finally decide, that there must be a doubt whether Mr Islam has the means to pay any costs orders if he loses this proceeding and both defendants obtain a costs order against him.

80. Another consideration, relevant to the prospective prejudice of the parties, is that the effect of dismissal under s 61(3)(a) is that it would not act as an estoppel nor precludes the commencement of a fresh proceeding (Greywolf Resources NL v Wilkinson [2011] NSWSC 1604 per White J (as his Honour then was) at [12], [16], respectively).

81. On balance, I consider that the dictates of justice, including the overriding case management objectives indicate that pursuant to s 61(3)(a) of the Civil Procedure Act, the proceeding should be dismissed against the first and second defendants.

Orders

82. I do not propose to order costs in relation to an appearance at a directions hearing on 22 June 2023. Such an order should have been sought at that hearing.

83. At the conclusion of Mr Garan’s written submissions supplied to the Court on 8 November 2023, he submitted that the plaintiff should pay the costs of the first, second and third defendants on an indemnity basis. This was a different basis for a costs order than that which had been sought in the notice of motion. In my view, it is appropriate for the parties to be properly heard on that application.

84. The orders of the Court are:

1. Noting the withdrawal of the claim against Ugur Nedim, the proceeding as against the third defendant is dismissed with costs.

2. Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the Summons is struck out.

3. Pursuant to s 61(3)(a) of the Civil Procedure Act 2005 (NSW), the proceeding as against the first and second defendants is dismissed.

4. Costs of the notice of motion and the proceeding generally are reserved.

5. The Court directs that:

1. The defendants are to file and serve short (that is no more than 3 pages) submissions in support of an application for indemnity costs within 3 days of these orders.

2. The plaintiff is to file and serve submissions (no more than 3 pages) in opposition to an application for indemnity costs within a further 3 days.

3. The defendants’ application for indemnity costs is to be determined on the papers.

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Decision last updated: 10 November 2023