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Category: Procedural rulings

Parties: Wafaie Gayed (Plaintiff)
Bishop Angaelos of London (First Defendant)
Father Alexander Aziz (Second Defendant)
Adeeb Mikhail Andrawos (also known as Bishop Daniel of Sydney) (Third Defendant)
Father Joshua Tadros (Fourth Defendant)
Father Youhanna Bestawros (Fifth Defendant)
Father Sharobim Sharobim (Sixth Defendant)
Father Morris Morris (Seventh Defendant)
Father Angelos Fouad (Eight Defendant)

Representation: Counsel:
D Toohey (Plaintiff)
L Barnett SC / B Gallifuoco (First Defendant)
D Helvadjian (Second Defendant)
N Olson (Third to Eighth Defendant)
Solicitors:
Y Bloom Legal (Plaintiff)
William Roberts Lawyer (First Defendant)
Griffith Barton Lawyers (Second Defendant)
Colin Biggers & Paisley (Third to Eighth Defendant)

File Number(s): 2023/259442

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: There are four motions before the Court: a motion, notice of which was provided on 21 November 2025, by which the plaintiff seeks to file a further amended statement of claim in a form annexed to the motion. This would formally be the third further amended statement of claim.

2. The second, third and fourth motions are motions by the first, second and third to eighth defendants seeking orders that the second further amended statement of claim be struck out, the proceedings be dismissed and costs.

3. On or about 31 December 2022, an anonymous email was sent to parishioners of the Virgin Mary & St Markorious Coptic Orthodox Church (hereinafter “the Church”) from an email address righteous.copts.2@gmail.com which is otherwise anonymous and/or unsigned.

4. The contents of the email, which was sent to about 2,000 parishioners, is said to give rise to a number of serious imputations, namely that the plaintiff was involved in laundering money: in the commission of a murder; in fraud and theft from parishioners of the Church; in the creation of false donation receipts; in a conspiracy to defraud insurance companies; has been taking inappropriate photographs without consent; and has benefitted his family from stolen funds from which he purchased numerous properties.

5. If, as I suspect, the imputations arise from the publication, those imputations are serious and would provide the plaintiff with a cause of action. At this stage, I say nothing about the defences that may or may not be available.

6. On or about 8 March 2023, the fifth defendant sent to the plaintiff an email, dated 5 April 2022, which notified the plaintiff that the fifth defendant had discovered another which was sent from the same address and signed over the name Ibrahim Farag. Mr Farag is not a defendant in the proceedings.

7. The defendants are or were priests at the Coptic Diocese of Sydney who work in the said Diocese.

8. The nature of the legal entity of churches is often a complicated arrangement. The Coptic Orthodox Church, so called, traces its history to St Mark and, as the Court understands it, is apostolic in nature.

9. Apostolic churches trace their origin to the Apostles to Jesus, and the authority of priests derives from the laying on of hands by persons authorised to create priests. The Roman Catholic and Anglican churches are apostolic. There is serious doubt, without at this time detailing the issues, whether priests in the Coptic Orthodox Church are, as a matter of fact and law, employed and whether they are agents of the Church. [1]

10. The Coptic Church was, as the name indicates, formed in Egypt and later in the 5th century as the Court understands it, adopted the nomenclature “Orthodox” to differentiate it from some other Eastern Christian Churches. The Coptic Church adopted an Orthodox view of the divinity of Jesus. In the late 7th and 8th centuries, the Coptic Church operated as a minority in Egypt and has been, over the centuries, the subject of significant persecution.

11. This short summary of common knowledge about the Coptic Church is stated because the minority status and persecution history of adherents to the Coptic Church informs the nature of the relationship between parishioners and the closeness of the community, which, in turn, informs the seriousness of an email to all parishioners of the Church.

12. The Church is affiliated to the Coptic Church and the relationship between the Coptic Pope (the Pope of Alexandria or the Apostolic See of St Mark) and each bishop, archbishop and priest within the Church is a matter that is unknown to the Court and is not the subject of any pleading or information in any of these motions. Nor has the Court been made aware of the lines of authority or limits of authority within the Church.

13. The Court is aware that many of the activities of the Coptic Church are conducted by separately registered and incorporated organisations. [2]

14. Notwithstanding the evidence provided to the plaintiff of the use of the address from which the defamatory material was sent by a named individual, no attempt has been made by the plaintiff, to the knowledge of the Court, to name the said individual as a defendant in the proceedings. Nor, to the knowledge of the Court, has the plaintiff sought to utilise the compulsory powers of the Court to obtain from the said named individual any information that may be in the individual’s possession relating to the identity of the person who sent or authorised the email that is the subject of these proceedings.

15. As earlier stated, the identity of the individual was provided to the plaintiff no later than 8 March 2023 by at least one of the defendants and on other occasions by other defendants and through other means.

16. Since the filing of the second further amended statement of claim, there has been numerous correspondence between the parties in which the defendants have pointed out a number of defects with the pleading.

17. The liability of the current defendants is said to arise as a consequence of one or more of them “authorising” the distribution of the offending email or, otherwise, as a consequence of the defendants, one or more of them, failing to disown, or to distance themselves from, the publication.

18. Such liability is said to arise and is asserted. No facts are pleaded which would give rise to an authorisation. There are rare circumstances where, for example on a notice board, an organisation which fails to remove a publication may be liable for subsequent reading of the publication. This arises if a reasonable time after knowledge of the placement of the publication on the notice board has passed, the detailed principles of which have been discussed many times. [3]

19. There is no principle which renders a person liable for defamatory publications merely because the person does not disown the publication. Liability for defamation arises from publication.

20. While there may be a moral imperative on persons who did not publish a document said to be in their name to disavow it, but there is no liability arising from such a failure so to do. This publication was not in the name of any one of the defendants. Nor was it in the name of the Church.

21. The assertion that one or more of the defendants, or persons with authority over one or more of them, authorised the publication, is an assertion without any fact upon which such assertion is based. It is not necessary in pleadings to state the evidence upon which material facts are based, but it is necessary to state the material facts. In the absence of the material facts giving rise to the alleged authorisation, it is impossible for the defendants to respond to, or to answer, the case that is said to be put against them.

22. In that sense, the proposed pleadings are fundamentally defective. The pleadings disclose no reasonable cause of action, are in the sense already described, an abuse of process and, in the sense utilised in the Uniform Civil Procedure Rules (“UCPR”) r 14.28, embarrassing. [4] The defects cannot be cured by particulars. The defects relate to the pleadings themselves.

23. For the above reasons, the Court refused leave to file the proposed amended statement of claim in accordance with the motion of the plaintiff. The Court will formalise those orders with these reasons, together with an order dismissing the plaintiff’s motion.

24. Each of the other motions are in identical form. Each seeks the striking out of the extant pleadings and the dismissal of the proceedings.

25. The current or extant pleading on behalf of the plaintiff is, for the same reasons outlined above, embarrassing, an abuse of process and does not disclose the material facts upon which the claim is based. It is, in the above sense, liable to be struck out.

26. The plaintiff submits that it should not be struck out if, notwithstanding failure to comply with the rules of Court as to the content of a pleading, it is possible to salvage something out of the plaintiff’s “messy verbiage”. It is one thing to save from poor verbiage or even ambiguous verbiage a cause of action. It is quite another thing to conjecture as to the cause of action or the facts that give rise to it.

27. It is a fundamental of natural justice or procedural fairness that each party is entitled to know the case made against it. Further, each party is entitled to a reasonable opportunity to prepare and to present its case in answer to the case made against it.

28. Before it can have such a reasonable opportunity, the party needs to be aware of the case. The defendants could not know what factual allegation is made against them that is said to give rise to the authorisation of the publication. Further, the defendants are not in a position to know who it is alleged published it (as distinct from caused it to be published).

29. The plaintiff submits that, to the extent that the Court is of the view that the pleading is in sufficiently poor form not to allow its filing and the current pleading in a form which would allow it to be struck out, the Court ought to grant leave to file an amended statement of claim. No prior notice was given to the parties or the Court for such a proposal.

30. Rather, the application or motion was made ore tenus. The plaintiff relies upon authority to the effect that, when pleadings are struck out, generally leave is granted to file further pleadings. [5]

31. While the High Court judgment in Turner, supra, turns fundamentally on conditions required by a Full Court of the Victorian Supreme Court on an earlier occasion, the statement of that which ordinarily occurs is accurate. The judgment of the High Court also turned on the particular aspects of the rule, then in force in Victoria, upon which the orders were said to be made.

32. However, we are here dealing with the interaction of a number of different rules contained in the UCPR. Whether leave is granted to file a further statement of claim depends on the discretion exercised by the Court. Such discretion is informed by the overriding purpose of the Civil Procedure Act 2005 (NSW), namely, facilitating the “just, quick and cheap resolution of the real issues in the proceedings”. [6]

33. The difficulty with the exercise of such a discretion in the current circumstances is the state of the pleadings are such that it is almost impossible to determine “the real issues” in the proceedings. The exercise of discretion involves three different assessments.

34. First, whether the pleadings should be struck out which involves an application of UCPR r 14.28. Second, the opportunities that have thus far been given for the plaintiff to regularise the proceedings, which he has not done. Third, whether it is appropriate, given the delay, to allow the plaintiff, in effect, to start again.

35. The obvious amendment that should have been made shortly after March 2023, was to name Mr Ibrahim Farag as a defendant in the proceedings or, failing the naming of him as a defendant, to seek compulsory production of documents from the said Mr Farag which would identify the publisher of the email and/or any authorisation that had occurred. In the almost three years that have passed since March 2023, the plaintiff has manifestly failed to do any such thing or to take any appropriate step.

36. The limitation period for the taking of proceedings is three years from the date of publication. The provisions of s 65 of the Civil Procedure Act would entitle the plaintiff to amend proceedings to name Mr Ibrahim Farag, even if the limitation period had expired, if the Court were to grant leave.

37. The only saving grace for the delay that has occurred in these proceedings would be for the Court to permit the filing of proceedings that named Mr Farag as a defendant or permitted the plaintiff to obtain from the said Mr Farag documentation that would allow the plaintiff to determine who, if it were not Mr Farag, authorised the distribution of the email. The latter mentioned option assumes that such a document might exist.

38. The Court should not be conducting itself in a way that “manipulates” the limitation period and issues orders which, in the three years in which these proceedings have been on foot and since the publication of the defamatory material, have been eschewed by the plaintiff.

39. Like the rules of natural justice, one can lead a horse to water but one cannot make it drink. The task of a Court in natural justice is to provide a reasonable opportunity for each party to prepare and present its case. It is not the Court’s duty to ensure that a party uses such an opportunity to its best advantage. [7]

40. In this case, the plaintiff has had three years of opportunity and multiple judgments of the Court requiring him to re-plead his case and to put his case in proper order, both as to the identity of the defendant or defendants and as to the material facts giving rise to the liability of the defendants. The plaintiff has failed time and time again to utilise the abundance of opportunity to his best advantage, or to any advantage.

41. On the current material, the Court does not consider that another opportunity would now be utilised, differently from the other opportunities. Moreover, the Court considers that the plaintiff has failed to deal with the proceedings with due despatch. As currently pleaded the proceedings disclose no reasonable cause of action against any of the defendants named and the proceedings are an abuse of process.

42. The Court takes into account the very high bar necessary to make an order dismissing proceedings. A party, ordinarily, ought to be entitled to their day in Court and ought not to be deprived of the opportunity to agitate a cause of action, even when novel.

43. However, nothing in the current pleadings, or in any evidence before the Court on this interlocutory application, discloses that there is any cause of action that could possibly arise against any of the named defendants. Of course, to some extent at least, whether a good cause of action is able to be maintained may depend upon facts and, when that occurs, dismissal should not occur.

44. Nevertheless, despite the leave of the Court granted on a number of occasions (and the urging of the Court), and the dispensation granted by the Court in relation to the naming of defendants, the plaintiff has continued to fail to prosecute the proceedings in an appropriate manner. There is a significant time delay between the filing of the original statement of claim and the commencement of these proceedings and today. But the Court’s discretion, in this matter, depends not only on the passage of time. It depends on the passage of time and the failure, manifestly, of the plaintiff to regularise proceedings in a manner which discloses a good cause of action. For those reasons, the Court will refuse leave to file a further statement of claim and will dismiss the proceedings summarily.

45. The Court makes the following orders:

46. Dismiss the plaintiff’s motion.

47. Refuse leave to file a further amended statement of claim as notified or otherwise.

48. Pursuant to the terms of Uniform Civil Procedure Rules, r 12.7, dismiss the proceedings for want of due despatch.

49. The plaintiff shall pay the defendants’ costs of and incidental to the proceedings.

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Endnotes

Bird v DP (a pseudonym) [2024] HCA 41.

See Abraham (bht Abraham) v St Mark’s Orthodox Coptic College and Ors [2006] NSWSC 1107 at [4] (Rothman J).

Voller v Nationwide News Pty Ltd [2019] NSWSC 766 at [110]-[189] (Rothman J) summarising some of the authorities.

McGuirk v University of New South Wales [2009] NSWSC 1424; Charlie Carter Pty Ltd v Shop, Distributive Allied Employees’ Association of Western Australia (WA) (1987) 13 FCR 413.

Turner v The Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69.

Civil Procedure Act 2005 (NSW), s 56.

Sullivan v The Secretary, Department of Transport (1978) 20 ALR 323 at 343 (Deane J).

Amendments

05 January 2026

Amend "Abraham Farag" to read "Ibrahim Farag". Para 20 - end of 1st sentence: amend "so do" to read "so to do".

12 January 2026

Cover page: "Bishop David" amended to read "Bishop Daniel"