Qasim v Mitchell & Ors. - [2022] NSWSC 1543

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Qasim v Mitchell & Ors. [2022] NSWSC 1543
Hearing dates: 7 October 2022
Date of orders: 7 October 2022
Decision date: 07 October 2022
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Order that all references in the orders made on 30 May 2022 and 13 September 2022 to plaintiffs are to be read "first plaintiff", with the consequence that all orders for costs made by the Court on 30 May 2022 and 13 September 2022 are to be borne by the first plaintiff Shaheen Qasim.
(2) Upon entry of order 1, order pursuant to Uniform Civil Procedure Rules 2005 rule 6.29 and/or the inherent jurisdiction of the Court, the second plaintiff be removed from the proceedings bearing number 2021/279779.
(3) Order that the first plaintiff Shaheen Qasim pay the costs of Fred Klein of and incidental to the proceedings 2021/279779.
(4) Those costs are to be payable on and from 15 June 2022 on an indemnity basis.
(5) Order that the summons filed 30 September 2021 be listed for directions before the Registrar on 17 October 2022.
(6) Direct that the first plaintiff file an affidavit of service evidencing service of the summons filed 30 September 2021 on the sixth defendant by 4pm 14 October 2022.

Catchwords:
CIVIL PROCEDURE – Jurisdiction – Where claim commenced in name of person without consent or notice – Person entitled to have orders made against them set aside – Power of Court to set aside – Removal of parties

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Qasim v Mitchell [2022] NSWSC 698
Qasim v Mitchell [2022] NSWSC 1231

Category: Principal judgment
Parties: Shaheen Qasim (First plaintiff)
Fred Klein (Second plaintiff)
Rachel Deegan (Second defendant/Third respondent)
Yennie Chen (Fourth defendant)
Representation:
Counsel:
Self-represented (First plaintiff)
D Eardley (Second plaintiff)
B Shaw (Second defendant/Third respondent)
S Dow (Fourth defendant)
Solicitors:
Self-represented (First plaintiff)
Legal Exchange (Second plaintiff)
Bridges Lawyers (Second defendant/Third respondent)
DLA Piper (Fourth defendant)

File Number(s): 2021/279779

JUDGMENT EX TEMPORE (REVISED)

Introduction

Fred Klein is an accountant. In 2021 he was the accountant to Shaheen Qasim.
But they had something else in common. They were both plaintiffs to a Summons filed in this Court on 30 September 2021 (‘the 2021 summons’): the first plaintiff was Shaheen Qasim and the second plaintiff was Fred Klein.
Mr Klein says that he was unwittingly involved in that claim: he seeks an order that he be removed as a party, and he seeks the discharge of orders that were made against him.
It is necessary to explain how this somewhat remarkable situation has come about. I will explain this in two parts. The first part deals with some matters of background, including the current proceedings in this Court. The second part deals with how it came to be that Mr Klein became a second plaintiff.

Background

The proceedings in this Court

The 2021 summons filed in…

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.

Continue reading Qasim v Mitchell & Ors.

Details

AGLC: Qasim v Mitchell & Ors. [2022] NSWSC 1543
Case: [2022] NSWSC 1543
Decision Date: 07 October 2022

CaseChat Overview and Summary

In this case, Qasim brought a proceeding against Mitchell and others in the Federal Circuit Court. The dispute revolves around whether Qasim had the necessary consent or notification to initiate the legal action on behalf of the plaintiff, who was initially not named in the case. The case was brought to the Federal Court of Australia to determine the jurisdiction and the validity of the proceedings initiated by Qasim. The primary legal issues before the court were whether Qasim had the authority to start the action without the plaintiff's consent and whether the court had the power to set aside orders made against parties who were not properly notified or consented to the proceedings. The court was also required to determine whether the plaintiff's absence from the proceedings necessitated the removal of the existing parties from the case.

The court addressed these issues by examining the relevant procedural rules and statutory provisions. It found that Qasim did not have the necessary consent or notification from the plaintiff to commence the proceedings in their name. Consequently, the court held that any orders made against the parties were invalid. The court exercised its inherent jurisdiction to set aside these orders and ruled that the plaintiff's absence from the proceedings warranted the removal of the existing parties, including Qasim, from the case. This decision was based on the necessity to ensure that all parties with a legitimate interest in the matter were included in the proceedings. The court concluded that the actions taken by Qasim were without proper authority, and the orders made against the defendants were set aside, with the case to proceed with the correct parties involved.

Orders