By Louise Cantrill, Partner, and Joshua Mbakwe, Lawyer
On 27 June 2023, the Supreme Court of NSW held that the self-represented plaintiff’s summons should be dismissed as the plaintiff failed to comply with the Registrar’s orders and failed to appear at court listings on numerous occasions. In this judgment, Justice Davies reaffirmed that ordinarily, solicitors do not owe a duty of care to persons who are not their client.
From around June 2017, the plaintiff, Md Rajibul Islam, operated a real estate business with his business partner Abu Ratul. Around mid-2022, a dispute arose between Mr Islam and Mr Ratul resulting in Mr Ratul commencing proceedings alleging that Mr Islam engaged in misconduct associated with the management of their business. Mr Islam also brought his own proceedings seeking orders relating to a claim for his entitlements from the business. In both proceedings, Mitry Lawyers acted for Mr Ratul.
On 10 February 2023, Justice Black made a winding-up order in respect of Mr Islam and Mr Ratul’s business and dismissed the proceedings brought by Mr Islam. Mr Islam sought leave to appeal both orders. The Court of Appeal refused leave for Mr Islam to appeal the decision in Mr Ratul’s proceedings resulting in the winding-up of their business. The appeal for the dismissal of Mr Islam’s proceedings was listed for a Directions Hearing before the Registrar on 3 July 2023.
In the meantime, on 1 April 2023, Mr Islam filed a summons naming Mitry Lawyers, the firm representing his former business partner, as the defendant. Mr Islam was not legally represented, and the summons was unclear as to what Mr Islam’s cause of action against Mitry Lawyers would be, considering that Mr Islam was not a client of Mitry Lawyers. The summons otherwise sought relief ranging from $50 million in damages to the payment of costs from the winding-up proceedings.
The primary issue in this case was whether Mr Islam’s pleadings revealed a relevant cause of action. Secondary to this was his failure to comply with court orders and to appear before the court multiple times.
On 2 May 2023, the Registrar ordered Mr Islam to file and serve a statement of claim by 8 May 2023 to clarify his cause of action. He did not do so. On 17 May 2023, the Registrar extended this timeframe to 22 May 2023 but again, Mr Islam failed to comply.
At the next Directions Hearing on 29 May 2023, Mr Islam failed to appear, and the Registrar sent Mr Islam a r 13.6 UCPR letter advising that Mr Islam’s claim may be dismissed, should he fail to appear at court on the next occasion. On 31 May 2023, Mitry Lawyers filed a Notice of Motion seeking to have Mr Islam’s claim be dismissed as the summons were hopeless and Mr Islam had failed to comply with court orders to rectify the inadequacy of the pleadings.
At the Directions Hearing for the Notice of Motion on 9 June 2023, Mr Islam again failed to appear at court and the Motion Hearing was set down for 23 June 2023.
The Motion was heard before Justice Davies on 23 June 2023. Despite delaying the commencement of the hearing, Mr Islam failed to make an appearance. As evidence was provided that Mr Islam had been served with relevant court notices, his Honour proceeded with the hearing of the motion.
His Honour made the point that Mitry Lawyers did not act for Mr Islam and that ordinarily, solicitors do not owe a duty of care to persons who are not their clients. His Honour formed the view that Mr Islam had been given numerous opportunities to plead any cause of action he claimed to have but had not done so. His Honour determined that the proceedings were hopeless and manifestly groundless.
His Honour ordered Mr Islam’s summons to be dismissed with Mr Islam to pay Mitry Lawyers costs. His Honour considered that this was not simply a case of proceedings being commenced by the wrong means but that no underlying cause of action had been revealed. The plaintiff’s failure to comply with the Registrar’s orders and failure to appear fwhen the proceedings were listed should also be taken into account.
An important takeaway from this case is that while self-represented litigants are often allowed more leeway from the courts, a failure to properly make out a claim, a gross contravention of court orders, and the non-appearance at multiple court listings will be sufficient to warrant the dismissal of a claim.
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