El-Saeidy v El-Shinawy

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District Court


New South Wales

Medium Neutral Citation: El-Saeidy v El-Shinawy [2025] NSWDC 229
Hearing dates: 15 May, 17 and 23 June 2025
Date of orders: 23 June 2025
Decision date: 23 June 2025
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

Orders

(1) Pursuant to Uniform Civil Procedure Rule 2005 (NSW) r 12.7, these proceedings are struck out and dismissed.

(2)   The plaintiff is to pay the defendant’s costs as agreed or assessed.

Catchwords:

PRACTICE AND PROCEDURE – plaintiff commences proceedings for malicious prosecution against his former wife shortly before expiry of limitation period – long history of litigation between plaintiff and defendant in other courts - plaintiff fails to comply with timetable orders including guillotine orders – plaintiff diagnosed with inoperable cancer and seeks to explain his defaults as being health-related – plaintiff ordered to show cause and continues to fail to comply with orders – orders to serve amended pleadings and evidence not complied with despite imminent hearing date – certainty that the 4-day-plus hearing date will have to be vacated – proceedings dismissed with costs.

COSTS – defendant seeks gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – whether sufficient information before the court – whether court should inquire into the nature of the costs agreement where a party’s lawyers are acting pro bono – application refused.

Legislation Cited:

Uniform Civil Procedure Rule 2005 (NSW) r 13.4 and 14.28

Civil Procedure Act 2005 (NSW) ss 56 – 58, 61(3), 86(3), 91 and s 98(4)

Federal Court of Australia Act 1976 (Cth) s 31A

Cases Cited:

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39

Baron v Walsh [2014] WASCA 124

Bi v Mourad [2010] NSWCA 17

Campbell v Regional Publishers Pty Ltd (Supreme Court of New South Wales, Levine J, 30 October 1998)

Dickens v State of New South Wales (No 3) [2018] NSWSC 485

E1 v E2; E Pty Limited v E2 [2023] NSWDC 411

El-Saeidy v The Queen (No 2) [2021] NSWDC 548

El-Saiedy v R (No 1) [2019] NSWDC 266

El-Saiedy v Superintendent Wademan, Parramatta Sheriff's Office [2022] NSWSC 1615

Gabrielle v Abood (No 4) [2023] NSWCA 100

Gambetto & Farrelli (No 2) [2023] FedCFamC1F 863

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Ghambir v Vision of IT Pty Ltd [2023] NSWSC 905

Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595

Golden v Howard (No 2) [2024] NSWSC 172

Hamod v State of New South Wales [2011] NSWCA 375

Hoser v Hartcher [1999] NSWSC 274

Kohkanzada v Amiri [2024] NSWSC 492

Massarani v Kriz [2022] FCA 80; 400 ALR 718

MT v Se [2025] SASCA 8

Rock v Henderson (No 2) [2025] NSWCA 47

Sahade v Bischoff [2015] NSWCA 418

Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors (No. 2) [2011] NSWSC 1122

Woolf v Brandt (No 3) [2024] NSWCA 6

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Details
Case
[2025] NSWDC 229
Decision Date

CaseChat Overview and Summary

El-Saeidy v El-Shinawy is a case where the plaintiff, who was engaged in a long history of litigation with the defendant, his former wife, commenced proceedings for malicious prosecution against her shortly before the limitation period expired. The case was heard in the Supreme Court of New South Wales. The plaintiff, who had a history of non-compliance with court orders, including guillotine orders, attributed his failures to health issues as he was diagnosed with inoperable cancer. Despite this, he continued to fail to comply with the orders to serve amended pleadings and evidence, leading to the certainty that the scheduled four-day hearing would have to be vacated.

The court was required to decide whether the plaintiff's health issues could justify his non-compliance with court orders and whether the proceedings should be dismissed. Additionally, the court considered whether sufficient information was before it to grant a gross sum costs order under section 98(4) of the Civil Procedure Act 2005 (NSW), and whether it should inquire into the nature of the costs agreement where the defendant's lawyers were acting pro bono.

The court found that the plaintiff's health issues did not sufficiently excuse his non-compliance with the court orders. The plaintiff's history of non-compliance and his failure to adhere to the court's timetable orders, including those related to serving amended pleadings and evidence, led the court to conclude that the proceedings should be dismissed. The court also refused the defendant's application for gross sum costs, finding that it did not have sufficient information to grant such an order and did not consider it appropriate to inquire into the nature of the costs agreement where the defendant's lawyers were acting pro bono.

The court made orders dismissing the plaintiff's proceedings and requiring him to pay the defendant's costs as agreed or assessed.

Orders

Orders of the court

Orders

(1) Pursuant to Uniform Civil Procedure Rule 2005 (NSW) r 12.7, these proceedings are struck out and dismissed.

(2) The plaintiff is to pay the defendant’s costs as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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