HIS HONOUR: This judgment deals with and refuses an application by the plaintiff himself to conduct, that is without legal representation, proceedings instituted by him in this Court, by audio video link (AVL). From material which he has provided the Court it is plain that in the proceedings, albeit without any proper pleading, he wishes to allege fraud and other serious criminal conduct.
I refer below to contents of various items of correspondence addressed to judicial officers of the Court. To duplicate all of the correspondence would serve no useful purpose and would add unduly to the prolixity of this judgment.
I observe that the plaintiff has addressed extensive correspondence to the associate to each judicial officer who has dealt with this matter and in various places had stated or inferred an inability to travel from England, where he lives, to Australia for his case.
The parties are twin siblings.
The defendant has been the registered owner since 30 May 2001 of the land in folio 14/26054 at 43 Edward Street, Woy Woy, NSW (the Land). She lives there.
On 15 June 2001, the plaintiff lodged a caveat on the title of the Land in the following terms:
The caveator claims a one half estate or interest in the land as a joint and equal contributor with the registered proprietor to the purchase of the said land and the improvements thereon.
The defendant apparently applied to the Registrar General for the issue of a lapsing notice under s 74C(3) of the Real Property Act 1900 (NSW) (the Act), and such a notice was apparently served on the plaintiff on or about 22 December 2021.
The parties are also locked in litigation about a real property in the United Kingdom, about which I have no understanding save that, in correspondence which is discussed later, the plaintiff refers to the defendant's "illicitly obtained rights on my own UK home" and "Evidence which demonstrates Sophisticated UK Property Fraud against myself and home".
It seems that the plaintiff's communications with the Court began with a letter to the Enquiries section of the Court on 1 December 2021 in which he said that he must contest the application for the caveat to lapse, "albeit from here the UK, without Australian legal representation". He added "please also be informed that this matter is connected to historic criminality, and as such I recently contacted NSW Police Commissioner's Office".
On 15 December 2021, Kunc J was the Equity Duty Judge. The plaintiff sent an email to his Honour (via his tipstaff) containing various documents in relation to what was then his foreshadowed proceedings. He wrote that his very restricted financial circumstances meant he was neither able to travel to Australia, nor engage Australian legal representation. He stated that he had no alternative but to present the facts to both the Court and the Police. He referred to the nefarious creation and use of an Australian legal instrument and that the matter involved an organised crime network which details of this case illustrate span across the UK and Australia.
On 20 December 2021, the plaintiff wrote to Ball J's Associate asking that "his application" be heard virtually.
Ball J gave the plaintiff leave to file in Court a statement of claim and made it returnable on 23 December 2021.
On 22 December 2021, the plaintiff wrote to Ball J's Associate saying, relevantly, that the caveat has operated as a "cloak of fraud" against his own UK property interest. This is perhaps somewhat peculiar seeing as he lodged it.
On 23 December 2021, the plaintiff, via AVL, ostensibly from London, approached the then Equity Duty Judge, Ball J. The defendant appeared through a solicitor and consented to an order extending the caveat until further order, against the plaintiff giving the Court the usual undertaking as to damages.
The statement of claim is devoid of any articulation of the relief sought, and of any pleadings and particulars. Ball J drew this to the attention of the plaintiff and informed him that the statement of claim was liable to be struck out. His Honour gave the plaintiff leave to file an amended statement of claim. There is no record on the court file of him having filed an amended statement of claim. I infer that the relief he seeks is an order extending the operation of the caveat as contemplated by s 74C(1)(a) of the Act, or orders seeking to establish title to the estate or interest in the Land specified in the caveat.
His Honour stood the proceedings over to 15 February 2022 before the Registrar in Equity. On that occasion, the Registrar stood the proceedings over to 25 February 2022 before the Real Property List Judge.
On 25 February 2022, the Real Property List Judge, Darke J, directed the plaintiff to file and serve an amended statement of claim in a form that complies with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) by 8 April 2022. There is no record of him having complied with this direction. He apparently sought to file a proposed amendment dated 23 February 2022, which Darke J noted leave was not granted to file. The proceedings were removed from the Real Property List and stood over again before the Registrar in Equity on 14 April 2022.
On 24 February 2022, the plaintiff wrote to Darke J's Associate making reference to "past events of conspiratorial harassment connected to a UK court claim by the defendant (seeking to execute UK property fraud via UK courts)".
On 14 April 2022, the Registrar in Equity stood the proceedings over to 20 April 2022.
On 20 April 2022, in the virtual court, the defendant appeared but not the plaintiff. The Registrar made certain directions and stood the matter over to 25 May 2022.
On 25 May 2022, the Registrar in Equity referred the matter to me for allocation of a hearing date and I directed that she fix it to be heard before me on 26 July 2022 on an estimate of 2 days.
On 3 June 2022, the Registrar in Equity wrote to the plaintiff notifying him of the listing before me and informing him, no doubt to make it clear that the hearing would be assumed to be live, that "the application for the plaintiff to appear by AVL is refused". It is true that at that time no formal application for AVL had apparently been made by the plaintiff, although it was obvious that this is what he intended. Indeed, as appears from par 4(a) of his letter to me attached to his email of 5 July 2022, he began to take steps immediately after receiving the Registrar's order to have his passport renewed.
Either way, the plaintiff is entitled to have a formal application for AVL adjudicated upon.
On 6 June 2022, the plaintiff wrote to the Enquiries section of the Court in the following terms:
Dear Sir / Madam,
I thank the Registry for informing me of Order 03.06.2022, and Justice Hammerschlag for listing the claim on 26th & 27th July.
As I live in London, and present;y without passport, I attended previous initiial Judge's Hearings via AVL (Judge Ball 23.12.2022) and requested same for the future Judge's Hearing.
However, Judge Hammerschlag requires that I attend in person.
This will be problematic.
How might I inform the Judge of the problems, and hence my verbal request for AVL, to have him/her reconsider the denial of AVL Hearing. (Not made by formal application as shown on order)
Issues:
Located in London, UK.
(My Normal Residence)
Presently Without passport
(As not required for many years,
Long delays at UK Passport Administration for issuance of new passports)
Cost:
(airline tickets, hotel etc)
Time
(Greater time spent travelling to and from Australia than time spent in the courtroom).
Covid
(Possible resurgence of Covid in UK, and possibility of future border lock-down.
During Queen's Jubilee 2-5th June, the Arch Bishop of Canterbury taken with Covid).
How do I formally request Justice Hammerschlag to reconsider my use of AVL for the Hearings.
Do I need to make a formal application? What is the process?
Your help much appreciated.
Mr Turan Ahmed
On 5 July 2022, the plaintiff wrote to my Associate attaching what he described as a formal application letter for AVL. He pointed out that he did not make a formal request for AVL use prior to 3 June 2022 and merely presumed that AVL would continue to be used as done previously. He added that "if a formal application was submitted, it can only have been done so via false impersonation of myself". He referred to a letter to the Commissioner of NSW Police informing of false representation of himself to the Court "per the application received prior to order of 03.06.2022".
Attached to his email was a lengthy letter which it is appropriate to set out in full. It is attached as a schedule to this judgment.
I considered that his correspondence should be treated as a formal application for AVL and listed it for hearing remotely at 3pm on 7 July 2022. Prior to the hearing, the defendant sought to be excused on the basis that she had difficulty attending because of the substantial floods that are presently plaguing New South Wales.
The plaintiff did not appear. I dismissed his application. These are my reasons for doing so.
Rule 31.3 of the UCPR provides that if the Court so orders, evidence and submissions may be received by telephone, video link or other form or communication. The power to allow evidence to be given in this way is discretionary. Obviously, each case turns on its own circumstances.
The plaintiff intends to represent himself at the hearing, as does the defendant. He is not a legal practitioner here or in the UK.
In my view, there are compelling reasons why the discretion should not be exercised so as to allow the plaintiff to appear other than in person before the Court (should the case proceed at all, having regard, amongst others, to the absence of a pleading to which further reference is made below).
First and most importantly, to my mind, is that the plaintiff clearly intends to assert significant criminal conduct on the part of the defendant, and perhaps on the part of others. Not being a legal practitioner, he is not subject to the important ethical restraints, requirements and sanctions which apply to legal practitioners, particularly in the context of allegations of dishonest conduct. [1] If, and I stress if, the plaintiff were to conduct the hearing in a manner which did not meet these requirements, the ability of the Court to control its own processes will, with respect to him, be diminished by the fact that he is not before the Court and indeed beyond its reach.
Second, it seems inevitable that credit, including the plaintiff's credit, will be an important issue. In the particular context of this case and the type of allegations which the correspondence indicates may be made, I think that it is necessary that he be present in Court. Also, if the plaintiff were permitted to appear remotely, the Court would have no control over whom or what was in the room with him during cross-examination.
Third, experience shows that it is difficult enough for the Court to deal with proceedings where there is one unrepresented party, let alone where both are unrepresented and there are allegations of fraud. To permit this application would exacerbate the difficulties, as one of the parties would not even be physically present in Court.
I observe that there is now no relevant COVID-19 related restriction on the plaintiff entering Australia. Appropriate physical courtroom arrangements could also be made to facilitate his lack of full vaccination.
On another but pertinent topic, the plaintiff has not complied with the direction to file and serve an amended statement of claim which complies with UCPR r 14.14(3), which provides that:
Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality.
This is an important requirement. An allegation of fraud or other serious misconduct must be articulated specifically and with particularity: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; Magill v Magill (2006) 226 CLR 551; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 at [39]; Simmons v Henwood [2013] NSWCA 184; Paul Ernest Simmons v NSW Trustee and Guardian [2013] NSWSC 1688; Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405; Lawrence Edward Stewart v The Australian and New Zealand Banking Group Limited [2020] NSWSC 1787. A statement of claim must be verified by affidavit.
Although no application to strike out or for dismissal has been brought by the defendant in relation to this default, the plaintiff should contemplate the possibility that if by the hearing he has not complied with this requirement the Court may consider dismissing the proceedings in accordance with s 61(3) of the Civil Procedure Act 2005 (NSW), which gives the Court power, amongst others, to dismiss proceedings when a direction has been given and not complied with. A case such as this one cannot properly be tried without an adequate pleading.
The plaintiff's application to conduct the proceedings and give evidence by video link is refused.
[2]
Endnote
Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) r 21.4 provides, 'A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it; and the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.'
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 65 provides, 'A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it, and the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.'
[3]
Amendments
12 July 2022 - Amended to redact identifying information from attached Schedule 1.
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: 12 July 2022
Parties
Applicant/Plaintiff:
Turan Ahmed
Respondent/Defendant:
Ziynet Ahmed
Legislation Cited (5)
Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015(NSW)r 21.4