Islamic Society of Victoria v Ozyurek (No 1)
[2019] VSC 662
•7 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2019 01172
| ISLAMIC SOCIETY OF VICTORIA (INC) (and others according to the attached schedule) | Plaintiffs |
| v | |
| EKREM OZYUREK (and others according to the attached schedule) | Defendants |
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JUDGE: | Sifris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 September 2019 |
DATE OF JUDGMENT: | 7 October 2019 |
CASE MAY BE CITED AS: | Islamic Society of Victoria v Ozyurek & Ors (No 1) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 662 |
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LEGAL PRACTITIONER – Application to restrain solicitors from acting – Whether solicitor engaged in improper conduct – Inherent jurisdiction of the court – Whether Solicitor breached overarching obligations – Conduct not improper – Civil Procedure Act 2010 (Vic) s 29 – Grimwade v Meagher [1995] VR 446 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff and Defendants to Counterclaim | PJ Bick QC and JD Caitlin | Amicus Lawyers |
| For the Seventh Defendant and Plaintiff by Counterclaim | EN Magee QC and SK Morris | Kennedy Guy Lawyers |
HIS HONOUR:
A Introduction
By interlocutory process dated 30 August 2019, the seventh defendant (and plaintiff by counterclaim) in this proceeding, the Islamic Co-ordinating Council of Victoria Pty Ltd (the ICCV) seeks an order that Adam Akbulut (Mr Akbulut), the fifth defendant by counterclaim and the solicitor for the plaintiffs and first to fourth defendants by counterclaim in this proceeding, and his firm, Amicus Lawyers, be restrained from acting as solicitor on the record for the plaintiffs (Restraint Application).
Mr Akbulut and his firm act for 4 out of 11 members of ICCV. They are the plaintiffs in this proceeding.
In support of the Restraint Application, the ICCV relies on a number of affidavits, and written submissions dated 17 September 2019. In opposition to the Restraint Application, the plaintiffs rely on the affidavit of Mr Akbulut filed on 12 September 2019, and written submissions dated 20 September 2019.[1]
B Relevant background[2]
[1]After the hearing of the Restraint Application, ICCV filed a further affidavit of James Edward Penman sworn 25 September 2019 and supplementary submissions dated 25 September 2019. Mr Akbulut filed a further affidavit sworn 26 September 2019. Following a directions hearing on 26 September 2019 the parties were given leave to file further affidavits relating to the second 8 January 2019 email as referred to hereunder. Mr Akbulut filed a further affidavit sworn 30 September 2019. ICCV filed further submissions and three further affidavits of James Edward Penman affirmed 30 September 2019, Ekrem Ozyurek sworn 30 September 2019 and Peter Dominic Guy sworn 26 September 2018. The affidavits and submissions of ICCV (which has in any event been responded to) go well beyond the second email of 8 January 2019.
[2]Much of the background is uncontroversial and is taken from Mr Akbulut’s submissions.
By letter dated 9 March 2018, the Malaysian authority responsible for Halal certification in that country (JAKIM) advised the ICCV that the ICCV was approved as ‘one of the recognized Foreign Halal Certification Body [sic] in Australia’.[3] At that time, Mr Alagic was on the ICCV board.
[3]Recognition had been withdrawn on 25 January 2018 but reinstated on 9 March 2018 after a detailed response dated 6 February 2018. From at least 2017, ICCV (through its elected representations at the relevant time) has been in contact with Jakim.
On 22 December 2018, the ICCV held an annual general meeting (AGM) at which Mr Esad Alagic (Mr Alagic) was not elected as a director of the ICCV. At that annual general meeting, the following board was elected:
(a) Ekrem Ozyurek, chairman;
(b) Sidki Guzel, vice chairman;
(c) Aslam Kazi, secretary;
(d) Samir Almohandis, treasurer; and
(e) Durmus Oruc, assistant treasurer.
By letter addressed to Mr Alagic dated 31 December 2018 (31 December 2018 Letter), JAKIM advised the ICCV that it was ‘sorry to inform that we received a recent update on the current decision made in the ICCV’s structure which is against the condition agreed between JAKIM’s representative and your good self’. The agreement referred to was said to be that the director/general manager, operation manager and technical manager be replaced with other personal, and that Mr Refik Koyu, Mr Guzel and Mr Gaafar not be appointed ‘as a committee member nor any position in [the] ICCV’. The letter required an update within 14 days ‘to avoid any de-recognition action on ICCV’. That is, to avoid JAKIM cancelling the ICCV’s Halal accreditation.
By email dated 3 January 2019, Mr Guzel (apparently unaware of the 31 December 2018 Letter) notified JAKIM of changes in the composition of board of directors of the ICCV, which had occurred at the recent AGM. That email attached an ICCV notice which stated that the board consisted of Mr Ozyurek, Mr Guzel, Mr Kazi, Mr Almohandis and Mr Oruc.
Although ICCV by its directors deposes to not having received a copy of the 31 December 2018 Letter, two of the directors, Mr Ozyurek and Mr Almohadis, were told by Mr Alagic on 5 January 2019 that Mr Alagic had received a letter from JAKIM ‘and he would take care of it’. Mr Alagic was clearly referring to the 31 December Letter. Mr Alagic also told them that he had attended at JAKIM on his recent return to Australia. At this time Mr Alagic, according to the directors, was no longer an office holder of ICCV, yet none of them asked Mr Alagic for a copy of the letter and none of them told him that ICCV should respond to JAKIM.
Further, Mr Guzel, Mr Ozyurek, Mr Kazi and Mr Almohandis all depose to not having received the 31 December 2018 Letter until around 2 May 2019, after these proceedings had been commenced. Mr Akbulut swears that he saw the 31 December 2018 Letter at a meeting held at a mosque in Preston on 7 January 2019 in the possession of Mr Alagic, but Mr Alagic did not let Mr Akbulut (or anybody else) copy the letter at that time.[4]
[4]According to Mr Akbulut, Mr Ozyurek was also ‘allowed to briefly examine it’. Mr Oruc deposes that he ‘briefly viewed the letter’, but did not know whether it was genuine or how it came about. He deposes further that the other members did not know and that Mr Guzel ‘did not know anything more about the letter’ (affidavit of Durmus Oruc sworn 22 September 2019). Although the other directors say that they did not receive a copy of the letter until 2 May 2018, they do not deny that they perused it on 7 January 2019.
On 8 January 2019, Mr Akbulut circulated an email to various parties (First 8 January 2019 Email). He referred to the previous night’s meeting and ‘[t]he further insight provided by brother Esad Alagic’ which ‘confirmed there are deep seated issues at ICCV that need to be remedied’. Presumably this included a reference to the 31 December 2018 Letter shown to Mr Akbulut (and others) the night before. Mr Akbulut suggested a form of response and said that ‘whatever the member associates agree upon in terms of the wording to be sent to Malaysia and Indonesia, he [Mr Alagic] will comply with’.
Although the First 8 January 2019 Email is said to relate to ‘ICCV proposed response to cancellation of accreditation’, the proposed response starts with: ‘The undersigned member associations are both shocked and dismayed at discovering ICCV has provided halal certification for certain products which contain references to pork and alcohol’. The proposed response deals with various matters, including a statement that ‘the member associations do not accept the legitimacy of the recent AGM’. At a meeting held on 9 January 2019 no one was prepared to sign a letter to JAKIM as suggested by Mr Akbulut. ICCV made much of the fact that no such letter was produced. Mr. Akbulut denies having prepared such a letter, but rather that it had merely been proposed that a letter be prepared.
After the hearing of the Restraint Application, ICCV discovered another email of 8 January 2019 (Second 8 January 2019 Email) in its possession and that it had inadvertently failed to refer to.[5] This second email has caused a number of further affidavits and submissions to be filed as referred to in footnote 1 above. This Second 8 January 2019 Email was circulated by Mr Akbulut to members that he represented and suggested some changes to the First 8 January 2019 Email, which he proposed to be sent to JAKIM. Unlike the first email, this email refers to the fact that the ‘undersigned members were first presented with copies of those letters [25 January 2018 and 31 December 2018] as of 7 January 2019’. Further, in identifying the differences between the two emails, Mr Akbulut states that ‘we were only formally served with copies of these letters yesterday’. The suggestion made by the ICCV from this email is that Mr Akbulut had, in his possession, a copy of the 31 December 2018 Letter, contrary to his evidence that he was merely shown it by Mr Alagic at the Preston mosque (and was not permitted to make a copy).
[5]It is not entirely clear from the affidavits filed precisely when the email came into the possession of ICCV.
At some stage prior to 14 January 2018 Mr Alagic replied to the 31 December 2018 Letter. In the letter Mr Alagic, after referring to the recent AGM, said that the new committee was ‘not valid and not legal’. He said that the old committee would remain the same ‘without Mr Sidi Guzel and Mr Refik Kuyu’. In the final paragraph Mr Alagic states that because Mr Guzel and Mr Kuyu ‘have refused to resign … we have no other options but to update you with the situation as, the deadline is on the 14 January 2019’. The letter is signed by Mr Alagic as chairman.
On 14 January 2019, Kennedy Guy, solicitors for the ICCV, wrote to Mr Akbulut asking why the ICCV had not received a copy of the First 8 January 2019 Email, which ‘has a subject heading “ICCV Proposed Response to Cancellation of Accreditations”.’ The letter from Kennedy Guy recorded that ‘ICCV has no knowledge of any proposal for cancellation of its accreditation in Malaysia and Indonesia. To allege such is a falsehood’.
On 18 January 2019, Mr Akbulut responded. Most of the letter deals with the recent AGM and election of directors. Management and governance issues are also raised. In relation to the assertion by ICCV that it had no knowledge of the cancellation of accreditation in Malaysia, Mr Akbulut advised that he had ‘been provided with documentation to suggest otherwise and I am currently making further enquiries’. He also said that Mr Ozyurek had said at the AGM that ‘the company’s accreditation had been cancelled by at least one, if not two major Australian companies without any prior notice’.
On 31 January 2019, JAKIM issued a ‘Show Cause’ letter to ICCV advising of a breach of protocol consisting of two letters purporting to be signed by the chairman of the company and signed by two different persons claiming that title having been sent to JAKIM. One of those letters was Mr Alagic’s reply to the 31 December 2018 Letter.[6] The other letter was the ICCV’s 3 January 2019 letter advising of the appointment of new directors.[7] ICCV was evidently unconcerned by Mr Alagic writing to JAKIM and did not request a copy of his letter from JAKIM or Mr Alagic.
[6]See paragraph [13].
[7]See paragraph [7].
On 1 February 2019, ICCV responded to the Show Cause letter. The letter was said to ‘provide clarity on the status of the ICCV chairman position’ and the AGM election process. The letter went on to advise that Mr Ozyurek was validly appointed chairman and that Mr Alagic provided ‘his letter of resignation dated 9 January 2019 (copy of letter enclosed).’ A letter from Kennedy Guy was enclosed confirming advice received that ‘the directors were validly appointed’.
Directors of ICCV, Mr Ozyurek, Mr Kazi and Mr Guzel attended at JAKIM in Malaysia in early March and April 2019 and did not enquire about either the 31 December 2018 Letter or Mr Alagic’s response to it. This is despite the fact that ICCV recorded in Mr Guzel’s email to the head of JAKIM dated 4 March 2019 ‘we hope that we have been able to put to rest any concerns that you may have had regarding ICCV’s board and governance.’
Despite the passage quoted from the 4 March 2019 email in the preceding paragraph, the author of that email, Mr Guzel, Mr Kazi and Mr Ozyurek all depose that no concerns were raised by JAKIM with respect to the company’s board and management at the March meeting.
After the directors of ICCV received a copy of the 31 December 2018 Letter via their solicitors on 2 May 2019, they did nothing about it until 3 July 2019 when they emailed JAKIM requesting a copy of the 31 December 2018 Letter which they already had.
By letter dated 20 June 2019, JAKIM wrote to Mr Ozyurek and stated that it had not received a response from the ICCV regarding the ICCV’s ‘current structure’ following the ‘integrity issue’. The letter repeats the current board composition contravenes ’ the condition agreed between JAKIM’s representative and your good self [sic]’. Again, this was said to require the replacement of the director/general manager, operation manager, and technical manager, and to ensure that Refik Koyu and Sikdi Guzel not to have any appointment or position with the ICCV.
JAKIM’s 20 June 2019 letter was sent as an attachment to an email, which was sent to the ICCV, the ICCV’s lawyers and Mr Akbulut. Mr Akbulut has sworn that when he received the email from JAKIM on 20 June 2019, neither he nor anybody from his office had contacted JAKIM previously.
In response, Mr Guzel on behalf of ICCV advised JAKIM on 2 July 2019 that the 31 December 2018 Letter was not ‘formally’ received by ICCV and requested a copy of it. By this time the ICCV must have known that it was the letter Mr Alagic told the new directors he had received and would deal with on 5 January 2019.
JAKIM’s response was addressed to Mr Ozyurek dated 4 July 2019. The email stated that there had not been any ‘update on the current structure’ and that the agreement between JAKIM and ICCV had not been complied with. In response, Mr Guzel asked JAKIM to ‘revisit this matter’ taking into account matters raised by him in the email response which is dated 18 July 2019.
Mr Guzel deposes, as does Mr Ozyurek, that there was no agreement made with Mr Ozyurek or ICCV of the type alleged by JAKIM. JAKIM, however, had been told by ICCV from at least October 2017 that those responsible for bringing Halal audit and certification at ICCV into disrepute in the eyes of JAKIM would be sacked. ICCV must have been well aware of that issue in attempting to address it at the March 2019 meeting with JAKIM in Malaysia, however, it had done nothing for almost two months after obtaining a copy of the 31 December 2018 Letter and Mr Alagic’s undated reply sent in early January 2019.[8]
[8]Although the veracity of the 31 December 2018 Letter is beyond question, it having been referred to in the 20 June 2019 JAKIM letter, the seventh defendant’s submissions still contend that it was a ‘put up job’, and continue to question its veracity and suggest it is unverified material.
On 28 June 2019, the ICCV issued injunction proceedings to restrain Mr Akbulut, among others, from contacting overseas authorities in relation to the ICCV’s Halal accreditation. On 1 July 2019, Garde J ordered injunctive relief to this effect. Mr Akbulut has complied with this injunction.
C Legal Principles
The ICCV makes the Restraint Application under the inherent jurisdiction of the court and the Civil Procedure Act 2010 (Vic) (CPA).[9]
[9]The relevant legal principles are not in dispute and are adopted from the plaintiff’s submissions.
Section 10 of the CPA provides that the overarching obligations apply to a legal practitioner acting for a party in a proceeding. Section 29 of the CPA empowers a court to make ‘any order it considers appropriate in the interests of justice’ if the court is satisfied, on the balance of probabilities, that a person has contravened the overarching obligations. This includes the making of an order restraining a solicitor from acting for a party. It is tolerably clear that even if I were to find a breach of the overarching obligations, I must still be satisfied that such an order is in the interests of justice.
In Spincode Pty Ltd v Look Software Pty Ltd, Brooking JA suggested that there are three grounds upon which a legal practitioner can be restrained from acting in a proceeding:[10]
·first, the danger of misuse of confidential information;
·second, a breach of a fiduciary duty of loyalty not to act against a client; and
·third, the inherent jurisdiction of the court to control the conduct of solicitors and counsel as officers of the court.
[10]Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, 525 [60] (Brooking JA).
Mr Akbulut has never acted for the parties opposed to his clients in this proceeding. As such, the Restraint Application falls within the third category.
This Court has power deriving from its inherent jurisdiction to make an order restraining a legal practitioner from acting for a party. In Grimwade v Meagher, a case involving an application to prevent Counsel from acting, Mandie J described the jurisdiction as follows: [11]
this court … has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done.
[11]Grimwade v Meagher [1995] 1 VR 446, 452 (Mandie J).
Grimwade v Meagher has been extensively relied on or cited with approval in many cases, in this Court and elsewhere.[12]
[12]See, for example, Miller v Martin [2019] VSCA 86 [17] (Kyrou, Niall and Ashley JJA); Tottle Christensen v Westgold Resources NL [2003] WASCA 224 [7] (‘Tottle’) (where the Court of Appeal of Western Australia approved of the reasoning in Grimwade v Meagher but distinguished it in the result); Fogerty-Young v Jason [2013] VSC 570 [31] (Elliott J) (‘Fogerty-Young’); Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491 [2] (Middleton J) (‘Bahonko’); Kallinicos v Hunt (2005) 64 NSWLR 561, 582 [76] (Brereton J); Li v Jin Lian Group Pty Ltd [2018] NSWSC 479 [7] (Gleeson JA).
In Tottle Christensen v Westgold Resources NL (Tottle), Malcolm CJ, Murray and Anderson JJ described the power to restrain a legal practitioner from acting as deriving from: [13]
the inherent jurisdiction of the Court to control the conduct of members of the legal profession in their role as officers of the court, to ensure the preservation of public confidence in the integrity and fairness of the administration of justice.
[13]Tottle [2003] WASCA 224 [3] (Malcolm CJ, Murray and Anderson JJ).
The power to restrain a legal practitioner from acting is an exceptional power,[14] is discretionary,[15] and an order restraining a legal practitioner from acting will not be made lightly.[16] In Tottle, the Court set out the starting position, which accords with common sense:[17]
Ordinarily, litigants are entitled to solicitors and counsel of their choice and it is only in a clear case that the Court would make an order which would interfere with that right.
[14]Ibid [2003] WASCA 224 [4] (Malcolm CJ, Murray and Anderson JJ); Bahonko [2007] FCA 491 [2] (Middleton J).
[15]Bahonko [2007] FCA 491 [2] (Middleton J).
[16]Shaw v Official Trustee in Bankruptcy [2019] FCA 1412 at [7]; Kallinicos v Hunt (2005) 64 NSWLR 561, 582 [76].
[17]Tottle [2003] WASCA 224 [4] (Malcolm CJ, Murray and Anderson JJ). See also Kallinicos v Hunt (2005) NSWLR 561, 582 [76] where Brereton J observed that “Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause”.
In Bahonko v Nurses Board of Victoria (No 3), Middleton J observed that the jurisdiction to restrain a legal practitioner: [18]
must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause … The Court must be careful not to intervene unless it is absolutely required in the circumstances of the case.
[18]Bahonko [2007] FCA 491 [2]-[3] (Middleton J).
In Fogerty-Young v Jason, Elliott J said that where the application pertains to a solicitor acting for a moving party in the substantive litigation, the Court should place significant weight on the fact that the moving party is content for their solicitor to continue acting for them:[19]
Although it is ultimately a matter for the court as to whether it is appropriate for the solicitors to continue to act, such an attitude of the moving party [ie, being content for the solicitors to continue to act] weighs heavily against a suggestion that the solicitors should cease to act forthwith.
[19]Fogerty-Young [2013] VSC 570 [36] (Elliott J).
The test to be applied is objective. As Mandie J said in Grimwade v Meagher:[20]
The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.
[20]Grimwade v Meagher [1995] 1 VR 446, 452 (Mandie J). See also R and P Gengemi Pty Ltd v D and G Luppino Pty Ltd [2012] VSC 168 [22]-[23] (Sifris J); Kallinicos v Hunt (2005) 64 NSWLR 561, 582 [76] (Brereton J).
In Tottle, the Court described the objective test as follows:
it must encompass those cases where the representation of a litigant by a solicitor and/or counsel may be seen objectively to involve a real risk of actual or apparent conflict of interest—the risk of conflict between a duty owed to the client of the solicitor or counsel and a duty owed to some other interest to be served in the litigation. Alternatively, there must, we think, viewed objectively, be seen to be a real need for an order preventing a solicitor or counsel from acting to imperil the due administration of justice and to protect the integrity of the judicial process. In both respects, the test adopted by the Court will, we think, be an objective one—the matter will be viewed from the perspective of a fair-minded, reasonably well-informed, disinterested bystander.[21]
[21]Tottle [2003] WASCA 224 [6] (Malcolm CJ, Murray and Anderson JJ).
In Lee v Korean Society of Victoria, John Dixon J observed the following on the Court’s wide statutory power pursuant to section 29 of the CPA:[22]
Judges of the trial division of this court have restated the principles identified by Brereton J as governing the ‘administration of justice ground’ with approval. I will add that s 10 of the Civil Procedure Act 2010 (Vic) provides that the overarching obligations under that Act apply to any person who is a party to a civil proceeding and to any legal practitioner or other representative acting for or on behalf of a party. The Act spells out the paramount duty and the overarching obligations that apply to Mr Lee equally as a litigant and as a legal practitioner. Section 29 of the Act empowers the court to make any order it considers appropriate in the interests of justice when satisfied on the balance of probabilities that a person has contravened any overarching obligation. In an appropriate circumstance, a court might restrain a solicitor from acting for a litigant or require a litigant to instruct an independent solicitor acting under the power conferred by s 29.
[22][2014] VSC 316 [14] (John Dixon J).
D Consideration
The nature and specific basis of the Restraint Application requires a finding of deliberate and unprofessional conduct on the part of Mr Akbulut. Despite some inconsistencies and unexplained matters, as referred to above and below, I am not, at this stage, comfortably satisfied that on the evidence and permitted inferences that such a finding should be made.
ICCV contend that the Second 8 January 2019 Email, on a plain and fair reading, contradicts the evidence of Mr Akbulut to the effect that he was only permitted by Mr Alagic on 7 January 2019 to peruse the 31 December 2018 Letter (which he did to make a note of its contents) and that he did not receive an actual copy until 23 January 2019. ICCV submitted further that Mr Akbulut had not (in this and other respects as referred to below) made full and frank disclosure to the Court.
In a further affidavit filed 30 September 2019, Mr Akbulut deposes that the Second 8 January 2019 Email was always in the possession of ICCV and they should accordingly not be permitted to rely on it. He further deposes that by using the word ‘presented’, he did not mean to convey physical receipt of the letter but rather, consistent with his earlier evidence, that it was made available – that is presented – for his, and others, perusal.
The terminology used and the explanation is far from satisfactory. However, at this stage (and in the absence of cross-examination and a full investigation of the facts, which is not desirable at this stage) and for the purposes of this application only, I do not propose to make any findings against Mr Akbulut.
The further matters raised by ICCV, without leave have, in any event, been responded to. I do not propose to deal with the new matters. Leave has not been sought and if sought, would not have been granted. In any event, given the seriousness of the application, I have read the further affidavits and submissions and will refrain from making any comment other than that my view remains that the application should not be granted.
At no stage did Mr Akbulut act for, or purport to act for ICCV. Despite the heading or subject matter of the First 8 January 2019 Email,[23] it is clear that he was properly proposing to address the legitimate concerns of the member associates that he represented, particularly in circumstances – rightly or wrongly – where they did not recognise the results of the AGM. In the circumstances, raising the concerns with JAKIM directly, as he proposed, was neither unprofessional nor inappropriate. These were the concerns of his clients in a highly charged environment where parties were still digesting (and his clients were disputing) the outcome of the AGM. No doubt the 31 December 2018 Letter that was shown to him precipitated and informed his approach.
[23]The second 8 January 2019 email contained the following heading: ‘Subject: Proposed shortened letter to Malaysia and Indonesia’.
Further, to suggest that he deliberately withheld the letter or its contents from ICCV, the intended and proper recipients,[24] is without foundation. He did not have the letter. He (and others)[25] were afforded a brief look at it. He determined that it was serious and conferred with his clients about how they should respond. They all certainly had a legitimate interest in its contents. I do not consider that in the circumstances there was any obligation on his part to immediately inform ICCV. There was no designed concealment. It was in everyone’s interests that the concerns raised by JAKIM be addressed. In any event, by 10 January 2019, ICCV had a copy of the First 8 January 2019 Email and Mr Akbulut’s statement that he had documentation to suggest cancellation of accreditation in Malaysia was at risk. Further, both Mr Ozyurek and Mr Almohadis were aware, on 5 January 2019, of a letter that would be taken care of by Mr Alagic. With such knowledge[26] it is not open to ICCV to contend that Mr Akbulut deliberately withheld information. With the benefit of hindsight, perhaps Mr Akbulut should have been more forthcoming. However, I do not regard his conduct as justifying the order sought.
[24]And not Mr Alagic, although this was not known to JAKIM at the time.
[25]See fn 4 above.
[26]And in circumstances where, like Mr Akbulut, some of the directors of ICCV had seen the 31 December 2018 letter (see fn 4 above).
Further, there is no evidence to suggest that Mr Akbulut conspired with or agreed with Mr Alagic as to how to respond to the 31 December 2018 Letter to the exclusion of ICCV and in the circumstances where the position of his clients would improve after expiry of the 14 day period referred to in the letter. This would not be in anyone’s interest and the proposition is rejected. I also reject the contention that Mr Akbulut prepared the response given by Mr Alagic. The mere fact of co-operation between Mr Akbulut and Mr Alagic does not mean that they and in particular, Mr Akbulut has done anything wrong or that would constitute unprofessional conduct.
Even if ICCV did not know of the contents of the 31 December 2018 Letter until 2 May 2019 (which is highly unlikely), this is not as a result of any conduct or concealment on the part of Mr Akbulut. In summary, he has not purported to act for ICCV, or withhold information from it. He has acted in the best interests of his clients, and in the circumstances and on the evidence I do not consider that a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required Mr Akbulut to cease acting for his clients. Further, in the circumstances and without further investigation, I do not consider that he is in breach of the overarching obligations under the CPA, or that if he is, his removal is justified at this stage.
I agree with the submissions made by Mr Akbulut (as set out hereunder) to the effect that the factual basis for the Restraint Application relies on assumption, suspicion and inference. For example, the ICCV:
(a) states that there is a ‘strong suspicion’ that the 31 December 2018 Letter was a ‘put up job’ (precisely what that means, and what Mr Akbulut’s role is supposed to be in that ‘put up job’, is not explained);
(b) presumes that ‘a more formal document’ than Mr Akbulut’s draft email was presented at a meeting on 9 January 2019;
(c) asks this Court to ‘infer that Mr Akbulut kept quiet about the [31 December 2018 Letter] because he doubted its veracity’;
(d) asks this Court to ‘conclude that the reason [the 31 December 2018 Letter] was not identified [in Mr Khodr’s affidavit 20 March 2019] was because neither Mr Khodr [n]or Mr Akbulut believed in its veracity’;
(e) asserts that the fact that Mr Khodr in his affidavit swore that he was ‘unable to verify the accuracy/veracity of the [31 December 2018 Letter]’ confirms that Mr Khodr and Mr Akbulut did not believe in the veracity of that letter; and
(f) asks this Court to infer that ‘Mr Akbulut may have been obtaining information and instructions from Mr Alagic’;
Further, I agree with part of the submissions made by Mr Akbulut (as set out hereunder) to the effect that the ICCV in its submissions distorts the evidence in an unsatisfactory manner. For example:
(a) It is suggested the 31 December 2018 Letter was ‘highly suspicious and unverified material’ and ‘untoward’ when the letter from JAKIM dated 20 June 2019 JAKIM unarguably verifies the authenticity of the 31 December 2018 Letter.
(b) It is suggested Mr Akbulut’s email to members of the ICCV on 8 January 2019 was a draft response purportedly on behalf of ICCV to the 31 December 2018 Letter when it is clear on its face that the 8 January 2019 email sought instructions for a letter to be sent on behalf of the recipient members of the ICCV, as members of the ICCV, and not on behalf of the ICCV itself.
Assumption, inference and suspicion are, as submitted by Mr Akbulut, an inadequate basis for the Court to exercise its power. This is because intervention must be ‘absolutely necessary’, in Middleton J’s terms, and the Court must proceed with ‘caution’, as Elliott J observed, before the ordinary entitlement of a party to litigation to choose their own legal representatives will be pushed aside. Concrete facts, demonstrated by evidence, are required. The ICCV points to no such facts.
The lack of a factual basis for the Restraint Application manifests itself, it was submitted, in another way. That is this: the ICCV does not actually level any credible allegation against Mr Akbulut. Mr Akbulut’s role in the ‘put up job’ is not specified. They do not allege that Mr Akbulut forged the 31 December 2018 Letter. They could not make such an allegation because there is no evidence to support it. They do not allege that he procured the letter for the same reason. More fundamentally, they do not allege that the 31 December 2018 Letter is anything other than genuine. Even accepting that the relevant members of the ICCV did not see the letter until early May, they have had many months during which they could have verified the letter’s authenticity. So, it is not the letter itself that the ICCV impugns, but the ‘circumstances surrounding the creation and use’ of the letter. The submission has force and I accept it.
Moreover, as submitted, the 31 December 2018 Letter was not sent to Mr Akbulut, nor was it addressed to him. Exactly how or why he was supposed to have had questions about the veracity of the letter is not explained by the ICCV. The ICCV puts too much emphasis on the 31 December 2018 Letter in the Restraint Application. To paraphrase Elliott J in Fogerty-Young v Jason, the 31 December 2018 letter is not the ‘primary issue in dispute’.[27]
[27][2013] VSC 570 [42] (Elliott J).
The Restraint Application will be dismissed.
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