Islam v Australian Securities & Investments Commission

HIS HONOUR: On 12 May 2023, Md Rajibul Islam commenced these proceedings by the filing of a summons naming 23 defendants. Although described as a summons, the document is in an unusual form containing a series of numbered and unnumbered paragraphs in a discursive and confusing combination of disconnected topics. With the benefit of Mr Islam’s oral submissions, it is at least apparent that he was formerly a director of Australian Real Estate Relation Pty Ltd trading as Raine and Horne Ingleburn and that the business he conducted has now been shut down. Mr Islam appears to contend that this was the result of the negligence of his employees, who presumably number among the named defendants, as well as unspecified fraudulent dealings with the assets and goodwill of the business. With the exception of the third defendant, none of the remaining defendants is referred to in the summons in a way that clearly or specifically connects any of them with these allegations. The document contains absolutely no particulars of the complaints that are made.

It is entirely unsurprising in these circumstances that several of the defendants have moved the Court by notices of motion seeking orders that the proceedings be dismissed or in the alternative that the “pleadings” be struck out. It is uncontroversial that the summons is amenable to an order pursuant to UCPR 14.28, if only having regard to Mr Islam’s concession to that effect. The only matter of any controversy is whether there is any possible utility in giving him an opportunity to re-plead his case in a form that complies with the rules and which articulates in clear terms some cause or causes of action known to the law.

Some, although limited, assistance to the understanding of Mr Islam’s concerns can be gleaned from an affidavit affirmed by him on 23 August 2023. The affidavit is also in an unusual form and was read subject to relevance. Some paragraphs of the affidavit, curiously appearing more than once in the document, are as follows:

It is not possible for me to determine whether any of these omnibus complaints are capable of reformulation as a pleading that could withstand scrutiny having regard to the rules of court. It is clear that the summons discloses no reasonable cause of action against any of the defendants. I note in this respect the following commentary at [13.4.15] in Ritchie’s Uniform Civil Procedure NSW:

When contemplating the prospect that the summons might be capable of reformulation in a way that promotes some recognised cause of action, the content of the several paragraphs of the summons is necessarily instructive. While it may be accepted generally from the terms of the document, particularly with the assistance of Mr Islam’s affidavit, that he considers himself to have been badly treated and even defrauded by his former business associates in a multitude of ways, none of the material before me provides a clear route to a conclusion that these grievances are actionable in some recognised fashion. In my opinion, the summons is beyond saving by legitimate amendment: Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628; [1970] UKPC 30 at 631. It is difficult presently to conceive of how the effectively unintelligible, vague and general allegations in the summons could ever be moulded into a legitimate or recognisable cause of action.

I am satisfied that the ill-expressed and unstructured form of the summons could not possibly be amended or re-pleaded so as to reveal the existence of any viable cause of action against any of the defendants. The proceedings should therefore be dismissed with costs.