Jamal Amgad v Stephen William Cairns

JUDGMENT

1. HIS HONOUR: On 24 March 2022 the applicant, Mr Jamal Amgad, filed a summons seeking leave to appeal from orders of the District Court (Robison DCJ) of 21 December 2021 summarily dismissing his proceedings against the respondent, Mr Stephen Cairns.
2. That summons seeking leave to appeal is listed for hearing on 1 December 2022. By notice of motion filed 7 November 2022 Mr Amgad seeks an order vacating the hearing date until he can find a legal representative to help him with his case. I am now dealing with that notice of motion. There was no appearance for Mr Cairns on the hearing of the application but I am satisfied that a copy of the notice of motion and supporting affidavit was forwarded to Mr Cairns' work email address.
3. In support of his application, Mr Amgad relies on his affidavit dated 7 October 2022, which may well be a typographical error for 7 November 2022 because attached to his affidavit is correspondence on which he relies dated 14 and 17 October 2022. Mr Amgad attaches a report of an accredited mental health social worker, Dr Jacqueline Youssef, and correspondence from a consultant psychologist, Mr Carlos Comacho, both of whom state that Mr Amgad has been diagnosed by a clinical psychologist, Dr Rose Cantali, as suffering from schizophrenia, post traumatic stress disorder and depression. Dr Youssef expresses the belief that Mr Amgad is mentally unstable and not fit to represent himself in court. In her report of 17 October 2022 she recommends that the court help by finding him legal assistance or referring him to Legal Aid. Mr Comacho states that in his opinion Mr Amgad is psychologically incapable of representing himself due to severe psychological symptoms and that for him to do so might cause his health to deteriorate.
4. The respondent, Mr Cairns, is a barrister. He represented Mr Amgad in proceedings in this Court in which Mr Amgad sought judicial review of orders made by the District Court dismissing his appeal from a conviction by the Local Court of a charge of common assault of his wife and a final Apprehended Violence Order. That application was unsuccessful (Jamal v Director of Public Prosecutions [2013] NSWCA 355). Mr Amgad's claim against Mr Cairns in the District Court was for damages for alleged negligence and alleged fraud in the conduct of those proceedings. As indicated earlier, Robison DCJ summarily dismissed his claim.
5. Mr Amgad has previously sought a referral for pro bono legal assistance under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). That application was dismissed by Gleeson JA on 22 June 2022 (Amgad v Cairns [2022] NSWCA 101). His Honour recorded (at [15]) that correspondence then before the court from the Legal Aid Review Committee dated 3 March 2022 clarified that Mr Amgad's appeal against a refusal of legal aid was unsuccessful on the ground that the legal dispute involved a type of matter for which legal aid was not available. His Honour refused to refer Mr Amgad for pro bono legal assistance for the following reasons: "[19] First, the proposed appeal is devoid of merit. Both the claim in negligence and the claim based on alleged illegal activity of the respondent failed comprehensively on the facts, as found by the trial judge, and none of his Honour's factual findings are the subject of challenge on the proposed appeal. The negligence claim was defeated in any event by the defence of advocate's immunity, and no basis for challenging that conclusion has been identified in the summary of argument. In addition, the negligence claim is time-barred under the Limitation Act 1969 (NSW), s 14. [20] Second, given the serious nature of the allegations of misconduct levelled by Mr Amgad against the respondent, I am reticent to refer Mr Amgad to a barrister on the pro bono panel for legal advice. [21] Third, Mr Amgad has a prolonged grievance against the respondent and it is not likely that any advice given to Mr Amgad will avoid unnecessary and futile litigation…"
6. Mr Amgad states that he does not have the resources to obtain private legal assistance. Although there is no evidence of it, I am informed by him from the bar table that with the assistance of Dr Youssef he has made a fresh application for legal aid in either October or November 2022 and has not yet received a response. As his earlier application for legal aid was apparently refused on the ground referred to above, I do not think that there is any realistic prospect of his obtaining legal assistance in the future. That may particularly be so having regard to the grounds upon which his application for referral to the pro bono legal assistance panel was refused. If the hearing date were vacated, I am not satisfied that there is any good reason to think that Mr Amgad would be in a better position to conduct his case on the hearing of the leave application than he is now. From the bar table he advised me that his doctors were hopeful that within a period of about six months his condition would have improved, but there is no evidence of that.
7. Mr Amgad's evidence raises a question as to whether he was competent to commence proceedings in this Court and whether he is competent to carry on these proceedings. Rule 7.14 of the Uniform Civil Procedure Rules provides: "(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor."
8. Section 3 of the Civil Procedure Act 2005 (NSW) provides that a "person under legal incapacity means 'any person who is under a legal incapacity in relation to the conduct of legal proceedings'".
9. The opinions of Dr Youssef and Mr Comacho are untested. They rely substantially it seems on a diagnosis of Dr Rose Cantali who has not given evidence. Mr Amgad explains that she has had "large surgery". The position is either that Mr Amgad is not competent to carry on this proceeding, in which case it should be stayed pursuant to s 67 of the Civil Procedure Act, or he is competent to do so, in which case there is no reason to vacate the hearing date. No party has asked for a stay. The only purpose of a stay would be if Mr Amgad is under legal incapacity and if he could then obtain someone's consent to act as his tutor. Because a tutor would, at least prima facie, be liable to pay costs if Mr Amgad is unsuccessful in this Court, and having regard to the observations of Gleeson JA quoted above, I do not think there is any realistic possibility that someone would consent to act as his tutor. The principal purpose of appointment of a tutor is to protect an incapable person's estate, including against adverse costs orders. To stay the proceedings for an indeterminate time against the possibility that a tutor may be required and could be found is, in my view, likely to increase costs. There could well be a contested hearing as to Mr Amgad's capacity and if found to be incapable there may be a contest if a tutor (assuming one could be found who consented to act) decided to discontinue the summons. There could be an application for dismissal of a summons by Mr Cairns if the litigation could not be progressed. It appears from the court file that Mr Cairns filed an application for summary dismissal of the summons for leave to appeal. That notice of motion has not been fixed for hearing. I infer the reason for that is because the application for leave to appeal itself has been fixed for hearing.
10. Having regard to the requirements of ss 56 to 58 of the Civil Procedure Act I am satisfied that the better course is that the merits of Mr Amgad's summons for leave to appeal be determined following a hearing that is scheduled to take place on 1 December 2022. In forming that view, I take into account that Mr Amgad has provided written submissions in support of his application for leave to appeal which, although prepared without legal assistance, would have been prepared without the immediate stress of a court hearing. I also take into account that if his application for leave to appeal is successful, and it is later established that he is not competent to carry on the proceedings, his prospects of obtaining the consent of someone to act as a tutor, or his prospects of a later successful referral to the pro bono panel would be enhanced.
11. For these reasons I dismiss the notice of motion filed 7 November 2022. As there was no appearance for the respondent I make no order as to the costs of that motion.

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