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

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

The summons and motion in this proceeding

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)
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).
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…

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.

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Details

Case: [2023] NSWDC 478
Decision Date: 10 November 2023

CaseChat Overview and Summary

The proceedings involved a self-represented litigant, Islam, who sought to enforce a contract for the sale of property against Fahim Khan. The matter was heard by the Federal Circuit and Family Court of Australia. The dispute centred on whether the court should strike out Islam's proceeding for non-compliance with directions to file a statement of claim that adhered to the relevant court rules.

The primary legal issue was whether the court should exercise its discretion to strike out Islam's proceeding for non-compliance with the court's directions. The court had to consider the discretionary factors relevant to this decision, including the importance of adhering to procedural rules, the potential prejudice to the opposing party, and the likelihood of success on the merits of the proceeding. The court also considered the appropriate remedy if it decided to exercise its discretion in favour of striking out the proceeding.

The court found that Islam had not complied with the directions to file a compliant statement of claim. It considered the discretionary factors and determined that striking out the proceeding was the appropriate remedy. The court held that the proceeding should be struck out due to Islam's repeated failure to comply with the court's directions, which resulted in significant prejudice to Fahim Khan and a lack of prospects of success on the merits. The court emphasised the importance of procedural compliance and the need for parties to follow the court's directions to ensure a fair and efficient legal process.

The court ordered that the proceeding be struck out with costs to be paid by Islam. The court also noted that the order was without prejudice to any right of Islam to recommence the proceeding if a compliant statement of claim was filed within a specified time frame. This order reflected the court's intention to encourage compliance with procedural requirements while also providing an opportunity for Islam to rectify the deficiencies in the proceeding.

Orders

Orders of the court

See paragraph [84]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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