Revised from transcript; issued on 30 September 2024
This is an application for orders against the defendant, Mohammad Rajibul Islam, under the Vexatious Proceedings Act 2008 ("The Act").
There are two plaintiffs who seek the orders. The first plaintiff is Toyota Finance Australia Ltd ("TFAL"). It is a company which operates as a motor vehicle financier.
The second plaintiff is McCarroll's of Moss Vale Pty Ltd ("MMV"). It is a company which operates a motor vehicle dealership trading in new and used motor vehicles.
The origin of the proceedings is a transaction which took place in December 2021. It involved the purchase of a Maserati sports car. The purchase was financed by TFAL, and the car was bought from MMV. The purchaser of the car was a company, Australian Real Estate Relation Pty Ltd ("ARER"). The directors of the company were Mr Islam and his then business partner, Mr Abu Walid Ratul. Both Mr Islam and Mr Ratul guaranteed ARER's liabilities to TFAL under the finance contract.
In February last year, this Court (constituted by Black J) made a winding up order against ARER. Mr David Levi was appointed as the liquidator. Attempts were made by Mr Islam to challenge the winding up orders by way of appeal, but those efforts were unsuccessful.
Mr Levi exercised his power as liquidator to disclaim the finance contract between TFAL and ARER. This resulted in TFAL repossessing the car. TFAL acted on the basis of nonmonetary defaults (the insolvency of ARER). The result of the disclaimer was, no doubt, that ARER ceased to make payments under that contract.
Mr Islam told me in the course of argument that the repossession happened in circumstances which were humiliating to him. Clearly, he considered that TFAL acted wrongly in effecting the repossession. What is less clear is why that should be so. Mr Islam complained of a lack of money, and it does not seem to have been suggested by him at any stage that he would personally meet the payments on the car.
Mr Islam also blames MMV for what happened. Why that is so is even less clear, although the car was in fact repossessed from MMV's service centre where it was undergoing repairs. Mr Islam also apparently claims that an employee of MMV, Ms Jo Mae Purvis, provided information to Mr Levi for the purposes of the liquidation which she should not have.
The plaintiffs' case in the current proceedings is that since the making of the winding up order, Mr Islam has brought or continued a spate of pointless and unmeritorious proceedings against various parties associated with the initial transaction, the subsequent liquidation, and consequential events. In some of those proceedings, the plaintiffs have been defendants. In others, they have been "served" by Mr Islam with copies of court documents. Other proceedings do not involve TFAL or MMV but are still relevant for the purposes of the Act. The plaintiffs also point out that Mr Islam has brought unsuccessful professional conduct complaints against Mr David Farrar, who is the solicitor for TFAL and MMV.
These proceedings were begun by the plaintiffs in December last year. In February this year, Mr Islam filed a notice of motion. The relief sought in the motion included orders for summary dismissal of the summons, and a "declaration" that Mr Islam was not a vexatious litigant. Orders were also sought under the Act against the plaintiffs prohibiting them from instituting any further proceedings against Mr Islam without the leave of the Court. This motion was eventually fixed for hearing at the same time as the hearing of the plaintiffs' summons.
The evidence before me identified numerous proceedings begun or continued by Mr Islam since the making of the winding-up order in February last year. I will now briefly describe those proceedings.
First, Mr Islam began proceedings in the Court of Appeal seeking leave to appeal against the winding-up orders. TFAL and MMV were not formally party to the proceedings, but they were served with the summons. The application, which was described in an unsuccessful stay application as "barely arguable", was dismissed.
Mr Islam sought special leave to appeal to the High Court from the dismissal of the application. That application was refused by the High Court.
Later, Mr Islam instituted District Court proceedings against, possibly among others, TFAL and MMV. Those proceedings were dismissed by Abadee DCJ, who stated:
Numerous opportunities have been extended to the plaintiff to try to present a complaint in a way that satisfies pleading requirements and facilitate the defendants' respective understandings of the cases they would have to meet. The last opportunity was for Mr Islam to file and serve a statement of claim. Mr Islam sought to file the functional equivalent, an 'Amended Summons,' which the Court registry rejected. Notwithstanding that rejection (for formal reasons), having considered the document, which was prepared after Mr Islam had obtained pro bono legal advice, it would not have sufficed to satisfy the pleading requirements in Part 14 of the Uniform Civil Procedure Rules 2005 (NSW).
I am satisfied, however, that each of the bases in Part 13 r 4(a)-(c) have been made out such that the proceeding should be dismissed. In reaching that conclusion, I have concluded that the court process is beyond salvation by the filing of a statement of claim that complies with Part 14 of the UCPR.
In reaching that conclusion, I am not oblivious to the circumstance that Mr Islam represents himself and do not question the sincerity of the grievances he expresses. This motion has, however, been around for a long time, has occasioned inconvenience and costs in all of the defendants (without there being any indication that they can realistically be recovered from Mr Islam). Further, as remarked upon at greater length in Islam v Khan, Mr Islam appears unable to abide by pleading rules I am not persuaded that there is any utility in allowing Mr Islam to plead a case. Moreover, whilst acknowledging his status as a self-represented litigant, as indicated in certain parts of these reasons, he appears unable to learn from previous judicial decisions which identify legal prohibitions upon law suits against companies in external administration and their administrators.
The proceedings against the applicants on the motions should be summarily dismissed.
Prior to the making of the winding-up order, Mr Islam had brought several proceedings in the District Court against Mr Ratul. Those proceedings continued after the winding-up order was made. Mr Ratul then successfully moved to have the statement of claim struck out. I assume that, as a result, the proceedings were later dismissed.
In the course of striking out the statement of claim, Andronos DCJ stated:
Clearly, the pleading and articulation of the relief sought are defective in their present state, embarrassing and confusing. They do not plead material facts as discrete factual allegations which can be admitted or denied. They are pregnant with unstated facts and assumptions. They do not establish the existence of obligations and any default in respect of their performance. They do not properly articulate causes of action, much less do so in a way which is fair to the defendants who have to respond to the allegations put against them.
The proceedings cannot, on any view, proceed on the current Statement of Claim.
The only question is whether Mr Islam ought be given leave to amend the Statement of Claim so as to articulate a properly formulated claim. Mr Islam is not legally represented and ought be afforded a reasonable opportunity to reframe his case, if he is able to do so. Indeed, when this matter was first called in the list on 8 May 2023, Mr Bolster offered Mr Islam an opportunity to reconsider the Statement of Claim with the benefit of Mr Bolster's written submissions. Mr Islam eschewed that opportunity and stated that the Statement of Claim had been prepared with the benefit of legal advice. In my view, the benefit of any such advice is not apparent in the Statement of Claim.
…
For the reasons set out above, I am of the view that the Statement of Claim in these proceedings ought be struck out as disclosing no reasonable cause of action. In each case, the causes of action propounded are either claims which Mr Islam might have against ARER (accepting the allegations that are made at their highest) or claims that ARER might have against Mr RatuI and/or Ms Diba."
Mr Islam also brought numerous proceedings in the Local Court. These were brought in various different places. Some were brought at Kurri Kurri, one at Queanbeyan, one at Moss Vale, and three at the Downing Centre in Sydney. In some of those proceedings, TFAL, MMV and Mr Farrar personally were named as defendants. It seems that Ms Purvis was also named as a defendant in one of the proceedings.
There appear to have been also at least three other proceedings in this Court or the District Court. One of those was against the police. Another was brought against Mr Islam's former lawyer.
As I have mentioned, there were also two professional conduct complaints made by Mr Islam against Mr Farrar. Both of those complaints were terminated by the Law Society without Mr Farrar being obliged to make any response to them, presumably on the basis that they were manifestly untenable.
The evidence before me also included correspondence from Mr Islam associated with some of these proceedings. These included a complaint to the Australian Financial Security Authority against Mr Levi and TFAL, and other correspondence threatening to bring proceedings against TFAL, MMV, or serving documents on them. There is also a letter or email addressed to Ms Purvis.
Parts of this correspondence are set out at length in the written submissions which have been provided to me. I will not attempt to summarise it. It is sufficient to say that it was full of (apparently) completely unsubstantiated allegations of fraud, and rambling commentary which had no conceivable relevance to the legal merits of the proceedings in question. Some of it was bizarre and some of it was downright offensive.
The notice of motion filed by Mr Islam in these proceedings itself exhibits some of the same shortcomings. In seeking a declaration and orders under this Act, the notice of motion sought final relief, which was, of course, not appropriate. And the interlocutory relief that was sought completely lacked substance. There was never any justification for an order that the plaintiffs' application be summarily dismissed. Whether intentionally or not, the application for such an order involved an attempt to use procedures of the Court themselves designed to prevent abuse of process in an oppressive way. As it happens, because the notice of motion was stood over to the hearing, no harm came of this, but that is not the point.
Further, the notice of motion was framed in a way not contemplated by the Rules, with a statement of alleged facts and further "pleadings and particulars". The "facts" section of the notice of motion stated:
The Defendant seeks the above orders to uphold justice and the integrity of the legal process, and to prevent further unwarranted legal actions by the Plaintiffs that are detrimental affidavits and evidence filed in support of this motion, and submissions will be made at the hearing of this motion in accordance with the rules and procedures of this Honourable Court.
i. Absence of Proceedings: The principle that proceedings cannot be initiated without a substantive legal basis was established in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7, which can be aligned with the facts that there are no current proceedings against the Defendant as claimed by the Plaintiffs.
ii. Directives from NSW Fair Trading Commissioner: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18, the High Court discussed the significance of regulatory directions which could be analogous to the directives from the NSW Fair Trading Commissioner.
iii. Valid Claim Against Maserati: The case of Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 is an example where the High Court dealt with the validity of claims, supporting the notion that the grounded in substantive law.
iv. Contemptuous Actions by Plaintiffs: In Witham v Holloway [1995] HCA 3, the High Court dealt with false assertions and their implications for contempt of court, which parallels the Plaintiffs' actions in falsely asserting a court order for repossession of the Defendant's vehicle.
v. Unlawful Corporate Conduct: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91 discussed the protections against unlawful corporate wind-up activities, reflecting the concerns about the Plaintiffs' conduct in the unlawful corporate dissolution.
vi. Legitimate Complaint Against Plaintiffs: The legitimacy of a complaint and the conduct of proceedings were the subjects of Dow Jones & Company Inc v Gutnick [2002] HCA 56, where the High Court examined the basis on which legal actions are pursued, underscoring the legitimacy of the Defendant's complain against the Plaintiffs.
The "pleadings and particulars" section stated:
Frivolous and Vexatious Claim: Case Law: In Williams v Spautz [1992] HCA 34, the High Court of Australia elucidated the principles for identifying frivolous and vexatious litigation, emphasizing that proceedings should not be initiated without a substantive legal basis and should not serve merely to harass or cause unnecessary delay and expense to the other party.
A. Defective Summons: Case Law: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11 highlights the importance of compliance with procedural rules, including the need for a clear statement of material facts in a summons, reinforcing the principles set out in Rule 10.14 of the Uniform Civil Procedure Rules 2005 (NSW).
B. Instructions from NSW Fair Trading Commissioner: While specific case law directly addressing instructions from the NSW Fair Trading Commissioner might not be widely reported, the principles in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 underscore the importance of considering pre-litigation regulatory advice and directives, aligning with the spirit of section 9 of the Fair Trading Act 1987 (NSW).
C. Contempt of Court: Case Law: In Harkianakis v Skalkos [1997] HCA 55, the High Court dealt with the serious implications of misrepresenting court orders, which can be seen as analogous to claiming a nonexistent court order for repossession, demonstrating contempt of court under section 43 of the Supreme Court Act 1970 (NSW).
D. Unlawful Corporate Wind-up: Case Law: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91 discusses the legal protections against unauthorized actions towards companies under administration, highlighting the protections afforded by section 440A of the Corporations Act 2001 (Cth).
E. Malpractice by Legal Counsel: Case Law: Giannarelli v Wraith [1988] HCA 52 examines the obligations and duties of legal practitioners, noting that advising or permitting the initiation of baseless legal actions could constitute malpractice, breaching the professional conduct standards outlined in section 297 of the Legal Profession Uniform Law (NSW).
F. Legitimate and Lawful Complaint: Case Law: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 reinforces the principle that legal actions should aim for the just, quick, and cheap resolution of disputes, as mandated by section 56 of the Civil Procedure Act 2005 (NSW), supporting the assertion that the Defendant's claims are both legitimate and lawful.
It is unnecessary to continue to quote from the notice of motion. In the course of his submissions to me at the hearing, Mr Islam stated that at least some of his court documents had been prepared with the assistance of an artificial intelligence program. It would not be surprising, based on the content of the notice of motion, if it, too, had been prepared by that method. Whether that is so or not, the form of the notice of motion clearly demonstrates an approach which involves the deployment of legal language without any real understanding of the legal rules being invoked.
When the proceedings came on for hearing before me earlier today, Mr Farrar appeared for the plaintiffs. Mr Islam represented himself.
Mr Farrar produced a form of order sought by the plaintiff. Orders one and two sought the transfer of five nominated Local Court proceedings to this Court, to be followed by the dismissal of those proceedings. Order three sought an order under the Act preventing Mr Islam from instituting any proceedings against the plaintiffs and associated parties relating to the subject matter of the dispute concerning the Maserati. Order four sought an order for costs on an indemnity basis.
In his opening remarks, Mr Islam said that the proceedings the subject to proposed orders one and two had already been dismissed. He agreed that the notice of motion should be dismissed, and I made that order accordingly.
Mr Islam also stated that he had apologised to Mr Farrar. He told me that he was studying to become a lawyer himself, and urged me not to make an order under the Act lest that order have some adverse effect on his ability to be admitted as a solicitor at the end of his studies. He also opposed the making of an order for costs.
The apology to Mr Farrar was not in evidence, and nor were details of the dismissal of the proceedings, but reference to the Court's electronic systems showed that the proceedings had indeed all been dismissed or otherwise disposed of. Accordingly, proposed orders one and two fell away. The remaining questions were whether, despite the dismissal of the offending proceedings against the plaintiffs, the Court should nevertheless make an order under the Act, and whether the plaintiffs' costs of these proceedings should be awarded against Mr Islam.
After the evidence had been read, I invited Mr Islam to address me first on these questions. Although it was not, so far as I could see, relevant, part of the address concerned the merits of the original complaint about the Maserati being repossessed. I remained, however, unclear about the nature of the complaint.
It seemed from what Mr Islam was saying that what has really touched off his concern is that, so he alleges, "his car" (the Maserati) has been repossessed, but Mr Levi is permitting his business partner Mr Ratul to continue to use another luxury car owned by ARER. There was, so far as I could see, no evidence to suggest that this was actually the case, and what that has to do with TFAL and MMV, I cannot see.
These were only some of the complaints that Mr Islam made in the course of his remarks. I will not attempt to summarise the rest.
When I asked Mr Islam whether he still thought, despite his apology to Mr Farrar, that TFAL was in the wrong, he replied that he thought that "ethically", but not "legally", that was so. I asked him whether he was prepared to undertake not to bring any proceedings against TFAL, but he was not prepared to do so, at least not unconditionally. He indicated that if, in future, he were to receive legal advice that he has a justified claim against TFAL (or, presumably, MMV) he would wish to be able to pursue it.
Following submissions from Mr Farrar, I returned to this question with Mr Islam when he made his submissions in reply. His position eventually was that, not having qualified as a lawyer, he simply did not know whether there was a legal basis for a claim against TFAL. He explained the dismissal of all of his earlier proceedings as having been undertaken on technical grounds, even when I directly put to him what had been said by Abadee DCJ and Andronos DCJ.
In his concluding remarks, Mr Islam sought to put the events of the last few years in the context of personal difficulties he claimed to have encountered. He asserted that he was unable to pay lawyer's fees and "had" to bring proceedings himself. He had had, he said, "no other choice."
I come now to the basis for the plaintiffs' application. The Act defines "vexatious proceedings" as including:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.
The Court's power to make a vexatious proceedings order under the Act against a defendant requires that that defendant "has frequently instituted or conducted vexatious proceedings in Australia."
Based on the evidence which I have outlined, that condition is clearly satisfied and, indeed, no submissions to the contrary were made by Mr Islam. It is quite wrong to see the dismissal of the earlier proceedings by Mr Islam as the result of some technical failure in the documents which he filed. The documents were defective, but they were defective for substantive reasons.
One fundamental problem, never addressed at any stage in anything that I heard from Mr Islam, is that the car which caused all of this trouble did not ever even belong to him. It belonged to ARER. Such rights arising out of its repossession as might have existed were those of ARER and were to be enforced, once the winding‑up order was made, for the benefit of ARER's creditors.
It is true that the proceedings which involved the plaintiffs as parties, have now been disposed of, but it is obvious that Mr Islam retains a sense of grievance, even if ill‑founded, about the events which resulted in the Maserati being repossessed. He also appears to continue to feel some compulsion to do something about what happened.
Mr Islam has not forsworn bringing further proceedings and, I would infer, that in principle, he would see the bringing of such proceedings as desirable, if that could be achieved. While he might not do so while pursuing his studies as a result of a concern of the impact of unsuccessful proceedings on his ability to practise if he graduates, there is a risk that he might return to the idea if his plan to become a lawyer proves unsuccessful.
In my view, the orders sought by the plaintiffs retain utility and should be made.
As to costs, these proceedings have been entirely occasioned by Mr Islam's earlier conduct in bringing unsustainable proceedings. They should not have been necessary, and the proceedings which provoked them should never have been brought. In these circumstances, I will make an order for indemnity costs as sought.
[2]
Orders
The orders of the Court are:
1. An order pursuant to section 8(1) of the Vexatious Proceedings Act 2008 (NSW) that the defendant (by himself, or by his servants or agents, or by any corporation controlled by him) is prohibited from instituting any proceedings in New South Wales, including by filing any application, interlocutory process, or notice of motion in any existing proceedings in New South Wales, either in his own name or in the name of any other person, against:
1. Toyota Finance Australia Limited ACN 002 435 181 (TFAL);
2. McCarroll's of Moss Vale Pty Ltd ACN 003 411 210 (McCarrolls);
3. any business name used by either TFAL or McCarrolls;
4. any employee or contractor of TFAL or McCarrolls;
5. Jo Mae Purvis;
6. David Matthew Farrar; or
7. Farrar Lawyers Pty Limited;
relating to or in any way connected with:
1. any finance contract entered into between:
1. TFAL;
2. Australian Real Estate Relation Pty Limited (ARER); and/or
3. the defendant;
1. a 2021 Maserati Ghibli with registration number DGG96U with vehicle identification number ZAMXS57DOO1373250 (Vehicle);
2. the repossession or any dealing with the Vehicle; or
3. the winding up of ARER,
without first obtaining leave of this Court.
1. An order that the defendant pay the plaintiff's costs of these proceedings on an indemnity basis.
[3]
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Decision last updated: 30 September 2024