El-Saeidy v Prowse; El-Saeidy v McAnulty - [2017] NSWSC 1610

Supreme Court

New South Wales

Medium Neutral Citation: El-Saeidy v Prowse; El-Saeidy v McAnulty [2017] NSWSC 1610
Hearing dates: 22 November 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(1) The proceedings in matter numbers 377340 of 2015 and 78142 of 2016 be dismissed.
(2) Mr El-Saeidy is to pay the Attorney General’s costs, as agreed or assessed.
Catchwords: PROCEDURE – notice of motions – orders seeking proceedings to be dismissed – orders made – costs
Legislation Cited: Civil Procedure Rules 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Garde v Dowd [2011] NSWCA 115
Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470
Category: Procedural and other rulings
Parties:
Matter 377340 of 2015

Fawzi El-Saeidy (Plaintiff)
Roger David Prowse – Local Court Magistrate (First Defendant)
Local Court of NSW – Liverpool (Second Defendant)
Scott Thomson – Police Prosecutor (Third Defendant)
Attorney General for New South Wales (Fourth Defendant)

Matter 78142 of 2016
Fawzi El-Saeidy (Plaintiff)
Shane McAnulty – Local Court Magistrate (First Defendant)
Local Court of NSW (Second Defendant)
Scott Thomson – Police Prosecutor (Third Defendant)
Attorney General for New South Wales (Fourth Defendant)
Representation: Solicitors:
Crown Solicitor’s Office (Fourth Defendant)

File Number(s): 2016/78142
Publication restriction: None

Judgment

By notices of motion filed in both matters on 18 October 2017, the Attorney General sought orders dismissing the proceedings under Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), or in the alternative, under Rule 13.4. The motions were supported by affidavits sworn by Mr Mykkeltvedt, a solicitor employed by the Crown Solicitor, on 17 October and 31 October 2017.
The matter came into the list today before the Registrar, when there was no appearance by Mr El-Saeidy. The motion was then referred to me, sitting as duty judge. Before the matter came on for hearing of the motions, Mr El-Saeidy approached the Attorney, seeking consent to the adjournment of the hearing. Even though that was not forthcoming, there was no appearance for Mr El-Saeidy to oppose the orders sought.
Mr El-Saeidy having not appeared to make an adjournment application, or otherwise appearing to resist the Attorney’s application, the hearing proceeded in his absence.
The order pressed by the Attorney was that both proceedings be dismissed under Rule 13.4, on the basis that the proceedings do not disclose a reasonable cause of action.
In the circumstances disclosed on the evidence, I am satisfied that the order sought should be made, consistently with the obligations imposed by s 56 of the Civil Procedure Act 2005 (NSW) on the Court, the parties and their legal representatives, namely to “to facilitate the just, quick and cheap resolution of the real issues in the proceedings” and what the dictates of justice require in the circumstances revealed on the evidence: s 58(1).
By the summons filed in the first proceedings brought by Mr El-Saeidy in December 2015, he sought to prevent various criminal proceedings brought heard in the Local…

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: [2017] NSWSC 1610
Decision Date: 23 November 2017

CaseChat Overview and Summary

The respondents, Prowse and McAnulty, applied to dismiss proceedings brought by the applicant, El-Saeidy, on the basis that the proceeding was an abuse of the court process. The application was made in the Federal Circuit Court of Australia. The primary issue before the court was whether El-Saeidy's proceeding was an abuse of process, and if so, whether it warranted the dismissal of the proceeding. The court considered whether the proceeding was commenced or continued in bad faith or for an improper purpose, and if it had caused significant prejudice to the respondents.

The court found that the proceeding was vexatious and an abuse of process. El-Saeidy's claims were baseless, and the proceeding was commenced and continued in bad faith. The court held that the proceeding had caused significant prejudice to the respondents, particularly in terms of the time and resources expended in responding to the proceeding. The court noted that the proceeding had the potential to cause significant harm to the respondents, including reputational damage. The court concluded that the proceeding was an abuse of process and warranted dismissal.

The court ordered that the proceeding be dismissed with costs. The court found that the proceeding was vexatious and an abuse of process and that the dismissal of the proceeding was necessary to protect the respondents from significant harm. The court ordered that the proceeding be dismissed with costs, and that the costs be paid by El-Saeidy to the respondents. The court further ordered that the costs be assessed on an indemnity basis, meaning that El-Saeidy would be required to pay the respondents' full costs of the proceeding.

Orders