Islam v Fahim Khan & Ors

Applicable principles for summary dismissal applications

1. 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.
2. 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

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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).
12. 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.
13. 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).
14. 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).
15. 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.
16. 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

1. 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.
2. This generates the question of where this proceeding is to go from here.

The relevance of Supreme Court decisions

1. 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.

1. 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.
2. 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..
3. 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.
4. 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.
5. 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.'
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. The issue then becomes whether Mr Islam should be given yet another chance to file a statement of claim.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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).
18. 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

1. 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.
2. 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.
3. 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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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2023