Islam v Fahim Khan & Ors [2023] NSWDC 478

Islam v Fahim Khan & Ors [2023] NSWDC 478

The summons and purported Amended Summons did not plead material facts sufficient to disclose reasonably arguable causes of action and were embarrassing, and the plaintiff had failed despite repeated directions, warnings, litigation experience and the benefit of pro bono advice to file a statement of claim compliant with Part 14 of the Uniform Civil Procedure Rules 2005 (NSW). Although the complaints were not shown to be so hopeless as to justify summary dismissal on the substantive merits alone, the dictates of justice and overriding case management objectives warranted striking out the summons and dismissing the proceeding against the first and second defendants under s 61(3)(a) of the...

Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Civil Proceeding Concerning Professional Negligence / Application for Summary Disposal, Strike Out and Dismissal Following Non Compliance With Directions to File a Statement of Claim
Outcome
The summons was struck out; the proceeding was dismissed against the first and second defendants; the withdrawn claim against the former third defendant was dismissed with costs; costs of the notice of motion and proceeding generally were reserved pending submissions on indemnity costs.
Legal Topics
['summary Disposal' 'strike Out' 'self Represented Litigant' 'non Compliance With Court Directions' 'pleadings' 'solicitor Client Communications' 'bail Variation Instructions' 'costs Dispute' 'serious Harm in Defamation' 'concerns Notice']
['civil Procedure' 'professional Negligence' 'legal Profession' 'defamation' 'malicious Prosecution'] ['summary Disposal' 'strike Out' 'self Represented Litigant' 'non Compliance With Court Directions' 'pleadings' 'solicitor Client Communications' 'bail Variation Instructions' 'costs Dispute' 'serious Harm in Defamation' 'concerns Notice']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Proceeding Concerning Professional Negligence / Application for Summary Disposal, Strike Out and Dismissal Following Non Compliance With Directions to File a Statement of Claim

Legal Issues

  1. 1 ["Whether the plaintiff's summons or purported amended summons disclosed a reasonably arguable cause of action against the first and second defendants." 'Whether the summons should be struck out for failure to plead material facts and for being embarrassing.' 'Whether the proceeding should be dismissed for non-compliance with directions to file a statement of claim compliant with the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the plaintiff should be given a further opportunity to file a statement of claim.']

Ratio Decidendi

The summons and purported Amended Summons did not plead material facts sufficient to disclose reasonably arguable causes of action and were embarrassing, and the plaintiff had failed despite repeated directions, warnings, litigation experience and the benefit of pro bono advice to file a statement of claim compliant with Part 14 of the Uniform Civil Procedure Rules 2005 (NSW). Although the complaints were not shown to be so hopeless as to justify summary dismissal on the substantive merits alone, the dictates of justice and overriding case management objectives warranted striking out the summons and dismissing the proceeding against the first and second defendants under s 61(3)(a) of the...

Court Disposition

The summons was struck out; the proceeding was dismissed against the first and second defendants; the withdrawn claim against the former third defendant was dismissed with costs; costs of the notice of motion and proceeding generally were reserved pending submissions on indemnity costs.

Orders

  • ['Noting the withdrawal of the claim against Ugur Nedim, the proceeding as against the third defendant is dismissed with costs.' 'Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the Summons is struck out.' 'Pursuant to s 61(3)(a) of the Civil Procedure Act 2005 (NSW), the proceeding as against...