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[2026] NSWSC 594
Supreme Court of NSW
2026-05-28
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mohareb v Health Care Complaints Commission [2026] NSWSC 594
Hearing dates: On the Papers
Date of orders: 28 May 2026
Decision date: 28 May 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1. On the plaintiff’s notice of motion filed on 14 October 2025:
(a) Leave to amend the statement of claim is refused.
(b) Leave to file an amended statement of claim in the form annexed to the motion is refused.
(c) The plaintiff is to pay the defendant’s costs of the motion.
2. On the defendant’s notice of motion filed on 24 October 2024 in respect of the statement of claim filed on 18 September 2024:
(a) Paragraphs 2 to 5 of the Relief Claim are struck out.
(b) Paragraphs 1 to 10 inclusive of the Pleadings and Particulars in the statement of claim are struck out.
(c) The plaintiff is to pay the defendant’s costs of the motion.
3. Noted that the effect of the above orders is that the only valid part remaining in the statement of claim filed on 18 September 2024 is the claim for the setting aside of the defendant’s decision of 9 July 2024, which decision has been conceded to be invalid by the defendant.
Catchwords: CIVIL PROCEDURE — where plaintiff delayed overseas and unable to attend in person — determination on the papers at suggestion of plaintiff and with consent of the parties CIVIL PROCEDURE — leave sought to amend statement of claim — unrepresented litigant –— importance of adhering to pleading requirements — where plaintiff already had attempted to fix pleading — where deficiencies in form and substance are not rectified by proposed pleading CIVIL PROCEDURE — application by defendant to strike out statement of claim
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58, 64
Health Care Complaints Act 1993 (NSW), ss 9, 27(1)(c)
Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 8(1), 8(2), 9
Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 15.3, 15.4, 15.7, 19.1
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Chalik v Chalik [2025] NSWCA 136
Fatimi Pty Ltd v Bryant [2002] NSWSC 750
Lee v Huo [2026] NSWCA 15
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Mohareb v Health Care Complaints Commission [2023] NSWSC 1224
Mohareb v Health Care Complaints Commission [2024] NSWCA 79
Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235
Neil v Nott (1994) 68 ALJR 509
Northern Territory of Australia v Mengel (1995) 185 CLR 307
Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71
Palmer v Mohareb [2019] NSWSC 975
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Tsatsoulis v Westpac [1999] NSWSC 193
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wortley v Health Care Complaints Commission [2001] NSWSC 149
Category: Procedural rulings
Parties: Nader Mohareb (Plaintiff)
Health Care Complaints Commission (Defendant)
Representation: Counsel:
K Richardson SC, M Mellos (Defendant)
Nader Mohareb (Plaintiff)(self-represented)
Solicitors:
Health Care Complaints Commission (Defendant)
File Number(s): 2024/253504
Publication restriction: No
There are two notices of motion before me, the earliest filed by the defendant on 24 October 2024 and the motion filed by the plaintiff on 14 October 2025.
The plaintiff is a self-represented litigant. The defendant is a body established by statute (the Health Care Complaints Act 1993 (NSW)) to deal with, inter alia, complaints about the conduct of health service providers and organisations. I will return below to a decision of Weinstein J (Mohareb v Health Care Complaints Commission [2023] NSWSC 1224) but for introductory purposes, I refer to his Honour’s description of the defendant’s objects, functions and powers under the Health Care Complaints Act 1993 (NSW) (the HCCA), set out from [48] of the decision.
The plaintiff’s motion seeks leave to file an amended statement of claim. The defendant’s motion asks for various paragraphs of the current statement of claim to be struck out.
The motions were set down to be heard together over two days commencing on 18 May 2026. Court Books were prepared and the motions were ready to be heard. Unfortunately, the plaintiff was delayed overseas and unable to appear in person. He requested that he appear by AVL but with a late starting time of 1pm. This would be 6am at the plaintiff’s location. The defendant was unhappy with the starting time, because the hearing might then have exceeded its allocated time.
I suggested a compromise time of an 11am start, but the plaintiff said this would be too early for him because it would be 4am at his location. The plaintiff then posed a sensible alternative, that the matter be decided on the papers. The defendant agreed. I made orders accordingly, including that the evidence and submissions be limited to the already filed Court Books. I have marked the Court Books as Exhibit A in the motions.
On 4 December 2017, the plaintiff was injured during or just after a “home invasion”. He describes the assault upon him as an “attempted murder”. The plaintiff’s injuries were primarily to his jaw.
The plaintiff was taken by ambulance to Royal North Shore Hospital (RNSH) where he was treated over a number of days, with treatment continuing until February 2019. The plaintiff alleges that the surgical operations he underwent were “botched & that they were negligently & incompetently performed …”.
Because of his dissatisfaction with the treatment he had received from RNSH the plaintiff made a complaint to RNSH on 29 July 2022 and then copied the complaint to the defendant on 30 July 2022. Receipt of the copied complaint was treated by the defendant as a complaint made to the defendant. This (first) complaint was “discontinued” by the defendant on 6 October 2022, apparently in reliance on s 27(1)(c) of the HCCA.
Section 27(1)(c) of the HCCA allows discontinuing a complaint when “the subject matter of the complaint (or part) has been or is under investigation by some other competent person or body or has been or is the subject of legal proceedings.” The competent body was said to be the Northern Sydney Local Health District.
Also on 6 October 2022, the plaintiff contacted the defendant pointing out that no legal proceedings were on foot and no documents had been served on the Northern Sydney Local Health District. The defendant responded on 12 October 2022:
“We were advised that RNSH is already aware of your concerns and is managing your complaint as an unlitigated claim in negligence. This means that while there are no current Court proceedings, a negligence claim is still being managed.”
One element of the complaint that was not discontinued involved a Dr Jeon Cha. On 3 November 2022, the defendant wrote to the plaintiff telling him the complaint had been referred to the Medical Council “as there were concerns relating to Dr Cha’s professional performance …”.
When requesting a review on 4 November 2022, the plaintiff pointed out that Dr Cha “would not have acted in such a reckless & negligent manner if he had not been empowered to do so by those who put him in charge of heading the Plastics & Reconstructions section at the RNSH …”.
On 25 November 2022, the defendant wrote to the plaintiff stating the review had failed but noting that the NSW Health Liability Panel was considering the plaintiff’s treatment in formal proceedings. The plaintiff replied on 28 November 2022, taking the defendant to task on the contents of its letter and again raising the applicability of s 27(1)(c) of the HCCA.
The plaintiff then filed a summons in this Court on 9 December 2022, essentially seeking a judicial review of the defendant’s decisions. The defendant filed a notice of motion to set aside or dismiss the summons on 16 February 2023.
On 9 May 2023, the Medical Council wrote to the plaintiff telling him that no further action was to be taken in the complaint against Dr Cha.
The defendant’s motion came before Weinstein J on 13 July and 1 September 2023. The plaintiff was not legally represented. On 16 October 2023, Weinstein J dismissed the plaintiff’s summons (Mohareb v Health Care Complaints Commission [2023] NSWSC 1224). His Honour said he was **“**unable to discern any statutory basis for Mr Mohareb’s claim, and that part of the Summons discloses no reasonable cause of action”. His Honour also found at [68]:
“In my view, the Commission does not owe any duty of procedural fairness to a complainant under the Act, and if it did, any such duty would be limited strictly to the matters outlined by Basten JA in Hastwell CA at [19]. The Commission has in any event complied with these requirements in Mr Mohareb’s case. I find that the Court has no jurisdiction to grant the remedies sought by Mr Mohareb, as the Commission’s decision is not amenable to judicial review.”
“1. Set aside the orders (1) and (2) made by Justice Weinstein on 16 October 2023 in the proceedings below.
- Declare that the review decision made by the Respondent on 25 November 2022 is invalid on the basis that the decision lacked a rational foundation in that it misunderstood the nature and function of the NSW Health Liability Panel, as being a body before which “formal proceedings” were underway at the time of the decision.
- Order that the Respondent pay the Applicant’s costs below and in this Court.
- The Summons seeking leave to appeal in this Court, filed 10 January 2024, is dismissed.
- The Summons in the court below, filed 9 December 2022, is otherwise dismissed.”
Notably the original summons file by the plaintiff on 9 December 2022 was “otherwise dismissed”. That was the end of those proceedings (2022/375297). It is also important to note that the Court of Appeal orders were not made because of any defect in, or criticism of, the reasons of Weinstein J. They arose from the concession made by the defendant about an error in the 25 November 2022 letter it had sent to the plaintiff.
Not content with his ‘win’ in the Court of Appeal the plaintiff persisted in his request for a review of the defendant’s decision “in relation to your complaints about Dr Jeon Cha and Royal North Shore Hospital (RNSH).”
A review was conducted and the decision was communicated to the plaintiff on 9 July 2024 (the Review Decision). The review concluded:
“Overall, the review was not critical of RNSH's management. The treatment provided was indicated and clinical notes demonstrate multidisciplinary discussion by highly qualified and experienced practitioners and appropriate investigations and monitoring.
The surgery undertaken was within Dr Cha's scope of practice and it is noted that he is a very experienced plastic and reconstructive surgeon credentialed in maxillofacial surgery and is an affiliate of the AO CMF Foundation, an international professional Cranio-Maxillo-Facial surgery body.
While every effort was made to explain, and reinforce, to you the importance of compliance with post-surgery instructions and follow up, the review noted that there were circumstances outside of RNSH's control which contributed to delays in obtaining necessary care and treatment and to poor outcomes.
The review is critical, however, that the records do not indicate when or how the initial post-discharge instructions were communicated to you on 15 December 2017 and this may have contributed to initial confusion on your part regarding post-operative follow up and care and the importance of wearing the elastics in ensuring the best possible outcome.
The Commission has determined it is appropriate to change the decision and make corrective comments to RNSH stressing the importance of effective communication and documentation in delivering patient-centred care. In particular, reminding the RNSH of the importance of ensuring that post-operative instructions provided to patients are clearly communicated and understood and that this is appropriately documented. These comments are made with a clear expectation that the Hospital will improve this aspect of their future practice.”
In respect of Dr Cha, the defendant noted that Dr Cha had been ‘exonerated’ by the Medical Council and saw no need to take further action.
The plaintiff was dissatisfied with the Review Decision and very swiftly, on 10 July 2024, filed a summons seeking judicial review of the decision. The summons also sought declarations of dishonest and fraudulent conduct on the part of the defendant and of an intentional tort against the plaintiff. He also asked for punitive damages.
The summons came before the Registrar on 24 July 2024. The Registrar ordered that the matter continue by way of a statement of claim, which the plaintiff filed on 18 September 2024. The defendant responded on 24 October 2024 with a motion to strike out the statement of claim. It was asserted that the statement of claim disclosed no reasonable cause of action and was ambiguous.
The defendant’s motion does not seek the striking out of the whole of the statement of claim. Paragraphs 1 and 6 would remain intact. The notice of motion was served on 25 October 2024. In the accompanying letter the defendant “accepts that 9 July Decision is invalid” and says the defendant will “consent to an order setting aside the Commission’s 9 July Decision, and consent to an order that the Commission pay your costs ...” Consent orders to this effect were proposed.
On 23 June 2025, and 14 July 2025, the plaintiff served separate amended statements of claim, but these are not the subject of the present application.
The plaintiff did not accept the orders proposed by the defendant on 25 October 2024, so that the motion filed on 24 October 2024 came before McGuire J on 22 July 2025. His Honour ordered the plaintiff to file an amended statement of claim by 14 October 2025. The discussion between his Honour and the plaintiff is referred to by the plaintiff in support of the validity of the statement of claim he now wishes to rely upon.
To be clear, the statement of claim which the plaintiff wishes to rely upon is that annexed to his motion filed on 14 October 2025. I will refer to this statement of claim as the ASC. If the plaintiff’s motion fails, the defendant’s motion of 24 October 2024 will be re-enlivened, noting that the defendant still concedes the Review Decision of 9 July 2024 should be set aside and it should pay the plaintiff’s costs up to a certain time.
The ASC starts with PARTICULARS**.**
The particulars begin with a description of the treatment that the plaintiff received at RNSH, commencing on 4 December 2017. This was the date the plaintiff “sustained severe injuries in an attempted murder, committed against him and which followed from a break & enter home-invasion.” The injuries he received were primarily to his jaw and necessitated emergency surgery and follow-up surgery.
The plaintiff alleges that the treatment he received, both initially and later, was delivered negligently. The plaintiff refers to affidavit evidence to describe the treatment and its effects upon him. The plaintiff, in the ASC, says that there were a number of adverse consequences of the negligent treatment which required him to seek remedial measures.
The particulars continue, that on 29 July 2022 the plaintiff sent a letter of demand to the chief executive officer of RNSH in which he set out his complaints, requested further treatment and threatened legal action if there was “no positive response”.
The next section of the ASC details the plaintiff’s initial dealings with the defendant. He sets out the various conversations and correspondence that occurred, he describes the process apparently followed by the defendant (in a pamphlet) and he sets out the nature of the complaint that he wished to pursue about RNSH. The plaintiff then refers to the rejection, on 6 October 2022, of his complaint (through a decision to discontinue its investigation), and his request for a review of the decision.
The plaintiff then describes subsequent dealings with the defendant, including those relating to the referral of Dr Cha to the Medical Council. The plaintiff then moves on to the correspondence from the defendant on 25 November 2022, in which the defendant refers to proceedings at the NSW Health Liability Panel.
The plaintiff describes his correspondence with the defendant on 28 November 2022, in which he called into question the very existence of the NSW Health Liability Panel. The absence of a response to his email seemed to be a turning point for the plaintiff because in [48] of the ASC he says that at that stage he “could not help but conclude that the HCCC had been dealing with him and his complaint in a deceptive, dishonest, and fraudulent manner.”
The defendant’s conduct then led to the plaintiff’s summons on 9 December 2022. The next part of the ASC covers the facts surrounding the summons, the hearing before Weinstein J, and then the leave application in the Court of Appeal. The plaintiff in this section makes very specific allegations of dishonesty. For example, at [57] he states:
“Fourth: the fact that, in so doing, the HCCC misled & lied to Court, by implying that an organisation called the NSW Health Liability Panel did exist, when the HCCC knew that this was not [the] case.”
The “capitulation” in the Court of Appeal was said by the plaintiff to be “in order to avoid having its impugned conduct being exposed …”
The next section of the ASC gives details of the 9 July 2024 Review Decision by the defendant to terminate the plaintiff’s complaint. The plaintiff sets out the errors, false conduct, false allegations, malicious intent, and shifting of responsibility and blame by the defendant.
The final section of the particulars deals with the proceedings now before the Court. The plaintiff again refers to the pamphlet by which the defendant is supposed to deal with complaints, and describes the defendant’s investigation as “a one-sided, fraudulent investigation” seemingly in aid of not holding the RNSH accountable for its wrongdoings.
There is no doubt that the contents of the PARTICULARS section of the ASC contains very many actual particulars. But it is also replete with allegations, submissions and conclusions. But one example is in [78] where the plaintiff states:
“The above is consistent with the HCCC's persistent determination, as particularised in Paragraphs 20-50 above, to get rid of the plaintiff’s complaint without dealing with it in compliance with the provisions of the Act and it was done for the purpose of achieving this by belittling, denigrating, humiliating, intimidating & discrediting the plaintiff by way of the maliciously false assertions which the HCCC made against him in its 9th July 2024 findings and which are refuted by the facts as they are particularised in Paragraphs 1-16 above and in more detail the plaintiff’s 24th May 2024 affidavit.”
The next part of the ASC is headed PLEADING**.** There are various sub-headings, each commencing with a referral back to the 80 paragraphs of particulars.
The first heading is Deceit. Here the plaintiff compares the manner in which the defendant is supposed to exercise its functions (in accordance with the HCCA) to the “deceptive & fraudulent manner” in which it actually conducted itself. The defendant is said to have acted in a deceptive and fraudulent manner because of a “premeditated intention & pre-determined decision to get rid of the plaintiff’s complaint …”, and for the purpose of “absolving RNSH” from being held accountable for its wrongdoing against the plaintiff.
The plaintiff then moves on to Misfeasance in Public Office. Here the defendant is said to have “acted with the knowledge that its statements, actions and decisions were false, deceptive and fraudulent and/or with reckless disregard for their falsity, deceptiveness, and fraudulency.”
The defendant’s conduct is said to have gone beyond “mere error or negligence …” Rather it “constitutes a deliberate attempt to avoid both its statutory & common law responsibilities for the purpose of absolving RNSH and its plastics surgeons, including its head of the Plastics & Reconstruction clinic, Dr. Jeon Cha, from being held accountable for the wrongdoing which the plaintiff alleges against them.”
After misfeasance comes Conspiracy to Defraud. The allegation here is of a conspiracy between the defendant and RNSH “to mislead the plaintiff about the status of his complaint and to dismiss it without due consideration in accordance with the provisions of the Act ...” The defendant’s actions were said to have the purpose of “shielding RNSH and its plastics surgeons … from legal exposure and to absolve from being held accountable for the wrongdoing which the plaintiff alleges against them.”
It is then alleged that the plaintiff was harmed by the conspiracy. The harm extends to “reputational damage, physical suffering, emotional & psychological distress and financial loss.”
The next heading is Repeated, Deliberate & Intentional Breaches of Statutory Duty. This seems to be a repeat of the allegation that the defendant has acted outside the authority provided by the HCCA.
Then there are Repeated, Deliberate & Intentional Breaches of Duty of Care/Negligence. The plaintiff says that the defendant “owed a duty of care to the plaintiff to handle his complaint in a reasonable, fair, genuine & honest manner, in accordance [with the HCCA]”.
The final sub-heading is Corrupt Conduct - ICAC Act 1988 (NSW). The plaintiff points out that the defendant is a state government organisation governed by the provisions of the HCCA and therefore its conduct is liable to scrutiny under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act). Specific reference is made to ss 8(1), 8(2), and 9 of the ICAC Act. Sections 8(1) and (2) say what is corrupt conduct. The purpose of this part of the pleading seems to be that if the defendant has been guilty of corrupt conduct, then it should not be permitted to further investigate the plaintiff’s complaint. Any investigation should be done either by an independent body or by persons within the defendant Commission who have not had any previous involvement with the plaintiff.
The ASC then moves on to the RELIEF CLAIMED. This section is split into declarations sought, orders for further investigation and supervision, injunctions and damages. Interest and costs are also claimed.
After addressing the background and general principles relating to amendments of pleadings, the defendant moves on to state what it alleges are the deficiencies in the ASC.
The defendant submits that “all of the causes of action pleaded in the [ASC] are without an arguable basis, are otherwise embarrassing, and do not comply with the requirements in the UCPR.” As to the relief claimed, the defendant submits that none of it is available to the plaintiff except for the declaration that the decision dated 9 July 2024, is invalid and of no effect. This conclusion has been long admitted by the defendant.
The submissions attack every component of the ASC. The particulars are embarrassing because:
They are “discursive in style and in the form of submissions”.
They incorporate masses of material by reference to the plaintiff’s affidavits.
There is no identifiable path of connection between the particulars and the assorted causes of action.
Allegations of seriously inappropriate, if not illegal, conduct are made without “any factual foundation.”
The particulars are “vague and ambiguous.” Paragraph 60 of the ASC is given as an example.
The defendant deals with each cause of action. Starting with deceit, the defendant says that actionable deceit, as alleged here, is inconsistent with deceit as dealt with by the authorities. The defendant relies on Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 to make this point. I was referred to the ingredients of deceit as described in Magill at [114]:
“The modern tort of deceit will be established where a plaintiff can show five elements: first, that the defendant made a false representation; secondly, that the defendant made the representation with the knowledge that it was false, or that the defendant was reckless or careless as to whether the representation was false or not; thirdly, that the defendant made the representation with the intention that it be relied upon by the plaintiff; fourthly, that the plaintiff acted in reliance on the false representation; and fifthly, that the plaintiff suffered damage which was caused by reliance on the false representation. Generally, the elements of the tort have been found to exist in cases which concern pecuniary loss flowing from a false inducement and the need to satisfy each element has always been strictly enforced, because fraud is such a serious allegation.” (Footnotes omitted)
The defendant submitted that the plaintiff has not identified the representation behind the allegation of deceit let alone provided any evidence that any representation was false, or that there was any element of recklessness or carelessness on the part of the defendant. I was referred to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 15.3, which requires particularisation of allegations such as deceit. Such particularisation as does exist is said to be ambiguous and confusing.
Moving on to misfeasance in public office the defendant submitted that the Commission, not being a public officer, was not liable to a suit of misfeasance in public office. Again, it is submitted that there is an absence of particulars, the allegation being similar to one of fraud leading to the application of UCPR rr 15.3 and 15.4.
The same approach is taken in relation to the allegations of conspiracy, and it was pointed out that there is no particularisation of how the defendant “shielded” RNSH.
In respect of “Repeated, Deliberate & Intentional Breaches of Statutory Duty” the same lack of particularisation and ambiguity is pointed out as is the fact that the allegations do not disclose a reasonable cause of action. I was referred to the decision of Sully J in Wortley v Health Care Complaints Commission [2001] NSWSC 149, at [14]-[15]:
“In my opinion, a fair reading of the entirety of the statutory scheme for which the Act makes provision indicates that the Act falls precisely within that category of ‘regulatory or welfare legislation affecting a particular area of activity’ of which Lord Browne-Wilkinson concluded, in the passages earlier herein cited, that ‘the legislation is not to be treated as being past for the benefit of those individuals …………… (affected in particular by the relevant activity) ………… but for the benefit of society in general’.
I have come, therefore, to the conclusion that the plaintiff’s amended Statement of Claim in so far as it propounds a claim at law based upon the breach simpliciter by the defendant Commission of its statutory duties under the Act, does not disclose a good cause of action.”
The next cause of action dealt with is “Repeated, Deliberate & Intentional Breaches of Duty of Care/Negligence”. Once again, the absence of any basis for a duty of care, or the nature of any such duty is relied upon, as is the failure to provide any particulars to support the existence of a common law duty.
The final cause of action, corrupt conduct under the ICAC Act, is said to be “misconceived”. No cause of action arises from the relied upon sections and the limitations imposed by s 9 of the ICAC Act do not include the actions of the Commission.
Turning to the relief claimed, the defendant points out that the relief is generally unavailable because it does not arise from any cause of action available to the plaintiff and that the necessary particulars have not been given. Rule 15.7 of the UCPR is referred to in respect of exemplary damages.
In addition, the relief claimed under paragraphs 2 and 3 are simply not available to the Court.
Moving on to whether the plaintiff should be given leave to have another chance at fashioning an acceptable statement of claim, the defendant submits that should not happen. The plaintiff already has the benefit of a concession that the Review Decision of 9 July 2024 should be set aside and that the application for a review of 4 November 2022 will be treated as remaining alive and will lead to a further review. Bearing in mind that the plaintiff’s complaint was originally an application for judicial review, he has succeeded in this endeavour and should not be allowed to extend his claim to the unparticularised accusations and unavailable causes of action that he asserts.
The plaintiff has been told about the deficiencies in his pleading on numerous occasions. His attempts to provide a proper pleading (before the current formulation) have all suffered similar deficiencies. It was pointed out that McGuire J told the plaintiff on 22 July 2025 that:
“... It seems to me that you're getting to a stage in the proceedings where you've had a few bites at the cherry, to use that expression, about getting this pleading right. The next bite might well be the last one and I raise that for this reason. It's a matter for you. I know you - I can see from various cases - routinely appear for yourself. I've told you that many lawyers find pleading a case difficult. Litigants appearing for themselves routinely find it very difficult. I want you to consider quite seriously whether or not you should get a lawyer to assist you.” (Transcript p 32)
The plaintiff begins his submissions with numerous references to the latitude and leniency that should be given to a litigant in person.
The plaintiff quoted this passage, ostensibly from “Wentworth v Roger (No 5) (1986) 6 NSWLR 534 at 636”:
“In interlocutory matters, the court will normally be slow to terminate proceedings summarily because of defective pleading by an unrepresented litigant, at least where it appears that there is a viable cause of action which, with appropriate amendment and a little assistance from the court, could result in a pleading being placed in proper form.”
“Thirdly, the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out. Unrepresented litigants present our courts with significant difficulties.”
In fairness to the plaintiff, I note that the passage quoted is a paraphrased excerpt of the case from the Civil Trials Bench Book. I would not criticise the plaintiff if the Bench Book was the source of his submission.
Putting this minor point aside the plaintiff’s submission is that he is entitled to be treated differently from a represented litigant.
The plaintiff has submitted that he has done his best to follow the guidance given to him by McGuire J on 22 July 2025. He submits that he has endeavoured to address the defendant’s objections and criticisms.
The plaintiff points out that he has not, as asserted by the defendant, made five attempts to amend the statement of claim. Rather, the current motion is the first attempt to amend the statement of claim. The drafts previously sent to the defendant were “circulated in the context of interlocutory correspondence or directions hearings.” They had no “procedural status.”
In addition, submitted the plaintiff, the ASC was “in direct compliance with the order of McGuire J made on 22 July 2025 …” The plaintiff submitted that:
“The governing principle remains that expressed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130: summary termination or refusal of leave is justified only where the claim is ‘so obviously untenable that it cannot possibly succeed.’ Neither multiple draft iterations nor prior strike-out proceedings, of themselves, establish such futility. The Court's discretion should therefore be exercised having regard to the substance of the proposed pleading, not to an inflated tally of informal drafts.”
“The Court is required to balance the dictates of case management with the overarching purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings.”
“My pleading now (a) identifies the precise statutory and common-law duties said to have been breached; (b) states the specific acts and omissions alleged to constitute misfeasance in public office; and (c) provides the necessary particulars of fraud, negligence, and corruption in the form directed by His Honour McGuire J at the hearing on 22 July 2025.”
The plaintiff submits that there can be no suggestion of prejudice on the part of the defendant, as it has known since at least June 2025 of the particulars of his claim. In addition, the claim is far from futile. It “raises legally recognized causes of action, supported by sufficient material facts and particulars.”
The plaintiff’s submissions return to “Consideration of My Self-Represented Status.” He submits that the court should “make reasonable allowances to ensure the litigant’s lack of legal training does not result in disproportionate disadvantage.”
The plaintiff again emphasised his compliance with the directions given by McGuire J.
The starting point is I think the plaintiff’s oft repeated reliance on his status as a self-represented litigant. In my view this status is not a ‘free pass’ to construct a pleading from which a defendant is obliged to search for meaning, causes of action and allegations it must meet. Inferences can obviously be relied upon to found conclusions, but the inferences must themselves be derived from identifiable facts.
I obviously accept the plaintiff is self-represented, but I observe that he is no stranger to litigation. His cases, where he is generally the instigator of the proceedings, are numerous and traverse multiple courts. I also note that in Palmer v Mohareb [2019] NSWSC 975, Fagan J made this observation of the plaintiff at [5]:
“The matters instituted by Mr Mohareb have all lacked reasonable prospects of success. His claims have all been dismissed. Mr Mohareb has no formal legal training and in all but two of the matters he has not been legally represented. In his numerous appearances he has demonstrated no useful working knowledge of the law, either substantive or procedural. Mr Mohareb has conducted the proceedings, particularly at first instance, with unshakeable fixation upon perceived wrongs, unresponsiveness to reasoned discussion and temperamental volatility. His presentation has on a number of occasions made it very difficult for the District Court to maintain progress and direction through hearings while giving Mr Mohareb a fair hearing.”
I cannot rely on Fagan J’s observations as evidence in the case before me, but I can say they accord with my conclusion about the plaintiff. The same “unshakeable fixation upon perceived wrongs” permeates this case.
Like Fagan J, the plaintiff in his submissions refers to this passage from Neil v Nott (1994) 68 ALJR 509, at 510:
“A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.”
The plaintiff referred to Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) in support of his position. Rajski was recently referred to by the Court of Appeal in Lee v Huo [2026] NSWCA 15, where a passage from Chalik v Chalik [2025] NSWCA 136 was quoted. The quote also referred to one of the cases in which the plaintiff was a party, Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235. Saratoga Marine involved an application by the plaintiff for leave to appeal from a District Court judgment.
Bell P (as his Honour then was) referred to the plaintiff’s extensive litigation history which the plaintiff had put forward to justify an extension of time, and then stated, at [8]:
“The point of the reference to Mr Mohareb’s extensive litigious history in the context of his application to amend the Summons and for an extension of time is that, to the extent that Mr Mohareb seeks to rely on his engagement on other matters to justify the very significant delay in seeking leave to appeal from the primary judge’s separate decisions made in 2018 in respect of four separate proceedings, it is not as though Mr Mohareb was either ignorant of legal rights or unfamiliar with the process and procedures of this Court.”
“Whilst it may be accepted that some latitude may, in an appropriate case, be afforded to a litigant in person, and that the Court is empowered to waive any requirements of the UCPR in an appropriate case, it is important to keep in mind the remarks of Lord Sumption (with whom Lord Wilson and Lord Carnwath agreed) in Barton v Wright Hassall LLP [2018] 1 WLR 1119; [2018] UKSC 12 at [18]:
‘In current circumstances, any court will appreciate that litigating in person is not always a matter of choice. … Some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of court. … The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights … Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which may apply to any step which he is about to take.’”
In my view the plaintiff’s wish, almost demand, for latitude or leniency is over-stated.
Another over-statement is the compliance with the guidance given by McGuire J. There is no doubt his Honour was patiently going out of his way to ‘guide’ the plaintiff.
Reading through the transcript of the hearing before McGuire J on 22 July 2025, his Honour may be regarded as having provided the following guidance:
One of the considerations in the grant of leave to make an amendment “is whether or not the pleading is in proper form.” (Transcript p 8)
Whatever the form, does the pleading disclose “an appropriate or proper [cause] of action”. (Transcript p 8) (I note I am reading the transcript as referring to a cause of action rather than a course of action).
“Well, it seems to me there might be a large degree of work that might still need to be done, to particularise some of these allegations so that they can be understood. Not just by the Court, but by the defendant.” (Transcript p 15). His Honour has concisely identified the defendant’s argument. It needs to know the case it has to meet.
“… one of the rules of pleadings is that the pleadings have to be self-contained, in the sense that they have to contain all of the necessary elements for the cause of action, and all of the appropriate particulars. So that, just reading that document, informs the reader - an uninformed judge like myself, who’s just come into the matter, or the defendant, or an interested member of the public - a reading of that by itself would be sufficient to explain the cause of action, the necessary elements of the cause of action, and the particulars. It is not an appropriate way of pleading to say, ‘You’ll find these particulars in an affidavit if you go looking for them’.” (Transcript p 16)
“Pleading fraud ... requires the person drafting the pleading to give fairly precise particulars as to what’s alleged to be fraudulent and why …” (Transcript p 18)
“In other words, I think there is some work that needs to be done on this to put it in proper form, to properly plead fraud and corruption, if that’s what you want to plead, and to particularise the fraud and corruption so that a reader like myself doesn’t have to then jump to a submission or to your affidavit to fill in the gaps.” (Transcript p 22)
“A pleading is an important form, and it carries important functions. In order for those functions to work, there are certain rules that have to be complied with. It’s not just a question of form. It’s a question of content and substance and if you are pleading negligence, you first have to plead a duty, what is the duty, what’s being breached. If you are pleading a common law duty, you need to plead what the common law duty is and why it’s owed to you and to whom its owed.” (Transcript p 31)
“The other fundamental defect is, every single time you use the word ‘fraud’ or ‘corruption’ or ‘negligence’, you need to particularise each time you use those terms what you mean. What fraud? What corruption? What duty of care has been breached, how do you say the defendant was negligent?” (Transcript p 38)
“The defendant needs to know, and the Court needs to know not just part of why you say something might be fraudulent, but the whole of it. You need to particularise it every single time.” (Transcript p 44)
“If you plead in a paragraph of your pleading the word ‘fraud’, immediately after that you should say, ‘The particulars of fraud are’.” (Transcript p 44)
In addition, his Honour made it very clear to the plaintiff that he needed to come up with an acceptable pleading. Repeating the passage quoted by the defendant:
“It seems to me that you are getting to a stage in the proceedings where you’ve had a few bites at the cherry, to use that expression, about getting this pleading right. The next bite might well be the last one and I raise that for this reason. Some matter for you. I know you - I can see from various cases- routinely appear for yourself. I’ve told you that many lawyers find pleading a case difficult. Litigants appearing for themselves routinely find it very difficult. I want you to consider quite seriously whether or not you should get a lawyer to assist you.”
“What is clear to me is that if you don’t fix up the statement of claim, it’s going to be struck out. I couldn’t have made it clearer and to be fair to you, I’m giving you as much opportunity to understand that I’m about to give you some time to fix this up and I highly recommend you get a lawyer to assist you because it’s a difficult task.” (Transcript p 47)
Whether for good reason or not, the plaintiff did not get a lawyer to assist him. The plaintiff, notwithstanding his repeated claims of compliance, did not in fact adhere to the guidance he received from McGuire J.
In the ASC, the plaintiff has not set out the necessary elements of each cause of action, he has not given clear particulars (as opposed to vague and confused particulars), he has continued to refer to affidavits and other extensive material not in the pleading and he has made frequent and unexplained sweeping allegations of fraud and corruption.
One matter where the plaintiff does seem to have taken on board McGuire J’s comments relates to his original assertion that he had never made a complaint to the defendant. For example, in the proposed statement of claim served on 23 June 2025, the pleading states at [12]:
“a. The HCCC was never in receipt of a formal complaint from the Plaintiff, one which is required to be compliant with criteria stipulated by s 9 of the HCC Act.”
He has overcome this stance in the ASC and specifically now has a heading “Complaint to the Health Care Complaints Commission (HCCC).” This seems to be an abandonment, I think appropriately, of the previous position held by the plaintiff that he had never made a complaint to the Commission.
I mentioned above that the defendant’s concession concerning the invalidity of the 9 July 2024 decision should, ostensibly, have satisfied the plaintiff’s quest.
This point was actually taken up by McGuire J on 22 July 2025, (at Transcript p 9):
“HIS HONOUR: You’re trying to establish reasons why it’s invalid, and that there was negligence and fraud.
PLAINTIFF: That’s not my - my complaint is that from the start, from the very first - the matter with Weinstein J, in the Court of Appeal, and up to hear, that there has been dishonesty in the dealing with my matter, your Honour.
HIS HONOUR: But for what end? What are you trying to achieve by establishing dishonesty? What’s the ultimate result that you want out of all of this?
PLAINTIFF: The ultimate result is for the commission to deal with my complaint according to law, and according to the statute.”
In the ASC the plaintiff now obviously wants a great deal more. In the relief claimed he wants declarations, an independent investigation, injunctions, compensatory and exemplary damages and interest.
Amendments are generally subject to s 64 of the Civil Procedure Act which states in s 64(2):
Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
I note that s 58(2)(v) refers to the opportunities that have already been allowed to correct the pleadings. McGuire J gave such an opportunity to the plaintiff of which he has not effectively taken advantage.
The difficulty here is to discern the real questions emanating from the ASC.
The ASC is a long, dense and convoluted document. This is evident from scrutiny of the document itself, however, here are some examples of its tangled and labyrinthine nature, and conflation of facts and submissions:
“The fully detailed particulars of the plaintiff’s complaint in relation to the treatment he received at RNSH are contained in his affidavit of 24th May 2023 & its associated annexure, copies of which are on Pages 68-106 & 107-232, respectively, of Annexure ‘A’ of the plaintiff’s 17th September 2024 affidavit in support of this Statement of Claim (SoC). The relevance & significance of this 24th May 2023 affidavit will be addressed further below.
…
… subsequent to the reinstatement of the plaintiff’s complaint, and as indicated in Paragraph 67 above, the provision of Section 20(1) of the Act left the HCCC with only three options, either to:
(a) Investigate the plaintiff’s complaint;
(b) Conciliate it, or;
(c) Refer it to the Health Secretary, in accordance with Sections 25 or 25A.
Of these three options, only the first could be manipulated so as to enable the HCCC to terminate the plaintiff’s complaint without holding RNSH accountable for the wrong-doings which the plaintiff alleges against it. This is why the HCCC did choose that option and undertook, what can only be described as a one-sided, fraudulent investigation, as particularised in Paragraph 61-67 above, the associated assertions of which are refuted by the facts as they are particularised in Paragraphs 1-16 above and in more detail in the plaintiff’s 24th May 2024 affidavit.
…
The HCCC breached this duty, deliberately, premeditatedly & determinedly, by repeatedly, persistently & determinedly dealing with the plaintiff’s complaint in a blatant & egregiously deceptive & fraudulent manner.”
The advocacy of the plaintiff before me has been advanced through his submissions, and through the Court Book, and I have also endeavoured to see through the obfuscation to find the existence, or even, the seeds of a viable case.
Turning to the various causes of action, the starting point is to try and identify precisely what the plaintiff is alleging. This is what he said to McGuire J:
“My case is that they deliberately failed to comply with statute for the inappropriate purpose of getting rid of my complaint without it properly assessed, investigated or conciliated according to statute.” (Transcript p 31)
The important word in the quote in the previous paragraph is “deliberately”. Whatever the defendant did deliberately is presumably at the core of the allegations of deceit, fraud, corruption and misfeasance of public office. The question that then arises is what particulars the plaintiff has given to establish the deliberate conduct on the part of the defendant.
The defendant’s complaint about the allegation of deceit goes further than the absence of particulars. The submission, as foreshadowed above, is that the tort of deceit is simply not available to the plaintiff in the circumstances that exist here. It was submitted that the tort is generally only available to allegations involving a pecuniary loss. That is not the position here. Perhaps more importantly, the five ingredients for the tort identified in Magill, at [114], have not been identified by the plaintiff. For example, he does not say what the false representation is and he does not identify how the defendant had knowledge that any representation was made falsely, recklessly or carelessly.
Looking at the particulars given in the ASC for deceit the plaintiff gives a general description of the “deceptive & fraudulent conduct” in paragraph 1.5, and then in paragraph 1.6 sets out what the conduct was. This seems to be his particularisation of the conduct. Travelling through paragraph 1.6 there are a number of statements of actions taken and repeated assertions of improper conduct but, on my reading, not a single particular which might give rise to a conclusion of such conduct.
Initially, I thought a possible exception which might constitute a fraudulent representation, arises from the reference by the defendant to the “NSW Health Liability Panel”. According to the plaintiff this panel “is a fictitious body”. It might be said that if the defendant asserted that the complaint was being considered by a fictitious body that this would be a particular of deceitful conduct.
The relevant correspondence is a letter from the defendant on 25 November 2022 which includes the following:
“The review has confirmed that the hospital systems and processes which are the subject of this complaint about the treatment of your fractured jaw being considered in formal proceedings already underway via the NSW Health Liability Panel will examine.”
“Mr Emmett, of senior counsel, explained that the Commission had only recently realised that the statements that it made in its letter dated 25 November 2022, regarding the Panel conducting a formal proceeding, which was already underway, were incorrect. On that basis, the Commission accepted that its Review Decision was invalid and of no effect, being tainted by a jurisdictional error.”
The plaintiff’s allegation is that the defendant “misled & lied to the Court.” The defendant certainly acknowledged that it had made a mistake, but no particular is given by the plaintiff to substantiate the deliberate actions of misleading and lying conduct. Ultimately the plaintiff’s allegation is no more than an assertion made without any stated foundation.
I agree with the defendant that the tort of deceit is not available in the present circumstances.
Turning to misfeasance in public office, firstly, unlike for example in Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71, where the public officers were parties to the litigation, there is no other defendant in this litigation besides the Commission, which is not a public officer.
The majority of the High Court, in Northern Territory of Australia v Mengel (1995) 185 CLR 307, at 345, said:
“It was recognized as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined. In important respects, that is still true. However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.” (References omitted)
The plaintiff gives no particular upon which an intention to cause harm might be based, or that any (unidentified) officer was acting knowingly in excess of power. The plaintiff’s particulars do not identify the conduct which makes up the wrongdoing (the misfeasance) and may generally be described as confusing and ‘far from the point’.
The next alleged tort pleaded by the plaintiff is conspiracy to defraud. An allegation of this sort is generally found within the realm of criminal law. There is a tort of conspiracy which may be what the plaintiff was contemplating.
There are comprehensive descriptions of this tort by Rolfe J in Tsatsoulis v Westpac [1999] NSWSC 193, from [93] and by Campbell J in Fatimi Pty Ltd v Bryan**t [2002] NSWSC 750, from [103]. It can be seen from these cases that, at the very least, there must be an agreement between two (or more) conspirators. No such agreement is pleaded here or identified. Rolfe J quoted from The Laws of Australia to describe the two forms of the tort of conspiracy:
“(1) an agreement or combination between two or more persons to commit a lawful act with the predominant purpose of injuring or damaging the plaintiff, and the act is carried out and the purpose achieved; or
(2) an agreement or combination between two or more persons to commit an unlawful act with an intention to injure the plaintiff and the act is carried out and the intention achieved.”
I can see no basis upon which the plaintiff’s allegations describe the tort of conspiracy.
The next asserted cause of action is “Repeated, Deliberate & Intentional Breaches of Statutory Duty”. Again, the precise cause of action is unknown. If it is a breach of statute, the only allegation seems to be that the complaint did not comply with s 9 of the HCCA. But as discussed above, and as made very clear to the plaintiff by McGuire J, this is a nonsensical allegation because if the complaint contravenes the requirements of s 9, then the starting point of the plaintiff’s allegations must fall away. If the complaint was not validly made, the plaintiff can hardly complain that it was not validly dealt with.
In addition, as submitted by the defendant, the particulars for this cause of action, like all the others, are “unintelligible, ambiguous, vague or too general ... ”
The final cause of action relates to the ICAC Act. The act is designed to identify corruption and for it to be dealt with by the Independent Commission Against Corruption, not by one individual against a public body. The objects of the Act, as stated in s 2A, are:
The principal objects of this Act are—
(a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body—
(i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and
(ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and
(b) to confer on the Commission special powers to inquire into allegations of corruption.
In addition, the limitations on corrupt conduct, set out in s 9 of the ICAC Act, would seem to preclude the allegations being made by the plaintiff.
The defendant made submissions as to why the relief claimed by the plaintiff is also defective. I do not think I need comment on its submissions. Suffice to say that if no causes of action have been validly identified, pleaded, or particularised then there is no need to examine the relief set to flow from the allegations invalidly made.
The plaintiff was given an opportunity by McGuire J to put his pleadings in order. He was warned that the opportunity would effectively be his last chance. The plaintiff did not seize the opportunity to construct, at the very least, a workable pleading, which would identify valid causes of action, give particulars of each cause of action, their breach, and logically connect the relief claimed to the breaches.
In my view no other action is available other than to refuse the plaintiff’s application to amend the statement of claim.
By refusing the plaintiff’s application to amend the statement of claim, the proceedings will be left with the plaintiff’s statement of claim filed on 18 September 2024. This means that the defendant’s notice of motion to strike out parts of this statement of claim should now be dealt with.
The 18 September 2024 statement of claim is a much simpler document than the pleading that was proposed by the plaintiff. Notwithstanding its admirable brevity however, it suffers from the same deficiencies of failing to identify valid causes of action, let alone provide proper particulars of the allegations.
The statement of claim that was before McGuire J on 22 July 2025 seems to have been the 18 September 2024 pleading. It is clear from comments made by his Honour that his Honour regarded this pleading, as well as the two draft statements of claim that had been circulated by the plaintiff, as deficient. For example:
“Your explanation might be one thing, but if you are going to seek leave for an amendment to a pleading, the pleading has to be correct. It has to be one that discloses a [cause] of action.”
“For example, it seems to me to be defective in a number of paragraphs where you plead fraud and corruption but don’t particularise the fraud or the corruption. It also seems to be defective in paragraphs that seem to me to be not particularly sensical ...”
“Can I be clear, we cannot shortcut that because your draft pleading is clearly defective.”
I agree with each of McGuire J’s observations. It was because of the defects that McGuire J gave the plaintiff leave to ‘try again’, noting, as recorded above, that McGuire J made it very clear to the plaintiff that “the next bite may well be the last one.”
Other than to the extent conceded by the defendant, the 18 September 2024 statement of claim must therefore be struck out pursuant to r 14.28 of the UCPR.
The overall effect of the orders that I will make is that the only remaining claim by the plaintiff is the setting aside of the decision made on 9 July 2024. As the defendant has conceded the invalidity of this decision, the appropriate course is for the defendant to reinstate the review application made by the plaintiff on 4 November 2022. I do not think I can make an order to this effect but will include a notation describing the overall effect of my orders.
I make the following orders:
On the plaintiff’s notice of motion filed on 14 October 2025:
(a) Leave to amend the statement of claim is refused. (b) Leave to file an amended statement of claim in the form annexed to the motion is refused. (c) The plaintiff is to pay the defendant’s costs of the motion.
(a) Paragraphs 2 to 5 of the Relief Claim are struck out. (b) Paragraphs 1 to 10 inclusive of the Pleadings and Particulars in the statement of claim are struck out. (c) The plaintiff is to pay the defendant’s costs of the motion.
**********
Mohareb
Health Care Complaints Commission
(2009) 239 CLR 175
(2006) 226 CLR 551
(1994) 68 ALJR 509
(1995) 185 CLR 307
(2018) 98 NSWLR 258
(1986) 6 NSWLR 534
(1964) 112 CLR 125