//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] NSWDC 122
District Court of NSW
2025-04-10
Catsanos SC DCJ
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 Nine Entertainment Co Holdings Limited [2025] NSWDC 122
Hearing dates: 11-12 December 2024
Date of orders: 10 April 2025
Decision date: 10 April 2025
Jurisdiction: Civil
Before: Catsanos SC DCJ
Decision: In respect of the Notice of Motion filed by the first defendant on 26 July 2024:
(1) The Amended Statement of Claim filed in these proceedings on 2 August 2024, so far as it relates to the first defendant, is struck out.
(2) The proceedings against the first defendant are dismissed.
(3) The plaintiff is to pay the first defendant’s costs of this Notice of Motion and of the proceedings.
In respect of the Notice of Motion filed by the second and fourth defendants on 2 August 2024:
(1) The Amended Statement of Claim filed in these proceedings on 2 August 2024, so far as it relates to the second and fourth defendants, is struck out.
(2) The plaintiff has leave to replead and file a Further Amended Statement of Claim limited to:
(a) Pleading a claim in malicious prosecution against the Police and/or the Office of the Director of Public Prosecutions related to the circumstances which were pleaded in paragraphs 32-34 of the Amended Statement of Claim.
(b) Pleading a claim in negligence and/or intentional infliction of harm against the Office of the Director of Public Prosecutions related to the circumstances which were pleaded in paragraphs 26-31 of the Amended Statement of Claim.
(3) The Further Amended Statement of Claim contemplated by Order 2 above is to be filed and served by 22 May 2025.
(4) Other than those claims for which leave has been granted to replead in Order 2 above, the proceedings against the second and fourth defendants are dismissed.
(5) If the plaintiff does not file and serve a Further Amended Statement of Claim in accordance with Orders 2 and 3 above, the proceedings against the second and fourth defendants are dismissed in their entirety.
(6) The plaintiff is to pay the second and fourth defendants’ costs of the Notice of Motion.
In respect of the Notice of Motion filed by the third defendant on 1 August 2024:
(1) The Amended Statement of Claim filed in these proceedings on 2 August 2024, so far as it relates to the third defendant, is struck out.
(2) The proceedings against the third defendant are dismissed.
(3) The plaintiff is to pay the third defendant’s costs of this Notice of Motion and of the proceedings.
Catchwords: CIVIL PROCEDURE – interlocutory applications by defendants to strike out and dismiss proceedings – whether proceedings disclose a reasonable cause of action – whether proceedings are clearly statute-barred – whether proceedings are an abuse of process – whether plaintiff attempting to relitigate or circumvent prior determinations – grant of limited leave to replead
Legislation Cited: Civil Liability Act 2002 (NSW), s 31
Crown Proceedings Act 1988 (NSW), s 5
Limitation Act 1969 (NSW), ss 11, 14, 26, 50C, 50D, Pt 2 Div 6
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295
Beckett v State of New South Wales (2013) 248 CLR 432; [2013] HCA 17
Bird v DP (a pseudonym) (2024) 98 ALJR 1349; [2024] HCA 41
General Steel Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
McGuirk v University of New South Wales [2009] NSWSC 1424
Mohareb v Kelso [2017] NSWCA 98
Mohareb v State of NSW and Anor (District Court (NSW), Weber SC DCJ, 5 July 2024, unrep)
P v D [2020] NSWSC 224
Synergy Scaffolding Pty Ltd v Alelaimat [2023] NSWCA 213
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48
Wilkinson v Downton [1897] 2 QB 57
Category: Procedural rulings
Parties: Nader Mohareb (Plaintiff/Respondent)
Nine Entertainment Co Holdings Limited (First Defendant/Applicant)
State of New South Wales (Second Defendant/Applicant)
Northern Beaches Council (Third Defendant/Applicant)
Office of the Director of Public Prosecutions (Fourth Defendant/Applicant)
Representation: Counsel:
Ms L Alick (Solicitor Advocate) (First Defendant)
Mr A Williams (Second and Fourth Defendants)
Mr J Guihot (Third Defendant)
Solicitors:
Plaintiff (In Person)
Nine Entertainment Co Holdings Limited (First Defendant)
Crown Solicitor’s Office (NSW) (Second and Fourth Defendants)
Moray & Agnew Lawyers (Third Defendant)
File Number(s): 2024/00249198
Publication restriction: Nil
Before me are Notices of Motion brought by all defendants, seeking orders pursuant to Pt 13 r 13.4 and/or Pt 14 r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), that the proceedings be dismissed or struck out on the basis that they disclose no reasonable cause of action and/or are an abuse of process.
The plaintiff, who is self-represented, brings these proceedings against a background of protracted litigation and a labyrinth of interlocutory applications and judgments in this Court, the Common Law Division of the Supreme Court and the Court of Appeal.
Generally speaking, the history of the matter goes back to around April 2013, soon after the plaintiff moved to Scotland Island on Sydney’s Northern Beaches. The plaintiff alleges that his problems began when he encountered people on Scotland Island who vilified, bullied and harassed him. The plaintiff says that his property was vandalised and damaged and ultimately, on 4 December 2017, a resident of Scotland Island, Alexander Kelso (Kelso), violently assaulted him with a baseball bat in what the plaintiff says was an attempt to murder him.
It is that assault and the plaintiff's dealings with other residents of Scotland Island which has led directly and indirectly to the myriad of proceedings brought by the plaintiff since then.
To understand the issues thrown up by the present applications, it is necessary to consider the history of litigation which has led to this point.
The relevant, but by no means entire, history of litigation in which the plaintiff has been involved can be summarised as follows:
In 2015, the plaintiff sued Kelso in proceedings which included a claim for damages for defamation (the 2015 proceedings).
In 2016, the plaintiff sued Taylor Booth (Booth), again seeking damages, inter alia, for defamation (the 2016 proceedings).
In 2017, the plaintiff commenced defamation proceedings in the Supreme Court against Radio 2GB, the Sydney Morning Herald and others (the 2017 proceedings)
On 18 July 2018, the plaintiff commenced proceedings in the Supreme Court (the 2018 proceedings) in which he sued the Northern Beaches Council (the Council) and the State of New South Wales (the State) in respect of the New South Wales Police Force (the Police). The causes of action relied upon were in defamation and negligence.
In October 2018, the plaintiff filed an Amended Statement of Claim in the 2018 proceedings deleting any claim in defamation against the Council.
The 2018 proceedings were transferred to the District Court in 2019.
The 2017 proceedings were dismissed in 2020 after the plaintiff failed to provide security for costs, as ordered.
On 1 October 2020, Wass SC DCJ dismissed the plaintiff's claim in defamation against the Police in the 2018 proceedings.
On 19 April 2021 the plaintiff filed a Notice of Motion in the 2018 proceedings (the 2021 Motion) seeking various orders, including amendment of the Statement of Claim and leave to join an entity nominated as Nine Entertainment Co Pty Ltd (NEC PL) to the proceedings.
The 2021 Motion was heard by Abadee DCJ on 29 and 30 April 2021 and determined by his Honour on 14 May 2021. His Honour allowed some but not all of the amendments to the Statement of Claim and rejected the application to join NEC PL to the proceedings. His Honour also made ancillary orders for the 2015 and 2016 proceedings to be heard immediately after the 2018 proceedings by the same judge.
On 8 June 2021, the plaintiff filed a Further Amended Statement of Claim in the 2018 proceedings in accordance with the orders made by Judge Abadee.
On 18 November 2021, the Court of Appeal refused the plaintiff’s application for leave to appeal from the decision of Judge Abadee.
On 29 November 2021, the plaintiff filed a Notice of Motion seeking to vary the orders the Court of Appeal made on 18 November 2021.
On 29 March 2022, the Court of Appeal dismissed that application.
On 1 March 2024, the plaintiff filed a further Notice of Motion in the 2018 proceedings (the 2024 Motion) seeking, inter alia, to further amend the Statement of Claim to add claims against the State relating to the former Attorney General and the Office of the Director of Public Prosecutions (ODPP), and to join Nine Entertainment Holdings Pty Ltd (NEH PL) to the 2018 proceedings. The plaintiff also sought to plead certain matters which had been disallowed by Judge Abadee in his determination of the 2021 Motion.
On 5 July 2024, Weber SC DCJ dismissed the 2024 Motion. That decision is currently the subject of an application by the plaintiff for leave to appeal to the Court of Appeal.
On 7 July 2024, the plaintiff commenced the proceedings presently before the Court (the current proceedings), seeking relief against Nine Entertainment Co Holdings Limited (Nine), the State, the Council and the ODPP.
Although there are some differences in the arguments advanced by each defendant, as indicated earlier, each seeks to invoke the UCPR to dismiss the current proceedings essentially on the same grounds, namely:
That the proceedings disclose no reasonable cause of action (which includes a contention that the actions are statute-barred) and
that the proceedings are otherwise an abuse of process.
Before moving to a consideration of the sustainability of the current proceedings and the issues raised in the applications before me, it is helpful to outline generally the allegations made by the plaintiff in the 2018 proceedings and the current proceedings.
In the 2018 proceedings the plaintiff sues the State on the basis of its alleged vicarious liability for certain police officers and sues the Council on the basis of its alleged vicarious liability for the actions of nominated council rangers.
As outlined earlier, the claim in defamation against the Council in the 2018 proceedings was abandoned and whilst the plaintiff persisted in the defamation claim against the State, that aspect of the claim was dismissed by Judge Wass in 2020.
The claims the plaintiff mounts against the State and the Council in the 2018 proceedings have thus distilled into claims in negligence and intentional tort (of the type contemplated in Wilkinson v Downton [1897] 2 QB 57), namely intentional acts calculated to cause harm to the plaintiff.
There are a number of players in the allegations which ground the plaintiff's claim in the 2018 Proceedings.
There is no issue that in December 2017 the plaintiff was violently attacked by Kelso. At that time the plaintiff was embroiled in disputes and litigation with Kelso and other residents of Scotland Island, particularly Booth and Matthew Palmer (Palmer).
The allegations against the State in the 2018 proceedings include the contention that in August 2017 Inspector Reimer (Reimer) and Senior Sergeant Morgan (Morgan), in various ways, sought to intimidate the plaintiff to abandon the claims he had on foot against Kelso, Booth, entities described as Fairfax Media Publications and Harbour Radio, as well as the 2GB radio personality Ray Hadley, and the former Attorney General.
The plaintiff pleads that the actions of Reimer and Morgan comforted and encouraged Kelso in his vilification, bullying and intimidation of the plaintiff and culminated in Kelso attempting to murder the plaintiff in December 2017.
The negligence of the State is generally pleaded as a failure by the Police to properly deal with complaints and concerns expressed by the plaintiff, in the knowledge of the risk posed by Kelso.
The plaintiff also pleads that the Police enlisted Kelso to assist in stalking and attempting to entrap the plaintiff. This, so it is alleged, was to provide the Police with a basis to arrest the plaintiff and have him committed to the psychiatric ward of Manly Hospital.
The plaintiff alleges that the approach taken by the Police led to Kelso receiving a lenient sentence and returning to live on Scotland Island, where he continued to intimidate, harass and vilify the plaintiff, and vandalise the plaintiff's property.
Additionally, the plaintiff pleads that the actions and inactions of the Police led to an exacerbation of his feelings of despondency, humiliation and the like.
The plaintiff's allegations of intentional tort against the State are sourced in the facts relied upon in the negligence claim.
The plaintiff's claim against the Council in the 2018 proceedings, again in general terms, is based on allegations that the Council's employees knew of the actions perpetrated against the plaintiff and the danger presented by Kelso, and were aware that the plaintiff was pursuing civil proceedings against Kelso.
It is alleged that the Council's employees were also aware that Kelso's criminal acts against the plaintiff had escalated to the point of the attempted murder.
The Council employees in question, it is contended, disregarded relevant facts and circumstances and dealt with vexatious complaints about the plaintiff as if they were genuine.
The pleading goes further to allege that the Council sought to cover up the criminal acts committed against the plaintiff and failed to implement appropriate measures to protect him.
It is said the Council was, as such, complicit in aiding and abetting the campaign waged against the plaintiff.
The Amended Statement of Claim filed in the 2018 proceedings on 8 June 2021, pursuant to the leave given by Judge Abadee, is before me as an exhibit to the affidavit of Richard Kelly, affirmed on 2 August 2024. That pleading contains strikethroughs and underlining and as such, demonstrates both the claims the plaintiff advances in the 2018 proceedings and those he unsuccessfully sought to advance in the 2021 Motion.
Again, as mentioned earlier, in the 2024 Motion determined by Judge Weber on 5 July 2024, the plaintiff sought to join NEH PL, to broaden the claim against the State to include the former Attorney General and the ODPP, and also to plead a number of matters which Judge Abadee had previously declined to allow the plaintiff to plead.
The proposed Further Amended Statement of Claim which grounded the 2024 Motion is also before me, as an exhibit to the affidavit of Mr Kelly referred to above. That Statement of Claim attaches a “Supplement” which contains a raft of allegations. That Supplement is, in reality, a discursive narrative of various events. Just how the Supplement tied into the proposed Further Amended Statement of Claim is, consistent with Judge Weber’s observations, obscure, to say the least.
For reasons Judge Weber sets out in his judgment (Mohareb v State of NSW and Anor (District Court (NSW), Weber SC DCJ, 5 July 2024, unrep)), the proposed joinder and amendments were all rejected.
On 7 July 2024, two days after Judge Weber’s decision, the plaintiff commenced the current proceedings. The Amended Statement of Claim upon which the plaintiff relies in these proceedings commences with a note that the pleadings and particulars are to be read in conjunction with the Amended Statement of Claim in the 2018 proceedings and the plaintiff's witness statement. That witness statement, which extends to more than 200 pages and 590 paragraphs, like the “Supplement”, does not provide a meaningful articulation of the material facts relevant to the causes of action purportedly relied upon.
In the current proceedings, the plaintiff contends that the State is vicariously liable for the actions of the former Attorney General, the Commissioner of Police and/or all New South Wales Police officers. It pleads that Nine is vicariously liable for any tort committed by Harbour Radio Pty Ltd and Fairfax Media Publications Pty Ltd and/or “any persons employed by and/or associated with them”. Although separately joined as the fourth defendant, the claim against the ODPP is I expect, in reality, a claim against the State, [1] as reflected by the legal representation and the submissions advanced in these proceedings. The plaintiff contends that the ODPP is liable for any acts of negligence or torts committed by any person employed by or associated with the ODPP.
The claim against Nine in the current proceedings commences with a pleading of interviews between Ray Hadley and the former Attorney General on 29 January and 20 May 2016, which has been a mainstay of the plaintiff’s allegations in the various proceedings he has brought and was a component of the proposed amendments to the Statement of Claim in the 2018 proceedings, which Judge Abadee disallowed in his determination of the 2021 Motion.
Similarly, as he sought unsuccessfully to plead in the 2021 Motion, the plaintiff pleads that the former Attorney General brought proceedings to have the plaintiff declared a vexatious litigant. He alleges that the former Attorney General’s attempts to have him declared a vexatious litigant were based on allegations which the former Attorney General knew, or ought to have known, were false. The plaintiff pleads that those allegations were politically motivated and were discriminatory, negligent and baseless. He complains that no steps were taken by the former Attorney General to apologise or “set the record straight”.
The plaintiff pleads that the former Attorney General’s actions were directly connected to the violence perpetrated against him by Kelso.
The plaintiff also alleges in the current proceedings that the former Attorney General and Nine and its subsidiaries filed “defence documents” in the 2017 proceedings in which misrepresentations were made about the plaintiff. The plaintiff says those defences encouraged others to give evidence against him.
Additionally, the plaintiff pleads threats and intimidation by Reimer which the plaintiff says were either dictated or influenced by the conduct of the former Attorney General and Nine and its subsidiaries.
The plaintiff alleges that the conduct of Nine comforted the plaintiff's aggressors and encouraged them to escalate and intensify their campaign against him. He specifically pleads that the words and publications of Nine had a direct influence on adverse action against him, such as intensifying vilification, defamation, bullying, intimidation, and vandalism of his property, and ultimately culminated in Kelso's attempt to murder him.
The plaintiff complains of statements made by Reimer which, as pleaded, are intrinsically bound up with the interviews between Ray Hadley and the former Attorney General.
The plaintiff goes on to plead that the former Attorney General, and thus the State, are vicariously liable for the criminal acts committed by Kelso up to and including the attempted murder in December 2017.
In a few short paragraphs, the plaintiff pleads a case against the Council, prefaced as a “Joint Claim, in negligence and/or intentional tort, against the State & the Council”. The plaintiff recites episodes of damage to the plaintiff’s car and motorbike in March and May 2018, and the theft of his boat in February 2019. All are said to have been perpetrated by Kelso and to have caused the plaintiff fear, humiliation and embarrassment. These allegations conclude with the pleading that:
“…in relation to which the Plaintiff asserts the same allegation of negligence and/or intentional tort that are pleaded in the Plaintiff’s 8th June 2021 Amended Statement of Claim”.
The plaintiff pleads what is said to be a “Joint Claim” against the State (the Police) and the ODPP, in which he alleges that the Police and the ODPP acted in an incompetent and/or negligent manner and/or in a manner that was intentionally tortious. It is pleaded that this conduct in the respective investigation and prosecution of Kelso resulted in inadequate and unrealistically lenient sentencing of Kelso and the Court “making manifestly false findings that caused extreme hurt and humiliation to the plaintiff”.
The plaintiff pleads that this conduct was in breach of “the duties and obligations which the NSW Police and the DPP owed the plaintiff, as per the Charter of Victims Rights NSW”.
Finally, the plaintiff pleads that he was charged by the Police with common assault and prosecuted by the ODPP in relation to allegations which they both either knew, or ought to have known, were false, namely that the plaintiff had assaulted Kelso's wife, with that conviction being overturned and set aside on appeal.
In the first instance, Nine argues that the claim the plaintiff seeks to advance is statute-barred, with the current proceedings having been commenced after the prevailing limitation period had expired.
Nine submits that it overcomes the high bar to achieve summary dismissal on a limitation point at an interlocutory level. This, Nine says, is one of those exceptional cases where it is clear beyond doubt that the claim is statute-barred.
In its primary submissions, Nine argues that the claim in negligence and/or intentional tort is subject to a six-year limitation period in accordance with s 14 of the Limitation Act 1969 (NSW) (Limitation Act). It argues that all of the material facts alleged against Nine culminated in the assault by Kelso on 4 December 2017, and as such, occurred more than six years before the commencement of the current proceedings on 7 July 2024.
Nine calls in aid of its position the conclusions of Judge Weber in the determination of the 2024 Motion, where his Honour agreed that the claim now advanced against Nine would be statute-barred.
Beyond the limitation point, Nine argues that the plaintiff's claim does not rely upon any conduct by Nine itself. As Nine points out, the complaints centre around conduct of Harbour Radio Pty Ltd, Fairfax Media Publications Pty Ltd, and persons employed by and/or associated with those two companies.
Nine says there is no scope for vicarious liability in those circumstances. It argues that the evidence before the Court establishes there was no connection between Nine and Harbour Radio Pty Ltd, Fairfax Media Publications Pty Ltd or their employees until a merger of media groups on 7 December 2018 which postdates the conduct complained of.
Otherwise, Nine submits that in the 2024 Motion, Judge Weber accepted that the amendments proposed in that Motion, which in substance form the basis of the current proceedings, did not disclose a cause of action against Nine.
Nine argues, in terms of abuse of process, that the plaintiff is seeking to relitigate the 2017 proceedings, to duplicate the 2018 proceedings, and to agitate previously unsuccessful applications brought in this Court. Otherwise, Nine says that the plaintiff's claim involves what it refers to as "litigation about litigation”, which should not be allowed on policy grounds.
In short, Nine argues that the decision of Judge Abadee in determining the 2021 Motion effectively precludes the claim the plaintiff seeks to advance against it in the current proceedings.
It is acknowledged by Nine that the nominated entity (NEC PL) which the plaintiff sought to join to the 2018 proceedings is a different corporate entity to Nine. Nonetheless, Nine says that the determination of the joinder application in the 2021 Motion, as a matter of discretion, ought preclude the attempt to pursue the same issue against it. To do so, it is submitted, would be to relitigate that issue.
Otherwise, Nine argues that the current proceedings are a direct re-litigation of the 2024 Motion and submits that the plaintiff was asserting “the same claims and particulars against the same company in the 2024 joinder application as he now asserts in the current case”. It is, Nine says, an abuse of process for the plaintiff to be able to do so.
Finally on the abuse of process argument, Nine contends the plaintiff is, inter alia, pursuing a claim about the way in which parties drafted their defences in the 2017 proceedings and the evidentiary steps taken by those parties. Nine advances public policy considerations in support of the proposition that there ought not be tortious liability for the way in which a party conducts their case. There is, in Nine's submission, no place for negligence or intentional tort based causes of action against it in those circumstances.
In response to the Limitation Act issues initially raised against him, the plaintiff argued in writing that he is not statute-barred and advanced the proposition that the claim is governed by s 26 of the Limitation Act which relates to contribution between tortfeasors.
Clearly, reliance on s 26 is misconceived as, on the plaintiff’s case, his is a direct claim in respect of an alleged tort, not a claim for contribution between tortfeasors. In any event, the plaintiff did not press that argument before me.
Otherwise, in the context of the Limitation Act, the plaintiff relies on the chronology of events disclosed in his affidavit affirmed 8 November 2024 as providing what he says is an explanation for the delay in commencing the current proceedings.
The plaintiff argues that the conclusions of Judge Weber, upon which Nine relies on the limitation point, do not reflect determinations made by his Honour on the merits but rather are just observations that he agreed with Nine’s submissions. I infer that the plaintiff contends this aspect of Judge Weber’s decision was essentially obiter dicta.
The plaintiff argues that the current proceedings disclose a discernible cause of action which he supports with the following propositions:
The claim against Nine is that it is vicariously liable for the torts committed by its subsidiaries.
Nine incorrectly assumes there is no cause of action because the alleged tort took place on 4 December 2017, whereas Nine’s liability, according to the plaintiff, extends to those corporate entities which became subsidiaries of Nine on 7 December 2018.
The plaintiff says that if he is incorrect in his contention that Nine has vicarious liability for its subsidiaries, this can readily be corrected by replacing Nine with those subsidiaries, whose legal representatives are the same.
“joint negligent and/or intentionally tortious conduct, by which both Nine & the State, employed unconscionably reckless, dishonest & fraudulent tactics for the purpose of defending, at any cost and by any means, against my 2017 defamation claims, conduct which I assert that it:
a. comforted & emboldened Alexander Edward Kelso and contributed to his 4th December 20217 [sic] attempted murder against me which led to me being seriously injured.
b. And that it influenced and was at the origin of the Police officers’ the Council rangers’ complained-of conduct in my 2018 ASOC, which it too comforted & emboldened Alexander Edward Kelso and contributed to his 4th December 20217 [sic] attempted murder against me, which led to me being seriously injured.”
The plaintiff, unhelpfully, argues that Nine’s submissions are a continuation of dishonest tactics by which it seeks to mislead the Court into accepting its position, selectively quoting out of context parts of Judge Abadee’s findings. In due course, I will come to a consideration of the respective positions, however, at this point I make clear that I do not accept this aspect of the plaintiff's submissions. In my view, there has been no attempt by Nine, nor any other party the plaintiff sues, to mislead or do anything other than present available arguments.
The plaintiff argues that Judge Abadee, in rejecting the plaintiff’s application to join Nine to the 2018 proceedings in the 2021 Motion, did so on a misapprehension. Again, I observe at this point that I consider this submission to be without foundation.
The plaintiff disputes the proposition that he seeks to duplicate the 2018 proceedings. He submits that the current proceedings are an independent claim in intentional tort and negligence.
Similarly, the plaintiff contends that there is no attempt to relitigate the 2021 Motion and says that the determination of Judge Abadee does not preclude him from pursuing a claim against Nine in the current proceedings.
Likewise, the plaintiff submits that he is not attempting to relitigate the 2024 Motion. He argues that the decision of Judge Weber was primarily based on considerations of delay relevant to the 2018 proceedings, which do not arise in the current context.
The plaintiff relies upon the observations of Simpson JA in Mohareb v Kelso [2017] NSWCA 98 at [34], where her Honour discussed the concept of the plaintiff commencing fresh proceedings to advance allegations which had been rejected by the Judge in an interlocutory application to amend existing proceedings to include those claims.
The plaintiff disputes Nine’s argument that he is seeking to litigate about litigation and contends:
“That Nine & the State deceitfully, fraudulently & recklessly, certified their defense [sic] documents in the knowledge that they did not have reasonable grounds for believing, on the basis of provable facts [which Nine and the State knew that they did not have] and a reasonably arguable view of the law [which Nine and the State knew was not available to them] that their defense [sic] pleadings had reasonable prospects of success*.*”
The causes of action relied upon by the plaintiff against Nine and the other defendants are based in tort, namely negligence and the intentional infliction of harm.
The general time limit prescribed under s 14 of the Limitation Act for causes of action founded on tort is six years. However, as I raised in general terms with the parties during the course of argument, causes of action for damages that relate to death or personal injury, whether brought in tort or otherwise, are subject to the time limits prescribed under Pt 2 Div 6 of the Limitation Act.
No party adequately addressed this aspect of the Limitation Act, which in due course led to me making directions in each matter for further written submissions on that point. Those submissions have now been received.
On this issue, Nine submitted the causes of action upon which the plaintiff sues, if relating to death or personal injury, are statute barred because they were discoverable within the meaning of the legislation more than three years before the commencement of these proceedings.
The plaintiff resisted that proposition and relied upon his earlier submission to say that the proceedings were commenced within time if the claim is regarded as a claim for damages for personal injury, which he submits it can be.
Whilst the plaintiff did not engage with the issues involved in this aspect of the limitation defence in any particular detail, I approach the matter on the basis that Nine (and each of the other defendants in their respective applications) bears the onus and must positively satisfy me in this interlocutory context that this is the “clearest of cases” of the claim being statute barred: see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533; [1992] HCA 55 (Mason CJ, Dawson, Gaudron and McHugh JJ); General Steel Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; [1964] HCA 69 (Barwick CJ).
Consideration of the Limitation Act issues brings into sharp focus the fact that there are a number of shortcomings with the Amended Statement of Claim in failing to clearly articulate the claims made. Nonetheless, having regard to the submissions made by the plaintiff, it is clear in my view that, in these proceedings, he seeks damages for personal injuries [3] (see for example, Tcpt 56.15-57.45, 90.05-90.10, 91.40-92.10).
In any event, it is apparent that the causes of action upon which the plaintiff purports to sue can realistically involve only claims for personal injury damages. I say that because the plaintiff has specifically disavowed any defamation claim against Nine (Tcpt 40.45-41.05), his claim in negligence does not include any claim for property damage and, as formulated, can realistically only reflect a claim for personal injury damages. [4]
Likewise the claim advanced in intentional tort by definition involves the infliction of physical ham and thus, in the context of the case advanced by the plaintiff, must be taken to involve a claim for personal injury damages. [5]
Accordingly, the case advanced by the plaintiff is in my view governed by Pt 2 Div 6 of the Limitation Act.
As such, one turns to s 50C of the Limitation Act which imposes two limitation periods, with a cause of action not being maintainable if brought after the expiration of the first of those periods to expire. Those periods are:
The “3 year post discoverability limitation period”, being three years from, and including, the date on which the cause of action is discoverable by the plaintiff.
The “12 year long-stop limitation period” which runs from the time of the act or omission alleged to have resulted in the injury sued on.
The long-stop limitation period has not yet expired and so the question is whether the causes of action upon which the plaintiff purports to sue was “discoverable”, for the purposes of s 50C, more than three years prior to the commencement of these proceedings on 7 July 2024. In other words, were they discoverable prior to 7 July 2021?
Whether a cause of action is “discoverable” is explained in section 50D(1) of the Limitation Act, being when the plaintiff knew or ought to have known of each of three facts, namely:
The fact that the injury had occurred.
The fact that the injury was caused by the fault of the defendant.
The fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
Section 50D(2) of the Limitation Act provides that a person “ought to know” of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
Section 50D(3) provides that, in determining what a person knows or ought to have known, a Court may have regard to the conduct and statements, oral or in writing, of the person.
It is clear enough that any injury upon which the plaintiff sues Nine arises from the assault perpetrated by Kelso and perhaps, conceivably, some emotional trauma arising out of the various events occurring prior to that assault pleaded in the Amended Statement of Claim.
In terms of s 50D(1)(a), one would expect the plaintiff was aware that such injury had occurred contemporaneously with its happening. Even were that proposition open to argument, it is nonetheless, in my view, inescapable that the plaintiff was aware of the injuries upon which he now sues Nine more than three years before the commencement of these proceedings on 7 July 2024. That conclusion follows from the fact that those injuries were the subject of the 2018 proceedings and were the focus of the 2021 Motion determined by Judge Abadee on 14 May 2021.
In terms of s 50D(1)(b), Nine must establish the plaintiff knew prior to 7 July 2021 that the injury he alleges was caused by the fault of Nine.
The operation of s 50D(1)(b) of the Limitation Act has been the subject of recent consideration by the Court of Appeal in Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295 (Agrigrain), which included reference to the Court’s earlier decision in Synergy Scaffolding Pty Ltd v Alelaimat [2023] NSWCA 213 (Synergy Scaffolding) where Simpson AJA said at [69]:
“… To ‘know’ that an injury is caused by the fault of the defendant is to know ‘the key factors necessary to establish liability’. That may involve knowledge of a number of anterior facts, from which a conclusion that the injury was caused by the fault of the defendant may be drawn. The s 50D(1)(b) ‘fact’ is, in reality, a conclusion drawn from known (or supposed) facts. The anterior facts sufficient to justify such a conclusion may … became known to the plaintiff at different times. …”
“Agrigrain argued that ‘[t]o know that an injury was ‘caused by the fault of the defendant’ for the purposes of s 50D(1)(b) of the [Limitation Act], the plaintiff need not know the capacity in which a putative defendant might be liable’; rather, ‘[i]t suffices that the plaintiff knows that the circumstances in which the injury occurred are such that legal liability could be established’ against the defendant. These arguments are correct. …”
“So the real date is, is, is, is-you know, that's why I say in my submissions that the key date is 10 December 2020, not 4 December 2017 because that's when it became necessary for me to think about if there was anything other than defamation that I could hold Nine responsible to, you know accountable for, other than defamation in terms of law. I knew that, you know, you know, the defence is - but when, when I was attacked and almost got killed, there was no, there was no possibility for me to think about these things. I wasn't - was not in a physical or psychological or mental position to think.
And the claim that I started in June 2018, I did that because there was a defamation component to it which is, which is what the chief inspector had said about me, but I was mentally disturbed and needed to, to be turned in a mental asylum because I said that, that, that if, if no action was taken about Kelso that he would commit another, other criminal acts. That, that had happened in, in, in mid - in August 2017.
So, so there was an urgency for me to start they claim because of the one year for defamation to, to - and that's why at that time the only thing I can think of is a claim against the police and against the, the, the, the Northern Beaches Council. Plus, the defamation case was still ongoing, was still ongoing, was still going in the court. You know, it wasn't, wasn't dismissed until 10 December 2020.
So there was no possibility before my defamation claim was dismissed for me to consider taking action against, against - it was only when it was dismissed in 10 December 2020 that it became necessary for me to think about is there anything you know now that this is gone, the defamation case against Nine is gone. Is there anything I can legally take action best on it against, you know, Nine subsidiaries other than defamation. And that's when it occurred to me, and that's, you know, I immediately acted on that in the application before Judge Abadee which was on 19 April 2021.
So I wasn't, I wasn't late. It became clear to me, became obvious to me at that time. Before then it was not possible for it to become obvious to me that I could do that. So that's what I'm saying. There’s no basis for Nine's assertions that it was statute-barred. It was not. I'm saying it's not - was not statute-barred, because, because I could not have, have considered it before 10 December 2020, and that's the relevant date, and that's when I started, you know, the action before Judge Abadee.
Judge Abadee - I'm not a lawyer, so maybe my pleadings or my application wasn't clear enough, so he - you know, for some reason I don't know why, assumed that was - I was pursuing a defamation. I was not pursuing a defamation. I've tried to clarify it with an application to clarify it. His Honour said in this case if this is what your intentions were, then you need to file another, another amendment application. …”
It is clear then from the evidence and the plaintiff's submissions to the Court that, at all times from at least the commencement of the 2018 proceedings, the plaintiff considered that his injuries were caused by the fault of Nine and after the dismissal of the defamation claim against Nine in those proceedings, he turned his mind to reconfiguring his claim.
To quote from the judgment of Simpson AJA in Synergy Scaffolding, the plaintiff knew of the “key factors necessary to establish [the] liability” he advances against Nine.
It is the case that in the 2021 Motion the plaintiff sought to join NEC PL to the 2018 proceedings and in the 2024 Motion he attempted to join NEH PL, whereas the plaintiff now sues Nine. The reason for the slightly different names being asserted at different times has not been the subject of any evidence, however, it is clear enough that the plaintiff has, in the various incarnations nominated, sought to pursue who he considered to be the controlling media entity responsible for the publications and actions of which he complains. There is no suggestion that Nine is sued in any different capacity to the capacity in which the plaintiff sought to join NEC PL or NEH PL to the 2018 proceedings. Indeed, the plaintiff’s submissions quoted at paragraph [92] above demonstrate that he makes no distinction associated with the different names. Wherever the reason for misnomer lies, it is not a matter of substance and to quote from the judgment in Agrigrain set out above, it is apparent, for the purposes of s 50D(1)(b), the plaintiff knew that “the circumstances in which the injury occurred are such that legal liability could be established” against the party he now sues as Nine.
Finally, in terms of s 50D(1)(c) of the Limitation Act, the commencement of the 2018 proceedings and the bringing of the 2021 Motion establish beyond argument, in my view, that prior to 7 July 2021, the plaintiff was aware of the fact that the injuries upon which he sues were sufficiently serious to justify the bringing of an action on the cause of action he pursues against Nine in the current proceedings.
Accordingly, for those reasons, I am satisfied that the plaintiff had the knowledge required under s 50D(1) of the Limitation Act more than three years before the commencement of the current proceedings. Thus, in accordance with s 50C(1) of the Limitation Act, the proceedings against Nine have been brought after the expiration of the “3 year post discoverability limitation period” and are not maintainable.
If, and to the extent that, I am wrong in my conclusion that the plaintiff’s claim for damages relates to personal injury and is governed by Pt 2 Div 6 of the Limitation Act, I accept the chronology advanced by Nine establishes that the cause of action relied upon by the plaintiff occurred more than six years before the commencement of these proceedings and as such is statute barred pursuant to s 14.
As I have noted, it is well settled authority that summary dismissal of proceedings as statute barred is a power exercised with caution and is reserved for only the clearest of cases.
Whilst a defence has not yet been filed by any of the defendants, the limitation issue is indubitably an issue raised positively by all defendants and directly engaged with in these applications.
Notwithstanding the caution required, I have, for the reasons outlined, come to the conclusion that the plaintiff’s claim against Nine in the current proceedings is statute-barred and will inevitably fail.
Accordingly, on that basis alone, I am of the view that the plaintiff’s proceedings against Nine do not disclose a reasonable cause of action and should be dismissed.
Whilst that is sufficient to dispose of Nine’s application, for completeness, and against the contingency of error in determining the limitation issue, I turn to consider briefly the other grounds upon which Nine contends the proceedings ought be struck out or dismissed.
As was correctly pointed out in submissions made on behalf of Nine, there is no pleading of any direct act or omission on Nine’s part. The claim is based entirely on vicarious liability.
The concept of the vicarious liability was recently considered by the High Court in Bird v DP (a pseudonym) (2024) 98 ALJR 1349; [2024] HCA 41, from which it is clear that an employment relationship is required to establish vicarious liability. In short there is no basis in law to argue that Nine can be vicariously liable for the acts of its subsidiary companies.
However, even on the case he pleads, the plaintiff faces what is perhaps a more fundamental problem.
The unchallenged evidence of Larina Alick at pars 5-10 of her affidavit affirmed on 26 July 2024 is that at all relevant times Nine had no connection with any subsidiary company potentially relevant to the plaintiff's allegations.
Indeed, at par 9 of the Amended Statement of Claim the plaintiff acknowledges that the media organisations he levels his allegations against “have since become subsidiaries of Nine”.
In all the circumstances, I am satisfied that the plaintiff's allegations of vicarious liability against Nine have no prospect of success at a foundational level.
In his written submissions, the plaintiff maintained his belief that Nine was the correct entity, however, in his oral submissions (Tcpt 43.25 - 45.10 and 91.05 - 91.10), the plaintiff said if that belief were incorrect, he required the opportunity to further amend the Statement of Claim to replace Nine with the subsidiaries in question, whose legal representatives, it is said, are the same as Nine.
Nine argues that it cannot readily be replaced by subsidiaries. Before me, Ms Alick, who appeared for Nine, challenged the plaintiff's contention that he was mistakenly led to believe that Nine was the proper entity to sue. Ms Alick points to the Supplement to the Amended Statement of Claim which was before Judge Weber on the hearing of the 2024 Motion in which the plaintiff references the fact that “the two media entities Fairfax Media Publication Pty Ltd and Harbour Radio Pty Ltd have since become subsidiaries of Nine Media Publications”.
With that in mind, Ms Alick directs me to the judgment of Judge Weber where, in determining the 2024 Motion, at [33] his Honour refers to the plaintiff seeking to join Nine or its subsidiaries to the proceedings. Ms Alick submits this demonstrates that the plaintiff was not misinformed. Essentially, it is argued that when he commenced these proceedings the plaintiff was aware of the controversy as to whether Nine was the proper defendant and was not operating under any mistake. With that knowledge the plaintiff sued Nine rather than any so-called subsidiaries and has persisted in that position. Nine argues it is not appropriate in those circumstances to allow the plaintiff to replead on this point.
The issue of whether the plaintiff ought be allowed to replead against the so-called subsidiaries is rendered academic by my conclusions in relation to the proceedings against Nine being statute-barred and thus liable to be struck out.
Were it otherwise, I incline to the view in the circumstances that, as the amendment required would involve the formulation and articulation of a different case against entirely different parties, it would not be appropriate to allow repleading to substitute those so-called subsidiaries in these proceedings.
“Intentional tort is that they are making allegations against me that are false, they create - due to their power as a mainstream media - they create a really -just, just like a, like a, just create, create, you know like a public enemy number one person, and that creates a whole hostility against that person in the knowledge that that would happen to that person, that's intentional tort, that's what I'm saying, a tort is doing something wrong against a person. So, so using their power as a mainstream media to - -".
The plaintiff went on to refer to the use of influence as a mainstream media provider to turn a person from “a victim into an aggressor” (Tcpt 48.47).
Nine submits the plaintiff is in those submissions effectively describing elements of a claim in defamation. That submission is persuasive.
In his determination of the 2021 Motion, Judge Abadee referred at [53] to an essential element of the plaintiff's proposed claim in negligence being the fact that the publications had hurt his reputation and manifested in various other types of harm.
His Honour observed at [55], having regard to the authorities there cited, that an action in negligence founded on reputational damage would be liable to be struck out on the basis that to accept a duty of care in those circumstances would generate incoherence in the law because of the intersection with the law of defamation. Respectfully, I agree with his Honour’s observations.
Further, Judge Abadee declined to accede to the application to join NEC PL to the 2018 proceedings for the reasons his Honour set out at [56]-[60].
It seems to me that the claims in negligence and intentional tort for personal injuries in the current proceedings, so far as they rely on the interview, are a transparent attempt to circumvent the findings and conclusions by Judge Abadee and the related proceedings in the Court of Appeal. To that extent, in my view the current proceedings are an abuse of process and ought be struck out.
The allegations against Nine, so far as they relate to alleged dishonest “defence documents” filed in the 2017 proceedings, are embedded in pars 9, 10 and 11 of the Amended Statement of Claim in the current proceedings. On the face of it, those allegations are, in substance, largely included in pars 7(c)(iii) and (iv), 7(d)(i) and (ii), (9(e)(iii) and (iv), 9f(i) and (ii), 11(b)(iii) and (iv), and 11(c)(i) and (ii) of the proposed Amended Statement of Claim which Judge Abadee rejected in the 2021 Notice of Motion.
As such, in my view, the plaintiff’s claims against Nine founded on so-called dishonest defence documents are likewise an attempt to circumvent the decision of Judge Abadee and are also an abuse of process.
The observations of Simpson JA in Mohareb v Kelso relied upon by the plaintiff do not reflect an endorsement of commencing fresh proceedings to circumvent earlier orders and determinations. Her Honour was dealing with the entitlement to raise “additional matters” in fresh proceedings which, for the reasons outlined, is not the case here.
Given the conclusions I have reached, it is unnecessary for me to further consider the decision of Judge Weber and the arguments as to whether the current proceedings are an attempt to circumvent the matters decided in the 2024 Motion.
For those reasons, I consider Nine has discharged the weighty onus it bears and has established that the current proceedings against it are statute-barred, do not disclose a reasonable cause of action and are an abuse of process.
It follows that the Amended Statement of Claim, so far as it relates to Nine, ought be struck out and the proceedings brought against Nine dismissed in accordance with the orders I will make at the conclusion of this judgment.
As discussed earlier, the claim against the second and fourth defendants is, in substance, a claim against the State in different guises, namely the former Attorney General, the Police and the ODPP. Whilst the ODPP is sued separately as the fourth defendant, the Amended Statement of Claim in the current proceedings is somewhat ambiguous as to its legal status. Being a government agency, as noted earlier, the claim against the ODPP would seem more properly pleaded as a claim against the State. Nonetheless, for the purposes of this judgment I will, as needed, maintain the demarcation in the Amended Statement of Claim between the government entities sued by the plaintiff.
Again, as noted earlier, the Amended Statement of Claim in the current proceedings asserts vicarious liability on the part of the State for the actions of the former Attorney General and all New South Wales Police officers as well as vicarious liability on the part of the ODPP, inter alia, for persons employed by the ODPP.
The State argues that the Amended Statement of Claim in the current proceedings is simply a demonstration of an established and repeated pattern employed by the plaintiff of attempting to circumvent unsuccessful applications and to plead unmaintainable claims.
The State asserts:
That the claims against it are statute-barred.
That the pleadings are embarrassing in form and that whatever be the cause of action asserted, it is unintelligible.
That whatever it is the plaintiff seeks to pursue is already the subject of the 2018 proceedings or has previously been rejected.
That the permissible ambit of the claim advanced in the 2018 proceedings has been extensively litigated and definitively determined by Judge Abadee and Judge Weber.
In the course of argument it was necessary for Mr Williams, who appeared for the second and fourth defendants, to address pars 32-34 of the Amended Statement of Claim, which plead against both the Police and the ODPP allegations that the plaintiff was prosecuted for common assault on the basis of allegations either known, or which ought to have been known, to be false. The pleading asserts that the Police and the ODPP conducted the prosecution and related investigation in a way which was recklessly indifferent to the harm thereby caused to the plaintiff and led to the plaintiff being falsely convicted of an offence, which was later set aside on appeal.
Mr Williams fairly acknowledged that those paragraphs have the flavour of an allegation of malicious prosecution and are not matters the plaintiff has previously sought to pursue. However, if malicious prosecution is a cause of action the plaintiff wishes to pursue, the pleading in the Amended Statement of Claim is, in my view, far from adequate in terms of articulating the necessary facts, matters and circumstances grounding the elements of that claim.
The precursor to those allegations are found in pars 26-31 of the Amended Statement of Claim which plead against the Police and ODPP complaints which are broadly speaking seated in allegations of incompetence or negligent investigation of Kelso’s attempted murder of the plaintiff and/or that the investigation was conducted in a way that was intentionally harmful to the plaintiff. This, it is said, led to a “manifestly inadequate” sentence of Kelso and “manifestly false findings”, causing the plaintiff extreme hurt and humiliation.
Again, the pleading of those allegations falls well short of articulating an intelligible cause of action.
As earlier noted, the duty is said to be “as per the Charter of Victims Rights NSW”, which is obscure to say the least, and lacks particularity. The nature of the risk is also obscure while the risk of harm is not pleaded, nor is there any discernible pleading of causation.
I make the observation, relevant to matters to which I will shortly come, that a defendant and the Court are not required to “sift through a narrative and then a list of complaints” to try and identify the nature and basis of the cause of action. [6]
On the Limitation Act issue, the State in the first instance argued it was open to the Court to conclude that some of the underlying events were so old as to be “patently out of time” in terms of the general six-year limitation period under s 14 of the Limitation Act.
In the supplementary submissions provided at my direction dealing with the prevailing limitation period if the claim was for damages related to personal injury, the State (without accepting that the current proceedings did involve claims for personal injury damages), argued that the position is clear, and contends that all of the requirements of s 50D(1) were satisfied more than three years prior to the commencement of the current proceedings.
The plaintiff argued that the State is not acting as would a model litigant and criticised Mr Williams’ construction of the current proceedings. Neither criticism finds any support in the material before me. The State's position in my view reflects a legitimate response to the pleading and Mr Williams’ submissions were fair and even-handed.
In response to a proposition put by Mr Williams, the plaintiff defended his entitlement to use the current proceedings as a vehicle to catch things which, as Mr Williams put it, had “fallen by the wayside” in the 2018 proceedings.
The plaintiff contended that the State is misconceived in its criticism of the pleadings in the current proceedings and disputed the suggestion that he is attempting to re-ventilate issues unsuccessfully argued in the 2021 Motion, on the same grounds he advanced in his submissions responding to matters raised by Nine in support of its Notice of Motion.
Again, the plaintiff argued that the decision of Judge Weber was primarily based on considerations of delay.
The plaintiff contended that Judge Weber only rejected his entitlement to bring proceedings against the ODPP on the ground that the plaintiff had not properly pleaded the basis for vicarious liability. The plaintiff argued that such error on his part is corrected in the current proceedings, and so Judge Weber’s comments in that respect are not relevant.
Similarly, the plaintiff argued that Judge Weber rejected the plaintiff's attempt to expand the claim against the Police on the basis that the form of the pleading was deficient but, says the plaintiff, his Honour did not engage in a determination of the substance of his claims. The plaintiff says the decision of Judge Weber in that respect does not provide any impediment to the claim he advances against the Police in the current proceedings.
The plaintiff disputed the proposition that he was attempting to revisit matters previously rejected in the 2021 and 2024 Motions and relied upon lengthy submissions to the effect that the matters he seeks to pursue are separate to the matters which are the subject of the 2018 proceedings.
The plaintiff responded to each of the allegations of duplication made by the State and relies upon what he contends is the limited ambit of the dismissal of his defamation claim against the State by Judge Wass.
As far as the limitation issue is concerned, the plaintiff in the first instance repeated and relied upon the submissions made in response to the application made by Nine.
In his supplementary submissions dealing with time limitations applicable to personal injury damages, the plaintiff confirmed that his claim was grounded in personal injury and argued that the discovery of his course of action against the former Attorney General evolved over time.
As outlined above, the Amended Statement of Claim contains the semblance of a claim for malicious prosecution. That can, but does not necessarily, involve a claim for damages for personal injury.
Any cause of action for malicious prosecution would be founded on events which, as pleaded, occurred sometime after April 2019. Accordingly, to the extent that such a claim did not involve a claim for damages for personal injury, it would fall under s 14 of the L**imitation A**ct which, as discussed earlier, imposes a six-year limitation period. With the current proceedings having been commenced in 2024, any claim for malicious prosecution not involving a claim for personal injury damages would therefore not be statute-barred.
As will be seen from the reasons which follow, I consider it appropriate that the plaintiff have leave to replead a claim for malicious prosecution if he chooses to. Whether, and to what extent, such a claim seeks damages for personal injury and if so, whether there is any scope for that claim being statute-barred cannot be determined on the evidence as it stands and will ultimately be a matter for the trial, or at least another day. The limitation point raised by the State does not therefore provide any basis, at this interlocutory stage, for dismissing a claim for malicious prosecution, if that claim be made.
Leaving aside any claim for malicious prosecution, as with the other defendants, the claims the plaintiff makes against the State lie in negligence and intentional infliction of harm which, for the reasons provided earlier, I consider on the way the plaintiff presents his case, reflect claims for personal injury damages.
Accordingly, for the reasons I have discussed at length, those claims are subject to a limitation period of three years from the date the cause of action was “discoverable”.
Again, the hearing of the 2021 Motion provides cogent evidence as to the plaintiff's knowledge at that time of the facts prescribed under s 50D(1) of the L**imitation A**ct.
In the application of s 50D(1)(a), for the reasons already set out in relation to the plaintiff's claim against Nine, the plaintiff was, as at the date of the hearing of the 2021 Motion, if not before, aware he had suffered any injuries he relies upon in the current proceedings.
In considering the application of s 50D(1)(b) of the Limitation Act, as I have said, I am unable to reach a conclusion as to whether any claim for malicious prosecution, as may be contemplated by pars 32-34 of the Amended Statement of Claim, is statute-barred.
I am also unable to form a concluded view on the evidence as to whether the causes of action arising out of the allegations made against the ODPP in pars 26-31 of the Amended Statement of Claim (discussed in pars [134] – [137] above) are statute-barred. Whilst it is clear that at the time of the 2021 Motion the plaintiff pleaded the involvement of the ODPP (in pars 16(i)-16(l) of the Amended Statement of Claim in the 2018 proceedings), he did not advance a claim of tortious wrongdoing against the ODPP. Accordingly, I cannot determine on this application, for the purposes of s 50D(1)(b), whether the plaintiff knew or ought to have known of the fault he now asserts against the ODPP more than three years before the commencement of the current proceedings.
This is to be contrasted with the factual allegations the plaintiff makes against the Police in pars 26-31 of the Amended Statement of Claim, the substance of which can be identified in pars 54(t), 54(u), 55(bb), 55(dd), and 55(ee) of the Amended Statement of Claim relied upon in the 2018 proceedings at the time of the 2021 Motion. As such, I am satisfied that the plaintiff had the requisite knowledge under s 50D(1)(b) in relation to the causes of action advanced in pars 26-31 of the Amended Statement of Claim, so far as they relate to the Police.
Similarly, the various factual allegations advanced against the State in support of the other causes of action pleaded in the Amended Statement of Claim in the current proceedings are factual allegations pleaded in support of the causes of action pursued against the State in the Amended Statement of Claim which underpinned the 2021 Motion. It is thus inescapable, for the purposes of s 50D(1)(b) that, (apart from any claim for malicious prosecution and the cause of action discussed in par [158] above) the plaintiff was aware more than three years before the commencement of the current proceedings of the key factors to establish liability against the State.
In the application of s 50D(1)(c) of the L**imitation A**ct, it is in my view axiomatic that at the time of the 2021 Motion the plaintiff considered the injuries upon which he sues in the current proceedings were sufficiently serious to justify the bringing of an action on the causes of action he now advances.
Accordingly, (again leaving aside any claim for malicious prosecution or claims against the ODPP in respect of the matters pleaded in pars 26-31 of the Amended Statement of Claim), the claims the plaintiff brings against the State in the current proceedings are statute-barred and not maintainable.
For completeness, if, and to the extent that, I am wrong in my view that the prevailing limitation period is that provided in Pt 2 Div 6, one is thrown back to the six-year limitation period prescribed in s 14 of the Limitation Act. This would, in practical terms, result only in causes of action founded on events occurring prior to 7 July 2018 being statute barred
Against the contingency of error in my determination of the limitation point, I turn then to consider briefly the other grounds relied upon by the State in this application.
For the reasons already touched upon, there is considerable force in the proposition that the Amended Statement of Claim in the current proceedings fails to articulate an intelligible cause of action against the second and fourth defendants. There is, for example, no intelligible pleading of the nature and scope of the duty of care said to be owed to the plaintiff by the Police, the former Attorney General, or the ODPP. The risk of harm is not articulated in any meaningful way, nor is there any pleading which would inform the basis upon which the plaintiff contends that his injuries were foreseeable. Causation is also not addressed in any meaningful way.
The claims for intentional infliction of harm are likewise not pleaded with any clarity.
As noted at par [133] above, if there is a claim for malicious prosecution, it too is not pleaded in any meaningful or intelligible way.
Generally, and particularly in cases involving self-represented litigants, the Court would look to allowing the plaintiff to replead where the form of the pleadings is the issue.
However, apart from potential claims against the Police and the ODPP for malicious prosecution contained in pars 32-34 of the Amended Statement of Claim, and a claim against the ODPP in respect of the matters pleaded in pars 26-31 of the Amended Statement of Claim, which are claims not previously articulated by the plaintiff, I accept the State’s submission that the claims the plaintiff seeks to ventilate against the second and fourth defendants in the current proceedings are, in substance, claims either rejected by Judge Abadee in his determination of the 2021 Motion, or are otherwise claims already the subject of the 2018 proceedings. For that reason, I consider those claims to be an abuse of process and repleading them would be futile. [7]
Accordingly, in light of the deficiencies in pleading I have outlined, I consider the plaintiff ought have leave to replead, should he so choose, restricted to those limited causes of action which have survived the State’s application.
In granting leave to replead, I do not accept the State’s submission that the plaintiff is precluded from bringing a claim against the ODPP because of the determination of the 2024 Motion by Judge Weber. In my view the plaintiff is correct in his argument that his Honour did not foreclose a claim against the ODPP generally. Rather, at [55] of the judgment, his Honour declined to allow the foreshadowed amendment as there was no pleaded basis for the claim.
In the circumstances, the Amended Statement of Claim so far as it relates to the second and fourth defendants ought be struck out. For the reasons I have outlined, the plaintiff is to have leave, should he so choose, to replead and file a Further Amended Statement of Claim against the State, limited to:
Pleading a claim for malicious prosecution by the Police and/or the ODPP, related to the circumstances which were pleaded in pars 32-34 of the Amended Statement of Claim.
Pleading a claim against the ODPP in negligence or intentional infliction of harm, related to the circumstances which were pleaded in pars 26-31 of the Amended Statement of Claim.
Beyond the deficiencies outlined, it is not for the Court to advise the plaintiff in relation to pleadings, however if he is to replead a claim for malicious prosecution, the plaintiff would be well advised to consider the observations of the High Court as to the elements of that tort in A v State of New South Wales (2007) 200 CLR 500; [2007] HCA 10 at [1] and in Beckett v State of New South Wales (2013) 248 CLR 432; [2013] HCA 17 at [4].
Orders will be made at the conclusion of this judgment disposing of the applications made by the second and fourth defendants in accordance with these reasons.
The Council argues that the allegations made against it in pars 23 - 25 of the Amended Statement of Claim in the current proceedings are identical to the allegations the plaintiff unsuccessfully sought to advance against it in the 2024 Motion.
Accordingly, the Council contends that the current proceedings are a transparent attempt to circumvent the orders made by Judge Weber in his determination of the 2024 Motion and are for that, if no other reason, an abuse of process.
The Council contends that the current proceedings are also an abuse of process as, if they are allowed to remain on foot, they would similarly operate to subvert the orders made by Judge Abadee in determining the 2021 Motion and the subsequent refusal of leave to appeal from that decision.
The Council argues that the pleadings at pars 23 - 25 of the Amended Statement of Claim do not disclose any coherent allegations grounding a cause of action against the Council. Rather, they are simply a narrative of events, without providing the fabric of an intelligible cause of action.
In any event, it was argued that a cause of action, if disclosed, would be statute-barred under s 14 of the Limitation Act as the events occurred more than six years prior to the filing of the current proceedings.
As with the other defendants, the Council provided supplementary submissions as to why, in the event that the claim is for personal injury damages, the causes of action the plaintiff advances against it were discoverable more than three years before the commencement of the current proceedings.
The plaintiff resisted the Council's arguments in his written submissions by repeating the matters put in response to the submissions of the second and fourth defendants.
Again, the plaintiff argued that in light of the observations of Simpson JA in Mohareb v Kelso (supra), there is nothing to prevent him from commencing fresh proceedings to make additional allegations. He emphasised that the Court ought be slow to terminate proceedings summarily because of a defective pleading by an unrepresented party when there is the potential for a viable cause of action, albeit with a need for amendment and some assistance from the Court.
In response to the limitation point, the plaintiff repeated his earlier submissions made in response to the applications of the other defendants. He confirmed in supplementary submissions that his claim is for personal injury.
For the reasons already canvassed at length, in my view the limitation issues fall to be determined in accordance with Pt 2 Div 6 of the Limitation Act.
As already noted, the allegations against the Council in the Amended Statement of Claim in the current proceedings are found in pars 23 - 25. Those allegations immediately follow the heading:
"Joint claim in negligence and/or intentional tort, against the State and the Council-as per the plaintiff's 8th June 2021 filed Amended Statement of Claim… the Plaintiff relies upon the following further particulars”.
The heading adopted by the plaintiff acknowledges that the allegations he makes in the current proceedings are linked to the allegations made in the 2018 proceedings.
In fact, pars 23, 24 and 25 of the Amended Statement of Claim in the current proceedings are identical to struck through pars 19, 20 and 21 of the Amended Statement of Claim filed on 8 June 2021 following the orders of Judge Abadee in his determination of the 2021 Motion. In other words, the very paragraphs the plaintiff now pleads against the Council are those which he sought unsuccessfully to plead in the 2018 proceedings as part of the narrative of material facts said to ground causes of action against the Council.
In my view, against this background, it is beyond question that as at the time of the 2021 Motion the plaintiff was aware of all of the requirements of s 50D(1) of the Limitation Act, when he tried unsuccessfully to rely upon the allegations which form the basis of his claim against the Council in the current proceedings. It follows in the clearest terms that the cause of action he now pursues was discoverable more than three years before the commencement of the current proceedings and as such, the claim he makes against the Council is statute-barred.
If I am wrong in my conclusion as to the application of Pt 2 Div 6 of the Limitation Act, and to the extent that the claim is considered not to be a claim for personal injury damages, the cause of action would be limited to one event occurring less than six years before the commencement of the current proceedings, namely, that pleaded in par 25 of the Amended Statement of Claim occurring on 22 February 2019. In my view, no intelligible cause of action is discernible against the Council in those circumstances.
In any event, I consider that if not statute-barred, the claim the plaintiff makes against the Council in the current proceedings is a clear abuse of process. Transparently, the present proceedings are an attempt to plead that which Judge Abadee rejected in 2021, and the proceedings against the Council are liable to be struck out for that reason as well.
As noted earlier, the plaintiff’s reliance on the dicta of Simpson JA in Mohareb v Kelso is misconceived and does not permit him to circumvent prior determinations of the Court.
Again, in light of my conclusions, it is unnecessary for me to consider the question of whether these proceedings are also an abuse of process in being used as a vehicle to overcome the determination of Judge Weber on the 2024 Motion.
Accordingly, based on the reasons detailed above, I make the following orders in the respect of the Notices of Motion before me.
In respect of the Notice of Motion filed by the first defendant on 26 July 2024:
The Amended Statement of Claim filed in these proceedings on 2 August 2024, so far as it relates to the first defendant, is struck out.
The proceedings against the first defendant are dismissed.
The plaintiff is to pay the first defendant’s costs of this Notice of Motion and of the proceedings.
In respect of the Notice of Motion filed by the second and fourth defendants on 2 August 2024:
The Amended Statement of Claim filed in these proceedings on 2 August 2024, so far as it relates to the second and fourth defendants, is struck out.
The plaintiff has leave to replead and file a Further Amended Statement of Claim limited to:
(a) Pleading a claim in malicious prosecution against the Police and/or the Office of the Director of Public Prosecutions related to the circumstances which were pleaded in paragraphs 32-34 of the Amended Statement of Claim. (b) Pleading a claim in negligence and/or intentional infliction of harm against the Office of the Director of Public Prosecutions related to the circumstances which were pleaded in paragraphs 26-31 of the Amended Statement of Claim.
The Further Amended Statement of Claim contemplated by Order 2 above is to be filed and served by 22 May 2025.
Other than those claims for which leave has been granted to replead in Order 2 above, the proceedings against the second and fourth defendants are dismissed.
If the plaintiff does not file and serve a Further Amended Statement of Claim in accordance with Orders 2 and 3 above, the proceedings against the second and fourth defendants are dismissed in their entirety.
The plaintiff is to pay the second and fourth defendants’ costs of the Notice of Motion.
In respect of the Notice of Motion filed by the third defendant on 1 August 2024:
The Amended Statement of Claim filed in these proceedings on 2 August 2024, so far as it relates to the third defendant, is struck out.
The proceedings against the third defendant are dismissed.
The plaintiff is to pay the third defendant’s costs of this Notice of Motion and of the proceedings.
**********
As contemplated by s 5 of the Crown Proceedings Act 1988 (NSW).
See Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 at [62].
Section 11 of the Limitation Act defines “personal injury” as including “any disease and any impairment of the physical or mental condition of a person”.
Whether the plaintiff can overcome the statutory requirements under s 31 of the Civil Liability Act 2002 (NSW) in establishing that mental harm results from a “recognised psychiatric illness” is a matter for another day.
See generally the observations of Simpson JA in P v D [2020] NSWSC 224 at [73].
See McGuirk v University of New South Wales [2009] NSWSC 1424 at [50].
For the reasons outlined earlier, the plaintiff’s reliance on the dicta of Simpson JA at [34] in Mohareb v Kelso (supra) to justify re-agitating claims previously rejected is misconceived.
In respect of the Notice of Motion filed by the second and fourth defendants on 2 August 2024, amendment to final Order 2(b) to insert reference to the Office of the Director of Public Prosecutions to align with paragraph [172] of the judgment.
Mohareb
Nine Entertainment Co Holdings Limited [2025] NSWDC 122
(2007) 230 CLR 500
(2013) 248 CLR 432
(2024) 98 ALJR 1349
(1964) 112 CLR 125
(1992) 175 CLR 514
(2003) 77 ALJR 1598
(2007) 200 CLR 500