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NSWNSWSC

Delaney v State of New South Wales

[2026] NSWSC 1130

Supreme Court of NSW|2026-09-09|Before: Cavanagh J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-09-09

Before

Cavanagh J

Catchwords

CIVIL PROCEDURE — application of defendant to dismiss proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — where plaintiff’s pleading previously struck out twice because the pleading did not articulate or formulate a properly pleaded cause of action — whether the proceedings are frivolous or vexatious or otherwise an abuse of process of the court

Source

Original judgment source is linked above.

Catchwords

CIVIL PROCEDURE — application of defendant to dismiss proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — where plaintiff’s pleading previously struck out twice because the pleading did not articulate or formulate a properly pleaded cause of action — whether the proceedings are frivolous or vexatious or otherwise an abuse of process of the court

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Delaney v State of New South Wales [2026] NSWSC 1130

Hearing dates: 9 September 2026

Date of orders: 9 September 2026

Decision date: 09 September 2026

Jurisdiction: Common Law

Before: Cavanagh J

Decision: (1) The proceedings are dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).
(2) The plaintiff to pay the defendant’s costs of the motion and the proceedings.

Catchwords: CIVIL PROCEDURE — application of defendant to dismiss proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) — where plaintiff’s pleading previously struck out twice because the pleading did not articulate or formulate a properly pleaded cause of action — whether the proceedings are frivolous or vexatious or otherwise an abuse of process of the court

Legislation Cited: Civil Procedure Act 2005 (NSW), s 56, 58
Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Cases Cited: Banque Commerciale SA (In liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Dickens v State of New South Wales (No 3) [2018] NSWSC 485
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Mary v State of New South Wales [2025] NSWSC 1318
Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65
Westwood v Gulliver [2024] NSWSC 1323

Delaney v State of New South Wales [2026] NSWSC 1130 | Case summary | Zoe

HIS HONOUR: Pursuant to a motion dated 17 February 2026 the defendant, being the State of New South Wales, seeks orders that the proceedings be dismissed pursuant to rr 13.4(1)(a) or 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW), as well as orders that the plaintiff pay the defendant’s costs.
On the hearing of the application today the plaintiff appeared in person via AVL. Mr Taylor of counsel appeared on behalf of the defendant. I received helpful written and oral submissions from both parties. Indeed, much of the hearing today was taken up with providing the plaintiff with an opportunity to explain to me the nature of the case which she was pursuing, and in particular, the conduct or acts of the police about which she complains.
The defendant seeks for the proceedings to be dismissed on the basis that they are either frivolous or vexatious or an abuse of the processes of the Court, having regard to pars (a) and (c) of UCPR, r 13.4(1).
The principal basis on which the defendant submits that the proceedings should be dismissed is that the document relied upon by the plaintiff as her pleading is the third version of her statement of claim, she having been given two earlier opportunities to fix up or amend her pleadings to properly plead the case against the defendant. The defendant submits that the plaintiff has not done so, and that the pleading on which she relies is deficient in so many respects that the case cannot be allowed to proceed on that basis. Further, the defendant submits that the proceedings should be dismissed because the plaintiff has been afforded a considerable period of time, including two earlier opportunities, to properly plead her case against the defendant and that she has failed to do so.
In particular, the defendant relies on the decision of this Court per Adamson J in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 (“Dickens”), the effect of which is that there must come a time in proceedings such as this where the plaintiff's proceedings should be dismissed if the plaintiff has been given a reasonable opportunity to properly plead her statement of claim and has demonstrated an inability to do so. The thrust of the defendant’s submissions is really that the pleading relied upon by the plaintiff does not properly plead the material facts on which the plaintiff relies, does not properly plead any cause of action, and alleges matters which, on the face of it, could have no substance or not provide any basis for a cause of action.
In support of the application, the defendant relied on affidavit of Nicholas Betts, a solicitor employed by the solicitor for the defendant, dated 17 February 2026. The plaintiff relied on a number of documents, including her own affidavits of 18 March 2026 and 20 March 2026. Annexed to her affidavit of 18 March 2026 were other documents such as orders of the Federal Circuit and Family Court of Australia (“the Family Court”), an affidavit of a police officer, Rani Hulme, dated 3 November 2025, and various other police documents and statements.
During the course of the hearing, I gave the plaintiff an opportunity to articulate the nature of her case and asked her to identify the material facts on which she relied for the purposes of her statement of claim. The plaintiff was able to do so at some length.

The background to the matter is that the plaintiff and her former partner were, in August 2022, involved in proceedings in the Family Court. There were two children of the relationship. Orders were made by the Family Court on 10 August 2022 relating to the custody and access of the two children. The father, being the former partner, was granted sole parental responsibility for the children. One of the orders was that the children spend the time with their mother, being the plaintiff, as agreed between the parties, but failing agreement, at specified times, one of which was between 9am and 5pm on Saturday 13 August 2022.
On 12 August 2022 the solicitor for the former partner wrote to the plaintiff stating that she would not be allowed to have a scheduled access visit on 13 August and that she should not attend the residence where the children were on that day. Despite this the plaintiff attended at the address, seeking to undertake what I will call her scheduled access visit. I emphasise that at this stage there is nothing in the orders which permitted the plaintiff to attend at the residence, but presumably the orders contemplated arrangements being put in place between the parties for the plaintiff to have access between 9am and 5pm.
At the time the children were at home with their, as I understand it, father’s mother. One of the children called Triple Zero. The police attended. At the same time, the plaintiff called Triple Zero, presumably seeking assistance with her access visit. According to the plaintiff, when the police attended, they prevented her from having access or spending time with her children. The police did not allow her to take the children away and they, along with the partner, physically prevented one of the children from coming outside to spend time with her.
The plaintiff was asked to accompany the police to the police station, which she did. Subsequent to that, an Apprehended Domestic Violence Order (“ADVO”) was taken out. The plaintiff informed me today that she attributes what occurred with the police that day to the fact that she has been unable to see her children over the past four years, and further, that her partner has used coercive control to weaponise the system against her.
The plaintiff thus commenced proceedings by the filing of a statement of claim on 4 April 2025, making various allegations against the police and seeking what she described as damages, equitable relief, interest and costs. She was permitted to amend her statement of claim which she did on 11 June 2025.
Subsequent to these events, on 20 February 2024, the plaintiff wrote to the Crown Solicitor's Office demanding that the police force pay her damages and compensation for trespass. Following communications between the parties, she filed a summons seeking judicial review on 4 April 2025, allegedly seeking review of unlawful decisions by the New South Wales Police Force and the Nowra Local Court magistrate. She also filed a statement of claim in the Equity Division of this Court, commencing proceedings. The proceedings, which were described as the tort proceedings, were ultimately transferred to the Common Law Division. The statement of claim was struck out with leave to replead.
The matter came before Harrison CJ at CL on 27 June 2025. The plaintiff was granted leave to file an amended statement of claim dated 10 June 2025. The defendant was ordered to file a defence or make a further application. A motion was filed by the defendant on 28 July 2025 seeking to strike out the amended statement of claim. The matter was further heard by Harrison CJ at CL on 6 November 2025. The amended statement of claim was struck out: see Mary v State of New South Wales [2025] NSWSC 1318.
However, leave was granted to serve a further amended statement of claim by 5 February 2026. Orders were then sought and made by Dhanji J in respect of suppressing the publication of any names of the plaintiff's children. Thereafter the plaintiff filed a further amended statement of claim on 6 February 2026. Then, on 17 February 2026, the plaintiff filed this application.
The matter thus has a long history. This is the third version of the statement of claim on which the plaintiff seeks to rely. This is the second application of the defendant in respect of the originating process on which the plaintiff seeks to rely. As I have said, the defendant submits that the proceedings should be dismissed in accordance with UCPR, r 13.4, for the reasons I have already articulated.
The plaintiff says that her pleading complies with all appropriate rules and discloses the cause of action on which she seeks to rely. In her written submissions, the plaintiff submits that the applicable test is the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, and the Court should consider whether an underlying legally recognisable cause of action exists. She says the further amended statement of claim discloses her causes of action. The plaintiff says she has pleaded a “police tort” and trespass to the person as well as misfeasance in public office. The plaintiff has pleaded “continuing wrong” as well as “constitutional inconsistency”. She says she has pleaded damage and fraud allegations.
In the circumstances, the plaintiff submits that the defendant has not overcome the very high bar which must be applied before the Court would dismiss her proceedings under UCPR, r 13.4. Alternatively, she says that if the Court is not satisfied as to the pleadings, she should be given leave to further amend.

I asked the plaintiff to outline what it is about the police conduct on the day of which she complains on the basis that those matters must be the material facts giving rise to the causes of action which she pursues. The plaintiff identified a number of matters:
She said that when the police arrived at the residence, they gave time to the partner, hearing his grievances. She said they spent 45 minutes with him even when he had not been at the property;
She said that they allowed the partner to contact his lawyer but did not allow her to contact her lawyer whilst at the scene;
They acted or proceeded contrary to Family Court orders in the sense that although she was endeavouring to show them the Family Court orders, the police would not read them;
They did not obtain both sides of the story or event whilst they were there;
They responded to the Triple Zero call of the person inside who on the evidence was one of the children, but did not respond to her Triple Zero call;
They would not enforce the Family Court orders;
When asked to go with them to the police station, she was not informed that she was arrested;
They physically prevented her child from coming with her; and
They wrongly pursued an ADVO against her.
The plaintiff says that all of this has led to the long-term separation between her and her children, and she suffers “neurobiological harm” which she described as post-traumatic stress disorder (“PTSD”). She says this has caused her former partner to engage in coercive control and weaponising the system against her.
I then asked the plaintiff to take me through the statement of claim to identify where these matters were pleaded. The plaintiff identified a number of paragraphs where she said the matters were pleaded. In particular, pars (17), (19) and (20), where the plaintiff refers to the Family Court orders and the police not acting consistently with those orders. Again, in pars (22) and (23), the plaintiff pleads that the police were informed of the existence of the orders, and refused, failed, or declined to properly examine them. Other than that, the matters of which the plaintiff complained orally during the hearing are not the subject of any pleading.

Ultimately, in an application such as this, it is necessary to carefully review and consider the terms of the document on which the plaintiff relies, being the further amended statement of claim (third iteration), to determine whether the proceedings should be dismissed at this time. I would not dismiss the proceedings if I was satisfied that the material facts on which the plaintiff relied had been properly pleaded, or that the further amended statement of claim disclosed a proper cause of action. I must have in mind in reviewing the document that it has been drafted by a self-represented litigant. Considerable leeway must be given to self-represented litigants in terms of pleading. They cannot be expected to fully understand the pleading rules or produce a document which a trained lawyer might produce. I bear that in mind in considering this application.
Having said that, any statement of claim must plead the material facts on which the plaintiff relies and include sufficient information in it to enable the defendant to know the case that it has to meet. That is the very function of any pleading: see Banque Commerciale SA (In liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286; [1990] HCA 11. Again, as the plaintiff is a self-represented litigant, I took the time today to go through her further amended statement of claim with her, asking her to explain to me what she meant by various paragraphs.
I will start at the beginning.
First of all, it is notable that the plaintiff describes herself as “Helen for Helen Mary Delaney”. I asked the plaintiff what she meant by that. The plaintiff indicated that the State might know the person as Helen Mary Delaney, but the person the subject of the conduct on 13 August 2022 was the sentient being known as Helen. I endeavoured to ask the plaintiff to explain what was meant by that statement and whether these were two separate persons or who any damages should be paid to, but she indicated to me that that was the real question that nobody had been able to answer, or words to that effect.
Next, in the relief claimed, the plaintiff claims damages, equitable relief, interest and costs. I asked the plaintiff what equitable relief she was claiming, and she said that she had a commercial interest in her “being”. I understood this to mean that she had some commercial rights in her person and therefore could claim equitable compensation arising from a breach of those commercial rights.
Next, I took the plaintiff to the body of the statement of claim which pleads “police tort; continuing wrong; federal-state inconsistency; misfeasance in public office; equitable and neurobiological harm”. I asked her what all that meant. As I understand the plaintiff’s answer, it is that the police have been guilty of a tort, that the ongoing loss of her relationship with her children and her partner weaponising the system against her is the continuing wrong.
Next, the plaintiff said that there is an inconsistency between the powers of the Family Court and police powers. Next, that she is suing in misfeasance in public office, and that she is claiming the equitable harm which I have already spoken of and what she described as neurobiological harm, which she says is PTSD.
The only cause of action that I can distil from that generalised statement is misfeasance in public office.
In Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65, Brennan J observed at 357:

There is nothing in the statement of claim which provides any proper particularisation of matters such as malice, knowledge and reckless indifference. The plaintiff may be seeking to rely on misfeasance in public office, but there is no pleading which would support that.
Next, I took the plaintiff to part A of her statement of claim, titled “Parties and Capacity”. She identifies the plaintiff as “Helen Mary”, who is a “living beneficiary of her estate and equitable interests”, and “mother and lawful parent” of her “living children”. She then says that the “living woman known as Helen is not joined as a party and is not sued, named or enlivened in any juridical capacity”. The plaintiff goes on to plead that, “Helen appears only as living grantor and benefactor and the source authority from which the plaintiff’s equitable standing and beneficial interests arise”. She then pleads that the proceedings are “brought to vindicate the plaintiff’s equitable and fiduciary rights and interests and the equitable, beneficial, protective and intergenerational interests” of her “living children”.
I am not aware of the law or legal principles on which the plaintiff relies to support paras (3), (4), (5) and (6) of the further amended statement of claim (to which I have just referred). My oral exchanges with the plaintiff to try and confirm that there was a legal entity who was suing did not perhaps produce the result I had hoped for. I remain uncertain as to the differences asserted in the further statement of claim between the plaintiff as a legal entity and the plaintiff as some form of spiritual entity, which she seems to be suggesting. Suffice to say that before any statement of claim could go forward, it would be necessary to establish that the plaintiff is a legal entity. The plaintiff seemed unwilling to accept that as part of the exchanges today.
Parts B and C of the further amended statement of claim deal with things that are said to be “jurisdiction and posture” and “proposed federal orders and contemporaneous jurisdictional challenges”. As I understand the basis of her claim, the plaintiff is suggesting that there is some conflict between police powers and the operation of the Family Law Act 1975 (Cth). Indeed, the plaintiff pleads in para (29) of her further amended statement of claim that the actions of the police constituted executive interference with federal judicial power and was conduct invalid by operation of s 109 of the Commonwealth Constitution.
The point of part D of the further amended statement of claim seems to be to assert that there were binding federal orders in force on 13 August 2022 and that the police acted contrary to those federal orders. In this regard, the plaintiff relies on the Family Court orders, which suggest that she would be permitted to spend time with her children on the day that she attended at the residence of her former partner. The gravamen of her complaint seems to be that the police did not help her enforce those Family Court orders, but rather took the side of the partner.
However, included in the evidence on which she relies is an affidavit of the police officer who attended on that day. It is clear from that affidavit that the police responded to a Triple Zero call from a child who was inside the residence at the time expressing fear for the child's safety. The idea that the police should have been assisting her to enforce access, that is, inside a home where the child who had made the Triple Zero call was, seems rather inconsistent with what normal police duties might be. Be that as it may, that is part of the basis of her case.
The plaintiff further pleads that that police officer made admissions, that is, stating the police do not enforce Family Court orders, as if that was an admission of a police officer breaking the law or acting outside authority. There was no basis for those contentions. The plaintiff further pleads that the tort, which she does not identify, commenced on 13 August 2022 and continues, and there has been downstream harm flowing from the initiating tort. Thus, I am unable to understand how a tort which is said to have commenced on 13 August 2022 could be continuing at this time, that is, continuing as if the police were still engaged in such conduct.
The plaintiff does plead misfeasance in public office in part H, saying that the officers exercised public power knowing it was beyond power or being recklessly indifferent to the limits imposed by Family Court orders. That is not a proper pleading of misfeasance in public office.
She pleads causation, saying that the police conduct was the direct cause of the plaintiff's separation from her living children and the cause of subsequent State actions and the ongoing deprivation of family life. Again, it is difficult to understand how what the police did on 13 August 2022 could be the cause of ongoing separation between her and her children in 2026.
As I have indicated, the pleading on which the plaintiff relies is the third version of her statement of claim. The plaintiff has been given two further opportunities to properly plead her case. Even from the exchanges in Court today, and the opportunity she was given to outline the basis of her case, it is clear that the plaintiff has not pleaded the material facts on which she relies for the purposes of any cause of action she pursues. Further, the plaintiff has not pleaded the material facts on which she relies to plead any cause of action which is said to be misfeasance in public office.
Having regard to the content of all of the plaintiff’s third amended statement of claim, including the way in which the plaintiff identifies herself, the nature of the relief claimed and those particulars relating to who is actually claiming, which invoke principles not known in New South Wales, I am satisfied that even if the plaintiff was given a further opportunity to replead, nothing would change.
The conduct of litigation in New South Wales is governed in part by ss 56 and 58 of the Civil Procedure Act 2005 (NSW). In making any decision or order, I must do justice between the parties. In my view, the plaintiff has been given ample opportunity to properly plead her statement of claim, that is, her cause of action. The plaintiff continues to pursue allegations which even on the evidence before me would be unsustainable. She refers to legal principles which do not exist. The plaintiff alleges things such as “police torts” without identifying the tort other than misfeasance in public office. She does not properly plead or identify a misfeasance in public office. The plaintiff claims losses which she could not possibly recover.
In the circumstances, I am satisfied that the proceedings should be dismissed pursuant to UCPR, r 13.4.