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[2026] NSWSC 1198
Supreme Court of NSW
2026-10-02
Chen J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Jones v State of New South Wales [2026] NSWSC 1198
Hearing dates: 08 September 2026
Date of orders: 02 October 2026
Decision date: 02 October 2026
Jurisdiction: Common Law
Before: Chen J
Decision: See [62] and [69]
Catchwords: CIVIL PROCEDURE – Application for summary relief under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) for summons seeking judicial review of “directions” provided to police officers – Where the plaintiffs failed to comply with r 59.4 of the Uniform Civil Procedure Rules
CIVIL PROCEDURE – Application under r 59.9 of the Uniform Civil Procedure Rules for the provision of the “decision” identified in summons seeking judicial review and a statement of reasons for it – Whether orders under r 59.9 are available where r 59.4 is not conformed to – Where the plaintiffs have not identified the decision sought to be challenged – Where such an order would be unfairly burdensome
CIVIL PROCEDURE – Provision of additional material after hearing without leave – Court’s entitlement to disregard the supplementary material
Original judgment source is linked above.
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil Procedure Act 2005 (NSW)
Police Act 1990 (NSW)
Racial Discrimination Act 1975 (Cth)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226
Clarkson v Commonwealth of Australia [2006] FCA 1348
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Global Partners Fund Ltd v Babcock & Brown Ltd (In Liq) [2010] NSWSC 270; 267 ALR 144
Hassan v Sydney Local Health District [2022] NSWSC 954
Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519; [2022] HCA 5
Huynh v Attorney General (NSW) (2021) 107 NSWLR 74; [2021] NSWCA 297
Janson v Department of Communities & Justice [2026] NSWSC 340
Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113
Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458; 373 FLR 147
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71; (2013) 16 BPR 31,705
Rich v Secretary, Department of Justice [2010] VSC 390
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Wollongong City Council v Papadopoulos [2019] NSWCA 178
Category: Procedural rulings
Parties: Derek Jones (first plaintiff)
James Ricketson (second plaintiff)
State of New South Wales (first defendant)
Commissioner of Police (NSW) (second defendant)
Representation: Counsel:
S Omeri KC and R Reynolds (plaintiffs)
T Prince SC and O Ronan (defendants)
Solicitors:
XD Law and Advocacy (plaintiffs)
Crown Solicitor for New South Wales (defendants)
File Number(s): 2026/185837
Publication restriction: Nil
On 9 February 2026, there was a demonstration near Sydney Town Hall on George Street, coinciding with, and apparently in response to, the visit by Isaac Herzog, the President of Israel.
Derek Jones (the first plaintiff) attended that demonstration, arriving at around 5:45pm. He alleges that, at around 7:35pm, he was “violently attacked” by police and “significantly injured” as a result. Also in attendance was James Ricketson (the second plaintiff). After attempting to catch a train from Town Hall station at about 6:45pm, he remained at the protest and sat some distance away, “observing the crowd”. He alleges that, as protestors attempted to exit, the police engaged in (what he believed to be) “a controversial crowd control tactic known as ‘kettling’ or ‘containment policing’”.
The plaintiffs, by summons filed 6 May 2026, seek judicial review of the “directions” – which are defined to include not only the directions, but also instructions and authorisations – given to police officers in relation to that protest: specifically, a declaration is sought that directions “to use force against, and to make arrests of, person [sic] engaged in protest activity, in a manner contrary to or inconsistent with police officers’ lawful powers”, were, and are, unlawful, and an order is sought in the nature of certiorari quashing them (summons, orders 1 and 2; ground 1). The defendants to that summons are the State of NSW (the first defendant) and the Commissioner of Police (NSW) (the second defendant). They challenge the plaintiffs’ entitlement to any form of relief.
There are two applications arising out of the plaintiffs’ summons which require determination. The plaintiffs, by notice of motion filed 28 May 2026, seek, pursuant to r 59.9(4) of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’), orders requiring the “defendants” to provide them with “a copy of the directions or instructions given to police officers… applicable to their policing of persons” at the demonstration (prayer 1(a)) and “a statement of reasons” for them (prayer 1(b)). The defendants, by notice of motion filed 28 May 2026, move for summary relief, arguing that the plaintiffs’ summons fails to disclose a reasonable cause of action, given there is no identification of any “decision” that is challenged and, thus, no decision that could be the subject of the relief sought, and, separately, that it is an abuse of process because its “predominant purpose” is to obtain information for use in different proceedings by, at least, the first plaintiff.
On 4 September 2026, the plaintiffs filed a notice of motion seeking an order that the defendants give them verified discovery of documents, across an extensive range of categories, in connection with the demonstration. In relation to that application, two matters should be noted: first, the plaintiffs did not seek to have that notice of motion dealt with in the current hearing; and, secondly, the plaintiffs did not seek to have the current applications adjourned pending determination of that motion. Nevertheless, given some reference was made to the discovery application during submissions, it will be necessary to return to it later in these reasons.
The first plaintiff alleges that, in the interactions that he had with police, he sustained physical and psychological injuries – described as “multiple rib fractures and a pulmonary contusion” and “mental harm”. He also alleges that he sustained these injuries because he was “assaulted” by police, who used “excessive force” against him.
The first plaintiff, through a letter sent by his solicitor to the second defendant dated 19 February 2026, foreshadowed that he “intends to bring legal proceedings in respect of the injury and loss caused to him” and requested that the second defendant “provide particular material to avoid the need for compulsory process”. The letter also advised that the first plaintiff’s solicitor “[considers] that [the first plaintiff] has strong tortious claims (including, without limitation, assault and battery, and false imprisonment)”, and that he “[anticipates] receiving instructions to commence proceedings of this nature” on behalf of the first plaintiff.
The letter indicated that the first plaintiff, his solicitors “and the public, are concerned by police conduct” at the demonstration, and asserted that the police “were conducting themselves pursuant to a coordinated strategy which had been pre-determined within NSW police”. Upon this last premise, the first plaintiff’s solicitor recorded his expectation “that there will be particular directions given to officers who attended the [demonstration] regarding their operational behaviour”, and stated that “[t]hose directions are administrative decisions and are subject to review by the courts”. The first plaintiff’s solicitor also indicated that the first plaintiff “would seek to have those directions judicially reviewed”, and pointed out that, “[i]n any event, such directions may be relevant to any claim for exemplary damages by [the first plaintiff] in relation to his tortious claims”.
The first plaintiff, in his affidavit affirmed 19 June 2026, deposed that his motivation and purpose for bringing the action is having “the directions or instructions followed or implemented” by the police at the demonstration reviewed by the Court. In his affidavit affirmed 25 August 2026, the first plaintiff more or less confirmed that evidence: he disputed that he had “only brought this proceeding in order to obtain information… to use in a different case, for compensation”; stated that, if these proceedings are dismissed, he is “likely to appeal that decision”; and specified that he commenced them so the Court could “review the decision of the defendants to give directions to” police, something that “[he] could not achieve through a compensation case”.
The second plaintiff alleges that, during the demonstration, he was “assaulted” by police and sustained physical injuries – described as “cuts and abrasions to both elbows”; “internal bruising along the left-hand side of [his] body”; and a “significant injury to [his] left knee”. It is unclear whether he proposes to bring any proceedings against the second defendant seeking to recover damages for the injuries and loss allegedly suffered by him.
Like the first plaintiff, the second plaintiff deposed to commencing proceedings for judicial review in order “to have the Court review the lawfulness of the directions given to police officers at the [demonstration]”, which he alleged “resulted in [him] being assaulted and injured”.
The summons seeks two orders:
first, “[a] declaration that directions or instructions given to police… and applicable to their policing of persons” who were at the demonstration “were and are unlawful” (order 1); and
secondly, “[a]n order in the nature of certiorari to quash the [d]irections in whole or in part” (order 2).
Thereafter, in purported compliance with rr 59.4(b) and (c) of the UCPR, the summons sets out the “Details of [the] Decision” and the “Grounds”.
As to the “Details of [the] Decision”, the summons provides as follows:
the decision-maker identified is “the second defendant or his delegate or a person or persons otherwise making the [d]irections on the second defendant’s behalf” (par 1);
the “decision to be reviewed is the [d]irections” (par 2);
the plaintiffs seek relief “in relation to the [d]irections, or the part thereof, concerning the policing of persons engaged in” the demonstration (par 3); and
the plaintiffs indicate that they “will serve a notice on the defendants requiring them to provide to the plaintiffs a copy of the [d]irections” (par 4).
As to the content of that part of the summons under the heading “Grounds”, it identifies the ways in which the plaintiffs allege the directions were invalid.
By ground 1, the plaintiff alleged that the “[d]irections” involved directing, instructing or authorising “police officers to use force against, and to make arrests of, person [sic] engaged in protest activity, in a manner contrary to or inconsistent with police officers’ lawful powers… and were, accordingly, ultra vires”.
By the remaining grounds, further particulars of invalidity are provided:
the directions “were inconsistent with the function of the NSW Police Force, prescribed by s 6 of the Police Act 1990 (NSW)”, and, therefore, ultra vires (ground 2);
the directions, “without lawful basis, directed, instructed or authorised officers to ‘kettle’ [protesters] in a confined area with limited means of egress”, and were, therefore, ultra vires (ground 3);
the directions “were given for an improper purpose, namely to promote or encourage behaviour by police officers that would elicit a violent response from [protesters] and thereby generate a basis for the second defendant to oppose proposed public assemblies of a similar nature”, and, therefore, ultra vires (ground 4);
the directions “were given for an improper purpose, namely to create a chilling effect on individuals who protest… in support of Palestine… and against… Israel on 9 February 2026 and future occasions in order to discourage them from doing so”, with the consequence that they were contrary to the Anti-Discrimination Act 1977 (NSW) and the Racial Discrimination Act 1975 (Cth), and, therefore, ultra vires (ground 5); and
in the alternative to the above, the directions “were unreasonable in the sense that, for the foregoing reasons, no reasonable [decision-maker], acting lawfully, would have given them” (ground 6).
As is apparent from the structure of the summons, it has, as its focus, the “directions or instructions” allegedly given to police officers by the second defendant, “his delegate” or “a person or persons… on [his] behalf” in connection with the demonstration. Despite the summons having that structure and making those allegations, the State of NSW has been joined to the proceedings as the first defendant. How or why the first defendant is a proper party to the proceedings is obscure; there is nothing in the summons – at all – that might justify its involvement. Of course, if there were any claim to be advanced against the Minister, then the joinder of the State would be unexceptional. But that is not this case, as Mr Prince SC, who appeared with Ms Ronan for the defendants, observed during submissions.
This fundamental shortcoming in the summons was raised with the plaintiffs’ counsel during submissions. When invited to explain the basis on which the first defendant was joined (and, thus, ought remain a party), the response involved no more than pointing out that, pursuant to s 8(1) of the Police Act 1990 (NSW), the Commissioner of Police is “subject to the direction of the Minister”. The statement about the terms of the Police Act may be accepted, but otherwise, that indirect response said nothing about why the State of NSW is a necessary party to these proceedings, less still identify any basis for the involvement of the Minister. On that ground alone, as against the first defendant, the summons must be struck out and the plaintiffs ordered to pay the first defendant’s costs of the proceedings to date.
In the circumstances, a serious question remains about whether leave to replead against the first defendant should be granted. In the end, particularly given the very fair concession made by Mr Prince SC that the first defendant’s involvement may follow from a “reconstitution of the proceeding”, I propose to grant that leave.
The defendants submit that the proceedings should be summarily dismissed, or the summons struck out, for three reasons: first, no reasonable cause of action is disclosed because the summons “does not identify any particular directions or instructions that are challenged” and, in this respect, contravened the requirements of r 59.4 of the UCPR; secondly, the summons “fails to identify a direction with ongoing legal effect in circumstances where the [demonstration] has concluded”; and, thirdly, “the proceedings are an abuse of the process of the Court because the predominant purpose of the proceedings is to obtain information for use in a different proceeding” (defendants’ submissions at [1], [2] and [18]).
The plaintiffs resist the orders sought, arguing that their summons is unimpeachable.
“13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
…”
“The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.”
The critical question, in an application such as this, is “whether there is an underlying cause of action… not simply whether one is pleaded”: O*’*Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3]; (2013) 16 BPR 31,705. This principle reflects the Court’s concern “to ensure that a sound legal claim is not overlooked”: Rich v Secretary, Department of Justice [2010] VSC 390 at [48] (‘Rich’).
In the alternative, and in recognition of the fact that, as the proceedings were commenced by summons, part 14 of the UCPR does not apply (it applies “to proceedings commenced by statement of claim and to proceedings in which a statement of claim has been filed”: r 14.1; Hassan v Sydney Local Health District [2022] NSWSC 954 at [81] (‘Hassan’)), the defendants submitted that the inherent power of the Court was available to strike out the summons. In this respect, the defendant relied upon what was said in Global Partners Fund Ltd v Babcock & Brown Ltd (In Liq*)* [2010] NSWSC 270; 267 ALR 144 at [77] – namely, that the Court has:
“… the power to, and will, strike out a pleading which discloses no reasonable cause of action or defence, or which has a tendency to cause prejudice, embarrassment or delay in the proceedings or which otherwise is an abuse of the process of the court, [which] applies… with no less force albeit Pt 14 UCPR does not strictly apply…”
“59.4 Content of summons
The summons must state—
(a) the orders sought, and
(b) if there is a decision in respect of which relief is sought—
(i) the identity of the decision-maker, and
(ii) the terms of the decision to be reviewed, and
(iii) whether relief is sought in respect of the whole or part only of the decision and, if part only, which part, and
(c) with specificity, the grounds on which the relief is sought.”
The defendants’ first argument was that the summons patently fails to comply with the requirements of r 59.4(b) of the UCPR: it does not identify “the particular decision-maker who is said to be responsible for the giving of those directions or instructions”, nor does it “identify any particular direction or instruction sought to be reviewed” (defendants’ submissions at [19] and [24]). The defendants argued that, not only were these deficiencies self-evident from the face of the summons, but readily apparent from, and practically demonstrated by, the terms of the plaintiffs’ notice of motion filed 28 May 2026 – which seeks an order that the defendants provide a copy of the decision and a statement of reasons for it (defendants’ submissions at [24]).
The starting point to any consideration of the shortcomings in the summons is the rule itself and its requirements – which are clear, as is the failure of the plaintiffs’ summons to comply with them.
Given the plaintiffs allege there is a decision, by its terms, r 59.4(b) requires precise identification of the decision-maker and the decision that are the subject of the judicial review proceedings, and the balance of the rule proceeds on the basis that those essential requirements, which are fundamental to judicial review proceedings, are met. That approach is supported by the language and structure of r 59, as well as the wider judicial review context. The following two such matters presently suffice to illustrate why that is so. First, where a plaintiff is successful in impugning a decision of the required character, the relief granted by the Court is directed to the decision-maker, the decision, or both (r 59.4(a) of the UCPR). Secondly, absent identification of the decision, it is not possible to know whether “[p]roceedings for judicial review of a decision” were “commenced within 3 months of the date of the decision”: r 59.10 of the UCPR.
Here, it is not possible to identify whether a decision was made – and, if so, its terms – nor is it possible to say when, and by whom, that decision was made. The minimum requirements for a summons seeking judicial review are, thus, absent. Rather, as the defendants essentially submitted, the summons proceeds on the assumption that a decision or decisions meeting the description in the summons must have been made, and by an unidentified person at an unidentified time. Proceeding in that way, rather than in conformity with the requirements of r 59.4, is flawed: it is the exact opposite of what should occur.
The conclusion I have reached is consistent with the underlying analysis in Clarkson v Commonwealth of Australia [2006] FCA 1348 at [18]-[20] and Rich at [50]-[51], upon which the defendants relied.
For completeness, I add the following. It may well be that, from time to time, a party may have difficulty in identifying a decision, the person that made it, or both. When that occurs, there are Court procedures available to deal with, and overcome, those difficulties. Relevantly here, as each party accepted, the plaintiffs could have sought an order for preliminary discovery under Part 5 of the UCPR prior to commencing any proceedings. Further, having commenced them, it was open to the plaintiffs to argue that their application for discovery should be determined prior to the determination of the present applications. That approach was, however, eschewed by the plaintiffs. What informed that forensic decision does not matter, but it cannot excuse or justify the plaintiffs’ non-compliance with the terms of r 59.4 of the UCPR, particularly given the requirements are fundamental to judicial review proceedings.
The plaintiffs resist the conclusion reached. Their first, and overarching, submission was that there are no shortcomings of any kind in their summons. At least during submissions, they gave prominence to what was said by Elkaim AJ in Janson v Department of Communities & Justice [2026] NSWSC 340 (‘Janson’), submitting that the form and content of their summons is in conformity with his Honour’s analysis of what is required by r 59.4 of the UCPR. The plaintiffs’ argument, anchored in the suggested holding in Janson, was that a decision had been identified – said to be “all directions or instructions” in relation to the demonstration – and that “anything more” was merely a matter of “detail”.
I do not accept the plaintiffs’ overall submission, nor any part of it.
Contrary to what was argued, I am unable to accept that Elkaim AJ was purporting to qualify the requirements of r 59.4 of the UCPR in the way suggested – viz., seemingly, that generalised compliance with r 59.4 of the UCPR in the way that the plaintiffs have adopted is permissible, and that identification of the actual decision and decision-maker are matters of detail that are inessential to a properly particularised summons for judicial review. Rather, his Honour’s reasons are replete with references to the need for the plaintiff to comply with its terms (for example at [53]-[54], [56] and [68]) – as are the orders that were ultimately made. That accords with my assessment and, importantly here, the terms of the rule.
The plaintiffs’ other response to the defendants’ application involved directing widespread, and often strongly expressed, criticism at the defendants and their conduct. The submissions included: that their approach was merely putting the plaintiffs “to proof”; that it lacked “candour”; and that it should be seen for what it is, namely, no more than a “technical defence” which was, on the plaintiffs’ argument, “at odds with clear reality”. The plaintiffs’ submissions went so far as to include: “[o]ne wonders what the Ds have to hide from the Court”, and repeatedly described the defendants’ communications as “obtuse” and “disingenuous”. These submissions are, I consider, not to the point and something of a distraction, and I regard the tone and expression of some of them as unfortunate and unhelpful.
The plaintiffs’ submissions also included an argument that the defendants “have not denied that a decision to give directions to police officers policing the [demonstration] was made or exists or that the same is reviewable by the Court”, and that their failure to do so apparently amounts to some kind of admission (plaintiffs’ submissions at [23](a)). The short response to this argument, putting to one side the various difficulties with inferring that it amounts to some kind of “admission”, is that, as Mr Prince SC pointed out during submissions, the defendants, in response to a notice to admit facts seeking that they admit that the second defendant (essentially) issued instructions to police who attended the demonstration, served a notice disputing those facts. It is, thus, incorrect to submit, as the plaintiffs have, that there has not been a denial; the notice disputing facts put all facts contained in the plaintiffs’ notice in issue. In any event, I do not accept the suggested characterisation advanced by the plaintiffs, nor does it provide any response to the conclusion reached.
The plaintiffs also argued that it could not be said that they had failed to identify a decision, because the “decision” could be inferred from one, or a number, of the following factors: the fact that the defendants have taken, what the plaintiffs argue is, an obstructionist, rather than helpful, approach, and because the “clear reality”, according to the plaintiffs, is that “directions were given to police officers policing the [demonstration] since… it is unlikely that [the second defendant] in particular would simply ‘let loose’ a significant number of police officers on protesters… without direction” (plaintiffs’ submissions at [8]).
This last submission is repeated elsewhere on multiple occasions. For example, the plaintiffs submit that “[i]t is unlikely in the extreme that such officers would have policed the protest without specific directions as to permissible interactions with protesters…”, and invite the inference to be drawn that steps having not been taken “to prosecute officers who plainly assaulted and battered [the first plaintiff] suggests that such directions at least gave them licence to behave in this way”: it followed, on this argument, that “[t]he giving of such directions was part and parcel of a decision on the part of [the second defendant] (his delegate or a person or persons acting on his behalf) to issue such directions” (plaintiffs’ submissions at [16]).
Whilst it may be accepted that an instruction of some kind was given to police in relation to the demonstration, that hardly advances the matter: precisely what that instruction was, when it was given and by whom is unknown. But, beyond that simple assumption, I am unprepared to infer any of the matters suggested by the plaintiffs, which I regard as conjecture or speculation.
The defendants’ next argument followed on from their first. It was that, as the plaintiffs have not identified a decision sought to be reviewed, the Court cannot be satisfied that there is any decision that could be the subject of the relief sought. That necessarily followed because orders in the nature of certiorari are “not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent” (Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [25]), and because declaratory relief will not be granted if the question is purely hypothetical or if it will not result in real and foreseeable consequences for the parties (Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519; [2022] HCA 5 at [32]).
The defendants argued that, given the events took place on 9 February 2026 and the visit by Isaac Herzog has concluded, any direction or instruction (assuming one was given) was spent, with the consequence that “the proceedings should be summarily dismissed on the basis that no reasonable cause of action is disclosed” (defendants’ submissions at [29]).
Whilst I accept that the form of the summons precludes clear identification of whether the relief sought could issue, in my view, that reinforces those shortcomings, but does not demonstrate a fundamental defect that entitles the defendants to summary relief. That is because, unless and until a decision is identified, it is simply not possible to conclude, particularly to the required degree on the current application, that the relief sought is unavailable.
The defendants next submitted that the proceedings should be summarily dismissed because they have been commenced for an improper purpose. The argument was as follows. It is an abuse of process where the “predominant purpose of [a] party in using the legal process has been one other than that for which it was designed”, citing Williams v Spautz (1992) 174 CLR 509, 529; [1992] HCA 34 and Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [23] (defendants’ submissions at [30]). Here, that improper purpose, the defendants submitted, was the commencement of these proceedings in order to obtain documents potentially relevant to civil proceedings foreshadowed by, at least, the first plaintiff, and the basis for this finding was said to include correspondence from the plaintiffs’ legal representatives (defendants’ submissions at [31]-[33]).
The plaintiffs argued against that position. It included the following “submission”: “Ds plainly wish, with the Court’s assistance, to limit Ps’ access to justice to private law claims [sic] which Ds will seek to settle without ever disclosing 2D’s decision to give directions to police officers policing [the demonstration] or the directions themselves. Such strategy on the part of Ds ought not to be countenanced, much less facilitated, by the Court” (plaintiffs’ submissions at [28]). The defendants argued that this submission should not have been made. I regard it as regrettable that it was. The interests of a party to litigation are not advanced by submissions of this kind.
I do not accept that this is an appropriate case for summary dismissal on this ground, for the following reasons.
The nature of the relief sought is important and, as I explain, decisive. The power invoked was r 13.4(1)(c) of the UCPR, not s 67 of the Civil Procedure Act 2005 (NSW). It follows that, in order to secure an order under that rule, the defendants were required to demonstrate that the plaintiffs’ cases should be characterised in the way argued, to the degree discussed in Dey and General Steel.
In relation to the first plaintiff, the defendants argue that I should infer and find the alleged improper purpose from, in effect, the combination of what was conveyed in letters from his solicitor and what his solicitor is reported to have said to the media on 6 May 2026. The specific parts of the letters and media article relied upon were as follows:
19 February 2026 letter: the letter records that the “purpose of this correspondence is both to put you on notice that our client intends to bring legal proceedings in respect of the injury and loss caused to him and to request that you provide particular material to avoid the need for compulsory process” (at [5]), that the first plaintiff’s solicitor considered that the first plaintiff has “strong tortious claims”, and that he “[anticipated] receiving instructions to commence proceedings of this nature” on the first plaintiff’s behalf (at [14]).
1 April 2026 letter: the defendants’ solicitor invited the first plaintiff’s solicitor to “provide particulars of [his] foreshadowed tort claim and particulars of the type of directions [he believed] may be relevant to that claim”.
3 April 2026 letter: the first plaintiff’s solicitor responded to the above letter, advising that he had “provided the requested particulars above, in respect of the judicial review claim. These are the (same) types of directions we consider will be relevant to our client’s tort claim” (at [7]).
6 May 2026 media article: in that article, the first plaintiff’s solicitor is quoted saying a range of things, including: “[i]t’s a judicial review, so it’s like an appeal of a government decision”, and that the first plaintiff’s action “is not about money, it’s about information”.
I am not prepared to draw the inference and make the finding sought by the defendants in the present context. That is not only because I do not regard the evidence as being particularly clear on the question of “purpose”, but, more fundamentally, because the first plaintiff has addressed that question in his affidavit affirmed 25 August 2026 at [18]. Whilst the defendants submitted that the Court should not act upon that evidence, advancing a series of arguments in favour of that approach (including the timing of the explanation, being advanced after the defendants had indicated an intent to seek summary dismissal on that basis), in substance, all that it demonstrated is that there is a “real question” of fact about whether the proceedings are of the argued character. Summary relief is therefore unavailable.
The position is not otherwise when regard is had to the statements sought to be attributed to the first plaintiff’s solicitor in the news article. Putting to one side the form of the evidence, I would not necessarily characterise the somewhat inexactly expressed statements as evidencing the purpose argued by the defendants. When they are considered, with other evidence, the position is that there is a real, and therefore triable, question – thereby precluding summary relief.
In relation to the second plaintiff, the factual position is different, but the outcome, as I explain in what follows, is the same. The defendants’ argument was that the second plaintiff’s purpose, as stated in his affidavit affirmed 18 June 2026 at [5], did not exclude the prospect of him pursuing the current proceedings with a view to obtaining information to be used in prospective Court proceedings, a fact that was said to be illustrated by the second plaintiff’s clear statement to that effect in his affidavit affirmed 25 August 2026 at [22].
Although I accept there might be a question about the second plaintiff’s purpose, that is not sufficient to ground the relief sought by the defendants. The evidence satisfies me that there is a real, and therefore triable, question – thereby precluding summary relief.
It is convenient to address here the defendants’ submission about multiplicity. Given the summons will be struck out, this issue does not presently arise. Nevertheless, I would simply observe that, if (as seems to be the case) civil proceedings are to be commenced by the plaintiffs, then there appears to be no reason why there should be multiple proceedings rather than one: s 63 of the Supreme Court Act.
It is necessary to address a further matter.
Having reserved judgment, the plaintiffs’ solicitor, on 11 September 2026, sent an email to my Chambers containing further submissions and references to authority. In that email, they indicated that the defendants did not consent to the communication, nor to the provision of further submissions and authority. Despite this, the email was sent. Then, on 18 September 2026, the plaintiffs’ solicitor sent a further email requesting confirmation that the earlier email had been received.
The fact that this contact was made is concerning, in part because prior to the hearing, the plaintiffs’ solicitor communicated with my Chambers, which necessitated them being advised of the proper protocols for contacting the Chambers of a Judge of the Court.
The plaintiffs seek to justify the contact, the provision of further submissions and references to authority on the basis that it arose from a question asked by me of the plaintiffs’ counsel during the course of submissions. That question did not legitimise the course now taken. No leave was granted to provide this material, nor was any sought. To provide them was contrary to well-established authority.
That well-established position was explained in Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [57]-[61] as follows (internal citations omitted):
“… It is useful, however, to remind the parties (and through the publication of these reasons the profession and public generally) of the correct position that has been stated, over and over again, by the courts. The High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without, or outside, any leave given…
Notwithstanding these clear statements the practice still occurs. That the practice still occurs notwithstanding the regular statements of the courts that it should not is no reason not to continue to state clearly to the profession and the public the correct position.
Not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice. The practice is not legitimated by sending the material and in that material seeking leave. The proper course (unless prior leave, statute or court rule permits otherwise) is for the proceedings to be relisted so that an application to enlarge the record can be made and determined in open court…
The appeal is not an occasion merely for a discussion of the issues so that the parties can go away to marshall and develop their ideas further, bearing in mind the discussion with the court. It is the time and place when and where argument, and sometimes decision, occurs. Once the appeal is reserved, the parties’ rights to argument and to be heard have been exhausted.
The consequence of this is not only that sending submissions to the court is wrong, but also the court may (and generally will) ignore what has been sent.”
See also Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [49]; Huynh v Attorney General (NSW) (2021) 107 NSWLR 74; [2021] NSWCA 297 at [249] (‘Huynh’).
For the above reasons I make the following orders on the defendants’ notice of motion:
Order that the summons filed 6 May 2026 be struck out.
As against the second defendant and, if so advised, against the first defendant, grant leave to the plaintiffs to replead their summons, with such amended summons to be filed and served by 23 October 2026, 4pm or as may be ordered by the Court.
Order the plaintiffs pay the first defendant’s costs of, and incidental to, the defendants’ notice of motion filed 28 May 2026, and of the proceedings to date in this Court.
Order the plaintiffs pay the second defendant’s costs of, and incidental to, the defendants’ notice of motion filed 28 May 2026.
List the matter for directions before the Administrative Law List Judge on 13 October 2026 at 9:30am.
In the absence of a summons conforming to the requirements of r 59.4 of the UCPR, orders under r 59.9 are unavailable. That is not simply the result of the recognised “close relationship between these two provisions” (Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113 at [69] (‘Gold and Copper’)), but because, as I have earlier explained, the coherent operation of r 59 proceeds upon that basis. Further, textual support for that construction is evident from the terms of r 59.9 itself: the various sub-rules refer to “the decision” and the “statement of reasons for the decision”. Relevantly here, by r 59.9(4) of the UCPR, the Court is empowered to order the provision of “a copy of the decision and a statement of reasons for the decision”.
Given the shortcomings in the summons and the consequential order I propose to make striking it out, the plaintiffs’ notice of motion should be dismissed. That approach is, I consider, consistent with that adopted in Gold and Copper at [72]; Hassan at [162]; and Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458; 373 FLR 147 at [68].
Separately and contrary to the above, if it remains available as a matter of discretion to make an order under r 59.9(4) of the UCPR despite the substantial inadequacies with the form of the summons and the order made striking it out, I refuse to make the order sought. In this respect, I accept the defendants’ submission that making such an order would be problematic (to say the least) and, in the circumstances, impose an impossible burden on the defendants, given the plaintiffs have not identified, in the required way, the decision or decisions sought to be challenged. To make such an order would not only be unfairly burdensome, as the defendants submitted, but oppressive and contrary to the dictates of justice.
In relation to the first defendant, it is dismissed on the further ground that no properly formulated claim of any kind is within the summons, nor could one be articulated against them.
The application will be dismissed.
For the above reasons, I make the following orders:
Order the plaintiffs’ notice of motion filed 28 May 2026 be dismissed.
Order the plaintiffs' pay the defendants’ costs of, and incidental to, that notice of motion.
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Jones
State of New South Wales
[1964] HCA 69
(2011) 81 NSWLR 498
(1949) 78 CLR 62
(1964) 112 CLR 125
(2022) 276 CLR 519
(2021) 107 NSWLR 74
(2015) 89 NSWLR 134
(2021) 271 CLR 132
(1992) 174 CLR 509
(2013) 252 CLR 480