Islam v Ratul

[2023] NSWCA 269

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Islam v Ratul [2023] NSWCA 269
Hearing dates:	07 November 2023
Date of orders:	07 November 2023
Decision date:	07 November 2023
Before:	Ward P; Leeming JA
Decision:	Summons seeking leave to appeal dismissed, with costs.
Catchwords:	APPEALS – leave to appeal – interlocutory decision – submission not made to primary judge – absence of any material error – absence of utility of appeal having regard to proximity of final hearing – leave refused
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW)
Category:	Principal judgment
Parties:	Md Rajibul Islam (Applicant) Abu Walid Ratul (Respondent)
Representation:	Counsel: Applicant in person P G Bolster (Respondent) Solicitors: Mitry Lawyers (Respondent)
File Number(s):	2023/294682
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Date of Decision: 25 August 2023 Before: Robb J File Number(s): 2023/267165

EX TEMPORE JUDGMENT

1. WARD P: I will ask Leeming JA to give some reasons for our decision in relation to your application for leave to appeal.

2. LEEMING JA: The plaintiff, Mr Abu Walid Ratul, who is the respondent on this application for leave, came before the Duty Judge on 25 August 2023. A summons filed on that date, annexed as Schedule A some 15 proceedings said to have been commenced in the Local Court in Sutherland, Bankstown, Port Kembla, Queanbeyan, Kurri Kurri, Moss Vale, Batemans Bay and Sydney against various of the following people: Abu Walid Ratul, Farha Diba, Etimad Ul Karim, Tanvir Ahmed, Real Estate Macarthur Group Pty Ltd (“REMG”), Expert Finance Pty Ltd and some persons associated with REMG, Emma Watt and Richard Mitry. In each case the schedule names three, four or five plaintiffs, one of whom is, invariably, the applicant Mr Md Rajibul Islam, and between four and twelve defendants. The schedule also identifies the proceeding number said to have been allocated by the Local Court to each proceeding. Each is a 2023 proceeding.

3. By way of interlocutory relief, the summons sought an order that the defendant, Mr Md Rajibul Islam, be restrained from commencing any proceedings against any of those persons, or against Mitry Lawyers Pty Ltd (Mr Ratul’s solicitor). It also sought an order that the proceedings be expedited. The substantive relief sought in the summons included that an order be made under the Vexatious Proceedings Act 2008 (NSW) against Mr Islam.

4. The primary judge made six orders on 25 August 2023. Only the first is the subject of the present application for leave to appeal. That order is in the following terms:

On the plaintiff by its Counsel giving to the Court the usual undertaking as to damages:

1. An order, until further order, pursuant to the inherent jurisdiction of the Court, that the defendant, be restrained from commencing any proceedings without leave of the court, against: Abu Walid Ratul; Farha Diba; Etimad Ul Karim; Tanvir Ahmed; Real Estate Macarthur Group Pty Ltd (“REMG”); Expert Finance Pty Ltd; any employee or contractor of REMG; Expert Finance Pty Ltd or Australian Real Estate Relation Pty Ltd (“ARER”); Mitry Lawyers Pty Ltd; Emma Watt or Richard Mitry.

5. Order 2 required the defendant to cooperate in any application for a stay of the proceedings. Significantly, order 3 provided expressly that the orders made were:

[W]ithout prejudice to the right of the defendant to apply to this Court for leave to commence one set of proceedings by himself or with companies associated with him against any defendants to establish any rights that are claimed against those defendants being defendants referred to in the schedule to the summons.

6. Order 4 stood the proceedings over to the Registrar’s list. Order 5 granted leave to apply on one day’s notice, and order 6 reserved costs.

7. In the meantime, the substantive proceedings have progressed and this Court has been told that on 20 November 2023 the matter will return to the Court, a timetable for the serving of evidence having been complied with, and a date will be sought for the final hearing of the summons.

8. Mr Islam has sought leave to appeal from order 1, and in addition to his written submissions, the Court has heard him at some length this morning, for approximately 40 minutes in chief with a brief reply. His principal point is that there were included in schedule A of the summons a number of proceedings (he says more than half), which in fact were not extant at the time the summons came before Robb J. He says the summons is defective and in fact amounted to an abuse of process. For that reason, he says the order should be set aside.

9. During his oral submissions, he made it plain that he regards the respondent’s application before the Duty Judge as an abuse of process. His response to questions from the Court as to the utility of the appeal was that the matter is one of principle to him. He also explained that the basis of his various claims are derived from trailing commissions to which he claims an entitlement, and it is the monthly accrual of those commissions that has caused him to commence multiple proceedings in the Local Court.

10. Much of that complaint, with one significant exception, was raised by Mr Islam before the Duty Judge. The point that proceedings, according to Mr Islam, had to be commenced repeatedly, every month in the Local Court, having regard to the size of the trailing commissions, was made by Mr Islam (transcript 25 August 2023 p 6), notwithstanding which Robb J indicated that it might be possible, although noting that it was not his role to give advice to Mr Islam, to commence in either the District Court or the Supreme Court in relation to a number of those proceedings, and it may be inferred that order 3 made by his Honour, which was an order not sought by the respondent, reflected that exchange.

11. The point sought to be made before this Court in support of a grant of leave, which may be anticipated would be propounded if leave were granted at the hearing of an appeal, was that the majority of the proceedings listed in the summons were not extant. This point was not made at first instance. Instead, Mr Islam is recorded on the transcript as saying the following:

They have also written 18 proceedings. There is not 18 proceedings, your Honour. They have lied on this. There is exactly 12, and those are not right proceedings.

12. That is to say, when Mr Islam was given the opportunity of being heard against the interlocutory orders, he did not say that the majority of the proceedings were not extant. He positively advanced the proposition that he had commenced 12 proceedings in a number of registries of the Local Court against the defendants identified above. To be clear about it, and as advised during the hearing, no part of this Court’s judgment determines whether there were 15, or 12 or some lesser number of extant proceedings commenced by Mr Islam.

13. A number of considerations suggest the inappropriateness of a grant of leave in the present case. The first is that the principal and perhaps only point that Mr Islam seeks to make is not a point that was made to the primary judge.

14. The second is that the matter is interlocutory, and ordinarily this Court would be reluctant to grant leave to appeal from interlocutory matters of this nature.

15. The third is that it does not greatly matter whether there were 15, or 12, or some lesser number of proceedings commenced in different registries of the Local Court against the same defendants, because it is prima facie an abuse of process to commence multiple proceedings.

16. The fourth is that although the ability of a litigant to approach a Court is a fundamental right which is not lightly to be put to one side, the orders made by his Honour do not prevent Mr Islam from approaching a Court if he wishes to formulate a single proceeding bringing together the various claims he has advanced in numerous proceedings in the Local Court. Further, for claims falling outside the scope of order 3, the order merely requires him to obtain leave, and when asked, repeatedly, by this Court, I understood Mr Islam to indicate that he did not immediately have in mind any further proceedings against any of the named defendants which he sought to bring which would be affected by the order.

17. The fifth point is an essentially practical one. Either when the summons is heard on a final basis the respondent will obtain an order under the Vexatious Proceedings Act, or not. If the respondent fails, then the order which is presently the subject of the application for leave to appeal will be set aside. If the respondent succeeds, the order that is presently the subject of the application for leave to appeal will be superseded. The reality of the situation is that in all likelihood the final hearing of the summons will occur at an earlier date than an appeal from the interlocutory order would occur in the event that this Court granted leave.

18. As pointed out during the hearing, those considerations point powerfully to the limited resources of this Court and the limited resources of the parties being focussed on the more important issue, which is the final determination of the final relief sought in the summons, rather than appellate review of the interlocutory orders made by Robb J, which in the very near future will in any event be superseded.

19. For all of those reasons, in my view, this is a clear case for leave to be refused. I propose that the summons seeking leave to appeal be dismissed with costs.

20. WARD P: I agree with his Honour’s reasons and with the orders that his Honour proposes.

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Amendments

08 November 2023 - [11] - not before "that the majority" removed. "This point was not made at first instance" added.

Decision last updated: 08 November 2023