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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWDC 229
Decision Date: 23 June 2025

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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