El-Saeidy v El-Shinawy

[2025] NSWDC 229

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

Category:

Procedural rulings

Parties:

Plaintiff:
Mr Fawzi EL-SAEIDY
Defendant:
Ms Mona EL-SHINAWY

Representation:

Counsel:
Plaintiff: Mr Livers (Solicitor for the plaintiff)
Defendant: Ms Flynn (Solicitor for the defendant)

Solicitors:
Plaintiff: Bechara Slattery & Associates
Defendant: Clayton Utz

File Number(s):

2024/00112110

Publication restriction:

Nil

Judgment

The plaintiff brings proceedings for malicious prosecution

1. These are proceedings for malicious prosecution which are listed for hearing on 28 July 2025 as a four day plus matter.

2. The plaintiff’s cause of action arises from reports of domestic violence, made to New South Wales Police by the defendant, the plaintiff’s former wife, on 10 June 2016. On 1 August 2017, Bankstown Local Court heard two charges against the plaintiff arising from those reports of domestic violence and on 27 March 2018 the plaintiff was found not guilty of two charges.

3. The plaintiff did not commence proceedings until 27 March 2024, when a statement of claim was filed in Burwood Local Court and given proceedings number 2024/00112110. As that court had no jurisdiction, these proceedings were transferred to the District Court of New South Wales on 18 June 2024.

4. The proceedings came before Dicker SC DCJ on 18 October 2024, who ordered the plaintiff to file and serve an amended statement of claim by 1 November 2024 and, when there was no compliance with that order, on 8 November and 20 December 2024.

5. On 20 January 2025, the plaintiff was diagnosed with stage IV inoperable cancer. He nevertheless filed and served a signed and verified amended statement of claim on 21 January 2025. An amended defence was filed on 24 January 2025.

6. On 11 February 2025, Dicker SC DCJ granted leave to the plaintiff to file an amended statement of claim and directed that the evidence proceed by way of affidavits, with the plaintiff to file and serve any such affidavits in chief by 21 March 2025. When this order was not complied with, an extension of time was given to 24 April 2025, in the form of a guillotine order. That order was not complied with.

The court makes a show cause hearing order

7. On 29 April 2025, Fitzsimmons SC DCJ made the following notations and orders:

“Notations:

Repeated default by the plaintiff to comply with Judge Dicker’s orders.

Exhibit 1 – Medical report of Dr Chaudhuri and accompanying letter of admission.

The matter was listed for hearing on 28 July 2025 with an estimate of 4 days. Orders were made for the matter to proceed by affidavit within the plaintiff to file and serve by 21 March 2025. Plaintiff failed to comply with that order.

On 3 April 2025, the list judge made orders extending the time for the plaintiff to file and serve its affidavits, with no affidavits to be relied on if filed after this date except with leave of the court. The plaintiff again failed to comply. There is no affidavit evidence as to why the plaintiff has failed to comply with that order, although the plaintiff relies on medical reports and accompanying letter of admission marked Exhibit 1.

Whilst the plaintiff is suffering a form of cancer, that evidence does not explain the second failure of the plaintiff to comply with court orders.

Orders:

1. The plaintiff is to show cause as to why the proceedings should not be dismissed.
2. Any such evidence is to be filed and served on or before 9 May 2025. 3. The matter is listed before the list judge on 15 May 2025.
4. The plaintiff is to pay the defendant's costs of today's listing.”

8. On 12 May 2025, the plaintiff served a filed affidavit on the defendant “in support of my application for leave of the court to file and serve a further amended statement of claim” but did not otherwise comply with these orders, and in particular did not comply with the requirement to serve the affidavits in chief for the hearing.

9. The application came before me on 15 May 2025. I stood the matter over part heard and made the following orders:

“(1) Stand over this Show Cause application part heard, before Judge Gibson, to Tuesday 17 June 2025 at 9:30AM.

(2) Costs of the application to date are reserved.

(3) Without derogating from the guillotine order made by Dicker DCJ on 3 April 2025, or the show cause order made by Fitzimmons DCJ on 29 April 2025, the plaintiff is permitted to rely on a draft of his proposed Further Amended Statement of Claim and Affidavit, provided these drafts are served on the defendant and provided to the court no later than Monday 9 June 2025 by 5:00PM, such order to be self-executing.

(4) The defendant’s legal representatives are to prepare a schedule of costs thrown away by reason of the delays between 6 February 2025 to date, for consideration of any application for payment of costs in the form of a gross sum costs order. This summary of costs is to be served on the plaintiff and provided to the court no later than Monday 11 June 2025 by 5:00PM.

(5) Any material in reply in relation to cost only is to be provided by the plaintiff by 5:00PM on Monday 16 June 2025.

(6) Note that the hearing set down for 28 July 2025 remain in place, pending the determination of these issues.”

10. On 30 May 2025, the plaintiff’s legal representative sent two emails to the defendant’s legal representatives attaching two separate letters containing further and new detailed allegations against the defendant, but failed to provide or serve either the draft of his proposed further amended statement of claim or the affidavits in support or any other material in relation to the trial.

11. On 17 June 2025, the plaintiff’s solicitor confirmed that the plaintiff had not served any further amended statement of claim as required by my guillotine order of 15 May 2024. The plaintiff had served an affidavit in which he referred to some of the evidence he would rely on at the hearing as well as providing more information about his medical condition, but Mr Livers conceded that this affidavit would be insufficient for the trial as the relevant Local Court orders and trial transcript had not been filed or served.

12. The 17 June hearing had to be adjourned part-heard after flooding damage required the John Maddison Tower to be evacuated. The proceedings were adjourned to 23 June 2025.

13. On 23 June 2025, the plaintiff was still not ready, either for the show cause or for the hearing in a month’s time. Mr Livers informed the court that his client now had obtained the transcripts of the relevant criminal proceedings and proposed to serve them, although he had not yet done so, as Ms Flynn confirmed. Mr Livers sought to rely upon a fresh affidavit sworn by his client correcting errors in his earlier affidavit and setting out material he proposed to rely on to claim that not only his wife but also his daughter had committed perjury in claiming falsely that he had assaulted her. The plaintiff was convicted for the assault on his daughter and this conviction is not part of the plaintiff’s malicious prosecution claim.

The nature of a show cause hearing

14. Rule 12.7 of the Uniform Civil Procedure Rule 2005 (NSW) (“UCPR”) provides as follows:

“12.7 Dismissal of proceedings etc for want of due despatch

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.”

15. Paragraph 12 of the Practice Note DC (Civil) No.1 Case Management in the General List sets out:

12 Directions Hearings and Show Cause Hearings

12.1 At any stage, the Court may refer a case to a directions hearing before the Civil List Judge or the Judicial Registrar. If a case is not ready for hearing at the status conference it will be referred for directions. Any order to provide statements or file affidavits must be strictly complied with. Generally, the Court will not accept statements, affidavits or submissions which have not been provided in accordance with an order.

12.2 Cases in which parties have failed to comply with Court orders will be referred to the Civil List Judge at an early time.

12.3 Where there has been non-compliance with Court orders, the Court may list a case for:

(a) the plaintiff to show cause why the case should not be dismissed for want of prosecution or;

(b) the defendant to show cause why the defence should not be struck out and/or any cross claim dismissed for want of prosecution.

The party ordered to show cause should expect to pay the costs of the show cause hearing.

12.4 At least 5 days before the show cause hearing, the legal practitioner for the party in default (or the party, if self-represented) must file and serve an affidavit setting out the reasons why he or she has not complied with the Court's orders and/or this Practice Note. In addition, any other party who wishes the Court to consider any submissions must put those submissions in writing, file and serve them at least 5 days before the show cause hearing.

16. The Court may make such a direction of its own motion, and often does so where there has been delay sufficient to be of concern to the court, as the provisions of ss 56 – 58 Civil Procedure Act 2005 (NSW) (“the Act”) concerning efficient case management and resolution of court proceedings constitute the overriding principles upon which justice must be dispensed: see s 86(3) of the Act. The court is also empowered under s 61(3) of the Act to dismiss proceedings when a party has failed to comply with the directions of the court.

17. The timetable set out in the Practice Note was not complied with. I extended time for the plaintiff to comply but he still did not do so. On 23 June 2025 I reserved judgment and some submissions were sent later that day, without prior warning or leave.

18. If a matter is dismissed, a plaintiff cannot, unless a court makes an order to the contrary, commence fresh proceedings (see s 91 of the Act).

19. Prior to the Act coming into force, delay in litigation was common, with delays often lasting for years. For example, in Hoser v Hartcher [1999] NSWSC 274, the plaintiff delayed defamation proceedings for three years, largely because he was serving a prison sentence for perjury. Despite evidence of actual prejudice being led by the defendant, the action was not struck out.

20. Changing views on the degree of acceptance that should be given where the commencement and continuation of proceedings was the subject of repeated delays may be seeing in Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595, where Macfarlan JA (with whom Leeming JA and Adamson J agreed) set out the principles to be applied:

“40 The discretion to dismiss proceedings that UCPR r 12.7 confers if a plaintiff does not proceed with “due despatch” is broad and should not be confined by rigid formulae (Stollznow v Calvert [1980] 2 NSWLR 749 at 751 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [51] in relation to the comparable power under earlier rules to dismiss for want of prosecution). As Walsh JA said in Witten v Lombard Australia Ltd [1968] 2 NSWR 529; 88 WN (Pt 1) (NSW) 405:

“Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised” (at 412).

41 As the primary judge properly found, relevant delay in this context is not confined to that which is caused by a lack of activity, it extends to a delay arising out of a “want of constructive activity” (see [30] above).

42 Importantly, the Civil Procedure Act now also adds the overriding purpose of that Act and the rules of court in facilitating “the just, quick and cheap resolution of the real issues in the proceedings” to the matters to be considered (s 56). As well, s 57 includes the “efficient use of available judicial and administrative resources” amongst the objects to which regard is to be had in managing court proceedings, s 59 requires delay to be eliminated so far as possible and s 60 requires the court to take into account the object of “resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute”.

43 These considerations are of fundamental importance in determining an application for the dismissal of proceedings for want of due despatch, as they are to all other aspects of the conduct of civil litigation in this State. The primary judge had appropriate regard to these provisions in arriving at her decision to dismiss the proceedings.

44 In my view, her Honour’s conclusion is supportable by reference to the first source of power on which she relied, namely UCPR r 12.7. It is therefore unnecessary to review her Honour’s consideration of the authorities concerning the dismissal of proceedings for want of the proportionality identified in s 60 of the Civil Procedure Act. It is sufficient to say that the dismissal of proceedings simply upon the basis of a lack of proportionality, without the presence of further factors favouring that result, is likely to be justified only rarely. The primary judge did not act on this basis, even in considering her alternative ground. Rather, in concluding that there was a lack of proportionality, her Honour had regard to the same considerations that were relevant to the first ground of lack of “due despatch”, including “gross pleading errors [by Dr Ghosh], repeated listings and long directions hearings” (Judgment [120] and see [36] above). Furthermore, what her Honour perceived as a lack of proportionality was properly taken into account in her decision to dismiss the proceedings under UCPR r 12.7.”

21. Macfarlan JA noted (at [38]) that the use of the word “may” in UCPR r 12.7 conferred a discretion to dismiss proceedings under UCPR r 12.7 which was “broad and should not be confined by rigid formulae.”

22. More recently, in Ghambir v Vision of IT Pty Ltd [2023] NSWSC 905, Dhanji J describes the exercise of the discretion as “striking the balance between the interests of the competing parties” (at [23]).

23. A consideration of those factors would require the following to be taken into account:

1. Where a plaintiff commenced proceedings at the end of the limitation period and thereafter delays in the conduct of the litigation, the plaintiff must expect the court to take a firmer view than might otherwise be the case the party had commenced more expeditiously: Campbell v Regional Publishers Pty Ltd (Supreme Court of New South Wales, Levine J, 30 October 1998).

2. While issues such as the length of delay or the number of orders defaulted from are important, the question of what amounts to sufficient neglect or delay is not a numbers game, in that it is the quality of the delay rather than the length of time or t h e quantity of delays involved. This involves a careful consideration of all of the relevant facts, and in particular the reasons for the delay.

3. The prejudice to the party complaining about the lack of progress must be taken into account, as well as the prejudice to the party who would otherwise lose the cause of action.

4. The adequacy of pleadings and the manner of conduct of the proceedings may be taken into account. Macfarlan JA particularly noted that “gross pleading errors, repeated listings and long directions hearings” were factors a court was entitled to take into account (at [44]).

5. The expiry of any limitation period is a relevant factor in that if the limitation period is still running, it is not generally considered to be a proper exercise of the discretion to stay or dismiss the proceedings. The courts take into account that with the passage of time, the prospect of a fair and proper determination of the issues will recede.

6. While great caution must be exercised when considering the merits of the case, the court may entertain a submission that there are specific factors suggestive of the cause of action being unlikely to succeed or, if it does succeed, may result in trifling damages.

24. There are also specific instances in this court where there may be additional grounds for dismissal set out in UCPR r 12.9, but these are not applicable here.

Prejudice to the respective parties

25. The prejudice to the plaintiff is self-evident; if this action is struck out, he would lose any opportunity to obtain damages for malicious prosecution. He will lose the chance to obtain a sum of money. He does not point to any other issue in relation to prejudice.

26. Evidence of prejudice to the defendant is somewhat more profound. It is nine years since the defendant, now a single mother of seven children, reported family violence to the police. Since that time, she has been involved in litigation in this court, in the Local Court and, I assume, in courts dealing with the breakdown of the marriage.

25. A feature of these proceedings is that the nature of the marital relationship and its breakdown play important parts in the commencing and conducting of a claim where bitterness over the events, rather than restoring reputation or resolving an injustice, is the motivating factor, and the litigation procedure is adapted for those ulterior motives. The hallmarks of such claims are identified and analysed in Baron v Walsh [2014] WASCA 124 and, more recently, by Altobelli J in Gambetto & Farrelli (No 2) [2023] FedCFamC1F 863. The defendant submits that the plaintiff has shown a similar pattern of inappropriate conduct of litigation in circumstances which amount to coercion and control in much the same way as was described by Altobelli J and refers me to the discussion of such conduct in the National Domestic and Family Violence Bench Book (AIJA, 2024) at [3.1.11].

26. This first kind of coercion or control can be seen in the use of court proceedings to keep in touch with the opposing party. Examples include:

1. Repeatedly seeking documents (El-Saeidy v The Queen (No 2) [2021] NSWDC 548 at [65] and [82]), including subpoenaed documents (El-Saiedy v R (No 1) [2019] NSWDC 266 at [26] – [27] or bringing applications where it is hoped that the opposing party can be forced to attend.

2. Seeking permission to cross-examine the opposing party personally (El-Saeidy v The Queen (No 2)) or otherwise insisting on the presence of the opposing party (such as seeking oral hearings in the hope that the opposing party will be present (Woolf v Brandt (No 3) [2024] NSWCA 6).

3. Involving the children of the marriage in the litigation, such as bringing proceedings for disciplinary action against the child’s solicitor or putting pressure on the child to give evidence. The material contained in the affidavit handed up on 23 June 2025 falls into this category.

29. The second kind of coercion or control is to threaten criminal sanctions and/or demands for disciplinary action brought against lawyers or court staff. Examples include:

1. Bringing complaints and threats of criminal charges against the opponent’s or third party solicitors (Gambetto v Farrelli (No 2) at [6]: application for disciplinary action against the solicitor for the child) or court staff (El-Saiedy v Superintendent Wademan, Parramatta Sheriff's Office [2022] NSWSC 1615).

2. Repeated complaints to police and prosecuting authorities, serving draft criminal summonses and warning of criminal sanctions if a certain course of action is or is not taken.

30. The third kind of conduct is the sending of a barrage of hurtful or rude correspondence. Ms Flynn refers to one example, an email sent on or about 30 May 2025, where the plaintiff instructed his solicitor to send a letter containing the following allegation:

“We are instructed by our client that your client made false allegations in her amended defence including that the children of Mr El-Saeidy were under shared care as the real fact was that the children were under the care of the father of the children only.”

31. The unfairness of the content of this material might not be immediately apparent to some, but effectively what the plaintiff is seeking to do is deny her the status of the mother and to say that she even had care of her children, the inference being that she was so incapable that he had to do everything. I am reminded of the observations of Altobelli J in Gambetto v Farrelli (No.2) at [99]:

“The Court finds that the father’s pattern of litigation does constitute coercion and control. This is because his campaign of litigation constitutes “a course of conduct aimed at dominating and controlling another person”, or attempted to achieve this as regards the mother. Vexatious litigation is no less family violence because it may not be successful or, indeed, is unsuccessful. Costs orders are irrelevant in this context. There can be no suggestion that the right to litigate an otherwise justiciable issue is fundamental. It is the manner in which such right is exercised that is, in effect and in the context of the Act, regulated by the conceptualisation of the litigation as coercive and controlling behaviour, and thus family violence.”

32. The fourth kind of conduct is the repeated bringing of applications which the opposing party must counter. The applications often fail, but the sheer number of them is itself a form of coercion. Ms Flynn points out that the plaintiff brought at least three unsuccessful applications in the Court of Appeal of New South Wales. She submits that on 30 May 2025, the plaintiff and his solicitor should have been getting on with preparing his draft affidavit evidence in chief, not sending claims of this kind relating to a shopping trip on 9 June 2016.

33. Gambetto v Farrelli (No.2) is an important decision which deserves wider appreciation for its insight into the damage prolonged marital confrontation in court causes not only to the parties but also to the children of the marriage. Altobelli J went on to note the impact on other parties as well, such as court staff, legal representatives and the court itself.

34. On the subject of potential prejudice to the court as well as the defendant, if these proceedings are not struck out, they will have to be ready to commence on 28 July 2025. The defendant should not be expected to have to meet a case where there has been no commencement of preparation for the affidavit evidence that the plaintiff was required to serve by 25 March 2025. Nor should the court be placed in the position of having to ensure proper compliance with the Practice Notes and the speedy and efficient disposition of the issues in the trial where there has been total non-compliance to date with the orders for the hearing.

The merits of the claim

35. Ms Flynn submitted that the plaintiff “cannot establish a prima facie case” and should be struck out for that reason. That is not the test applicable. Even where conduct of the claim has resulted in a show cause hearing, the cause of action must be either hopeless or non-existent. UCPR r 13.4, which invokes the General Steel principle (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125), requires that the claim must be so manifestly untenable that it cannot succeed. UCPR r 14.28 requires the demonstration of abuse of process or no cause of action. Faced with these hurdles, courts generally take the easier option of striking the matter out under UCPR r 12.7, as Adamson J did in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [45], citing 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.

36. This is a significant ongoing difficulty in applications brought under these very limited provisions. To overcome these difficulties, 31A of the Federal Court of Australia Act 1976 (Cth) was enacted. Section 31A has been called “a radical departure from the approach taken in the earlier cases including General Steel” (Massarani v Kriz [2022] FCA 80; 400 ALR 718 at [99]). Under s 31A, the moving party need only to establish that the opponent has no reasonable prospect of successfully prosecuting the proceeding. It is regrettable that this reform has not been considered in New South Wales courts.

37. While great caution should always be exercised when considering the merits of a claim in an application for summary dismissal, this will nevertheless be a difficult case for the plaintiff, having regard to the observations made in Rock v Henderson (No 2) [2025] NSWCA 47 at [72]:

“72 In all public prosecutions, the police or the DPP are the gateway for the laying of charges and the prosecution of the criminal proceedings and have a discretion whether to charge and whether to prosecute. Because of this in-built filter to the commencement of criminal proceedings, a person, even one who deliberately lies to the police about a person who is then charged, is not thereby converted into a “prosecutor”. In actions for damages based on the tort, the defendant is “the prosecutor” and is, therefore, almost invariably the police or the DPP. It is only in exceptional cases where the defendant deliberately supplies the police with false information and the police would not have proceeded without that information that a private person may be found to be a prosecutor: see generally the discussion of authorities in Martin v Watson [1996] AC 74 at 80-87 (Lord Keith, Lords Slynn, Lloyd, Nicholls and Steyn agreeing), which included Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 379 (Dixon J); [1935] HCA 30. This aspect of the tort, together with the significance of the independent discretion exercised by prosecutors, was also considered by this Court in Sahade v Bischoff [2015] NSWCA 418 at [113]-[120] (Gleeson JA, Basten JA and Beech-Jones J agreeing).”

38. The circumstances in which a private person may be deemed to have become a prosecutor require evidence of that person being actively instrumental in having the proceedings commenced. There is no suggestion in this case, so far as I can distil the elements from the pleadings, that there was any restriction on the capacity of the police officers to verify information. This is a situation where a complainant has made a complaint to the police that the police have investigated. The plaintiff would need to establish that the police officer who laid the information could not have exercised independent discretion in relation to the information provided to the police by the defendant. Looking at the statement of claim in its current form, this has not been sufficiently pleaded and particularised, despite the plaintiff having legal representation and a series of opportunities in court timetables to amend the pleading.

39. The fact remains that the application for summary dismissal in Rock v Henderson [2021] NSWCA 155 was unsuccessful. I note that, in Rock v Henderson (No 2), the Court of Appeal considered that the damages to be awarded should be $100. This squarely raises the issue of proportionality, an issue referred to but not decided in Ghosh.

40. I have not considered the question of proportionality in this judgment because it has not been raised by the parties. It may be able to be considered at appellate level at some point in the future, in a more suitable vehicle.

Lack of readiness for the hearing

41. This brings me to the two main difficulties that I have. The first is that I have not been asked to set aside the self-executing order that I made for the provision of the proposed amended statement of claim and affidavits (or, for that matter, the self-executing order made by Judge Dicker SC). Unless a self-executing order is set aside, the party in default cannot rely upon those pleadings at the hearing.

42. This second difficulty is that these proceedings cannot be said to be ready for hearing at all. The costs of vacating the hearing date, now a month away, will be substantial, not only for the parties but for the court itself, where its resources are currently stretched to the maximum. Mr Livers confirmed on 23 June that he has not received instructions to seek to adjourn the hearing but that his client expects that this will occur.

43. Either or both of these factors would be sufficient to prompt the dismissal of these proceedings pursuant to UCPR r 12.7.

Conclusions concerning the show cause application

44. The plaintiff has had the benefit of assistance of a very high order from the Civil List Judges, Dicker SC DCJ and Fitzsimmons SC DCJ. He has had ample opportunity to comply with the generous times afforded to him by the orders, as well as the assistance of an experienced solicitor.

45. He has had three further opportunities from me. When the plaintiff came before me on the show cause application, I gave him a further opportunity to provide the proposed new amended statement of claim and affidavit material, but he has not done so on any of the three times that this application has been listed before me.

46. After I reserved my decision and said I would hand down my decision later today, Mr Livers contacted my associate to say he wished to provide the court with further submissions.

47. Those submissions repeat earlier claims that the plaintiff has a good case and referred to Kohkanzada v Amiri [2024] NSWSC 492, where judgment was given for the defendants, presumably as being a case where the degree of control the police had is discussed. It may also be relied on by the plaintiff as showing the range of damages that would have been awarded if the plaintiff succeeded would have been in the region of hundreds of thousands of dollars. I am not in a position to speculate as to the range of damages but even if these were substantial, that is no excuse for failing to prosecute these proceedings more diligently. In Kohkanzada v Amiri the court acknowledged very significant delays – two hearing dates were vacated – but the question of delay and impact of that delay in litigation cannot be measured in numerical terms.

48. The plaintiff also refers to Sahade v Bischoff [2015] NSWCA 418 at [137] where the court noted that it was “virtually impossible” for the police to go behind the claims of the asserted victims. In that case, there was CCTV available so there was no such restraint (at [137]).

49. The judgment the plaintiff could have relied upon, if I were considering summary dismissal, is MT v Se [2025] SASCA 8. However, this is a show cause application, in circumstances where the plaintiff acknowledges that he is so unready that the hearing will have to be adjourned.

50. The resources of this court have been strained by this flow of late affidavits and now, today, by submissions made even after judgment has been reserved. There must come a time when a court can do no more to assist a party who is a “reluctant gladiator” (Bi v Mourad [2010] NSWCA 17 at [31]). The plaintiff should not be permitted to move forward to a trial for which he is unready and to take up valuable court time for this court. The proceedings should be dismissed under UCPR r 12.7.

Costs

51. The defendant seeks a gross sum costs order pursuant to s 98(4) of the Act.

52. The information before me consists of a series of totals for time-based accounts, apparently from internal office administration records. I have been supplied with the charging rates for the legal practitioners carrying out the work in question. The total of $34,699 is put to me as being a compromise figure representing only some of the work charged for, but this is not sufficient specification for me to understand what that discount would be.

53. The principles applicable to the quantification by a court of a gross sum for costs were summarised by Wright J in Golden v Howard (No 2) [2024] NSWSC 172 as follows:

1. The Court has a discretionary power to make a gross sum costs order under s 98(4)(c) of the Act.

2. The discretion is not confined and may be exercised whenever the circumstances warrant its exercise: Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6].

3. A gross sum costs order may be appropriate in cases such as the present where the party ordered to pay costs is of limited means and the likelihood of the party entitled to costs recovering their costs is small: Hamod v State of New South Wales [2011] NSWCA 375 at [823] and [826].

4. The power should only be exercised when the Court considers that it can do so fairly between the parties, including having sufficient confidence in arriving at an appropriate sum on the materials available.

5. In determining the quantum of a gross sum costs order, the Court is not required to undertake a detailed examination of the kind that would be appropriate for a formal costs assessment. The approach to the assessment of gross sum costs must be logical, fair and reasonable, based on an informed assessment of the actual costs, having regard to the information before the Court (for example, by way of costs estimates or bills): Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [18].

6. Where appropriate, the Court may adopt a “broad-brush” approach to quantification, and it has been usual to apply an “impressionistic” discount to the costs actually incurred or estimated in order to take account of the contingencies that would be relevant in a formal costs assessment.

7. The aptness and amount of a particular discount will depend primarily on the accuracy and reliability of the evidence as to costs incurred available to the Court and also on the particular circumstances of the case.

54. The facts of that case were similar to the present. The case in question involved a self-represented plaintiff of limited means who was a frequent litigator who brought an action that was struck out. The costs discount was very substantial indeed, in that it amounted to a reduction from $27,607.88 to $15,000, which was 66.4% of the actual costs. In addition, the court had the benefit of rather more information as to the amounts charged than I have been provided with. In the absence of such material being provided, or having submissions as to whether costs should be ordered on an indemnity basis, or having more information as to the appropriate discounts to allow for the advantage of not having to undergo assessment of costs, I am reluctant to make any such order and I propose to simply make an order that the plaintiff pay the defendant’s costs as agreed or assessed.

55. That reluctance is all the more the case given that the defendant has pro bono representation the terms of which are unclear to me, and I take this opportunity to refer to the need for inquiry and reform into pro bono representation. It is now more than a decade since these problems were pointed out in New South Wales Law Reform Commission Report 137 “Security for Costs and Associated Costs Orders”, December 2012 (see E1 v E2; E Pty Limited v E2 [2023] NSWDC 411).

56. Upon these matters being raised by me, Ms Flynn stated that she had now received instructions to withdraw the application for a gross sum costs order. She indicated that any application for a costs assessment would proceed along the lines of taking a constructive approach to the subject matter of these proceedings. I do not propose to impose any restrictions on how the defendant’s solicitors propose to conduct the costs assessment so I will simply make the usual order for the defendant to pay the costs of these proceedings as agreed or assessed.

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.

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Decision last updated: 23 June 2025