Mohareb v State of New South Wales

[2025] NSWCA 156

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohareb v State of New South Wales [2025] NSWCA 156

Hearing dates:

On the papers

Date of orders:

18 July 2025

Decision date:

18 July 2025

Before:

Mitchelmore JA; Price AJA

Decision:

The summons seeking leave to appeal is dismissed with costs.

Catchwords:

PRACTICE AND PROCEDURE — leave to appeal — interlocutory decision — dismissal of application for proceeding to be tried by jury — dismissal of application to further amend pleading — dismissal of application to reinstate paragraphs of proposed pleading previously abandoned — dismissal of application to join additional defendants — significant procedural history — no question of principle — no demonstrated injustice

Legislation Cited:

Civil Procedure Act 2005 (NSW), pt 6

District Court Act 1973 (NSW), s 76A

Supreme Court Act 1970 (NSW), s 101(2)(e)

Uniform Civil Procedure Rules 2005 (NSW), rr 19.5, 19.6, 29.2

Cases Cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Ghosh v Scott Newton t/a Shaw Gidley (No 9) [2024] NSWSC 740

Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297

JaycarPty Ltd v Lombardo [2011] NSWCA 284

Kelly v Mina [2014] NSWCA 9

Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371

Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496; [2007] NSWCA 39

Mohareb v Kelso [2017] NSWCA 98

Mohareb v Local Court of New South Wales [2024] NSWCA 235

PPKWilloughby Pty Ltd v Baird [2019] NSWCA 48

Re Will of Gilbert (1946) 46 SR (NSW) 318

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598

Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Nader Mohareb (Applicant)
State of New South Wales (First respondent)
Director of Public Prosecutions (Second respondent)
Nine Entertainment Co Holdings Ltd (Third respondent)
Northern Beaches Council (Fourth respondent)
Alexander Edward Kelso (Fifth respondent)
Vanessa Kelso (Sixth respondent)
Taylor Booth (Seventh respondent)

Representation:

Counsel:
A N Williams (First and second respondents)
J P Guihot (Fourth respondent)

Solicitors:
Crown Solicitor for NSW (First and second respondents)
L Alick, in-house counsel, Nine Entertainment Co Holdings Ltd (Third respondent)
Moray & Agnew (Fourth respondent)

File Number(s):

2024/00282196

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

NA

Date of Decision:

5 July 2024

Before:

Weber SC DCJ

File Number(s):

2018/221230

JUDGMENT

1. THE COURT: The applicant, Nader Mohareb, seeks leave to appeal from the orders of Weber SC DCJ, made on 5 July 2024, dismissing two notices of motion that the applicant filed in proceedings commenced in 2018 against the first respondent, the State of NSW (the State), and the fourth respondent, Northern Beaches Council (the Council). His Honour described the notices of motion at the outset of his reasons as follows:

“[1] I have before me two notices of motion filed by the plaintiff. The first in time is the Notice of Motion of 9 November 2022. The only order pressed in that motion is order 5 to the effect that the proceedings referred to in paragraphs 1 to 4 of the motion be heard by a jury. The second Notice of Motion is dated 1 March 2024 and seeks leave to amend the statement of claim in matter 2018/00223230 to add pleadings against:

(1)   New South Wales Police (the Police)

(2)   the Attorney General

(3)   the Office of the Director of Public Prosecutions (ODPP); and

(4)    Nine entertainment Holdings Pty Ltd (‘Nine’)

[2] The motion also seeks to ‘reinstate ‘parts of a pleading which the plaintiff alleges Abadee DCJ had ordered be struck out. The three parties opposing the orders sought are the State of New South Wales, the Northern Beaches Council, and Nine.”

2. As his Honour’s decision was interlocutory, the applicant requires leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(e). The draft notice of appeal contains ten proposed grounds of appeal, which respectively take issue with his Honour’s conclusions on each prayer for relief that the applicant pressed in the two notices of motion, as well as alleging, in ground 1, errors described as “[c]ommon to the whole of the judgment’s findings”. The respondents that took an active role in the hearing in the court below, being the State (on behalf of NSW Police and the Office of the Director of Public Prosecutions (ODPP)), the Council, and Nine Entertainment Co Holdings Ltd (Nine), opposed the grant of leave. The remaining respondents, Alexander Kelso, Vanessa Kelso and Taylor Booth, are involved in other District Court proceedings to which we refer below and were only peripherally involved in the applicant’s notices of motion that are the subject of this appeal. They did not file an appearance in this Court.

3. Ordinarily, leave to appeal is granted in matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33] and The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]. It is well-settled that this Court exercises particular caution in granting leave to appeal from an interlocutory decision on a matter of practice and procedure: Re Will of Gilbert (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39; PPKWilloughby Pty Ltd v Baird [2019] NSWCA 48 at [3]. Referring to the leave requirement in s 101(2)(e) in Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371, Basten JA stated at [9]:

“… A decision as to whether to grant or refuse leave in a particular case must have regard to the guiding principles set out in Pt 6 of the Civil Procedure Act, as discussed in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]. Some considerations are specific to the circumstances of the particular case; some operate generally in relation to the control of the court's workload and the impact of a particular practice or procedure on other litigants. Again echoing modern concerns, Jordan CJ in Will of Gilbert abjured an approach which would ‘in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal.’”

4. For the reasons outlined below, no question of principle or of general importance arises on the present application for leave to appeal; and there is no demonstrated injustice. Leave to appeal should be refused.

Background to the applications before the primary judge

5. The primary judge set out the relevant background to the applications before him at [5] to [28] of his Honour’s reasons for judgment. It is unnecessary to repeat the whole of that background but the following aspects are significant for the present application.

6. The applicant is the plaintiff in three proceedings in the District Court:

1. proceedings commenced in July 2015 against Mr Kelso, claiming common law damages for trespass, assault and defamation (the current version of the pleading is an amended statement of claim filed on 8 October 2018) (the 2015 proceedings);

2. proceedings commenced in September 2016 against Mr Booth, claiming common law damages for defamation and assault (an amended statement of claim was also filed in that matter on 8 October 2018) (the 2016 proceedings); and

3. proceedings commenced in the Supreme Court in July 2018 against the State (NSW Police), and the Council, which were transferred to the District Court in March 2019, seeking damages against both parties for negligence and for defamation against the police (the 2018 proceedings).

7. On 1 October 2020, in the 2018 proceedings, Wass SC DCJ dismissed the defamation claim against the police but permitted the claims in negligence and an intentional tort to proceed subject to the provision of particulars.

8. On 10 December 2020, the Council filed a notice of motion to dismiss the balance of the 2018 proceedings including on the basis that the applicant had been declared bankrupt, and on 11 December 2020 the State filed a notice of motion to have certain paragraphs excluded from a proposed further amended statement of claim. On 19 April 2021, the applicant filed a notice of motion to join Dr Michael Bowler as third defendant and Nine as fourth defendant to the 2018 proceedings, as well as to have the 2015 and 2016 proceedings consolidated with the 2018 proceedings.

9. On 14 May 2021, Abadee DCJ granted leave for the applicant to file the proposed further amended statement of claim in the 2018 proceedings but excluded certain paragraphs of the proposed pleading. His Honour dismissed the application to join the additional defendants referred to above. His Honour did not consolidate the three proceedings but ordered that the 2015 and 2016 proceedings be heard immediately after the 2018 proceedings by the same trial judge. His Honour dismissed the Council’s application to dismiss the 2018 proceedings: Mohareb v State of NSW [2021] NSWDC 177. On 18 November 2021, the Court of Appeal refused leave to appeal from Abadee DCJ’s decision, with costs: Mohareb v State of NSW [2021] NSWCA 278.

10. On 14 November 2022, the applicant filed a notice of motion in the Supreme Court seeking orders which included that the 2015, 2016 and 2018 proceedings be transferred to the Supreme Court to be consolidated with criminal contempt proceedings that have been on foot against Mr Kelso since 1 February 2018. On 14 July 2023, Campbell J dismissed that notice of motion with costs: Mohareb v State of New South Wales [2023] NSWSC 826. The Court of Appeal refused leave to appeal from Campbell J’s decision, with costs: Mohareb v State of NSW [2023] NSWCA 289.

The 2022 notice of motion

11. At the time the primary judge heard the notice of motion filed by the applicant on 9 November 2022 (the 2022 notice of motion), the applicant pressed only for the order sought in prayer 5, namely, that the four causes of action referred to in prayers 1 to 4 of the motion be tried by jury. As his Honour noted at [76] of his reasons, the application was premised on Abadee DCJ having made an order consolidating the three proceedings (which, as noted above, his Honour had not done). The applicable provision of the District Court Act 1973 (NSW) is s 76A, which provides:

76A Action to be tried without jury unless jury required in interests of justice

(1)    An action is to be tried without a jury, unless the Court orders otherwise.

(2)    The Court may make an order under subsection (1) that an action is to be tried with a jury if—

(a)    any party to the action—

(i)    files, within the prescribed time, a requisition for trial with a jury, and

(ii) pays the fee prescribed by the regulations made under section 18 of the Civil Procedure Act 2005, and

(b)    the Court is satisfied that the interests of justice require that the action be tried by a jury.

(3)    A fee paid under this section is to be treated as costs in the action, unless the Court orders otherwise.

(4)    This section does not apply to any action for defamation.

Note.

Section 21 of the Defamation Act 2005 makes provision for jury trials in defamation actions.

12. Rule 29.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) was also relevant. It provides:

29.2 Applications and requisitions for juries in proceedings other than defamation proceedings

(1)    This rule applies to proceedings other than defamation proceedings.

(2)    An application in proceedings to which this rule applies for the proceedings to be tried by jury must be made by notice of motion.

(3) For the purposes of section 85 of the Supreme Court Act 1970 and section 76A of the District Court Act 1973, a requisition for a jury in proceedings to which this rule applies must be filed at the same time as the notice of motion referred to in subrule (2) is filed.

(4)    Unless the court otherwise orders, a notice of motion under subrule (2) must be filed—

(a)   if the notice is filed by the plaintiff—

(i)    within 56 days after service on the defendant of the statement of claim, or

(ii)    if a defence is served on the plaintiff within that period, within 28 days after service of the defence on the plaintiff, or …

13. In refusing to make the order, the primary judge observed that s 76A(2) required that the court “must be positively satisfied that the disinterested interests of justice require departure from the general rule of trial by judge alone”: at [79], citing Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496; [2007] NSWCA 39 at [18]. His Honour considered that nothing the applicant had identified warranted that departure: at [80]. Further, the application was brought significantly out of time, the pleadings had closed, and the matter had a long procedural history. His Honour concluded that the applicant had not advanced any reasons that would warrant leave to requisition a jury at the point at which he sought that leave: at [82].

The 2024 notice of motion

14. At the time the applicant filed the notice of motion on 1 March 2024 (2024 notice of motion), the current version of the pleadings in the 2018 proceedings was the version that the applicant had filed on 8 June 2021, pursuant to the leave that Abadee DCJ had granted. By the 2024 notice of motion, the applicant sought to further amend the pleading in the following respects:

1. to add further pleadings against the State relating to NSW Police, the Attorney General, and the ODPP (prayers 1(a), 1(b) and 1(c));

2. to join Nine as a third defendant (prayer 1(d)); and

3. to “reinstate” parts of the pleading that the applicant described as having been struck out by Abadee DCJ (prayer 1(e)).

15. The applicant also sought an order that a notice of motion filed in proceedings against Mr and Mrs Kelso be joined to the 2018 proceedings (prayer 2).

16. The primary judge first addressed the form of the proposed amendments, noting that the applicant sought to amend not only by reference to a further amended pleading but also a document titled “Supplement to 8 June 2021 Amended Statement of Claim” (Supplement Document). His Honour observed that the proposed further amended pleading did not comply with rr 19.5 and 19.6 of the UCPR and it was far from clear how the applicant intended the two documents to interact: at [39]. His Honour did not consider that difficulty was overcome by the document the applicant provided with his written submissions in reply, by which (as his Honour described at [40]) the applicant had physically appended the Supplement Document to the proposed further amended pleading.

17. His Honour concluded that leave to amend should be refused “if for no other reason than the form of the proposed amendments”: at [39]. His Honour also accepted the State’s related submission that it was not for the parties, or the Court, to find a maintainable cause of action amongst the pleading confusion: at [41]. However, his Honour considered that if he decided the motion solely on the basis of matters going to form, “this may lead to yet further delays, and further applications”: at [42]. Accordingly, his Honour proceeded to address additional bases on which it was not appropriate to grant leave to amend.

18. As concerned the proposed amendments regarding the police (prayer 1(a)), his Honour considered that the amendments purported to expand the case in a form that was embarrassing and would be liable to be struck out. His Honour also considered that the proposed amendments would occasion further delay, which was “an important consideration given the history of the litigation”: at [43].

19. As to the proposed amendments concerning the Attorney General (prayer 1(b)), in the Supplement Document the applicant alleged that the system of administration of justice, for which the Attorney General was responsible, resulted in judicial officers acting against self-represented litigants in a manner that was biased, hostile, contrary to law and abusive of their authority. His Honour set out in some detail the allegations against particular District Court Judges and the Judicial Registrar, and the Court of Appeal. His Honour concluded that granting leave to amend “would be to render irrelevant and otiose, fundamental concepts which underlie the doctrine of judicial immunity, and thus the conduct of the judicial system”: at [48]. Although his Honour considered that the manner in which the proposed amendments sought to make the Attorney General liable for the actions and omissions of judicial officers was “quite unclear”, they appeared to be to the same effect as an allegation of vicarious liability: at [53]. In concluding that the amendments also would not survive a strikeout application, his Honour stated at [54]:

“In my view, the Attorney General could never be liable in respect of the acts and omissions of judicial officers, for the simple reason that the judicial officers concerned are protected by judicial immunity, and thus there could be no liability which is capable of being visited on the Attorney General.”

20. In relation to the proposed amendments concerning the ODPP (prayer 1(c)), his Honour concluded that leave should be refused as there was no pleaded basis on which the State or the Attorney General could be liable for the acts and omissions of the ODPP, either at all or in the present case: at [57].

21. In addition to these specific matters, his Honour accepted the submissions of the State and the Council that the proceedings had been attended by unreasonable delay. The proceedings had been commenced in 2018 and concerned events that took place as far back as April 2013. Viewed against that background, and having regard to ss 56 and 59 of the Civil Procedure Act 2005 (NSW), his Honour considered that the new causes of action “could only cause yet further delay”: at [58].

22. In so far as the applicant sought to join to the 2018 proceedings a notice of motion that he filed on 25 February 2021 against Mr and Mrs Kelso in separate proceedings (prayer 2), his Honour noted that the notice of motion sought orders that Mr and Mrs Kelso be prosecuted for offences of attempting to pervert the course of justice and perjury by giving false statements to the police and during their evidence in Local Court proceedings. His Honour stated that there was no factual connection between that subject matter and the subject matter of the 2018 proceedings. Coupled with associated further delay and additional expense, his Honour concluded that this was a reason for not granting the leave sought: at [64]-[65].

23. The primary judge then dealt with the part of the 2024 notice of motion that sought orders to “reinstate” parts of the pleading which the applicant described as having been struck out by Abadee DCJ, and which related to claims for damage to property (prayer 1(e)). His Honour observed at [68] that Abadee DCJ had not struck out the paragraphs but rather had excluded them from the grant of leave to amend. The primary judge accepted the submission of the State and the Council that permitting the amendments would result in unacceptable delay and substantially increased costs: at [70]. His Honour also accepted the submission that allowing the amendments would be contrary to the principle of finality in litigation, relying on the fact that when the applicant was an undischarged bankrupt his trustee in bankruptcy had abandoned the claim in question. His Honour considered that there was a public interest in the applicant being bound by that election: at [72]-[74].

24. As to the joinder of Nine (prayer 1(d)), his Honour noted that a number of arguments were advanced in opposition to this application. Among the grounds on which his Honour refused to join Nine were: (i) the proposed negligence pleading did not give rise to common factual or legal questions relating to the 2018 proceedings to date; (ii) joinder would cause further unacceptable delay and expense; and (iii) the negligence that the applicant alleged occurred in July to August 2017 and was thus outside the limitation period: at [84]-[87]. His Honour also considered that the proposed pleading did not disclose a cause of action against Nine. Further, the application involved an abuse of process having regard to the applicant’s earlier (unsuccessful) attempt to join Nine as a defendant: at [88].

20. The primary judge concluded at [90]:

“These proceedings were commenced in 2018, and thus need to be set down for hearing for the earliest practicable time for trial. There is a clear public interest in that occurring, and a correlative public interest in the proceedings not being further extended and delayed, which would be the inevitable consequence of the plaintiff being granted leave to amend, as sought.”

The application for leave to appeal

26. In considering the application for leave to appeal, the Court has reviewed the applicant’s summary of argument dated 20 September 2024 together with the extensive white book, as well as his amended reply to the responses of the respondents, which comprised 15 closely-typed pages.

27. Only one of the ten proposed grounds of appeal related to the 2022 notice of motion (ground 9). It is the case that proposed ground 1 is described as common to all of the primary judge’s findings, but it is directed primarily to arguments that the applicant advanced in support of the 2024 notice of motion. Accordingly, the Court will address proposed ground 1 and the other grounds specific to the 2024 notice of motion before addressing proposed ground 9. In giving its reasons below the Court has adopted the approach to which Kirk and McHugh JJA referred in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [34], where their Honours stated:

“Deciding whether to grant leave to appeal is an interlocutory decision: Sanofi v Parke Davis Pty Ltd [1982] HCA 9; (1982) 149 CLR 147 at 152-153. It is not an appeal. It does not finally determine the legal issues at stake. The Court is exercising a broad discretionary power, guided by considerations relevant to the interests of justice, and which is in exercise of a provision meant to serve as a gateway mechanism to determine whether a full hearing of the appeal is appropriate. In this context, in general, the Court need not give extensive reasons for dismissing an application for leave to appeal. They should be sufficient to articulate for the benefit of the parties and, if special leave is sought, the High Court, the core reasons why the Court was not persuaded to exercise its discretion to grant leave to appeal. They can be short. To require extensive reasons – eg addressing in detail all arguments made or grounds raised by an applicant – would be to defeat the very purpose of having a leave gateway: see eg La La Land Byron Bay Pty Ltd v Independent Liquor and Gaming Authority [2015] NSWCA 254 at [9]-[10].”

The 2024 notice of motion

28. Proposed grounds 1 to 8 and 10 concerned the primary judge’s refusal of leave to amend the further amended statement of claim in the 2018 proceedings, including to join Nine as a defendant. As summarised above, his Honour refused leave to amend on several independent bases, including the form of the proposed amendments, delay and associated costs (having regard to the provisions of Part 6 of the Civil Procedure Act), as well as difficulties with the substance of what the applicant sought to plead.

29. Although the applicant submitted that his application for leave to appeal raised questions of public importance and general principle, what he relied on in support of that submission was that part of his amendment application by which he sought to allege liability on the part of the Attorney General for the system of the administration of justice. Specifically, he contended that the proposed appeal involved consideration of: (1) the undermining of the independence of the judiciary by the Attorney General; (2) the liability of the Attorney General for torts; and (3) the prejudicial effect on vulnerable persons, chiefly self-represented litigants. Given that the decision at issue involved a refusal of leave to amend so as to raise these allegations, and that leave to amend was refused on a multitude of grounds, including but not limited to the underlying substance of the allegations, the prospect that any question of public importance of the nature the applicant asserted would arise for consideration was remote.

30. The applicant otherwise needed to demonstrate a reasonably clear injustice going beyond something that was merely arguable with respect to each of the bases on which his Honour declined the relief sought in the 2024 notice of motion: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (Campbell JA, Young and Meagher JJA agreeing). The applicant’s submissions highlight his dissatisfaction with the primary judge’s conclusions but do not support the existence of arguable error of a nature that would warrant leave to appeal.

Proposed ground 1

31. The applicant’s proposed ground 1 comprised a series of complaints that the primary judge had disregarded points that he made in his evidence and submissions, including that: delay was not determinative on the proper application of the criteria in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 (“Hannaford”); the course his Honour took would cause disproportionately more delay and expense, having regard to Simpson JA’s observations in Mohareb v Kelso [2017] NSWCA 98 at [34]; and the proposed amendments to the pleading brought it into line with the evidence he had filed. The applicant also submitted that his Honour “baselessly” accepted the respondents’ submissions in circumstances where he had not made any adverse credit findings in relation to him. He also complained that he was denied procedural fairness.

32. It is not the case that the primary judge disregarded the applicant’s submissions and evidence. It is readily apparent from the material before the Court that the primary judge considered the applicant’s written submissions, not least because when the applicant was making oral submissions during the hearing, his Honour pointed out to the applicant that he was making points that were in his written submissions (Tcpt 28 June 2024, p. 14.42-47), and indicated that he had read the written submissions and understood what the applicant was saying (Tcpt 28 June 2024, p. 15.30-31). His Honour also referred specifically in his reasons to the applicant’s reply, and the document that he provided at that time, by which he sought to address the issue of his proposed further amended pleading sitting across two documents.

33. It does not otherwise follow from the primary judge not addressing the applicant’s submissions in detail that his Honour did not consider them or disregarded them. His Honour was not required to state his reasons for rejecting each of the arguments that the applicant advanced in 49 pages of submissions and 450 pages of evidence. The content and detail of reasons that a judge is required to provide, including on interlocutory decisions, “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] (French CJ and Kiefel J). The reasons his Honour gave were more than adequate to expose his path of reasoning. A judge’s reasons “are not required to mention every fact or argument relied on by the losing party as relevant to an issue”: Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [62] (Gleeson CJ, McHugh and Gummow JJ).

34. His Honour was not required to form an adverse view of the applicant’s credit as a precondition to refusing leave to amend, and his Honour did not do so. Rather, his Honour’s acceptance of the respondents’ submissions rested on his Honour’s assessment of matters including the form and content of the proposed pleading, the passage of time since the proceedings were commenced and the likely cost to the existing parties that would be associated with the amendments if accepted. All of those matters were well within his Honour’s realm of judicial experience to assess and form a view on.

35. On the question of delay, the applicant emphasised certain aspects of the reasons in Hannaford about leave to amend, which he submitted did not apply in this case. Of greater significance however is the broader statement of the applicable principles concerning an application for leave to appeal from a refusal of an application for leave to amend, which Barrett JA set out in Kelly v Mina [2014] NSWCA 9 at [45]-[48], to which Sackville JA referred with approval in Hannaford at [16]:

“[45] The amendment application was governed by s 64 of the Civil Procedure Act 2005 which, in subsection (1), provides that, at any stage of proceedings, the court may order that any document in the proceedings be amended, or that leave be granted to a party to amend any document in the proceedings. Section 64(2) then provides:

‘Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.’

[46] The judge's decision was obviously discretionary, so that appellate intervention will be warranted only upon the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. The fact that the decision was a decision on a matter of practice and procedure means that this Court should be slow to interfere and ought not to reverse the judge's decision unless convinced that it is plainly erroneous: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170. As Bryson JA said in State of New South Wales v Mulcahy [2006] NSWCA 303 at [3], ‘such appeals are, appropriately, kept on a tight rein’.

[47] Particularly in light of the opening words of s 64(2), it is not controversial that the provisions in Part 6 Division 1 of the Civil Procedure Act were binding on the primary judge and that, in accordance with s 58, his Honour was bound to seek to act in accordance with the dictates of justice and, in so doing, to have regard to s 56 concerning the ‘overriding purpose’ of the Act and rules of court in their application to civil proceedings; also that, in addressing the amendment application in the particular statutory context, his Honour was required to take into account a combination of factors identified by the High Court in Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and usefully summarised by Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136 (at [38]) as follows:

‘(a) Whether there will be substantial delay caused by the amendment;

(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.’

[48] As this Court has emphasised more than once, Part 6 Division 1 of the Civil Procedure Act made substantive and important changes to the law so that considerations of promptness and efficiency in the conduct of civil litigation are afforded a new and special importance which may sometimes provoke a sense of injustice in a party who has failed to proceed with despatch."

(Citations omitted.)

36. In light of the chronology of the proceedings that the primary judge set out in the reasons, it was well open to his Honour to conclude that the applicant’s further application for leave to amend (noting the earlier application that Abadee DCJ heard and determined in 2021), by which he sought to add further parties and causes of action (which were attended by difficulties both as to form and legal substance), would be productive of substantial delay, wasted costs and significant case management concerns. It was also well open to his Honour to conclude that the existing defendants, being the State and the Council, were entitled to have the 2018 proceedings heard and determined without further delay. The applicant has not demonstrated any arguable error in the exercise of his Honour’s discretion to refuse leave to amend.

Proposed ground 2

37. Proposed ground 2 concerned his Honour’s conclusion that the proposed amendments were bad in form. The applicant submitted that his Honour had no basis for concluding that his proposed further amended pleading was defective in form and that it was far from clear how the pleading and the Supplement Document interacted. He submitted that the manner in which the primary judge dealt with the various claims indicated that the amendments were readily comprehensible. Further, his appending of the Supplement Document to the proposed further amended pleading was an attempt on his part to overcome the purported impenetrability of the two documents and should have been considered on that basis. The applicant also submitted that although his Honour referred to the decision of Kunc J in Ghosh v Scott Newton t/a Shaw Gidley (No 9) [2024] NSWSC 740 (“Ghosh”), his Honour did not explain its relevance.

38. Those submissions, which the applicant developed in more detail in his reply, did not demonstrate any error in his Honour’s conclusions regarding the form of the proposed further amended pleading. Those conclusions were based on his Honour’s review of the proposed further amended pleading and the Supplement Document, along with the document that the applicant appended to his reply in an attempt to meet the respondents’ form arguments. As his Honour stated, the decision in Ghosh was an example of an application in which the judge, there Kunc J, stated that it was not for the parties or for him to undertake the task of trying to fashion a maintainable cause of action. It is apparent from [41] of the reasons that the primary judge relied on it for that limited purpose.

Proposed ground 3

39. The applicant repeated his submissions on proposed grounds 1 and 2 in support of proposed ground 3, which was directed to his Honour’s refusal of leave to amend the applicant’s claim concerning the police. For the reasons outlined above those submissions disclosed no arguable error.

Proposed ground 4

40. Proposed ground 4 concerned the amendments the applicant sought to make involving the Attorney General. The applicant submitted that the primary judge misunderstood the nature of his claim as involving judicial immunity, when in fact the relevant trait that formed the basis of his claim was judicial independence. However, as is apparent from the applicant’s submissions in support of this proposed ground, the allegations he sought to advance against the Attorney General rested on allegations that in matters involving the applicant, judges (and the judicial registrar) had engaged in conduct that was contrary to their duty and obligation, in his words, “to administer justice in a fair & impartial manner”. His Honour reviewed the allegations in some detail, which revealed that at the core of the allegations involving the Attorney General were decisions made by a number of different judicial officers in cases involving the applicant. Apart for disagreeing with the outcome, the applicant has not identified any arguable error in his Honour’s conclusion that the allegations would not survive a strikeout application for the reasons his Honour gave, such that a grant of leave to amend would be futile.

Proposed ground 5

41. Proposed ground 5 related to the primary judge’s refusal of leave to amend to include a cause of action against the ODPP. The applicant submitted that since his Honour rejected the amendment solely on the basis that he had inadvertently nominated the State as liable for the acts of the ODPP, he should have been given an opportunity verbally to amend his notice of motion so as to join the Director of Public Prosecutions as a party. The primary judge was under no such obligation. Further, and more fundamentally, any such opportunity would have met the same issues concerning delay and associated cost that his Honour otherwise considered highly significant in circumstances where the applicant was seeking to amend in a manner that significantly expanded his case both in terms of parties and causes of action.

Proposed ground 6

42. The subject of this proposed ground was the primary judge’s conclusions regarding delay and thus it substantially overlapped with proposed ground 1, which has been addressed above. The points that the applicant raised in support of this ground included his view that the delay should have been sheeted home to the defendants and not to him, and that what he sought leave to add did not introduce any new facts or issues and were all necessary to determine the matters in dispute and would not cause any, or any significant, delay. None of those matters in any way undermine the fundamental point that his Honour made in relation to delay, having regard to the chronology of the proceedings that his Honour set out at the outset of his reasons. At the point his Honour determined the notices of motion, the claims against the two defendants had been on foot for nearly six years, and the pleadings had been closed for three years. The applicant has not articulated any arguable error in his Honour taking the view, in declining to exercise the discretion vested in him under s 64 of the Civil Procedure Act, that further and unacceptable delay (and associated costs) would ensue if he granted leave to the applicant to rely on the proposed amendments (which, as his Honour noted, were defective for other reasons).

Proposed ground 7

43. This proposed ground concerned his Honour’s refusal of the application to join the notice of motion involving the Kelsos to the 2018 proceedings. The applicant submitted that the primary judge’s conclusions about delay and the absence of any factual connection between the subject of the notice of motion and the 2018 proceedings were wrong. However, in support of the latter error he relied primarily on the fact that the content of the notice of motion was no different from the 2015 and 2016 proceedings which he asserted Abadee DCJ had consolidated with the 2018 proceedings. That premise was incorrect. His Honour’s conclusion regarding the absence of any factual connection between the notice of motion and the 2018 proceedings was plainly correct.

Proposed ground 8

44. Proposed ground 8 related to his Honour’s refusal to “reinstate” parts of the pleading. The applicant took issue with various aspects of his Honour’s acceptance of the submissions of the State and the Council. The applicant submitted that he was given leave to file these amendments by Wass SC DCJ and that the claims in question were in fact “primarily” wrongs to person which did not pass to the trustee in bankruptcy. It followed, he submitted, that his Honour erred in relying on the public interest in the finality of litigation. His Honour’s recitation of the history of the claims and his reliance, in that circumstance, on the importance of finality, was not erroneous. Further, and in any event, his Honour separately relied on the delay and expense that would be associated with running these additional claims. That the applicant disagreed with his Honour’s conclusion in this regard did not demonstrate any error in that conclusion, let alone one warranting the grant of leave.

Proposed ground 10

45. This proposed ground concerned the application to join Nine as a defendant to the 2018 proceedings. As Nine submitted, the primary judge dismissed that application on six separate bases. The applicant took issue with each of the bases on which his Honour concluded that Nine should not be joined. He contended that his Honour disregarded certain parts of his written submissions and his witness statement, a complaint we have addressed above. He reiterated his submissions as to why his Honour was wrong in his conclusions about delay, which we have also addressed above. Further, the applicant contended that his Honour erroneously concluded that the proposed causes of action against Nine were statute barred, when he had first raised and pursued a claim in negligence against Nine in the notice of motion that was before Abadee DCJ. This latter submission served only to emphasise the force of Nine’s submission, in opposing leave, that having previously been unsuccessful in his application to join a different company (Nine Entertainment Co Pty Ltd) (which he unsuccessfully sought leave to appeal from in both the Court of Appeal and the High Court), the applicant had effectively made the same application twice, and accordingly it was an abuse of process.

45. In any event, as the primary judge recognised, permitting the claim and the associated joinder when the claims did not give rise to common factual or legal questions would be productive of delay for the existing defendants and associated expense. Having regard to the circumstances and the provisions of ss 56-58 of the Civil Procedure Act, it was well open to his Honour to conclude as he did and the Court cannot discern any arguable error in that conclusion.

The 2022 notice of motion

47. The only proposed ground of appeal that the applicant advanced regarding the dismissal of the 2022 notice of motion was proposed ground 9, by which he contended that his Honour erred in reaching the two conclusions to which the Court has referred at [13]. In his summary of argument, the applicant submitted that he advanced a series of “lawfully valid reasons why a trial by jury is warranted and lawfully valid reasons as to why leave to requisition trial by jury is also warranted”. However, the reasons he advanced in the written submissions before the primary judge, dated 30 May 2024 and 20 June 2024, were directed primarily to the aspect of the proposed pleadings that involved the Attorney General. In circumstances where his Honour did not grant leave to amend the pleading in that regard, his Honour’s characterisation of the applicant’s reasons as not warranting a trial by jury was entirely correct.

Order

48. The Court makes the following order:

1. The summons seeking leave to appeal is dismissed with costs.

**********

Decision last updated: 18 July 2025