Mohareb v State of New South Wales & Ors

[2021] NSWDC 177

District Court

New South Wales

Medium Neutral Citation:

Mohareb v State of New South Wales & Ors [2021] NSWDC 177

Hearing dates:

29 – 30 April 2021

Date of orders:

14 May 2021

Decision date:

14 May 2021

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs 178 - 192

Catchwords:

PRACTICE AND PROCEDURE – plaintiff allegedly victimised by local residents of Scotland Island – complaint against police force and local council in response to such victimisation – causes of action in negligence and intentional tort – application to join additional parties as defendants – whether proposed amendments to pleading comply with earlier Court orders – whether plaintiff’s separate proceedings against individuals should be consolidated – consideration of Council’s application to dismiss – whether reasonable cause of action alleged – whether any inadequacy of particulars warrants dismissal for want of despatch

BANKRUPTCY – plaintiff is undischarged bankrupt – whether pleaded action or actions for property damage – whether action falls within “personal injury or wrong” exception under s 60(4) of Bankruptcy Act 1966 (Cth)

Legislation Cited:

Bankruptcy Act1966 (Cth) s 60

Civil Liability Act2002 (NSW) ss 5B, 5C

Civil Procedure Act2005 (NSW) ss 56, 58, 61

Competition and Consumer Act 2010 (Cth) Sch 2 – Australian Consumer Law ss 64A, 237, 243.

Defamation Act 2005 (NSW) s 27

Limitation of Actions Act 1969 (NSW) s 14B

Uniform Civil Procedure 2005 (NSW) rr 15.1, 28.5, 31.36

Cases Cited:

Aon Risk Services Australia v Australian National University (2009) 239 CLR 175

Badcock v State of South Australia [2010] SADC 147

Beckham v Drake [1849] 9 ER 1213

Cox v Journeaux (No.2) (1935) 52 CLR 713

Faulkner v Blewett (1981) 52 FLR 115

Fisher v Transport for NSW [2016] NSWSC 1888

Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210

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

Heyman or Graham Barclay v Great Lakes Council (2002) 211 CLR 240

Holmes v Goodyear Tyre & Rubber Co (Aust) (Ltd (1984) 73 FLR 88

Hunter Area Health Services v Marchlewski [2000] NSWCA 294

Marshall v Fleming [2012] NSWSC 698

Mohareb v State of New South Wales (Unreported, 1 October 2020)

Moore v Scenic Tours Pty Ltd (2020) 377 ALR 209

Moss v Eaglestone (2011) 83 NSWLR 476

Northern Territory v Sangare (2019) 93 ALJR 959; [2019] HCA 25

Pyrenees Shire Council v Day (1998) 192 CLR 330

St Gregory’s Armenian School Inc (in liq) (No.2) [2020] NSWSC 1601

Sullivan v Moody (2001) 207 CLR 562

Tame v New South Wales (2002) 211 CLR 317

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507

Trkulja v State of Victoria [2001] VSC 62

Wilkinson v Downton [1897] 2 QB 57

Wilson v United Counties Bank [1920] AC 102

Texts Cited:

Nil.

Category:

Procedural rulings

Parties:

Nader Mohareb (Plaintiff)
State of New South Wales (First Defendant)
Northern Beaches Council (Second Defendant)
Dr Bowler (Proposed Third Defendant)
Nine Entertainment Co Pty Ltd (Proposed Fourth Defendant)

Representation:

Counsel:
Plaintiff, in person
Mr A Williams for the First Defendant
Mr J Guihot for the Second Defendant
Mr S Blackman for the Proposed Third Defendant
Solicitor Advocate for the Proposed Fourth Defendant

Solicitors:
Crown Solicitor’s Office for First Defendant
Moray & Agnew for the Second Defendant
Meridian Lawyers for the Proposed Third Defendant
Banki Haddock Fiora for the Proposed Fourth Defendant

File Number(s):

2018/221230

Publication restriction:

Nil.

Judgment

Introduction

1. On 18 July 2018, the plaintiff commenced this proceeding. It has had a chequered procedural history. Much of that background is referred to in the reasons for decision of Wass SC DCJ in Mohareb v State of New South Wales (Unreported, 1 October 2020). In that decision, her Honour dismissed a defamation claim brought against the first defendant, but permitted claims in negligence and an intentional tort claim (based upon the principles of Wilkinson v Downton [1897] 2 QB 57) to proceed, subject to the provision of particulars. Claims in negligence and intentional tort have also been brought against the second defendant. Her Honour permitted those claims to run, also subject to the provision of particulars. Her Honour noted (at [70]) that there was no impediment in the first or second defendants moving to strike out the claims after the particulars were provided.

2. A series of interlocutory applications are before the Court. They are:

1. The plaintiff’s application to consolidate two other proceedings, against third parties (being Mr Alexander Edward Kelso and Mr Taylor Booth) with this proceeding;

2. The plaintiff’s application to join two additional defendants, Dr Bowler and Nine Entertainment Co Pty Ltd;

3. The plaintiff’s application to amend the plaintiff’s claim against the First Defendant. If successful, this application may render a subsisting strike out application by the First Defendant otiose. But if not, the Court is asked to determine the strike out application;

4. The Second Defendant’s dismissal application.

THE CONSOLIDATION APPLICATION

3. The plaintiff, the applicant for this application, commenced two separate proceedings, both in the Defamation List, in this Court against Mr Kelso and Mr Booth on 8 October 2018. He seeks an order from the Court under r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) that those proceedings be heard immediately after this proceeding.

4. The legal representatives for the first and second defendants did not dispute Mr Mohareb’s contention that, stated in a very general way, the factual matters raised against Mr Kelso and Mr Booth are relevant to the claims that he makes against their clients. Prima facie, it appears to me that the condition in r 28.5(c) (at least) of the UCPR is satisfied and the legal representatives for the first and second defendants did not submit that it had not been satisfied.

5. Mr Mohareb proved that his application to consolidate was served on Messrs Kelso and Booth. Neither appeared on the application.

6. As I understand their position, the legal representatives for the first and second defendants do not oppose those proceedings be heard immediately after the hearing of this proceeding. For his part, the plaintiff accepts that this would be appropriate, so long as the Judge trying those other proceedings (or what remain of them) is the same as the Judge who sits at the hearing of the existing proceeding.

7. I was informed that both matters had travelled together, through case-management, and both matters came before Curtis ADCJ as long ago as 1 April 2019. In the case of Mr Booth, the matter was determined: Curtis ADCJ entered judgment for the defendant. But Mr Mohareb successfully appealed to the Court of Appeal and that judgment was set aside and, in place thereof, the Court of Appeal entered judgment in Mr Mohareb’s favour. Further, the Court of Appeal remitted the assessment of damages to this Court; with a “recommendation” that they be determined by a Judge other than the trial judge.

8. On the same day, in the case against Mr Kelso, the matter did not substantially proceed at all. Mr Mohareb complained that his case could not proceed without the attendance of two police officers; who did not attend after he had subpoenaed them to attend. Mr Mohareb sought access to documents produced on subpoena. But nothing further happened until and the notation in the transcript of the hearing was that the matter was adjourned “to a date to be fixed”.

9. Mr Williams of Counsel, appearing for the first defendant, was concerned about the disruption to the main proceeding that might be occasioned by the intervention of these additional proceedings and was solicitous of the interests of Messrs Kelso and Booth attending a long hearing in which they, and their legal representatives, played only a very minor part. However, once it became clear that I envisaged that those proceedings be heard only after the hearing of the existing proceeding, Mr Williams did not pursue his opposition with any real vigour.

10. In the circumstances I accede to the application and order, pursuant to r 28.5 of the UCPR, that the proceedings 2015/201139 and 2016/292950 be tried immediately after the trial of this proceeding. For the avoidance of doubt, they should, respectively, be tried by the same judge.

THE JOINDER APPLICATION AGAINST DR BOWLER

Evidence on the application

11. For this application, the plaintiff, as applicant, who represented himself in all of the interlocutory applications, relied upon his affidavit affirmed on 22 April 2021. That affidavit contained a proposed Further Amended Statement of Claim.

12. As against Dr Bowler, the applicant identified that the parts of the proposed pleading which concerned him were paragraphs 17, 18, 63 and 64. I will refer at greater length to the content of those paragraphs below.

13. Within the proposed further amended pleading were certain ‘Tabs’ [1] (A-E), containing documents said to be relevant to the application as against Dr Bowler. The affidavit also contained other annexures (A-E). The applicant also relied upon a report prepared by Dr Curtis, dated 22 April 2021.

    1. The plaintiff referred to them, confusingly, as ‘Annexures’. I refer to them as ‘Tabs’ to distinguish the documents relied upon as part of the pleading from the ‘Annexures’ to the affidavit relied upon in support of the plaintiff’s multiple interlocutory applications,

14. For its part, in opposition to the joinder application against him, Counsel for Dr Bowler relied upon a report by Dr Bowler, dated 30 July 2018

The applicant’s case against Dr Bowler

15. One curiosity about the prospective claim against Dr Bowler is that at one part of the plaintiff’s proposed pleading (paragraphs 17(x) and (y)), the plaintiff actually relies upon the content of Dr Bowler’s opinion contained in the latter’s report of 30 July 2018. That report followed Dr Bowler’s assessment of the plaintiff on 24 July 2018.

16. Be that as it may, although the plaintiff identified certain parts of the proposed pleading concerning Dr Bowler, it appeared to me that it was connected with his case against the first defendant. During oral argument, the plaintiff argued that the State of New South Wales was vicariously liable, among other things, for conduct of personnel within the Royal North Shore Hospital (‘RNSH’).

17. However it appears that at paragraph 17, the plaintiff set out a litany of complaints against the RNSH as to its medical treatment of him from December 2017 after the assault perpetrated upon him on 5 December 2017. At paragraph 17(z), the plaintiff makes a complaint against Dr Bowler which is elaborated at paragraph 63-64 of the proposed pleading.

18. It is that Dr Bowler “undertook to make a formal complaint, on behalf of the plaintiff with the Chief Surgeon at the RNHS. That, however, never eventuated.” He further alleges that following advice which Dr Bowler received from his personal assistant (Ms Helen Soars), Dr Bowler indicated that he no longer wished to operate upon the plaintiff and referred the plaintiff back to Dr Cha, the same surgeon whom Dr Bowler had opined had had negligently performed two surgical procedures. As I understood him to argue at the hearing, the plaintiff believes that he was, in effect, shunned by Ms Soars and Ms Soars persuaded Dr Bowler to refrain from supplying further assistance because of his reputation. This has led to difficulties in his obtaining the dental or medical assistance that he needs. He considers that he has received a ‘social death sentence’.

19. At Paragraph 63 of the proposed amended pleading, the plaintiff developed his complaint against Dr Bowler. He alleges that Dr Bowler knew of certain things: that the medical staff at RNSH was incompetent to diagnose and treat his broken jaw; that maxillofacial surgical operations were performed for which the plastics and reconstruction section of the RNSH was incompetent to perform; and that he also knew that a further surgical procedure would be needed to rectify the lingering problems associated with two prior failed operations. With this knowledge, the plaintiff alleges that Dr Bowler had a duty not to ‘send back’ the plaintiff to the plastics and reconstruction section. That appears to be his first complaint (paragraph 63(a)-(d)).

20. His second complaint is Dr Bowler’s reneging on a promise to complain to the Chief Surgeon at RNHS (paragraph 63(e)). His third complaint appears to be, in effect, that he allowed himself to be dictated to by his personal assistant, Ms Soars, as I understand it, to refuse to treat the plaintiff himself; which conduct was unethical (paragraph 63(f)-(g)).

21. The first complaint is restated in similar terms in paragraph 64(a)(i)-(iii), which essentially repeats that it was negligent for Dr Bowler to “send (the plaintiff) back” to the care of Dr Cha in the plastics and reconstruction team at RNSH. The second complaint is repeated at paragraph 64(b) and the third complaint is repeated at paragraph (64(c)-(d)).

22. In paragraph 64, the plaintiff alleges that Dr Bowler’s negligence caused him physical pain, psychological distress, suffering and loss. Although the paragraph does not contain a cross-reference to it, I surmise that the plaintiff is identifying the injuries set out in particulars (b)-(s) of paragraph 17; supplemented by some of the particulars of ‘special damage’ set out in paragraph 18.

Parties’ arguments

23. I invited the applicant and Dr Bowler’s Counsel to address procedural considerations that may arise under s 56 and s 58 of the Civil Procedure Act2005 (NSW) (the “CP Act”).

The proposed third defendant’s submissions

24. Counsel for Dr Bowler commented that the plaintiff was trying to bring in his client as a witness under the guise of joining him as a party. Counsel observed that no allegations of negligence were levelled against Dr Bowler because of the administration of any surgical procedure, or for any diagnosis or recommendation. To the contrary, the plaintiff embraced as correct Dr Bowler’s assessment made in the latter’s report of 30 July 2018.

25. Counsel reminded me of a party’s procedural obligation, in a professional negligence claim such as this, under r 31.36 of the UCPR, to file and serve with the Statement of Claim an expert opinion which, among other things includes an opinion supporting (a) breach of duty and (b) the causal relationship alleged between the breach and the alleged damage. Dr Curtis’ report of 22 April 2021 did not fulfil this requirement. Indeed, the report said nothing at all about Dr Bowler.

26. Counsel submitted that leave should not be granted to join Dr Bowler, with reference to the current pleading as such action would be liable to be struck out.

27. Counsel did not refer to any case management consideration in s 56 of the CP Act or the matters set out in s 58 which would militate against a grant of leave.

The applicant’s submissions

28. When I raised with Mr Mohareb the possible inference that all that Dr Bowler was doing was responding to a referral by Dr Ancell for an assessment of the plaintiff in July 2018, Mr Mohareb informed me that it was really himself who arranged the referral, following advice Mr Mohareb received from a physiotherapist and Dr Ancell had very little to do with it. At any rate, Mr Mohareb reiterated his complaint about Dr Bowler sending him back to the RNSH given what Dr Bowler knew about the treatment previously administered in that hospital. He reiterated, also, Dr Bowler, being dictated to by his personal assistant and, in effect, thinking twice about administering treatment himself.

Consideration

29. There is a tension between the Court, on a joinder application, prematurely making a self-limiting assessment of the strength of a prospective case against a third party and not making a procedural order which will turn out to be futile; thereby wasting time and a third party’s costs. This proceeding is, of course, well advanced in its age, and relates to medical, or dental, treatment which the plaintiff received now nearly three and a half years ago. No time bar was suggested as a reason for declining the leave application and, further, there was no suggestion of any forensic prejudice to Dr Bowler if the leave was granted. As I have noted, Dr Bowler’s counsel did not invoke discretionary reasons, associated with case management objectives, as militating against leave being granted.

30. Conscious as I am of the very stiff standard of preclusion, identified in cases such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, I am unable to resist the conclusion that the case against Dr Bowler, as currently framed is untenable, and accordingly, no point would be served in granting leave for him to be joined.

31. Addressing each of the complaints that Mr Mohareb makes against Dr Bowler, even if Dr Bowler reneged on an undertaking to complain to the RNSH, on the current pleading, that conduct was not causative of any compensable loss. As to his complaint about Dr Bowler’s refusal to treat him, even if that is proved, again, it is not shown to have caused loss. There is no suggestion that someone else, of Dr Bowler’s speciality or training, was not able to administer treatment. It makes no difference what Dr Bowler’s motive was in refusing to administer treatment.

32. This leaves the final complaint about Dr Bowler ‘sending’ the plaintiff back to RNSH. As the report of 30 July 2018 (a report which the plaintiff relies upon in his case against the first defendant) indicates, this complaint is at least inaccurate: Dr Bowler actually reported his informing the plaintiff that as a prelude to further surgery, he receive an endodontic assessment. Further, the report suggests that it would be inaccurate to say that any recommendation that he go back to the plastics and reconstruction section in the RNSH was the only course canvassed with the plaintiff. It was what he characterised as the ‘ideal’, or ‘most logical’ course available to him. I do not consider it to be conclusive against the application that the plaintiff has not so far furnished a liability report concerning Dr Bowler referred to in the Court rules: the rule is engaged upon the filing and service of the pleading against a defendant in a professional negligence suit. The case is only at the stage where permission is being sought to bring such suit.

33. But in a context of the age of this proceeding, and the underlying events, it is not without significance that on the present application, no evidence has been adduced to suggest that widely accepted peer professional opinion would regard as negligent any recommendation that the plaintiff go back to the service provider for remedial work: indeed, that is not an uncommon remedy sought in analogous consumer claims against suppliers of commercial services. [2]

    2. E.g. Competition and Consumer Act 2010 (Cth) Sch 2 – Australian Consumer Law ss 64A(2), 237 and 243(g).

34. There is a further problem anyway. That, again, is identifying the loss that followed from the negligence. As I understand the facts, the plaintiff did not go back to the RNSH even if Dr Bowler (negligently) recommended that he be sent back. This was no coercive referral from Dr Bowler of the plaintiff to the RNSH. The plaintiff was free to choose. It appears, on the face of Dr Bowler’s report, that Dr Bowler at least anticipated that the plaintiff would weigh up whether he should seek alternative surgical opinions; not to mention an endontic assessment. There is no reasonably arguable basis for finding any causative link, even assuming that there was a negligent recommendation.

35. It would, in short, be futile, to permit the action against Dr Bowler to run. It is unnecessary to consider discretionary considerations, which neither the plaintiff nor Dr Bowler meaningfully addressed in any event. The application to join Dr Bowler as third defendant is refused.

THE JOINDER APPLICATION AGAINST NINE ENTERTAINMENT CO PTY LTD

36. As against Nine Entertainment Co Pty Ltd, Mr Mohareb identified that the relevant parts of his proposed amended pleading were paragraphs 7(c)(i)-(iv), 9(e)(i)-(iv), 11(b), 66-67.

37. The applicant relied upon publications and other documents comprising Tab E to Annexure A of his affidavit. He also relied upon a raft of documents comprising Annexure B to the Affidavit. Much of this comprised correspondence between the plaintiff and other Courts. Much of this concerned whether the applicant was shut out from commencing, or continuing, proceedings on the basis that he was a vexatious litigant.

38. Nine Entertainment relied upon the affidavit of Ms Marina Olsen affirmed on 27 April 2021.

39. In that affidavit, and in her oral submissions, Ms Olsen noted that in paragraphs 7(c)(i), 9(e)(i) and 11(b)(i) of the proposed pleading, reference is made to two 2GB broadcasts, involving the journalist Ray Hadley and the former Attorney-General of New South Wales, which had been the subject of defamation proceedings which Mr Mohareb had commenced (on 25 January 2017) against Harbour Radio in the Supreme Court of NSW (the ‘Harbour Radio’ proceeding). She also noted that paragraphs 7(c)(ii), 9(e)(ii) and 11(b)(ii) referred to publications consisting of articles in Fairfax publications, which were the subject of a separate defamation proceeding which the plaintiff commenced (on 3 February 2017) in the Supreme Court of NSW (the ‘Fairfax’ proceeding).

40. Those proceedings were case managed in the Supreme Court in a way that they travelled together. Eventually, orders were made for the plaintiff to provide security for costs. When the plaintiff failed to provide security, both defamation proceedings were dismissed.

41. Ms Olsen’s affidavit also proves that Nine Entertainment Co is a company within the same corporate group as Radio 2GB Sydney Pty Ltd and Fairfax. However, it has never held the 2GB broadcasting licence and has never published the Sydney Morning Herald (‘SMH’), The Sun-Herald nor operated the SMH website through which the Fairfax publications were relevantly made.

The applicant’s case against Nine Entertainment

42. In his action against the first defendant, Mr Mohareb alleges (paragraph 7(a)-(b)) that on 10 August 2017 two police officers (Inspector Reimer and Senior Constable Morgan) said words which were intended to ‘character assassinate’ him, discredit him and misrepresent his legitimate grievances. This, he says, they did by stating words which “had their origin in and/or were dictated by” a series of publications which, it was said, Nine Entertainment had published. These were a combination of (a) radio broadcasts of interviews between the journalist, Mr Ray Hadley and the then Attorney-General of NSW, on 29 January 2016 and 20 May 2016; (b) newspaper articles written by journalists in the Sydney Morning Herald, dated 29 May 2016 and 1 June 2017; (c) the entirety of the Defence in the Fairfax proceeding; and (d) the entirety of the Defence in the Harbour Radio proceeding.

43. In another part of his action against the first defendant, Mr Mohareb alleges (paragraph 9) that between 10 August 2017 and 9 September 2017, Inspector Reimer spoke words which also effectively amounted to “character assassination”, to a taxi operator, Mr Kelso and members of Mr Kelso’s family. This also “had their origin in and/or were dictated by” the same publications referred to above.

44. Further, in another part of his action against the first defendant, Mr Mohareb alleges (paragraph 11) that on 15 August 2017 Inspector Reimer caused staff at Manly Hospital to place a note on his public health record words to the effect that he suffered from paranoid delusions. Again, the alleged that these words “had their origin in and/or were dictated by” the same publications.

45. In paragraphs 66 and 67 of the proposed pleading, Mr Mohareb articulated his case against Nine Entertainment. He alleges that Nine Entertainment owed a duty of care to him. He alleges that the content of the duty:

1. required Nine Entertainment to hear his “side of the story” before accepting, in effect, malicious and false accusations made by his ‘opponents and aggressors’.

2. obliged Nine Entertainment to make a public correction and apology. This he says was owed after Schmidt J in the Supreme Court “dismissed the Attorney-General’s proceedings against” the plaintiff. (This was a reference to the Attorney-General’s proceeding against the plaintiff involving application for orders under the Vexatious Proceedings Act 2008 (NSW). This, he alleged necessarily meant that “their” public condemnations of the plaintiff were baseless;

3. to refrain from “covering up” their error;

4. to remove from the public records, their baseless accusations and condemnations.

46. At paragraph 67, the plaintiff alleged that his various injuries were caused by negligence. Particulars which combined allegations of breach and causation were as follows:

1. by the publications, they ‘comforted’ and ‘encouraged’ the plaintiff’s aggressors to escalate and intensify their mistreatment of him, including damage to his property;

2. the publications prejudiced the police officers (for whom the first defendant was liable) and Council rangers (for whom the second defendant was liable) and caused them to fail to discharge their respective duties towards him;

3. the publications remain on the internet and have not been removed from public records. This, in turn, has caused medical practitioners to deny medical treatment to him; and also caused him, being a structural engineer, to lose professional opportunities in the construction industry.

The proposed fourth defendant’s submissions

47. Ms Olsen, the solicitor appearing for Nine Entertainment characterised the claim against her client, in substance, as being a defamation claim; but the plaintiff sought to conceal its true character by dressing it up as a negligence claim.

48. That being so, she submitted that in circumstances where the defamation claim had been dismissed by Wass SC DCJ, it was an abuse of process for the plaintiff, who had deleted a few express references to the word ‘defamation’ and substituted the expression ‘character assassination’, to re-agitate factual allegations and claims which were, in substance, quite the same. The most striking indication of the true character of the claim, as being one for defamation, was the nature of the loss said to be caused by the fourth defendant’s ‘negligence’. This was loss of reputation. Another indication of the character of the claim was the continued citation of ‘publications’. As to the latter, Nine Entertainment were not responsible for those publications. Ms Olsen indicated that even if the action could be characterised as being in negligence, it could not lie against Nine Entertainment, who was not responsible for those publications.

49. Ms Olsen pointed to several authorities to suggest that an action in negligence does not lie to provide a remedy for loss of reputation. To recognise a duty to take care would conflict with the law of defamation and generate incoherence in the law.

50. She argued that the law, and the decision of Wass SC DCJ, was being circumvented in other ways. If, as a matter of substance, the complaint was in defamation, a time bar arose (under s 14B of the Limitation Act 1969 (NSW)). Proceedings brought against other ‘publishers’ in the Supreme Court had been dismissed on account of the plaintiff’s failure to comply with an order that he provide security for costs. It was therefore an abuse of process to bring a substantially similar claim against a party which avowedly could not have been a publisher. In ordinary circumstances, where a party sought to bring a new proceeding against a defendant after an earlier proceeding had been dismissed for failure to provide security, the new proceeding would be stayed. Although that could not provide a full analogy to the circumstance here, it showed why the Court should give pause before granting leave to commence this proceeding. Further, to the extent that Mr Mohareb was relying upon the way in which a publisher acted in an earlier proceeding as part of the basis for a claim against it in another proceeding, he was stopped from doing so because of a defence of absolute privilege. (s 27 of the Defamation Act 2005 (NSW).

The applicant’s submissions in reply

51. Mr Mohareb disputed Nine Entertainment’s characterisation of his bringing a claim in defamation. His central complaint against that proposed defendant was that the company encouraged, or effectively, incited, a group of ‘criminals’ to act aggressively towards him and was negligent.

52. He argued that the proposed defendant knew that what was being said about him was false.

Consideration

53. Despite a change in language from an earlier version of his proposed amended pleading, it is plainly the case that the substance of the action in negligence against Nine Entertainment centres on reputational harm to the plaintiff caused by the publications. All of the particulars in paragraph 67 make it clear that the multiple species of harm that Mr Mohareb says has befallen him has resulted from the effects of the publications. He cannot get around the fact that it is essential to his action in negligence that the publications have hurt his reputation, even if that hurt has been manifested in different ways, such as (without limitation) emboldening the plaintiff’s opponents and aggressors to engage in further harmful activity towards him; by causing detrimental notations to be placed on his public record; or depriving him of professional opportunities.

54. This being so, multiple problems arise which point against the grant of leave.

55. First, the action in negligence would be liable to be struck out on the basis that to accept a duty of care, a necessary element to the action, would generate incoherence in the law because of the intersection with the law of defamation. See the decisions of the High Court in Sullivan v Moody (2001) 207 CLR 562 at [54]-[55], Tame v New South Wales (2002) 211 CLR 317 at [28]; and Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 at [40]-[42].

56. Second, even if a duty of care could exist, it could only be owed by the publishers. In view of the evidence about Nine Entertainment adduced, which was not challenged, it is not reasonably arguable to contend that this entity was a publisher.

57. Thirdly, it would be necessary for Mr Mohareb to establish not only that the publications were made but what they conveyed. Only in this way could Mr Mohareb make out his allegation that the publications “condemned” him (particular (a) to paragraph 66) and only in this way could Mr Mohareb use that as a foothold to ground his other assertions about what the scope of Nine Entertainment’s purported to duty to him required it to do.

58. In substance, he would have to establish the imputations flowing from the publications. It may be seen, that given that he is relying upon the same publications which were the subject of the Harbour Radio proceeding and the Fairfax proceeding, he is seeking to re-agitate issues that were the subject of those proceedings; both of which were dismissed on procedural grounds. This object is made even more apparent by his intention to rely upon parts of the defences that had been raised in those respective proceedings.

59. Although no estoppel would necessarily lie to prevent the suit against Nine Entertainment, it is arguable that an abuse of process would arise given that the defamation proceedings were dismissed. Circumstances may arise where bringing a claim against a party which was previously determined in an earlier proceeding (not involving that party) may constitute an abuse of process despite not being barred by estoppel (Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [26]). However, it may not be necessary to conclude that it would do so where the proceedings were dismissed on procedural grounds; not the merits. Nevertheless, it remains, in my view, relevant (at least) as a discretionary matter, that to permit the action in negligence, which may be characterised as a defamation action, to proceed would allow the plaintiff to run, in this Court, an action which he could not run in the Supreme Court. That might be regarded as an affront to the administration of justice (Tomlinson at [25]) and abusive on that account alone even if there was no collateral challenge to issues that might have been, but were not, ventilated in the Supreme Court actually arises. Ultimately, this point is not dispositive, but it does not assist the plaintiff.

60. Fourthly, if the only action which may be run lies in defamation, by s 14B of the Limitations Act 1969 (NSW), the time-bar applies to the publications. Permitting the complaint to run under the guise of an action in negligence would accordingly circumvent the policy considerations, reflected in the statutory provision, that suits which complain of defamatory publications should be brought with heightened expedition.

61. It is unnecessary, in my view, to consider other arguments raised, such as whether a defence of absolute privilege could be potentially available to Nine Entertainment if the joinder was permitted.

62. The joinder application against Nine Entertainment is dismissed.

THE AMENDMENT APPLICATIONS

Background

63. The plaintiff, applicant on the present application, commenced a proceeding against the first and second defendants in the Supreme Court of New South Wales on 18 July 2018. On 15 March 2019, the proceeding was transferred to this Court.

64. Mr Mohareb relies upon his affidavit of 22 April 2021. This relevantly contained the proposed amended pleading that he moves upon to support his application to amend.

65. Regrettably, due to the procedural history of the proceedings, it is difficult to neatly separate issues arising from the other applications, including the Second Defendant’s motion for dismissal. The latter features a ground – what I later go on to describe as the ‘bankruptcy’ point – which the first defendant relies upon in opposition to the application to amend against it. The Second Defendant did not invoke this point, itself, in its opposition to the plaintiff’s amendment application against it, but only in its application for dismissal.

66. The difficulty in facilitating a more straight-forward understanding of these reasons is compounded by the fact that since 3 October 2018, there has apparently been an endless cycle of versions of a proposed amended pleading by the plaintiff. Taking a generous view towards the plaintiff, it might reasonably be argued that the most relevant background to the present amendment application starts with the decision of Wass SC DCJ on 1 October 2020. To reiterate, her Honour permitted the plaintiff to maintain actions against both defendants in negligence and also in the intentional tort; although her Honour also ordered the provision of particulars upon (reasonable) request. Subsequent to that, in December 2020, her Honour made directions setting a timetable. Relevantly, that included provision for Mr Mohareb to furnish an iteration of a proposed amended pleading. On 1 February 2021, he did so. It appears that the parties were geared towards further argument about that amended document on 5 February 2021. Senior Counsel for the first defendant and Counsel for the second defendant prepared written submissions and Mr Mohareb prepared written submissions in reply. But argument did not apparently proceed on that date.

67. As I understand the position, the version that Mr Mohareb now places before the Court, in Annexure A to his affidavit of 22 April 2021, is the version in respect to which he now seeks the Court’s leave to file. This version endeavours to meet objections taken by the first and second defendants to an earlier iteration of a proposed amended pleading supplied to them on 1 February 2021.

68. The first and second defendants both oppose the amendment applications. The Second Defendant had little to say about recent changes to the version of the pleading which the plaintiff wishes to rely upon against it. It did not wish to rely upon evidence to support its opposition to the amendments. Counsel for the second defendant only raised objection about paragraphs 57(l)(iii), 58 and 58(d)(i) of the proposed amended pleading. This is explicable because the second defendant’s central position is that the question of amendments against it is moot: the proceeding should be dismissed on other grounds.

69. I will defer the question of ‘amendments’ against the Second Defendant until after I have considered the Second Defendant’s motion to dismiss. I will now address the application amend, as against the first defendant. But because both defendants rely on the ‘bankruptcy point’, for different reasons, I will consider that point in the context of determining the application to amend against the first defendant.

The Amendment Application against the First Defendant

70. The first defendant relied, at the hearing of the application, upon the affidavit of Richard Kelly, a Director within the Crown Solicitor, affirmed on 11 December 2020. I was informed by Mr Williams, Counsel for the first defendant, that this affidavit was prepared in support of a strike out an earlier iteration of a proposed amended statement of claim, but criticisms made about that earlier version of the amended pleading remained applicable to the version of the proposed amended pleading now before the Court. This explained why Mr Williams supplied to the Court the submissions made by the first defendant’s Senior Counsel of 4 February 2021, apparently in relation to an application to be heard regarding amendments. It also explains why Mr Mohareb supplied to this Court his response to those submissions from Senior Counsel; in addition to supplying his response to earlier submissions advanced on the second defendant’s behalf.

71. Mr Kelly’s evidence establishes that:

1. the plaintiff was declared bankrupt on 5 November 2018 and Mr Adam Shepard, of the firm Farnsworth Shepard had consented to act as trustee of his estate;

2. Mr Shepard elected to discontinue the proceeding against the first defendant, subject to s 60(4) of the Bankruptcy Act 1966 (Cth);

3. on 15 October 2020, Mr Kelly sent to the Mr Mohareb requests for particulars; numbering 129 requests and spanning 11 pages.

4. on 20 November 2020, Mr Mohareb purported to answer those requests for particulars in a document 51 pages (excluding attachments numbering another 74 pages).

72. As noted, a procedural problem with bedevilled the hearing of and my consideration of this argument is the difference in view, as between the plaintiff and the second defendant, as to what version of the pleading the plaintiff was applying to amend.

73. The plaintiff argued that he was applying to amend the version of the draft proposed pleading that was before Wass SC DCJ; and that subject to the defamation action, her Honour had permitted him to file and serve the version of an amended pleading which was before her. This, however, was subject to a direction by her Honour which effectively suspended the filing of the document; being the exchange of particulars. The plaintiff believed that he only needed the Court’s leave to amend in accordance with the underlined parts of the version of the pleading annexed to his affidavit of 21 April 2021.

74. The first defendant argued that the version of the proposed amended pleading placed before the Court in Mr Mohareb’s affidavit of 21 April 2021 does not comply with Wass SC DCJ’s order in October 2020 in certain respects. In particular, the first defendant contends that he merely has furnished to the Court a substantially revised document whose content was never ultimately, sanctioned by her Honour. If he is unsuccessful with his amendment application, then the last version of the pleading which he had an entitlement to file was the Amended Statement of Claim, which he had filed on 3 October 2018 when the proceeding was in the Supreme Court.

72. This is a rather arcane debate. Whether or not the document goes beyond the order made by Wass SC DCJ, I propose to address the amendment application with reference to the parts of the proposed amended document, being the version annexed to Mr Mohareb’s affidavit of 21 April 2021, to which the defendants take express objection.

Submissions of the parties

The first defendant’s submissions

76. As to the first point, the first defendant followed and adopted the second defendant’s objections that the actions do not fall within the exception in s 60(4) of the Bankruptcy Act1966 (Cth) with the result that they could not be maintainable. This point sustains the first defendant’s objections to paragraphs 19-23 and 24-55 concerning the plaintiff’s claim of property damage; and also Annexures ‘C’ and ‘D’ within the proposed amended pleading.

77. As to the second point, there was no foundation to allege vicarious liability in the First Defendant for a ‘wrong’ committed by the former Attorney-General by words the former Attorney-General conveyed to a journalist on a radio broadcast.

78. As to the third point, the proposed amended pleading would otherwise still susceptible to being struck out, for the reasons encapsulated in the written submissions of the first defendant’s senior counsel dated 4 February 2021. The first defendant says that:

1. the redrafted paragraph 7-13, in substance, is a re-run of a defamation claim which Wass SC DCJ had previously dismissed; only that it is dressed up as facts to sustain an action in negligence. A recurring feature is the substitution of the expression ‘character assassination’ for the word ‘Defamation’ in the earlier version of the pleading. Similarly, paragraphs 33-34 impermissibly cite matters relevant only to a defamation suit;

2. 16(b)-(i) contains immaterial narrative commentary about events subsequent to Mr Kelso’s assault upon the plaintiff;

3. 17(b)-17(jj) and 18, and also Annexure ‘B’ to the proposed amended pleading, alleges, or seeks to prove, that the first defendant is responsible for what was effectively a medical negligence claim concerning services supplied within RNSH. The State is not responsible. There is also a question whether a time-bar may apply. Further the claim did not plead the material facts to sustain such action and was not supported by expert medical opinion; as required by r 31.36 of the UCPR.

The plaintiff’s submissions in reply to the first defendant’s submissions

79. The plaintiff’s response to the bankruptcy point will be elaborated, shortly below (paragraphs [89]-[90]). In response to the first defendant’s second point, Mr Mohareb argues that, by paragraphs 66-67 of his proposed pleading, although preceded by a title which suggests an action in negligence against the proposed fourth defendant, the paragraphs are also directed to wrongdoing by the former Attorney-General. As I understood him, Mr Mohareb wishes to argue that by engaging in the radio interview with the 2GB journalist, Mr Hadley, the former Attorney-General breached a duty of care for which the first defendant is vicariously liable.

80. Mr Mohareb responded to the first defendant’s third point, as follows:

1. By his paragraphs 7-14 he was not attempting to circumvent the order of Wass SC DCJ prohibiting him from maintaining a defamation suit against the first defendant. The facts in the paragraphs objected to by the defendant are relevant to his negligence claim;

2. The matters referred to in 16(b) to 16(l) are not immaterial commentary but particulars supporting his claim for aggravated damages in his negligence claim and ‘corroborate’ his assertion of malice, bias and hostility, or reckless indifference towards him;

3. As to paragraphs 17(b)-17(jj) and 18, the plaintiff obtained the report of Dr Curtis dated 22 April 2021, which I referred to earlier. That supports the claim of negligence by staff within the RNSH and fulfils any requirement by r 31.36 of the UCPR. To the extent that any more information is sought, it can be furnished by the provision of further particulars.

Consideration of the bankruptcy point

81. I will now address the bankruptcy point commonly raised by the first and second defendants. I will first address the provisions; will then refer to authorities; and then I will deal with the bankruptcy point as it applies to the second defendant (being the defendant who principally advanced the point) and then the first defendant, who adopted the second defendant’s submissions.

Statutory provisions and principles

82. Section 60 of the Bankruptcy Act provides

“Stay of legal proceedings

(1)  The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit:

(a)  discharge an order made, whether before or after the commencement of this subsection, against the person or property of the debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor out of custody; or

(b)  stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor:

(i)  in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or

(ii)  in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt;

and, in a case where the debtor is imprisoned or otherwise held in custody in consequence of the non-payment of a provable debt or of a pecuniary penalty referred to in subparagraph (i) or in consequence of his or her refusal or failure to comply with an order referred to in subparagraph (ii), discharge the debtor out of custody.

(2)  An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

(3)  If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.

(4)  Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

(a)  any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

(b)  the death of his or her spouse or de facto partner or of a member of his or her family.

Note: See also subsection 5(6).”

83. In Cox v Journeaux (No.2) (1935) 52 CLR 713, Dixon J determined that the test for whether the action is in respect of “any personal injury or wrong” under s 60(4)(a) is whether “the damages, or part of them are estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body, or character and without reference to his rights of property” (emphasis added).

84. There are cases where a Court might be able to split a right of action for injury both to person and to property: Beckham v Drake [1849] 9 ER 1213; Holmes v Goodyear Tyre & Rubber Co (Aust) (Ltd (1984) 73 FLR 88; Trkulja v State of Victoria [2001] VSC 62; Moss v Eaglestone (2011) 83 NSWLR 476 (‘Moss’) per Allsop P (Campbell and Young JJA agreeing) at [49]-[68].

85. In Moss, Allsop P said (at [77]) that to the extent that damages for personal injury or wrong are ‘inseverable’ from or ‘directly consequential’ upon interference with property rights, a claim for them does not survive the stay brought about by s 60(2).

86. The Second Defendant proved that:

1. a sequestration order was made against the plaintiff on 5 November 2018;

2. Adam Shepard was appointed as trustee on 5 November 2018

3. The trustee of the plaintiff’s bankrupt estate notified Mr Brothers on 22 January 2019 that he elected to discontinue the proceeding against the Second Defendant, subject to any rights that the plaintiff had under s 60(4).

Parties’ submissions

The Defendant’s Submissions

87. Mr Guihot contend that in the way in which Mr Mohareb has framed his causes of action is done in such a way that his personal injuries sustained through the assault perpetrated by Mr Kelso were the direct consequence of interference with damage to his property, whether that be to his vehicle, motor cycle and/or boat. Specifically, his claim to being assaulted by Mr Kelso was a direct consequence of interference with his property rights and he had disavowed any claim for psychological sequelae because of any breach of duty by the Second Defendant.

88. That being so, his actions do not place Mr Mohareb within s 60(4)(a) of the Bankruptcy Act, in accordance with authority. Reference was made to Cox v Journeaux (No.2) (1935) 52 CLR 713 per Dixon J at 721; Moss at [77] and St Gregory’s Armenian School Inc (in liq) (No.2) [2020] NSWSC 1601 at [47]-[48]. Thus, by operation of s 60(2), the action is stayed; but given that the trustee has elected to discontinue the proceeding against the second defendant (but has not filed a notice of discontinuance), the appropriate course is to dismiss the proceeding: Fisher v Transport for NSW [2016] NSWSC 1888. To allow the proceeding to fester would constitute an abuse of process.

The Plaintiff’s Submissions

89. Although he may have referred to property damage throughout his proposed pleading, the plaintiff argued, in response, that his “essential” cause of action was personal injury, in the various forms described: such as injured feelings, loss of dignity, humiliation or embarrassment and fear; if not also physical injury. To the extent that, in the provision of particulars, he disavowed reference to ‘psychological damage’ in one place did not carry the consequence the Second Defendant contended for: he continued to assert that he had been put in fear, greatly humiliated and embarrassed, suffered hurt to feelings (and economic loss’. He relied upon a report from a psychologist, Mr Borenstein, prepared dated 13 February 2015. This report was apparently prepared for the purpose of a criminal charge against the plaintiff at a sentencing hearing; following multiple assessments of the plaintiff in late 2014 and early 2015.

90. The value of the damage to property was comparatively slight. Mr Mohareb argued that insofar as damage or destruction of property, that was not vandalism for its own sake, but for the predominant purpose of instilling injury to such feelings. He submitted that there is authority (including Faulkner v Blewett (1981) 52 FLR 115; and Badcock v State of South Australia [2010] SADC 147) to support the view that where the ‘essential’ cause of action is injury to feelings or personal injury, s 60(4) entitles him to run the action.

Analysis

The Second Defendant

The action in negligence

91. Paragraphs 57 & 58 sets out the plaintiff’s pleaded case of breach of duty against the Second Defendant. Although not pleaded (as it strictly should be) having regard to the requirements of s 5B and 5C of the Civil Liability Act 2002 (NSW), it is apparent, from the particulars (a)-(b) to paragraph 58, that this part of his case against the second defendant is that the reasonable precautions that should have been, but which were not taken to deal with the risk that third parties, such as (Messrs Kelso and Palmer), might damage his chattels on land owned or occupied by the second defendant required it to take proactive steps, such as installing security cameras or appointing security guards, or providing warning signs.

92. The difficulty for the plaintiff, on this part (paragraph 58(a)-(b)) of his case in negligence, is that accepting, for the purpose of argument, that these were precautions that a reasonable Council would have taken, the loss that would fall within the scope of the second defendant’s liability would be the damage caused by the damage or destruction (whole or partial) to the plaintiff’s chattels. I agree with the Second Defendant that in the way that he pleads this part of his case in negligence against the Second Defendant, the plaintiff’s “injured feelings” (to use that as a composite expression) arose as a direct consequence from the destruction or damage to his chattels. Or, to put the matter another way, it would not fall within the scope the Council’s liability for negligence that the plaintiff suffered injured feelings as a result of any negligence, on its part, for failing to install security cameras or security guards or erect public signs. It was not suggested, and could not be suggested, that the second defendant was responsible for ensuring a constant police presence for the plaintiff to prevent or reduce intimidatory or menacing acts by third parties towards him. His basic claim against the Second Defendant, in this part of his action in negligence, is that it did not take reasonable steps to prevent damage to his chattels.

93. Contrary to the plaintiff’s submission, the essence of this particular complaint is one of negligence which caused damage to property. So much is indicated by the particulars of loss identified in sub-paragraphs 58(d)(ii), (iii) and (iv) (to the extent that those particulars refer to damage or destruction of property). As such, the claim based on an action in negligence, to this extent, would not fall within s 60(4) of the Bankruptcy Act. It is not clear on the facts of the proposed pleading, whether paragraphs 19-23 (inclusive) are also relied upon against the second defendant. If the plaintiff does rely upon them, they do not fall within s 60(4) for the same reasons.

94. But the other part of the case of negligence lies in particular (c) to paragraph 58, and that contains a cross-reference to a range of particulars to paragraph 57 of the proposed amended pleading which feature other aspects of what the plaintiff identifies as being a campaign of intimidation waged by Mr Kelso against him. This includes ‘vexatious complaints’ made, apparently (see particulars (a) & (e)) by Mr Matthew Palmer, about the plaintiff’s motor vehicles; personal violence (particular (i)); defamatory statements in the media. The gist of this aspect of the case in negligence (particulars (k)-(l) to paragraph 57) is that the Second Defendant ‘covered up’ for Mr Kelso and Mr Palmer. These particulars should be viewed alongside the allegations of loss or harm set out in paragraph 58(d)(i), (iii (to the extent the risk of harm is directed to the plaintiff’s person) and (v).

95. In my opinion, at least for the purposes of considering only the bankruptcy point, the matters referred to in particulars (a) and (b) (to the extent that they refer to vexatious complaints), (c), (e)- (l) to paragraph 57, and particulars (c) and (d)(i), (ii) and (iii) (to the extent that they refer to the plaintiff’s personal position of being ‘in peril’) and (v) to paragraph 58 would arguably support a claim for ‘personal injury or wrong’ which could fall within the exception under s 60(4) of the Bankruptcy Act. Individually, or in combination, they might be viewed as causing injury to the plaintiff’s feelings and distress. Petty acts of vandalism are not, in this sense, the subject of a claim for damages for property damage, but a feature of a campaign to harass, intimidate and instil fear and apprehension and the action has the purpose of recovering damages for injured feelings caused by allegedly negligent trespass of the second defendant where those acts occurred on land purportedly occupied by the second defendant. Rights of action for negligence causing harm of that kind (essentially, a non-pecuniary claim) do “not pass” to the trustee: Wilson v United Counties Bank [1920] AC 102 at 111; Moss at [46]-[47]. In my view, particulars of damage in paragraphs 22 and 23 are capable of being severed and, once that occurred, the action for damages for personal distress and injured feelings allegedly caused by negligence are not available to the trustee. I consider that part of the action in negligence against the second defendant to be ‘severable’ from the other part of the action in negligence.

96. Applying the test in Cox v Journeuax (No.2), the disturbances of the plaintiff’s peace of mind is not due to the infringement of property rights, which are not the subject of a damages claim, but the immediate affront to him, as part of a campaign to harass and belittle him. In Moss, Allsop P (at [77]) approved of the observations of Lockhart J in Faulkner v Blewett (1981) 52 FLR 115 at 119, regarding the circumstances in which a right of action passes to the trustee where one and the same action results in substantial damage to the property of the bankrupt as well as substantial injury or personal annoyance to his feelings. The possibility of splitting a mixed action, to acknowledge separate claims, of trustee and bankrupt, was also alluded to by the Full Court of Western Australia in Coyne v Commercial Equity Corp (1998) 20 WAR 109 at 116-117. In my view, it would be inappropriate on a motion to dismiss under r 13.4(1)(c), or on an amendment application, to deny the plaintiff opportunity to advance his claim in the manner I have suggested.

The action based on the intentional tort

97. This action is barely pleaded in paragraph 59, with cross-reference to paragraphs 18 – 56 (inclusive)(excluding paragraphs 20(b)-(hh)). Paragraph 18 particularises ‘special’ damage. Paragraphs 19-23 is prohibited by s 60 of the Bankruptcy Act, so they cannot be relied upon.

98. Paragraphs 24 – 53 concern circumstances occurring over the period from April 2013 to November 2017. Viewing them in isolation, for all but a few of the paragraphs (the exceptions being paragraphs 24, 26, 33-34, 36-38 and 51), all of the circumstances described in those paragraphs concern acts by Mr Kelso concerned conduct which in some way affected the plaintiff’s chattels. But overall, this part of the pleading also evinces a campaign of intimidation waged by Mr Kelso against the plaintiff which injured the plaintiff’s feelings and caused distress; rather the laying foundations for an action for property damage.

99. Although paragraphs 54-56 are ostensibly directed only towards the first defendant, the particulars to paragraph 59 indicate that the plaintiff also relies upon the matters in those matters as against the second defendant as well.

100. The plaintiff’s case of an intentional tort against the Second Defendant then appears to be based upon the contention, at least, that the Second Defendant ‘knew’ of Mr Kelso’s campaign of intimidation against him.

101. There are other issues associated with this pleading, addressed further below in the dismissal application, but in my view, the action for the intentional tort, constituted by paragraph 59, and incorporating paragraphs 18, 24 – 56, is directed to a claim for damages for injured feelings; and not a claim of “injured feelings” directly consequential from damage to property. To this extent, the second defendant’s bankruptcy point fails.

The First Defendant

The action in negligence

102. This action is principally pleaded at paragraphs 54 (duty) (incorporating 19-53), 55 (breach) and 22 and 52 (the latter both being directed to damage).

103. As I read the particulars of breach, in paragraph 55 (in conjunction with paragraph 54), in my view, and in contrast to the position concerning the Second Defendant, the case (at the real risk of over-simplification) fell into two parts. First, prior to 30 May 2017, the first defendant was on notice that Mr Kelso was a violent trouble-maker with a propensity to engage in violent or criminal conduct, and represented a “risk and potential danger to any unsuspecting stranger or newcomer to Scotland Island” but did not take steps to “control” the ‘source of the danger’. This was expressed generally. But in relation to the plaintiff personally, knowing what it should have known about Kelso, his complaint is that the first defendant did not respond adequately to a “campaign” of ‘vilification, bullying, defamation and intimidation’ against him.

102. Secondly, on 30 May 2017, Gibson DCJ directed that reasons she gave in relation to a civil proceeding which the plaintiff commenced (against Mr Palmer) be supplied to the Commissioner of Police “for consideration of any safety and peace issues necessary for the wellbeing of residents of Scotland Island”. After that event, the plaintiff complains that police did not (putting the matter again very simply) do enough to protect the plaintiff from Kelso but, on the contrary, conducted themselves in a way that only encouraged Kelso to renew his campaign against the plaintiff, culminating in an attempt to murder the plaintiff in December 2017 and other acts of vandalism.

103. I do not construe the plaintiff’s action in negligence against the State, as I have essentially tried to describe it, as an action for damages for personal injury directly consequential from vandalism directed by Mr Kelso towards the plaintiff’s property. Minor acts of vandalism or damage to property may be a factual circumstance underpinning the action, but the claim is not damages for property damage. Rather the plaintiff’s complaint is inactivity, or inadequate activity, on the part of the police force, in response to an overall campaign by Mr Kelso to intimidate and bully which, the plaintiff argues, only served to encourage the latter to intensify and escalate such campaign to such degree as it involved an attempt on his life. As I say, that campaign certainly involved acts causing minor damage to chattels, but only as the means to the ultimate end of intimidating the plaintiff. The essence of the plaintiff’s action is to recover compensation for the injured feelings and distress he suffered which, he contends, were caused by the ‘conduct’ of the police force.

104. I consider that the action in negligence as against the first defendant, as I have described it, falls within s 60(4). As was the case with the act against the second defendant. An exception is paragraphs 19-23, which is plainly a claim of property damage or injured feeling directly consequential to property damage.

The action based on intentional tort

107. This action is based upon paragraph 56, which cross-refers to paragraphs 18-55.

108. In my opinion, the same position arises in relation to this cause of action as it does in relation to the negligence count against the first defendant.

109. The result of my analysis is that, insofar as the first defendant relies upon the bankruptcy point to ground opposition to the application to amend brought against it, this ground of opposition fails.

Vicarious liability for breach of duty by the former Attorney-General

110. Paragraph 66 is, as I have indicated, part of the claim against Nine Entertainment. But as pleaded, it also refers to the First Defendant. Though this is not indicated in so many words, as I understood him to submit in his verbal argument, the plaintiff wishes to contend that when making statements about the plaintiff to the journalist, Mr Hadley, on 29 January 2016 and 20 May 2016, the then Attorney-General was in breach of a duty of care to him. The plaintiff wishes to argue that what the Attorney-General said amounted to a ‘condemnation’ of him, prior to considering his ‘side of the story’; and further, that those words comforted and encouraged the plaintiff’s aggressors and opponents in their campaign of vilification, defamation, bullying and vandalism against him (paragraphs 7(c), 66-67). The State is said to be vicariously liable for the Attorney-General’s wrong (paragraph 2(c)).

111. The plaintiff’s fundamental problem is the same as the problem he encountered in his application to join Nine Entertainment: the substance of the complaint, and the only wrong that he could sue for the Attorney-General’s statements made during the course of those radio interviews, is that the former Attorney-General defamed him; and the previous order made by Wass SC DCJ rejected a defamation suit against the first defendant. I refer to and reiterate my reasons set out at paragraphs 55 - 60 above.

112. To the extent that the plaintiff applies to amend against the first defendant in accordance with the present paragraphs 2(c), 66-67, leave is declined.

Paragraphs 7-13 & 33-34

113. Amendments which are brought for the improper purpose of avoiding prior Court findings or orders is one instance of an abuse of process: Marshall v Fleming [2012] NSWSC 698.

114. I agree with the first defendant’s submission that paragraphs 7-13 of the proposed amended pleading do not comply with Wass SC DCJ’s order made on 1 October 2020, to the effect that the plaintiff was not entitled to run a defamation suit against the first defendant. The substance of those paragraphs constitutes an action in defamation against the first defendant.

115. The substance of paragraph 7 is a statement, or statements by two police officers made on 10 August 2017. The substance of paragraph 8 is an allegation of the ‘imputations’ (a word expressly used by the plaintiff) made by those statements.

116. Paragraph 9 alleges a different statement, by one of the two police officers, made between 10 August 2017 and 9 September 2017. Paragraph 10 pleads the ‘imputations’ from that statement.

117. Paragraph 11 refers to a different type of statement, or publication of statement, but the substance of the paragraph addresses a statement nonetheless. Paragraph 12 pleads the ‘imputations’ associated with that statement.

118. Paragraph 13 identifies the injury or damage associated with all of these statements. The damage is loss of reputation.

119. Tinkering with the language of these paragraphs does not alter the result that what is alleged in substance is an action in defamation. The characterisation is not to be approached with reference to form, or the plaintiff’s subjective preference as to how it is to be construed. The substance is to be construed objectively, as I have indicated.

120. These paragraphs are not saved simply because the plaintiff wishes to use the allegedly defamatory statements of the officers, sourced in allegedly defamatory statements by the former Attorney-General, as constituting circumstances which ‘aggravate’ the First Defendant’s negligence, or, which is to say the same thing, found an award of aggravated damages.

121. The plaintiff cannot evade the prohibition by tacking on the harm suffered from defamation onto the negligence claim in this way. It is highly doubtful if aggravated damages are even available for the tort of negligence in common law (See Hunter Area Health Services v Marchlewski [2000] NSWCA 294 per Mason P at [104]); even if they may not be outright prohibited by section 21 of the Civil Liability Act 2002 (NSW) ^[3] . Although the plaintiff formally characterises the harm as ‘hurt or upset’ (paragraph 14 of the proposed amended pleading) that is indistinguishable, in substance, from or because of reputational harm. But the plaintiff can only obtain relief for reputational harm by providing that he has been defamed. As explained, it is the law of defamation which is the exclusive domain in tort law that would enable him to obtain such relief.

     3. Cf Moore v Scenic Tours Pty Ltd (2020) 377 ALR 209, at [46]

122. To the extent that the plaintiff applies for leave to rely upon paragraphs 7-13, the application is refused.

123. Paragraphs 33 and 34 (and pages 23-26 of Annexure ‘D’ to the proposed pleading) concern, respectively, two statements published by Mr Kelso and Mr Palmer on 21 July 2014. The plaintiff himself characterises them as defamatory. Particular (d) of paragraph 54 of the proposed pleading indicates that the plaintiff alleges that the first defendant is legally responsible for harm caused by those statements. For the same reasons, this also transgresses the order made by Wass SC DCJ. To the extent that the plaintiff applies for leave to rely upon paragraphs 33-34 (and pages 23-26 of Annexure ‘D’) that part of the application is also rejected.

Paragraphs 16(b)-(l)

124. The subject matter of these paragraphs concerns the attack - what the plaintiff describes as an “attempt at murder” - made by Mr Kelso against him on 4 December 2017, the injuries sustained by the plaintiff, and the criminal process instituted against and culminating in the sentencing of Mr Kelso. The fact of Mr Kelso’s attack forms part of the plaintiff’s case in negligence against the First Defendant (see especially particulars (p)-(r) to paragraph 55)

125. As a formal point, what is identified as being paragraph 16 is, in fact, a statement of particulars to the allegation in paragraph 15, which is the allegation of the violent attack; in consequence of which serious physical injury and other loss was caused. Viewed in this way, although the particulars are fulsome, the Court is prepared to allow them to be relied upon.

The medical negligence claim: particulars (b)-(jj) to paragraphs 17, 18, 60-62 (& Annexure ‘B’)

126. All of this concerns the medical treatment which the plaintiff received in the aftermath of the Mr Kelso’s attack in December 2017. The plaintiff complains about the medical treatment and holds the first defendant responsible.

127. Confusingly, however, at paragraphs 5-6, he alternatively asserts that it is the Royal North Shore Hospital that is vicariously liable for that treatment.

128. There is no proper basis for a contention that the first defendant is vicariously responsible for services supplied to the plaintiff from within the Royal North Shore Hospital. As a matter of common knowledge, a health district is conventionally the proper entity to sue in a case of medical negligence by a hospital. Further, no facts are alleged in the pleading forming the basis for any such action.

129. To the extent that the plaintiff applies to bring a claim for damages against the first defendant for vicarious liability for the medical services supplied to the plaintiff from late 2017 and through 2018, the application is refused. The plaintiff is not permitted to rely upon particulars (b)-(jj)(incl) to paragraph 17, paragraph 18 (to the extent that the ‘special damage’ in that paragraph arises from medical negligence), paragraphs 60-62 or Annexure ‘B’ to the proposed amended pleading, as against the first defendant.

More minor matters

130. There is no juristic entity known as the ‘NSW Police Force’ that is capable of being sued. It cannot be a party.

131. It would be open for the Northern Sydney Local Health District to be added as a party in this proceeding, but not without a joinder application being made against it. It would also be open for such an entity to be the subject of a separate lawsuit. But on the pleading as proposed and in accordance with these reasons, both entities should be removed from the title page to the pleading and also paragraphs 1, 2, and 5-6.

Discretionary considerations

132. Counsel for the first defendant emphasised that the plaintiff was seeking an indulgence from the Court and mentioned that one basis where amendments have historically been disallowed is where the party against whom the amendments is made is prejudiced. He identified at least one species of prejudice in this case – the circumstance that the plaintiff is an undischarged bankrupt means that the first defendant cannot be compensated for costs thrown away by the amendments.

133. Otherwise, little else was said by the defendants (or the plaintiff) about what constitutes the ‘dictates of justice’, for the purposes of s 58(1)(a)(i) of the CP Act. Nor did the defendants suggest any terms upon which amendments should be granted.

134. I acknowledge that the amendments may, in a technical sense, be amendments of a document that the plaintiff last filed, as of right, in October 2018. Nevertheless, the reality is that this version attempts to, even if in some respects it falls short of, constitute compliance with the orders of Wass SC DCJ last October. The ‘prejudice’ identified by the first defendant also applied where the matter was considered by Wass SC DCJ. It is, however, curious that the version the subject of the application was only finalised recently, being the one annexed to an affidavit affirmed on 21 April 2021.

135. I am conscious, and all parties – including the plaintiff – need to be conscious of the High Court’s statement in Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 that once a proceeding is commenced, a party has no right to change his, her or its case at will. The question is whether a party has fair opportunity to do so. There are limits in a party being able to do so; whether represented or not.

136. As Wass SC DCJ alluded to (in her Honour’s reasons (at [98]) and without, in any way being taken to indicate any view on the merits of the case, there is a level of novelty, if not at least complexity to this case, which helps explain the significant delay, at least to some extent. Although it may not be an excuse, it has not assisted that the plaintiff has been unable to procure legal assistance to prosecute the claim.

137. But there are limits to the extent that the Court can be involved in continuing interlocutory skirmishes regarding the pleading. Without any suggestion that it has been in breach of it, it is pertinent to note that the first defendant is expected to act as a Model Litigant. The other parties, including the plaintiff as an unrepresented litigant, are commonly subject to an obligation to assist the Court to further the overriding purpose identified in s 56. It may be expected, after all the time that has been spent in sorting out the plaintiff’s pleading, that the Court might exercise discretionary powers with greater vigour henceforth. For the Court to continue to be dragged into interlocutory skirmishes not only will delay the disposal of this case, but also take the Court’s attention away from the needs of other litigants, in other cases. The parties should also understand the Court’s expectation that procedural orders it makes will be complied with; not circumvented; and the potential consequences if they are not complied with: s 61(3) of the CP Act.

138. Overall however, the application to amend arises from orders made not, in the scheme of things, all that long ago. The Court is prepared to grant the indulgence that the plaintiff seeks in the circumstances that it is faced with.

THE SECOND DEFENDANT’S MOTION TO DISMISS

139. By a notice of motion filed 10 December 2020, the Second Defendant moved the Court for dismissal of the proceeding against it.

140. I have already addressed the bankruptcy point. As indicated, that ground for opposition was partly successful. What follows involves consideration of the remaining grounds for the application to dismiss.

141. The Second Defendant relied upon an affidavit of Mark James Brothers, dated 30 September 2020.

142. That evidence established that:

1. On 28 March 2020, the Second Defendant requested further and better particulars of the plaintiff’s claim against the Second Defendant;

2. On 24 September 2020, the plaintiff sent 4 emails, containing multiple attachments in purported answer of the requests for particulars;

3. On 25 September 2020, Mr Brothers sent a letter to the plaintiff arguing that the particulars that were supplied were inadequate.

143. Mr Guihot, Counsel for the Second Defendant, articulated the following grounds for dismissal:

1. to the extent that the claim is centred upon an action in negligence, the proceeding did not disclose a reasonable cause of action; and

2. to the extent that the claim centres upon the action in intentional tort, the particulars identified by the plaintiff in response to a request for particulars does not identify essential parts of that tort.

The proposed pleaded action against the Second Defendant

144. At least for the purposes of this particular application, it is appropriate to address the version of the draft amended pleading that is Annexure A to Mr Mohareb’s affidavit dated 22 April 2021.

145. From paragraphs 57 – 59, it may be divined that the plaintiff agitates for two causes of action: (a) negligence; and (b) intentional tort, reflective of the principle in Wilkinson v Downton. I have already found that the plaintiff cannot rely upon paragraphs 19-23, 58(a)-(b), 58(d)(ii), (iii) and (iv).

146. As to the balance of negligence count, (paragraphs 57-58) the plaintiff alleges a duty of care on the part of the Second Defendant. Within the proposed pleading, the particulars to paragraph 57 identified that the posited duty of care arose from the Second Defendant’s ‘knowledge’ of a large number of matters. These matters included, without limitation, vandalism against the plaintiff’s vehicles on Council property (ie the Church Point car park); vexatious complaints by Messrs Kelso and Palmer (made to the Second Defendant); a tendency in Mr Kelso to act violently or engage in criminal activity against a class of the public and his ‘displeasure’ towards the plaintiff in particular; that if left unmonitored, acts of vandalism towards property on council properties (such as the Church Point car park and public wharves) could be perpetrated; that Kelso and Palmer were engaged in a campaign to expose him to ridicule and humiliation; Palmer’s complaints against him were vexatious; that from 2014-15, the plaintiff had commenced civil proceedings against Kelso and Palmer; that in response to the commencement of a proceeding against Kelso, the latter escalated his violent acts directed towards the plaintiff culminating in an ‘attempted murder’ of him on 4 December 2017 and a subsequent burning or destruction of the plaintiff’s car, motorbike and theft of his boat; and mainstream media reporting of these circumstances.

147. With this knowledge, the plaintiff alleges, the Second Defendant disregarded these acts; and, to the contrary, sought to “cover up” for criminal acts by Palmer and Kelso committed against his person or property; (initially) failing to comply with a subpoena to produce documents on the basis of the ‘character assassination’ publications concerning him; and then impeding or obstructing his access to documents the plaintiff subpoenaed from the Second Defendant in his civil proceedings against Palmer and Kelso.

148. The plaintiff alleges (paragraph 58(c)) that the Second Defendant was in breach of its duty by its complicity in aiding and abetting the campaign of Messrs Palmer and Kelso against the plaintiff.

149. All of these things, the plaintiff alleges, contributed to bringing the plaintiff into public hatred, ridicule and contempt and to be fearful of his personal safety and property, affront to his dignity and mental trauma; exposed him to the destruction and risk of damage to his property and also contribution to a murder attempt perpetrated against him. (Paragraph 58(d) (i), (v), and, to the extent the damage is confined to personal injury and ‘property damage’, 38(d)(ii) and (iii))

150. At paragraph 59, the plaintiff articulates, in a single paragraph, an action based on Wilkinson v Downton. However, the particulars (within the proposed pleading) cross-reference a series of other matters which the plaintiff alleges in paragraphs 18- 56 (excluding 20(b)-(hh).

The parties’ submissions

The Second Defendant’s submissions

151. As to the ground that the proceedings do not disclose a reasonable cause of action, I reiterate that Wass SC DCJ did not find it necessary to determine whether the actions of negligence or intentional tort reasonably ran against the Second Defendant (at that point the Second Defendant had not moved for dismissal of them); but rather deferred consideration of the matter until after the provision of particulars of those actions.

152. On the negligence action, Mr Guihot, Counsel for the Second Defendant characterised the action as including, as a critical element, a duty to take steps to prevent criminal conduct by third parties, even if a risk was foreseeable. A second critical element which Counsel submitted underpinned the action was a duty on a part of a statutory authority to exercise powers. Mr Guihot submitted that the course of legal authority precluded acceptance of both those foundational elements. That being so, it was not reasonably arguable to say that the Second Defendant owed the plaintiff any duty of care.

151. On the intentional tort claim, Mr Guihot (and later Mr Brothers in verbal submissions in reply) submitted that in the light of particulars supplied by the plaintiff in relation to that claim, the defendant did not understand what the case against it was; so that particular action should be dismissed on that basis. Mr Guihot referred, in earlier written submissions, to the need to particularise the “knowledge” in the Council without which it could not be said that it engaged in ‘intentional’ conduct required for the tort.

The plaintiff’s submissions

154. The plaintiff submitted that the pleadings disclose reasonably arguable actions in negligence and intentional tort.

155. As to the action in negligence, and the Second Defendant’s recourse to the authority of the High Court in Modbury Shopping Triangle v Anzil (2000) 205 CLR 252 (‘Modbury Shopping Triangle’), he argued that although the general position may be that a person or entity in the position of the Second Defendant owed no general duty to prevent a third party from engaging in criminal conduct towards the claimant, there were exceptional circumstances in which such a duty could arise. He argued that those exceptional circumstances arose in his case so that the Second Defendant had a duty to take reasonable steps to minimise, discourage or deter criminal acts committed against him on public properties owned and occupied by the Second Defendant.

156. As to the action on the intentional tort, the plaintiff argued that paragraph 59 made it clear that he was arguing that the Second Defendant’s conduct (which had been set out in paragraphs 18 to 56, excluding 20(b)-(hh)) was (a) intentional; (b) calculated to cause him harm in the sense that the harm would naturally be expected to occur or was a result that was either foreseen by the Second Defendant or (further), that there was a risk that it would occur but the Second Defendant was recklessly indifferent to that risk. Further, the plaintiff added, he had supplied particulars to support this count; whose adequacy the plaintiff did not complain about.

Consideration

Whether the proposed negligence action is reasonably arguable

The no duty argument

157. There are two limbs to the Second Defendant’s argument on this part of its motion. First, on a reasonable construction of the pleaded duty said to sustain the negligence action, the state of the authorities, represented in particular by Modbury Shopping Triangle, forecloses the existence of a duty. The same outcome is reached by a different route. That a statutory authority has no duty to exercise powers unless obliged to do so.

158. It has to be recalled that this is a motion for dismissal. The standard is high: there has to be an absence of a triable issue, or the action is so untenable as to foreclose argument.

159. I proceed on the basis, articulated in the plaintiff’s submissions, which I consider substantially is accommodated within what is presently proposed to be pleaded, that he wants to allege that the Council local rangers owed a duty to take reasonable steps to prevent, reduce or deter the deliberately wrongful/criminal acts of Mr Kelso or Mr Palmer which occurred on Council-occupied property.

160. As I have already indicated, I proceed on the basis that the relevant harm is the harm to the plaintiff’s injured feelings resultant from the conduct of the third parties (the claim damages for property damage as alleged in paragraphs 19-23, 58(a)-(b) being proscribed by s60 of the Bankruptcy Act). My impression is that the plaintiff’s argument on breach is that the manner in which the Council dealt with vexatious complaints made against the plaintiff was effectively to turn a blind eye; or at least amount to studied restraint, in a way that was construed by Kelso and Palmer as acquiescence (or worse) and, accordingly enabled, or facilitated further vexatious complaints made against the plaintiff that were only part of a concerted campaign of intimidation and harassment directed towards him (see, for example, particulars (c) and (d) to paragraph 58); and this contributed to his injured feelings (particular (d)(i), (ii) and (iii) excluding reference to the plaintiff’s chattels) and further exposed him to a risk – which later materialized – of serious physical injury (particular (d)(v)).

161. As to the first part of the Second Defendant’s argument, I accept that the authority of Modbury Shopping Triangle presents an obstacle in the path of the plaintiff’s success on its argument about either the existence of a duty of care owed by the Second Defendant to the plaintiff, or to the content of that duty.

162. However, as Hayne J remarked in his Honour’s concurring judgment (which Gaudron J agreed to) in Modbury Shopping Triangle, it may not be useful in deciding questions about the existence or content of a duty separately from the facts which give rise to the claim. Further, as each of the judgments of Gleeson CJ (at [30]), Hayne J ([117]) and Callinan J suggest, there may be cases where the law may exceptionally recognise a duty to take precautions to “prevent or reduce the chances of criminally inflicted injury or loss by third parties” ([147]). The circumstances in that particular decision did not (according to the majority) establish the duty. In my view, on a motion for dismissal, the Court should be loath to peremptorily conclude that the plaintiff could not establish them in this case.

163. I essentially reach the same conclusion in relation to the Second Defendant’s alternative argument on duty. I do not read Graham Barclay v Great Lakes Council (2002) 211 CLR 240 as identifying any absolute prohibition against the imposition of the duty. As Gleeson CJ said in the latter case (at [39]), whether a duty on the part of a local council to act arises depends upon a range of matters including, relevantly, the relevant statutory provisions and the circumstances that existed between the Council and the claimant, and identification of the legal and practical capacity on the Council’s part to act in the way that a claimant alleges that it should have acted. As McHugh J pointed out in the same case (at [98]), Pyrenees Shire Council v Day (1998) 192 CLR 330 was a case where the Council knew of a risk of harm to certain individuals from a specific problem. At [85], McHugh J harked back to a range of matters which the Court would need to consider to determine whether a public authority owed an affirmative duty of care in a situation not recognised by the common law. But the Second Defendant, who moves the Court to conclusively intervene to terminate the action, did not adduce evidence to suggest that the plaintiff’s argument is manifestly untenable.

Whether the intentional tort action, as pleaded and particularised, is maintainable

164. The Second Defendant’s complaint, here, is that the alleged action is not sufficiently particularised.

165. On 28 March 2020, solicitors for the Second Defendant made a series of voluminous requests. So far as it concerns the present action on the intentional tort, the relevant request was numbered 13. After expressing commentary, the question raised of the plaintiff was “What facts are relied on by you to assert that the second defendant acted deliberately and intentionally, which is denied by the second defendant” (emphasis supplied). There followed a demand for particulars of identification of (a) time; (b) date and (c) the substance of each deliberate act of the second defendant alleged.

166. Parties are not entitled to particulars of all that they are ask for. They are entitled to particulars which are “necessary” to enable them to identify the case that they are required to meet (UCPR, r 15.1). It may be wondered whether, in circumstances where the second defendant indicated in request 13 that it “denied” the allegation, thereby implying that it already understood the allegation, it truly is necessary for it to receive further particulars of it; at least to enable the second defendant to respond to the allegation in its Defence.

167. Further, the specific demand for identification of the requested matters concerning time and dates of acts, to my mind, is not obviously a proper request for particulars in the context of the complaint about a campaign of victimisation running over years. It seems to me that matters of time and dates shade into requests for evidentiary matters, to which the Second Defendant presently has no right to receive.

168. Be that as it may, on 24 September 2020, the plaintiff provided his response. This was to essentially provide a cross-reference to answers to particulars requests numbered 2 and 3. Those requests related to what are, in the latest iteration of the proposed amended pleading, particulars (a) and (b) to paragraph 57 (which concerns the plaintiff’s action in negligence).Those particulars concerned, to put the matter very simply, knowledge that the Council had of a campaign of vilification and intimidation waged against the plaintiff by Messrs Kelso and Palmer including, relevantly, his being subject to ‘vexatious complaints’ made by those men about his motor vehicle being parked on Council-owned property.

169. Reading through his answers to those earlier numbered requests for particulars, it appears that the plaintiff wishes to argue that Council rangers were issuing parking infringement notices and/or impounding notices; even after he had explained to the rangers (including John Hoeben) his circumstances; Mr Hoeben’s refusal to divulge the persons making complaints against the location of his vehicle. The plaintiff goes on to refer to other circumstances, including what he considered was the Second Defendant’s lack of compliance, or co-operation in the production of documents he subpoenaed in his civil proceeding against Mr Kelso. When he eventually obtained access to the documents, he learnt that the Council’s informant was Mr Mathew Palmer. He referred also to conduct of the ranger, Joann deVries in March 2017, regarding Council’s request to remove his vehicle. He took issue with this and, he complains, the Council sought the police involvement.

170. The plaintiff, in summary in his answers to requests 2 & 3, said that the Council was, in effect, feigning ignorance about what was going on, treating seriously complaints which were actually vexatious; much to his prejudice and detriment. Responding to the complaints in the way that encouraged more complaints and generally facilitated the campaign against him.

171. In its letter to the plaintiff dated 25 September 2020, the Second Defendant’s solicitors argumentatively said that the plaintiff had failed to identify or provide the particulars requested and that it did not address the request “at all” as far as allegations or actions calculated to cause harm and damage were concerned. I disagree. The plaintiff tried to do what he was requested to do in particular 13 of the earlier letter: to state the facts he relied upon to assert that it had acted deliberately and intentionally. It is, or should be, plain to the Second Defendant that whether the particularised deliberate or intentional conduct (including acts and omissions) was “calculated “ to cause harm is a conclusion which the plaintiff will ask the Court to draw in the light of all the evidence at trial, including evidence which the plaintiff currently does not possess but which he might obtain during the course of invoking court process. Given also that the mental states of ‘deliberation’, and ‘intention’ relate to mental states of officers of the second defendant, he cannot realistically be expected to do more – his obligation is to provide the best particulars he can. I agree with the observations of Wass SC DCJ at paragraph [64] of her Honour’s reasons on 1 October 2020 (when directed to the complaints against the police), as to the potential availability of proof of the mental state of ‘calculation’ by inference in this regard.

172. I do not express any prediction whether this argument, with the matters referred to, will succeed. It suffices to say that in my view the plaintiff has, sufficiently, identified the ‘conduct’ of Council that he relies upon for this intentional tort which provides a basis for the Court to draw arguable inferences.

173. I do not accept that the plaintiff’s action on the intentional tort warrants dismissal for want of adequate particulars.

General Complaint of Adequacy of Particulars

174. I have read the second defendant’s general complaint as to the adequacy of the particulars of the claims against it. In my view, and to reiterate much of what I have already said, much of what was originally asked in terms of precise dates and times of certain events goes beyond what is required for proper requests; the matters requested meld into a request for matters that may be expressed to be the subject of evidence. I am not satisfied that the criticism of the particulars is of such force that the second defendant does not know the case against it which could not be alleviated by the evidence. It is a strong thing to dismiss a proceeding on the basis of the adequacy of particulars and I am not prepared to exercise my discretion under r 12.7 of the UCPR to do so in this case.

175. The Second Defendant’s motion for dismissal fails.

The Second Defendant’s other objections to amendments

176. As noted, the Second Defendant objected to 57(l)(iii), 58 and the particular (d)(i) to paragraph 58, being the amendments to the version of the pleading that was before Wass SC DCJ. The last two amendments describe the plaintiff’s claim about the damage and loss he sustained as a result of negligence. I do not consider that there is any substance to the objection to those changes, or that they cause any prejudice to the Second Defendant in the requisite sense.

177. The amendment affecting 57(l)(iii) contains an assertion about a state of mind in the Council, which should be particularised; namely reliance (upon publications). But it is arguable that reliance may be inferred from all the circumstances. It is unnecessary to pinpoint the state of mind of an individual. I do not disallow the particular amendment.

SUMMARY OF ORDERS

178. In relation to the putative third and fourth defendants, the joinder application is refused.

179. References to the NSW Police Force and North Sydney Area Health District in the title page and within the amended document should be excised (to the extent that they suggest a right to sue those entities directly).

180. In relation to the first defendant, subject to the excision of paragraphs 2(c), 7-13, particulars (b)-(l) of paragraph 16, particulars (b)-(jj) to paragraph 17, 18, 19-23, 33-34, 60-62, 66-67; and also the annexures referred to within those paragraphs, the plaintiff is granted leave to file a Further Amended Statement of Claim in the form attached to the affidavit of the plaintiff affirmed on 21 April 2021. To the extent that the paragraphs enumerated in this paragraph are relied upon to constitute an action or actions against the first defendant, such action is dismissed.

181. In relation to the second defendant, subject to the excision of paragraphs 19-23 (inclusive) particulars (a)-(b) to paragraph 58, and the particulars (d)(ii), (iii) and (iv) to paragraph 58 (to the extent those particulars of loss concern only property damage), the plaintiff is granted leave to file the Further Amended Statement of Claim. To the extent that the paragraphs enumerated in this paragraph are relied upon to constitute an action or actions against the second defendant, such action is dismissed.

182. The second defendant’s motion to dismiss is dismissed.

183. The said amended pleading, re-drafted in accordance with these reasons and orders, is to be filed and served within 7 days of these orders.

184. The proceedings numbered 2015/201139 and 2016/292950 are to be tried immediately after the hearing of this proceeding, and by the same trial judge.

185. Even if there is doubt about the practical effect in terms of enforcing it, in my view, it is appropriate that the plaintiff pay the first and second defendants’ costs of the amendments[4] . Both defendants successfully resisted substantial parts of the amendments which the plaintiff pressed. Further, that is a customary term of amendments to compensate the defendants for costs thrown away as a result of the amendments. It also reflects the indulgence that the Court grants to the amending party.

     4. Northern Territory v Sangare (2019) 93 ALJR 959; [2019] HCA 25 at [27]-[29]; noting also the plurality’s reference to the successful party in that case was a public authority.

186. The plaintiff should also pay the costs of the proposed third and fourth defendants of his unsuccessful joinder applications.

187. Wass SC DCJ contemplated that a mediation should occur after the provision of particulars. I have no difficulty with the concept of a mediation at a procedurally ‘early’ stage of the proceeding, but I respectfully consider that it might be more efficacious in facilitating any settlement if it occurs after the pleadings have closed. In such way, the plaintiff will have notice of any special defences which the defendants may bring; which might assist him to make a more informed assessment of his prospects than he currently has. That being so, I consider that the first and second defendants should first file and serve Defences before the parties are referred to mediation.

188. In case there is a disjunction between the findings in these reasons and my orders, or if the parties may wish to say something generally about the form of these orders, the parties have liberty to apply on 3 days’ notice.

189. I further direct that, subject to any variation of these orders in light of the liberty to apply that I have granted, the Defendants should file and serve Defences within 21 days of the date that the plaintiff’s amended pleading is filed and served.

190. The proceedings should be mediated within 6 weeks after service of the Defences. The First Defendant should inform the Court within 7 days of the date of the mediation whether or not there has at least been any settlement (in principle), subject to any concluded written agreement.

191. If the matter does not resolve at the mediation, the parties will be informed by the Court’s registry about a date upon which further directions for case management will be made.

192. If there is any non-compliance with the timetable, which cannot be rectified within 3 days, the party (or parties) not in breach is/are to notify the Associate to the List Judge for relisting of the proceeding for mention,

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Endnotes

Decision last updated: 14 May 2021