Ibrahim v Nasr (No 2)

LEEMING JA: By judgment delivered on 15 October 2021, I ordered provision under the Succession Act 2006 (NSW) in favour of Ms Nejme Ibrahim, the widow of the deceased and stepmother of the two executors/defendants: Ibrahim v Nasr [2021] NSWSC 1321. One executor, Mr Clint Nasr, was admitted as a legal practitioner and was employed as a police prosecutor. During the hearing and in my reasons for judgment I expressed concerns about aspects of his conduct. The concerns fell into two categories.

The first was his installation of two hidden cameras, which recorded both images and sound, of the plaintiff tending to the deceased in the final weeks of his life. This led to the presentation to the local police of a dossier of material, almost immediately after his father’s death, with the intention that charges be brought against her. No such charges were laid, and I rejected the allegation that Nejme’s treatment of her husband was deficient. Part of Mr Nasr’s evidence concerning the hidden cameras was the subject of a certificate under s 128 of the Evidence Act 1995 (NSW). That conduct may or may not have been lawful (I express no view) but it was not the conduct which was contemplated as potentially being referred to the Legal Services Commissioner.

The second was Mr Nasr’s disparaging statements about the plaintiff, made both in Arabic and in English, in face to face conversations and on Facebook. Examples are found in the judgment at [30]-[40] and [273].

I concluded at [275]-[277] thus:

In accordance with directions made following delivery of judgment, Mr Nasr supplied an affidavit sworn on 5 November 2021. He also confirmed that that was the totality of material to be supplied on his behalf.

The affidavit is difficult to summarise. It is evidently an affidavit drafted by Mr Nasr himself. That is most clearly shown by its numerous linguistic imperfections, themselves largely reflective of the fact that he arrived in this country as a teenager from Lebanon with no English (such that the professional success achieved by him is greatly to his credit). It is not an affidavit like many where a solicitor has altered the form of the language into a grammatical correctness which is foreign to the deponent. Its form makes it all the easier to accept that it reflects Mr Nasr’s genuine words.

The affidavit acknowledges fault but yet blames others. Perhaps most seriously, it makes two allegations of procedural unfairness, which cannot pass unaddressed.

First, it is said in paragraph 2 that:

I do not understand this. Mr Nasr goes on to refer to difficulties he had in providing instructions to his counsel, who was remote from him, and while I do not know what steps were taken by Mr Nasr, his solicitor and his counsel to establish communications during the course of the trial conducted during Sydney’s lockdown, I would accept that that was a difficulty which would not have occurred had the hearing not been conducted remotely. But the Facebook posts of which Mr Nasr complains were addressed in paragraph 74 of the plaintiff’s affidavit:

The affidavit was filed on 23 May 2019, more than two years prior to the trial. Annexure B comprised 13 pages of printouts of Facebook posts. No Facebook post other than those annexed to that affidavit was tendered. Mr Nasr responded in one of his many affidavits to paragraphs 75 and 76 of the plaintiff’s affidavit, but made no response in his affidavits to the Facebook posts, in circumstances described at [133]-[138] of my judgment. The plaintiff’s affidavit was read and the Facebook posts received into evidence without objection. It could have come as no surprise to Mr Nasr that that would occur. Nor could it have come as a surprise to Mr Nasr that he would be confronted with the posts in cross-examination.

It is also said in paragraphs 4 and 5 that:

The reference is to documents produced pursuant to a subpoena dated 13 September 2021 issued by the plaintiff with documents being produced early in the trial. Both sides had access to the documents. A small number were tendered without objection. The large majority were not tendered. There was no “wholesale tender”; the opposite occurred.

I do not know whether copies of the documents which were produced but not tendered were seen by Mr Nasr. However I am certain that they were and are in the possession of his solicitors. As it happens, in circumstances where the trial was conducted remotely during the Covid-19 pandemic, the plaintiff’s solicitor sent the entirety of the production to my Associate on the morning of the third day of the trial, copying in Mr Nasr’s solicitor and counsel. (I confirm that I saw the 136 pages in the attachment to that email for the first time when writing this judgment, and I instructed my Associate as soon as she advised that the email was received not to read the attachment, in that way treating it as if an envelope of documents produced on subpoena had been provided by the registry to the courtroom.) Mr Nasr’s counsel advised on the morning of the third day of the trial that he had received and printed the 136 pages, and sought and obtained additional time to deal with them (transcript, 29 September 2021, pp 146-147) and indeed was given an opportunity to cross-examine the plaintiff further in relation to them, which then occurred (transcript, 30 September 2021, pp 232-236) with Mr Nasr’s counsel tendering some of the documents.

I do not accept that there was any denial of procedural fairness to Mr Nasr, either in relation to the Facebook posts, or in relation to the production and tender of a small number of documents produced by the NSW Police.

I believe that Mr Nasr does not fully appreciate that the allegation that a party has been denied procedural fairness is a serious one, and one that should not be made without foundation, and to that extent, the wrongness of his making groundless complaints attracts less opprobrium than would otherwise be the case. Relevantly for present purposes, these paragraph continue Mr Nasr’s demonstrated capacity to make serious allegations that others have done wrong without foundation, and so far as I can see, without fully appreciating the force of the words he deploys.

Mr Nasr also asserts that the “posts were an act of self-defence” in response to the plaintiff’s “relentless” petitioning of the community “to garner support of uninformed persons and set them up against the family”. As noted in the judgment at [44], it is not possible to determine and it may well be the case that the plaintiff was herself in part to blame in escalating conflict. However, neither the plaintiff nor any of Mr Clint Nasr’s siblings is a legal practitioner. It is to my mind a far more serious thing for a legal practitioner to name someone as a thief and a murderer without proper foundation, vilifying her to her face, to her community, to her church, and to the wider public. Some of the people who heard and read what Mr Nasr wrote would have known that he was a legal practitioner and a police prosecutor, and may for that reason have given greater credence to his claims, even though they were made in circumstances unconnected with legal practice.

That said, Mr Nasr maintains that he and members of his family were “acting on emotions” and “the posts reflected those emotions at the time”, and that many of the posts were “mellowed down as emotions subsided”, and that those tendered were missed. He continued:

Mr Nasr submitted that the conduct of making the Facebook posts did not occur in his capacity as a solicitor and did not involve any dishonesty:

Mr Nasr then explained the enormous stress to which he was subject at the time, brought about by his spending most nights with his father, while still attempting to work at Parramatta each day. He stated that he sought medical and psychological and psychiatric assistance, and gave details of consultations, and assessments that he was not fit to work for some 6 weeks in March and April 2019, and that more recently, earlier this year, he required a medical procedure to his heart, suffered from severe sleep apnoea and was unfit for work for some 4½ months.

Mr Nasr gave evidence of four prosecutions over the period 2010 – 2020 to which he had contributed, and also that he had once applied for a position as a magistrate. He was unsuccessful, but he stated that “I was not informed I was unsuitable for appointment”. It is not necessary for me to express a view in relation to this. He reiterated that the conduct was in a completely private capacity, and concluded his affidavit as follows.

I suspect and hope that the process of making the affidavit may have assisted Mr Nasr’s appreciation of the quality of his conduct. The fact that he has apologised unconditionally to his stepmother is appropriate and welcome. It will be clear from what has been said above that there are parts of his affidavit which I do not accept accurately record how the trial was conducted, and I remain of the view that Mr Nasr finds it much easier to blame others for poor conduct than to accept that it is attributable to his own failings. That makes him no different from many other people. There are aspects of law and the legal system where his knowledge is deficient. Once again, that does not make him different from many other lawyers. His statements concerning the presumption of innocence – which in light of his current employment are of some significance – are difficult to reconcile with his campaign to have the plaintiff prosecuted for harming his 94 year old father who had been released from hospital in order to die at home, but I do accept that this was an exceptionally emotionally distressing time for him and his family.

Ultimately the question is whether the public interest would be further served by an investigation by a professional regulator. Mr Nasr is correct to state that his conduct did not occur in connection with the practice of law; were that not so, I would have no hesitation in referring him to the Legal Services Commissioner. I also accept Mr Nasr’s submission that no issue arises concerning his integrity; cf Nutectime International Pty Ltd v Timentel Pty Ltd [2013] NSWCA 254 at [14]. Although I consider that Mr Nasr has less insight into his conduct than might be expected of a legal practitioner, I think that given the history he has recounted, it is unlikely that anything that might ensue from such an investigation would have any more beneficial effect than the publication of these reasons, which themselves will operate as a sufficient warning to Mr Nasr and others; cf McGrath v Troy [2011] NSWSC 136 at [10]. Accordingly, I shall not take the matter any further.