HARFOUCHE -v- MEINEN [2026] WASCA 39 (20 March 2026)

1. The most recent iteration of the writ in the primary proceedings is an amended writ dated 28 December 2023. It claims, in effect, that on 23 February 2019 the first respondent commenced, and thereafter maintained until 30 September 2020, a prosecution against the appellant without reasonable and probable cause motivated by one or both of malice or a collateral purpose. The second respondent is said to be liable on a vicarious or solidary basis for the conduct of the first respondent. The appellant claims damages for personal injury [8] ‑ [10]. 2. On 26 September 2024 the appellant filed a chamber summons seeking leave to further amend the writ. The proposed further amended writ underwent multiple further modifications culminating in a fifth proposed amended writ dated 10 December 2024. Among other things this 'proposed amended writ' seeks to clarify that the personal injury allegedly suffered by the appellant did not become apparent before 30 November 2021 [13] ‑ [15]. 3. By his application by chambers summons (which was amended from time to time), the appellant sought leave:

(a) to join his son, James Harfouche, as a plaintiff to the proceedings (the appellant's son was already pursuing separate proceedings in relation to the same prosecution) [13], [15], [16], [42];
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> (b) to join the Commissioner as a defendant to the proceedings claiming damages for personal injury caused or contributed to by the Commissioner's alleged negligent breach of duty in relation to the prosecution [13], [15], [16];
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> (c) to add a cause of action against the first respondent, namely, a claim that the first respondent was liable for misfeasance in public office [13], [18];
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> (c) to add a number of causes of action against the second respondent, namely, claims that the second respondent: (i) was vicariously liable for the Commissioner's negligence; and (ii) was directly liable for the malicious prosecution of the appellant and the appellant's son [13], [17].

1. The application was heard by a registrar of the District Court (Nunn R) on 29 August 2025. The registrar delivered reasons for decision on 22 September 2025. The registrar refused joinder of the appellant's son and the Commissioner. Leave was granted to amend to add a cause of action against the first respondent. So too leave was granted to add a cause of action in negligence against the second respondent based on it being vicariously liable for the Commissioner's negligence. However, leave was refused to add a cause of action based on the second respondent being directly liable for the malicious prosecution of the appellant [18].
2. The appellant is yet to amend the writ to give effect to the leave granted by the registrar [19], [23]. Accordingly, the existing writ in the primary proceedings continues to be the amended writ dated 28 December 2023. On 30 September 2025 the appellant filed an appeal from the registrar's decision [20]. The terms of the appeal notice are relevant as the appeal was seemingly confined to the non‑joinder of the Commissioner. The appellant sought to appeal from the registrar's decision in the following terms [20]:

The appellant was denied leave to file and serve an amended writ of summons which added the Commissioner of Police as a Defendant.

1. The primary judge heard the appeal from the registrar's decision on 4 December 2025 and dismissed the appeal on 18 December 2025.

1. The primary judge addressed the relevant principles relating to joinder of parties and the amendment of a writ with leave [26] ‑ [34]. Having done so, and thereafter having referred to other legal principles that it is not necessary to discuss in these reasons, her Honour identified that the sole issue for determination on the appeal was whether the Commissioner was a person who ought to have been joined as a party or whose presence before the court is necessary [40].
2. Based on her Honour's characterisation of the issue for determination on the appeal, the primary judge did not finally address the question of whether the appellant's son should be joined as a plaintiff to the proceedings [41] ‑ [43]. However, the primary judge did observe that there was no evidence that the appellant's son had consented to his joinder as a plaintiff in the proceedings [43].
3. On the question of joinder of the Commissioner, the primary judge recited the parties' submissions [45] ‑ [52]. The primary judge then described the primary question for determination conformably with O 18 r 6(2)(b) of the Rules of the Supreme Court 1971 (WA) [53]. Having considered the matter the primary judge was satisfied that the Commissioner should not be joined as a defendant [54], [68]. The primary judge mentioned six matters that her Honour relied on in this respect [55] ‑ [67].
4. In summary, the primary judge stated that:
   1. The court must consider the orders sought and the effect of those orders on the Commissioner as a proposed defendant based on the existing writ (ie the amended writ dated 28 December 2023) rather than the proposed amended writ [62] ‑ [64].
   2. The joinder of the Commissioner was not necessary for the purposes of the appellant's causes of action against the first and second respondents [55] ‑ [56].
   3. There was no order which might be made in the proceedings which would directly affect the Commissioner's rights against or liabilities to a party in the action [57] ‑ [59], [61].
   4. A person cannot be joined merely because it is thought to be just or convenient [60] ‑ [61].
   5. So far as, obliquely, the appellant raised limitation and costs issues, this did not satisfy the 'necessity test' under O 18 r 6(2)(b) of the Rules of the Supreme Court. In any case joinder could not deprive a person of an accrued limitation defence [65] ‑ [66].
   6. Joinder pursuant to s 5AN(1) of the Civil Liability Act 2002 (WA) did not arise on the circumstances of the case [67].

1. The appellant filed an appeal notice in this court on 22 January 2026.
2. The appellant acknowledged that leave to appeal was required by virtue of s 79(1)(b) of the District Court of Western Australia Act 1969 (WA). By his appellant's case dated 16 February 2026 the appellant sought leave to appeal raising two matters in support of the contention that leave to appeal was in the interests of justice. First, the appellant asserted that the primary decision was wrong. In that respect the appellant relied on his proposed grounds of appeal and related submissions. Second, the appellant claimed that:

A substantial injustice would result if the primary reasons [sic - meaning the primary decision] were left unreversed, as it would prevent the appellant from progressing substantive rights inherent within the [proposed amended writ] (appellant's submissions, par 5(b)).

1. The only such 'substantive rights' were rights asserted against the Commissioner. It was not contended, and could not be contended, that the non‑joinder of the Commissioner affected the appellant insofar as he wished to proceed against the first and second respondents. The appellant had been granted leave to amend to add the asserted causes of action against the first and second respondents.
2. There were four proposed grounds of appeal. In substance the appellant asserted that the primary judge erred:
   1. In law, in finding that the 'necessity test' for joinder under O 18 r 6 should be considered by reference to the amended writ dated 28 December 2023 rather than the proposed amended writ.
   2. In law, in failing to find that the order for damages for alleged negligence sought by the appellant in the proposed amended writ could affect the rights and liabilities of the Commissioner - meaning that the 'necessity test' for joinder under O 18 r 6 was satisfied.
   3. In law, in failing to find that within the context of the proposed amended writ uncertainty in relation to the statutory construction of s 137(3) and s 137(5) of the Police Act 1892 (WA) contributed to the satisfaction of the 'necessity test' for joinder under O 18 r 6 (especially when the damages sought by the appellant and solidary liability principles are considered).
   4. In law, in finding that the sole issue for determination was whether the Commissioner was a 'person' who should be joined as a party when the appellant also sought an order that the appellant's son be joined as a plaintiff to the proceedings; and in fact, in finding that the appellant's son had not consented to joinder as a plaintiff in the proceedings.
3. Prima facie there is merit in the second aspect of ground 4. The primary judge appears to have inadvertently overlooked an affidavit of the appellant's solicitor sworn 16 September 2025. Perhaps that is because the affidavit was not filed in the primary proceedings but rather in the proceedings commenced by the appellant's son. Nevertheless, the affidavit was referred to in the appellant's written submissions before the primary judge. Anyway, in the attachments to that affidavit the appellant's son consents to his action being joined or consolidated with the appellant's action. The appellant's son seeks to save time and costs by doing so. In context, although the affidavit was in support of an application for consolidation, it equally signified the appellant's son's consent to joinder as a plaintiff in the primary proceedings. This alone does not mean that ground 4 must succeed. The appellant must still overcome the limited scope of the appeal from the registrar's decision as expressed in the notice of appeal (see [7] above).
4. Otherwise, in relation to the first aspect of ground 4, the appellant claimed, among other things, that the primary judge erred in conceptualising the Commissioner as a 'person' - saying it is unclear whether, as a matter of law, the Commissioner should be conceptualised as a 'person', an 'office', a 'position' or otherwise.
5. There is no merit in this complaint; it is an arid distraction which could never amount to material error in the context of the primary decision. The appellant sought joinder of the Commissioner as a party. At no time was there any question or debate as to the Commissioner's legal capacity to be joined as a party to the proceedings. In asking whether the Commissioner was a 'person' who ought to have joined as a party the primary judge did no more than pick up the language of O 18 r 6. Essentially the question that her Honour posed was whether the Commissioner ought to have been joined as a party. That was plainly an issue that properly arose for determination on the appeal from the registrar.
6. The appellant sought orders for the joinder of the appellant's son (as a plaintiff) and the Commissioner (as a defendant) together with consequential amendment of the writ. In addition, the appellant sought that this court make orders that:

Appellant [and the proposed Second Plaintiff, James Harfouche's (sic)] are granted an extension of time for a further two years from when each became respectively aware of a 'not insignificant injury' pursuant to ss 39(4) and 55 of the Limitation Act 2005 (WA) (orders wanted, par 2(d)).

1. The appellant sought this order on the basis that limitation issues 'remain a live issue' where delay is said to place the appellant at an unfair forensic disadvantage when contrasted with the respondents (appellant's submissions, par 32).
2. This aspect of the proposed appeal had no reasonable prospect of succeeding. No such orders were sought in the primary proceedings. No factual findings have been made as would be necessary for this court to determine when the appellant's asserted causes of action for damages for personal injury accrued. There is no direct evidence before the court that would enable those findings to be made. Nor are there relevant factual findings as to whether the power to extend time under s 39 of the Limitation Act is enlivened; and, if so, whether the discretion to extend ought to be exercised - and for what period. Most critically, the Commissioner is not a party to the proposed appeal. Prima facie the order sought for an extension of time under s 39 of the Limitation Act would directly affect the Commissioner (it being premised on joinder of the Commissioner to the primary proceedings such that the extension would apply to the primary proceedings as so reconstituted). The order as sought ought not to be made in the absence of the Commissioner.

Applicable legal principles - application for leave to appeal

1. The legal principles that apply on an application for leave to appeal are well settled. For present purposes it is sufficient to adopt, without repeating, what was said by this court in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[2] See also Clough Ltd v Forge Group Ltd (in liq);[3] and Mineralogy Pty Ltd v CITIC Ltd.[4]
2. In summary, where leave to appeal is necessary, leave may be granted whenever the interests of justice require the grant of such leave. Ordinarily, while not being rigid or exhaustive criteria, two main considerations are taken into account. First, whether the decision is wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered. Second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong.
3. The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected. Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.
4. Two other matters mentioned in NRW Contracting Pty Ltd [117] bear repeating in the context of the present case:
   1. The requirement for leave is no mere technicality or procedural nicety; it serves an important function in the administration of justice by discouraging unnecessary interlocutory appeals.
   2. Appellate courts exercise particular caution (sometimes referred to as 'special restraint') in reviewing interlocutory decisions on matters of practice and procedure. (citations omitted)
5. A 'tight rein' must be kept on appeals involving interlocutory decisions on matters of practice and procedure: NRW Contracting Pty Ltd [118]. In such cases the goal and objects enshrined in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) are applicable and inform assessment of the application for leave to appeal: NRW Contracting Pty Ltd [119].

1. Four observations should be made at the outset. Each militated against the grant of leave to appeal. First, the primary decision was quintessentially an interlocutory decision on a matter of practice and procedure. Second, what the appellant sought was a further appeal in circumstances where the applications for joinder and leave to amend had already been refused by a registrar and the primary judge. Ordinarily it is not in the interests of justice that interlocutory procedural decisions be the subject of multiple appellate reviews. Third, if leave to appeal was granted it was likely that the primary proceedings, which are already substantially delayed, would be further delayed by the litigation not progressing while the parties await the outcome in this court. Leave to appeal was likely to fragment or fracture the timely and efficient determination of the litigation to the disadvantage of the parties. Fourth, for reasons we will explain, the proposed appeal does not raise a question of general public importance or a real issue of principle.
2. Counsel for the appellant sought to persuade us that a question of general public importance - or at least an issue of principle - arose concerning the allocation of tortious liability as it relates to police officers in Western Australia. As we understood it, counsel's argument relied on the proper construction of s 137(3) and s 137(5) of the Police Act; and, in particular, the questions left open by this court in Saffari v The State of Western Australia.[5] The appellant sought to engage with this debate through the rubric of ground 3. Necessarily the question as to the proper construction of s 137(3) and s 137(5) of the Police Act thus engaged the refusal to join the Commissioner as a defendant rather than the refusal to join the appellant's son as a plaintiff.
3. Two things should be said about the appellant's assertion that the proposed appeal involved a question of general public importance or an issue of principle so far as the appellant contested the refusal to join the Commissioner as a defendant.
4. First, ground 3 (and, for that matter, ground 2) was dependent on the appellant succeeding on ground 1. If the appellant succeeded on ground 1 it was likely that the appellant would succeed on ground 2; it would not be necessary to consider ground 3. Alternatively, if the appellant failed on ground 1, ground 3 would not arise. Second, in Saffari the court declined to resolve the statutory construction issues arising as to s 137(3) and s 137(5) of the Police Act in the context of an interlocutory appeal. It is unlikely that the court would take a different course in the interlocutory appeal proposed by the appellant. That is all the more so in circumstances where, as we have explained, the asserted statutory construction issues were unlikely to be dispositive of the proposed appeal.
5. There was no question of general public importance - and no real issue of principle - raised by ground 1. To the contrary, since the mid‑20th century it has been well established that the reference to 'the cause or matter' in O 18 r 6(2)(b) of the Rules of the Supreme Court is a reference to the action 'as it stands between the existing parties': Amon v Raphael Tuck & Sons Ltd.[6] This is because:

If it were otherwise, then anybody who showed a cause of action against either a plaintiff or defendant could, of course, say that the question involved in his cause of action could not be settled unless he was made a party (369).

1. This aspect of Amon v Raphael Tuck & Sons Ltd has been followed in a number of single judge decisions in this jurisdiction. See eg Wurth Australia Pty Ltd v Burgess;[7] Ooranya Pty Ltd v ISPT Pty Ltd [No 2];[8] Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2].[9] It is plainly correct in principle.
2. Accordingly, but for one matter, there is no doubt that the primary judge was correct to rely on the existing writ (ie the amended writ dated 28 December 2023) in determining whether, for the purpose of O 18 r 6(2)(b), the Commissioner's presence before the court was 'necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon'.
3. The point of possible differentiation, which means that ground 1 is possibly arguable, is the registrar's grant of leave to add a cause of action in negligence against the second respondent based on it being vicariously liable for the Commissioner's negligence. The difficulty for the appellant in this regard is that, by the time of the hearing before the primary judge, the appellant had not amended the writ to give effect to the leave granted by the registrar. That remained the case on 20 March 2026. The time for amendment pursuant to the leave granted by the registrar has expired. It is, however, possible that the time for amendment may be extended; and the appellant has foreshadowed that an extension is sought: primary reasons [23](b), (c).
4. The procedural oddity that means that ground 1 is possibly arguable in no way transformed the proposed appeal into one raising a question of general public importance or an issue of principle. The proposed appeal was dependent on a very fact‑specific circumstance brought about by the appellant's non‑compliance with the registrar's order of 22 September 2025.
5. It was difficult to assess the merits of ground 1 in the absence of any proffered amended writ to give effect to the registrar's order for leave to amend. For the purpose of the application for leave to appeal we assumed, without deciding and favourably to the appellant, that the decision to refuse joinder of the Commissioner and the appellant's son was wrong. Even so, in our opinion, it was not in the interests of justice to grant leave to appeal. In part this was for the four reasons set out at [28] above. In addition, it was not in the interests of justice to grant leave to appeal as the appellant had not shown that substantial injustice would result if the primary decision was left unreversed.
6. If leave to appeal was granted, and the proposed appeal were to succeed, the Commissioner would be joined as a defendant to the primary proceedings and the appellant's son would be joined as a plaintiff to the primary proceedings. Joinder would not impact on any limitation period issues that currently exist (such possible issues being frankly acknowledged in the appellant's case). The joinder of a party takes effect from the date on which the party is joined and service is effected on the additional party: Brandsma & Crockett Pty Ltd v Heindal Pty Ltd;[10] Willoughby v Clayton Utz.[11] See also, as to amendment of a writ to add a new cause of action statute‑barred by limitation legislation, Belgravia Nominees Pty Ltd v Lowe Pty Ltd.[12]
7. Accordingly, joinder will not circumvent any statutory limitation defence that would otherwise be available to the Commissioner as the proposed additional defendant.
8. The appellant may, if so advised, immediately issue separate proceedings against the Commissioner in the District Court. It is true that this will involve some additional cost. There will also be the ongoing administrative inconvenience and costs of dealing with two proceedings in the District Court rather than a single proceeding. But these are matters of mere procedural disadvantage. The appellant's substantive rights are not adversely affected by the circumstance that, instead of pursuing the Commissioner by joinder in the primary proceedings, the appellant must proceed by way of separate proceedings. Indeed, it might be thought that the appellant's interests are better served by immediately issuing separate proceedings against the Commissioner in the District Court. That can be done at once. By contrast the proposed appeal could not result in joinder until many months in the future, after the appeal is heard and determined (assuming that the appeal is successful).
9. The greater the period of time that has passed following the accrual of a cause of action the more it behoves a litigant to act with alacrity. To do otherwise risks additional or exacerbated limitation period issues.
10. There are, in any case, available case management mechanisms that may ameliorate any significant procedural disadvantage suffered by the appellant in pursuing two proceedings rather than a single proceeding. For example, if appropriate, the appellant may seek consolidation of the two actions. There are other possibilities that the appellant's legal representatives might consider. It should not be assumed that the ongoing administrative inconvenience and costs of dealing with two proceedings will be weighty when they are compared with the costs and time of pursuing an interlocutory appeal in this court. That said, the critical matter - and the matter which is dispositive of this aspect of the application for leave to appeal - is that substantial injustice does not result from the non‑reversal of the primary decision so far as the primary judge refused the joinder of the Commissioner as an additional defendant to the primary proceedings.
11. The absence of any substantial injustice was more marked in relation to the non‑joinder of the appellant's son as an additional plaintiff to the primary proceedings. That is something that affects the appellant's son rather than the appellant. No substantive rights of the appellant are adversely affected if the primary decision stands. In any event, to the extent that there is any procedural inconvenience in the appellant and the appellant's son conducting separate proceedings, that may be addressed by consolidation (if appropriate).
12. Accordingly, we were not satisfied that it was in the interests of justice that leave to appeal ought to be granted. Importantly, we were not satisfied that substantial injustice would result if the primary decision remained unreversed (assuming the primary decision to be wrong). In this regard, insofar as the appellant may commence separate proceedings against the Commissioner if so advised, there was no merit in the appellant's insistence that he will be prevented from progressing substantive rights inherent in the proposed amended writ as a result of the primary decision. The interests of justice were otherwise firmly against the grant of leave to appeal for the four reasons we have summarised at [28] above.

1. For the foregoing reasons we made orders that:
   1. The application for leave to appeal is dismissed.
   2. The appeal is dismissed.
   3. The appellant pay the second respondent's costs of the appeal, fixed in the sum of $1,000.
2. The costs order followed the event. The first respondent did not participate in the appeal. Accordingly, costs were not ordered in favour of the first respondent.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Harfouche v Meinen [2025] WADC 97 (primary reasons).

[2] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] ‑ [118].

[3] Clough Ltd v Forge Group Ltd (in liq) [2022] WASCA 179 [18] ‑ [23].

[4] Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168 [56] ‑ [63].

[5] Saffari v The State of Western Australia [2024] WASCA 77 [25] - [35], [38], [48] - [49].

[6] Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357, 369.

[7] Wurth Australia Pty Ltd v Burgess [2012] WASC 504 [57](c).

[8] Ooranya Pty Ltd v ISPT Pty Ltd [No 2] [2019] WASC 453 [60].

[9] Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460 [115], [119] - [120].

[10] Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 [5], [26].

[11] Willoughby v Clayton Utz [2007] WASCA 5 [1], [32], [42].

[12] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 [27], [46].