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[2025] NSWCA 156
respondent. The summons seeking leave to appeal was dismissed with costs: [48].
The Court of Appeal refused permission to challenge the District Court's procedural decisions. The proposed changes to the case raised problems of form and substance and would, on the primary judge's assessment, add delay and expense. The Court found no arguable error or sufficiently clear injustice in that assessment. It also found no basis to appeal the refusal of a jury trial. The application was dismissed with costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,272 words · generated 06/10/2026
In Mohareb v State of New South Wales [2025] NSWCA 156, Mitchelmore JA and Price AJA considered an application for leave to appeal, not a full appeal. The applicant, Nader Mohareb, challenged interlocutory orders made by Weber SC DCJ on 5 July 2024. Those orders dismissed two motions: one seeking a jury trial for specified causes of action, and another seeking further amendments to the pleading, joinder of Nine Entertainment Co Holdings Ltd, reinstatement of previously excluded pleading material, and related relief [1]-[2], [11]-[15].
8 cited instruments linked from this judgment.
The background included three District Court proceedings. Mohareb had proceedings commenced in 2015 against Alexander Kelso, proceedings commenced in 2016 against Taylor Booth, and proceedings commenced in 2018 against the State and Northern Beaches Council [6]. The 2018 proceedings originally included negligence claims and a defamation claim against police. In October 2020, the defamation claim against police was dismissed, while negligence and an intentional tort claim were allowed to proceed subject to particulars [7].
There had already been substantial procedural activity. In May 2021, Abadee DCJ granted leave to file a further amended statement of claim but excluded certain proposed paragraphs and dismissed an application to join additional defendants. The Court of Appeal later refused leave to appeal that decision [9]. The 2024 motion therefore arose after an earlier amendment application had been determined and while the 2018 proceedings had been on foot for several years.
The 2022 motion sought a jury trial. The 2024 motion sought to expand the claims against the State, including allegations concerning police, the Attorney General and the Office of the Director of Public Prosecutions, to join Nine, and to restore paragraphs relating to property damage. It also sought to connect a motion concerning Mr and Mrs Kelso with the 2018 proceedings [14]-[15], [22]-[24].
The Court of Appeal dismissed the summons for leave to appeal with costs [48]. It did not determine a full appeal or finally resolve the underlying claims. Its task was to decide whether the applicant had shown a sufficient reason to pass the leave gateway.
The Court began with the threshold for leave. It said leave is ordinarily granted where a matter raises an issue of principle, a question of general public importance, or an injustice that is reasonably clear and goes beyond what is merely arguable [3]. It emphasised the particular caution appropriate when the proposed appeal concerns an interlocutory decision about practice and procedure. That caution reflects the concern that routine procedural discretion should not be transferred to an appellate court for reconsideration [3].
For the proposed amendments, the primary judge had relied on several grounds. The proposed pleading and a separate “Supplement Document” did not comply with UCPR rr 19.5 and 19.6, and the relationship between the two documents was unclear [16]-[17]. The primary judge also considered the substance of the proposed claims, the likely delay and expense, the absence of a factual connection between some proposed material and the 2018 proceedings, and the consequences for finality [18]-[24]. As to Nine, the primary judge identified multiple bases for refusing joinder, including the absence of common factual or legal questions, delay and expense, limitation concerns, deficiencies in the proposed cause of action and the earlier unsuccessful attempt to join a company described as Nine [24].
The Court of Appeal did not treat the applicant's disagreement with these assessments as enough. It considered the lengthy chronology, the fact that the 2018 proceedings had been commenced in 2018, and the fact that the pleadings had been closed for three years by the time the motion was determined [36], [42]. It concluded that it was open to the primary judge to regard further amendments and joinder as likely to cause substantial delay, wasted costs and case-management difficulties [35]-[36]. The Court found no arguable error in that discretionary assessment [36], [46].
The applicant argued that the primary judge had failed to consider his evidence and submissions, or had denied procedural fairness. The Court rejected that complaint. It referred to the primary judge's engagement with the written submissions during the hearing and to his consideration of reply material dealing with the two-document pleading problem [32]. It also explained that a judge need not address every argument advanced in extensive submissions or evidence. The reasons must be sufficient to disclose the path of reasoning, but need not catalogue every point raised by the losing party [33]. The Court found the reasons adequate.
The proposed allegations about the Attorney General were said to raise issues of public importance concerning judicial independence and the position of self-represented litigants. The Court did not deny that those subjects could be significant in the abstract. Its point was narrower: the amendment had been refused on several grounds, and not solely because of the alleged legal basis of the claim. It was therefore remote that the asserted public question would actually arise for determination on the proposed appeal [29].
The jury application also failed at the leave stage. The relevant statutory starting point is that an action is tried without a jury unless the court orders otherwise. Section 76A of the District Court Act 1973 (NSW) requires satisfaction that the interests of justice require a jury, subject to the statutory requirements described in the judgment [11]. UCPR r 29.2 sets out the application and requisition process for non-defamation proceedings [12]. The primary judge had considered the application significantly out of time, with pleadings closed and a long procedural history [13]. The Court of Appeal also noted that the reasons relied on before the primary judge were directed primarily to the proposed Attorney General amendments, which were not permitted [47].
The judgment does not announce a new legal test or alter the statutory framework. It applies established principles to an application for leave to appeal an interlocutory procedural decision. The Court relied on the familiar threshold of an issue of principle, general public importance or reasonably clear injustice [3]-[4]. It also repeated that appellate courts approach procedural interlocutory decisions cautiously, in part to avoid converting routine exercises of discretion into appeals as of right [3].
For amendments, the Court's account of the governing framework centres on s 64 of the Civil Procedure Act 2005 (NSW), read with the Act's ss 56-58. The judgment recounts that necessary amendments are directed to determining the real questions in proceedings, correcting defects and avoiding multiplicity, but that the court must also act consistently with the dictates of justice and the Act's overriding purpose [35]. Relevant considerations include delay, wasted costs, prejudice, case-management effects, public confidence and the explanation for seeking amendment at the relevant stage. The Court cited the summary of those considerations in Kelly v Mina [2014] NSWCA 9, as referred to in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 [35].
The “before” position, as described by this judgment, is that those statutory and procedural principles were already established. The “after” position is not a changed doctrine, but a case-specific application: the procedural history and the nature and timing of the proposed changes supported the primary judge's refusal, and the Court of Appeal found no basis to grant leave [36], [46]. The judgment does not state that delay automatically defeats an amendment application. Rather, it treats delay and related considerations as part of a broader discretionary assessment.
For jury trials, the judgment recites the statutory default in s 76A: a District Court action is to be tried without a jury unless the court orders otherwise, and the interests of justice must require a jury in a qualifying application [11]. The Court did not develop a new interpretation of that provision. It concluded that the application before it, considered in its procedural context and on the reasons advanced, disclosed no appealable error [13], [47].
At [4], the Court said that “no question of principle or of general importance arises” and that “there is no demonstrated injustice.” In plain English, the applicant had not shown the kind of issue or sufficiently clear unfairness that would justify an appeal from these interlocutory procedural rulings.
At [27], the Court explained the function of a leave application. It adopted the statement that deciding leave is an interlocutory gateway decision, not the appeal itself, and that reasons need only identify the core basis for declining leave. The practical meaning is that the Court was not required to conduct a full merits review or answer every argument in the applicant's extensive materials.
At [33], the Court said that a judge's reasons “are not required to mention every fact or argument relied on by the losing party”. This does not mean a judge may ignore relevant matters. The Court's point was that the primary judge's reasons and the hearing record showed consideration of the submissions, and that the adequacy of reasons is assessed in context.
At [36], the Court concluded that the primary judge could regard the proposed amendments as likely to produce substantial delay, wasted costs and case-management concerns. The applicant had not identified arguable error in that discretionary decision. In plain terms, the appellate court saw the decision as one the primary judge was permitted to make on the history and material before him, not as a decision shown to be plainly wrong.
At [47], the Court connected the jury application to the amendments: because the applicant's reasons were directed primarily to the proposed Attorney General claim, and leave to advance that claim had been refused, the primary judge's assessment of the jury application was not shown to be erroneous.
The decision is most relevant where a party seeks leave to challenge an interlocutory procedural ruling, especially a refusal to amend pleadings or join parties, after a lengthy procedural history. It is particularly pertinent where the primary judge has relied on several independent considerations, such as pleading defects, substantive problems, delay, costs, finality and case management, and the proposed appellant mainly disagrees with how those considerations were weighed [28]-[30], [36], [46].
It is also relevant where a party alleges that a judge ignored submissions because the reasons do not address each point individually. The judgment indicates that the appeal court will consider the reasons as a whole and may also consider the hearing record. A failure to mention every argument does not, by itself, establish that the argument was not considered [32]-[33].
For a claimed issue of public importance, the case illustrates the need for the issue to be capable of arising on the proposed appeal. If the challenged order rests on multiple grounds, and the asserted public question concerns only one of them, the Court may regard the prospect of determining that question as remote [29].
For jury applications, the case may be relevant where a party seeks a jury late in proceedings and relies on matters tied to amendments that the court has refused. The decision applies the statutory default and the requirement to satisfy the interests-of-justice test, but it does not establish that lateness alone determines every jury application [11]-[13], [47].
The judgment was delivered on 18 July 2025. The supplied judgment contains no account of later judicial treatment of Mohareb v State of New South Wales [2025] NSWCA 156. It would therefore be unsupported to say that later courts have followed, distinguished, applied or criticised it.
The judgment itself relies on and refers to earlier authorities. For the general leave threshold, it cites Be Financial Pty Ltd v Das and The Age Company Ltd v Liu [3]. For caution concerning procedural interlocutory decisions, it refers to Re Will of Gilbert, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc, PPK Willoughby Pty Ltd v Baird and Khoury v Coffey Projects (Australia) Pty Ltd [3]. For the amendment principles, it discusses Kelly v Mina and Hannaford [35]. It also explains that the primary judge referred to Ghosh v Scott Newton t/a Shaw Gidley (No 9) for the limited proposition that a court is not required to fashion a maintainable cause of action from unclear pleading material [38]. These are authorities the 2025 Court considered, not evidence of subsequent treatment of the 2025 decision.
The decision does not determine the substantive merits of Mohareb's underlying claims against the State, the Council or any other party. It determines only whether leave should be granted to appeal the interlocutory orders. Nor does it decide, as a general proposition, when a proposed amendment will be sufficiently clear, when delay will be unacceptable, or what circumstances will require a jury. Those questions remain dependent on the particular pleading, procedural history and statutory context.
The judgment also does not decide a freestanding claim about the Attorney General's responsibility for judicial officers. The proposed pleading was not allowed to proceed, and the Court considered it remote that the asserted public-importance questions would arise on an appeal from a refusal resting on multiple grounds [29], [40]. The case should not be read as a comprehensive determination of judicial immunity, judicial independence or government liability.
Similarly, the judgment does not provide a complete account of the factual merits of the proposed claims against the ODPP or Nine. It records the primary judge's reasons and concludes that the applicant had not shown arguable error sufficient for leave [20], [24], [41], [45]-[46]. Its effect is procedural and confined to the leave application.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mohareb v State of New South Wales [2025] NSWCA 156
Hearing dates: On the papers
Date of orders: 18 July 2025
Decision date: 18 July 2025
Before: Mitchelmore JA; Price AJA
Decision: The summons seeking leave to appeal is dismissed with costs.
Catchwords: PRACTICE AND PROCEDURE — leave to appeal — interlocutory decision — dismissal of application for proceeding to be tried by jury — dismissal of application to further amend pleading — dismissal of application to reinstate paragraphs of proposed pleading previously abandoned — dismissal of application to join additional defendants — significant procedural history — no question of principle — no demonstrated injustice
Legislation Cited: Civil Procedure Act 2005 (NSW), pt 6
District Court Act 1973 (NSW), s 76A
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), rr 19.5, 19.6, 29.2
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Ghosh v Scott Newton t/a Shaw Gidley (No 9) [2024] NSWSC 740
Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Kelly v Mina [2014] NSWCA 9
Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371
Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496; [2007] NSWCA 39
Mohareb v Kelso [2017] NSWCA 98
Mohareb v Local Court of New South Wales [2024] NSWCA 235
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Re Will of Gilbert (1946) 46 SR (NSW) 318
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598
Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24
Texts Cited: Nil
Category: Principal judgment
Parties: Nader Mohareb (Applicant)
State of New South Wales (First respondent)
Director of Public Prosecutions (Second respondent)
Nine Entertainment Co Holdings Ltd (Third respondent)
Northern Beaches Council (Fourth respondent)
Alexander Edward Kelso (Fifth respondent)
Vanessa Kelso (Sixth respondent)
Taylor Booth (Seventh respondent)
Representation: Counsel:
A N Williams (First and second respondents)
J P Guihot (Fourth respondent)
Solicitors:
Crown Solicitor for NSW (First and second respondents)
L Alick, in-house counsel, Nine Entertainment Co Holdings Ltd (Third respondent)
Moray & Agnew (Fourth respondent)
File Number(s): 2024/00282196
Publication restriction: Nil
“[1] I have before me two notices of motion filed by the plaintiff. The first in time is the Notice of Motion of 9 November 2022. The only order pressed in that motion is order 5 to the effect that the proceedings referred to in paragraphs 1 to 4 of the motion be heard by a jury. The second Notice of Motion is dated 1 March 2024 and seeks leave to amend the statement of claim in matter 2018/00223230 to add pleadings against:
(1) New South Wales Police (the Police)
(2) the Attorney General
(3) the Office of the Director of Public Prosecutions (ODPP); and
(4) Nine entertainment Holdings Pty Ltd (‘Nine’)
[2] The motion also seeks to ‘reinstate ‘parts of a pleading which the plaintiff alleges Abadee DCJ had ordered be struck out. The three parties opposing the orders sought are the State of New South Wales, the Northern Beaches Council, and Nine.”
As his Honour’s decision was interlocutory, the applicant requires leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(e). The draft notice of appeal contains ten proposed grounds of appeal, which respectively take issue with his Honour’s conclusions on each prayer for relief that the applicant pressed in the two notices of motion, as well as alleging, in ground 1, errors described as “[c]ommon to the whole of the judgment’s findings”. The respondents that took an active role in the hearing in the court below, being the State (on behalf of NSW Police and the Office of the Director of Public Prosecutions (ODPP)), the Council, and Nine Entertainment Co Holdings Ltd (Nine), opposed the grant of leave. The remaining respondents, Alexander Kelso, Vanessa Kelso and Taylor Booth, are involved in other District Court proceedings to which we refer below and were only peripherally involved in the applicant’s notices of motion that are the subject of this appeal. They did not file an appearance in this Court.
Ordinarily, leave to appeal is granted in matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33] and The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]. It is well-settled that this Court exercises particular caution in granting leave to appeal from an interlocutory decision on a matter of practice and procedure: R**e Will of Gilbert (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]. Referring to the leave requirement in s 101(2)(e) in Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371, Basten JA stated at [9]:
“… A decision as to whether to grant or refuse leave in a particular case must have regard to the guiding principles set out in Pt 6 of the Civil Procedure Act, as discussed in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]. Some considerations are specific to the circumstances of the particular case; some operate generally in relation to the control of the court's workload and the impact of a particular practice or procedure on other litigants. Again echoing modern concerns, Jordan CJ in Will of Gilbert abjured an approach which would ‘in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal.’”
The primary judge set out the relevant background to the applications before him at [5] to [28] of his Honour’s reasons for judgment. It is unnecessary to repeat the whole of that background but the following aspects are significant for the present application.
The applicant is the plaintiff in three proceedings in the District Court:
proceedings commenced in July 2015 against Mr Kelso, claiming common law damages for trespass, assault and defamation (the current version of the pleading is an amended statement of claim filed on 8 October 2018) (the 2015 proceedings);
proceedings commenced in September 2016 against Mr Booth, claiming common law damages for defamation and assault (an amended statement of claim was also filed in that matter on 8 October 2018) (the 2016 proceedings); and
proceedings commenced in the Supreme Court in July 2018 against the State (NSW Police), and the Council, which were transferred to the District Court in March 2019, seeking damages against both parties for negligence and for defamation against the police (the 2018 proceedings).
On 1 October 2020, in the 2018 proceedings, Wass SC DCJ dismissed the defamation claim against the police but permitted the claims in negligence and an intentional tort to proceed subject to the provision of particulars.
On 10 December 2020, the Council filed a notice of motion to dismiss the balance of the 2018 proceedings including on the basis that the applicant had been declared bankrupt, and on 11 December 2020 the State filed a notice of motion to have certain paragraphs excluded from a proposed further amended statement of claim. On 19 April 2021, the applicant filed a notice of motion to join Dr Michael Bowler as third defendant and Nine as fourth defendant to the 2018 proceedings, as well as to have the 2015 and 2016 proceedings consolidated with the 2018 proceedings.
On 14 May 2021, Abadee DCJ granted leave for the applicant to file the proposed further amended statement of claim in the 2018 proceedings but excluded certain paragraphs of the proposed pleading. His Honour dismissed the application to join the additional defendants referred to above. His Honour did not consolidate the three proceedings but ordered that the 2015 and 2016 proceedings be heard immediately after the 2018 proceedings by the same trial judge. His Honour dismissed the Council’s application to dismiss the 2018 proceedings: Mohareb v State of NSW [2021] NSWDC 177. On 18 November 2021, the Court of Appeal refused leave to appeal from Abadee DCJ’s decision, with costs: Mohareb v State of NSW [2021] NSWCA 278.
On 14 November 2022, the applicant filed a notice of motion in the Supreme Court seeking orders which included that the 2015, 2016 and 2018 proceedings be transferred to the Supreme Court to be consolidated with criminal contempt proceedings that have been on foot against Mr Kelso since 1 February 2018. On 14 July 2023, Campbell J dismissed that notice of motion with costs: [2023] NSWSC 826. The Court of Appeal refused leave to appeal from Campbell J’s decision, with costs: [2023] NSWCA 289.
76A Action to be tried without jury unless jury required in interests of justice
(1) An action is to be tried without a jury, unless the Court orders otherwise.
(2) The Court may make an order under subsection (1) that an action is to be tried with a jury if—
(a) any party to the action—
(i) files, within the prescribed time, a requisition for trial with a jury, and
(ii) pays the fee prescribed by the regulations made under section 18 of the Civil Procedure Act 2005, and
(b) the Court is satisfied that the interests of justice require that the action be tried by a jury.
(3) A fee paid under this section is to be treated as costs in the action, unless the Court orders otherwise.
(4) This section does not apply to any action for defamation.
Note.
Section 21 of the Defamation Act 2005 makes provision for jury trials in defamation actions.
29.2 Applications and requisitions for juries in proceedings other than defamation proceedings
(1) This rule applies to proceedings other than defamation proceedings.
(2) An application in proceedings to which this rule applies for the proceedings to be tried by jury must be made by notice of motion.
(3) For the purposes of section 85 of the Supreme Court Act 1970 and section 76A of the District Court Act 1973, a requisition for a jury in proceedings to which this rule applies must be filed at the same time as the notice of motion referred to in subrule (2) is filed.
(4) Unless the court otherwise orders, a notice of motion under subrule (2) must be filed—
(a) if the notice is filed by the plaintiff—
(i) within 56 days after service on the defendant of the statement of claim, or
(ii) if a defence is served on the plaintiff within that period, within 28 days after service of the defence on the plaintiff, or …
At the time the applicant filed the notice of motion on 1 March 2024 (2024 notice of motion), the current version of the pleadings in the 2018 proceedings was the version that the applicant had filed on 8 June 2021, pursuant to the leave that Abadee DCJ had granted. By the 2024 notice of motion, the applicant sought to further amend the pleading in the following respects:
to add further pleadings against the State relating to NSW Police, the Attorney General, and the ODPP (prayers 1(a), 1(b) and 1(c));
to join Nine as a third defendant (prayer 1(d)); and
to “reinstate” parts of the pleading that the applicant described as having been struck out by Abadee DCJ (prayer 1(e)).
The applicant also sought an order that a notice of motion filed in proceedings against Mr and Mrs Kelso be joined to the 2018 proceedings (prayer 2).
The primary judge first addressed the form of the proposed amendments, noting that the applicant sought to amend not only by reference to a further amended pleading but also a document titled “Supplement to 8 June 2021 Amended Statement of Claim” (Supplement Document). His Honour observed that the proposed further amended pleading did not comply with rr 19.5 and 19.6 of the UCPR and it was far from clear how the applicant intended the two documents to interact: at [39]. His Honour did not consider that difficulty was overcome by the document the applicant provided with his written submissions in reply, by which (as his Honour described at [40]) the applicant had physically appended the Supplement Document to the proposed further amended pleading.
His Honour concluded that leave to amend should be refused “if for no other reason than the form of the proposed amendments”: at [39]. His Honour also accepted the State’s related submission that it was not for the parties, or the Court, to find a maintainable cause of action amongst the pleading confusion: at [41]. However, his Honour considered that if he decided the motion solely on the basis of matters going to form, “this may lead to yet further delays, and further applications”: at [42]. Accordingly, his Honour proceeded to address additional bases on which it was not appropriate to grant leave to amend.
As concerned the proposed amendments regarding the police (prayer 1(a)), his Honour considered that the amendments purported to expand the case in a form that was embarrassing and would be liable to be struck out. His Honour also considered that the proposed amendments would occasion further delay, which was “an important consideration given the history of the litigation”: at [43].
As to the proposed amendments concerning the Attorney General (prayer 1(b)), in the Supplement Document the applicant alleged that the system of administration of justice, for which the Attorney General was responsible, resulted in judicial officers acting against self-represented litigants in a manner that was biased, hostile, contrary to law and abusive of their authority. His Honour set out in some detail the allegations against particular District Court Judges and the Judicial Registrar, and the Court of Appeal. His Honour concluded that granting leave to amend “would be to render irrelevant and otiose, fundamental concepts which underlie the doctrine of judicial immunity, and thus the conduct of the judicial system”: at [48]. Although his Honour considered that the manner in which the proposed amendments sought to make the Attorney General liable for the actions and omissions of judicial officers was “quite unclear”, they appeared to be to the same effect as an allegation of vicarious liability: at [53]. In concluding that the amendments also would not survive a strikeout application, his Honour stated at [54]:
“In my view, the Attorney General could never be liable in respect of the acts and omissions of judicial officers, for the simple reason that the judicial officers concerned are protected by judicial immunity, and thus there could be no liability which is capable of being visited on the Attorney General.”
In relation to the proposed amendments concerning the ODPP (prayer 1(c)), his Honour concluded that leave should be refused as there was no pleaded basis on which the State or the Attorney General could be liable for the acts and omissions of the ODPP, either at all or in the present case: at [57].
In addition to these specific matters, his Honour accepted the submissions of the State and the Council that the proceedings had been attended by unreasonable delay. The proceedings had been commenced in 2018 and concerned events that took place as far back as April 2013. Viewed against that background, and having regard to ss 56 and 59 of the Civil Procedure Act 2005 (NSW), his Honour considered that the new causes of action “could only cause yet further delay”: at [58].
In so far as the applicant sought to join to the 2018 proceedings a notice of motion that he filed on 25 February 2021 against Mr and Mrs Kelso in separate proceedings (prayer 2), his Honour noted that the notice of motion sought orders that Mr and Mrs Kelso be prosecuted for offences of attempting to pervert the course of justice and perjury by giving false statements to the police and during their evidence in Local Court proceedings. His Honour stated that there was no factual connection between that subject matter and the subject matter of the 2018 proceedings. Coupled with associated further delay and additional expense, his Honour concluded that this was a reason for not granting the leave sought: at [64]-[65].
The primary judge then dealt with the part of the 2024 notice of motion that sought orders to “reinstate” parts of the pleading which the applicant described as having been struck out by Abadee DCJ, and which related to claims for damage to property (prayer 1(e)). His Honour observed at [68] that Abadee DCJ had not struck out the paragraphs but rather had excluded them from the grant of leave to amend. The primary judge accepted the submission of the State and the Council that permitting the amendments would result in unacceptable delay and substantially increased costs: at [70]. His Honour also accepted the submission that allowing the amendments would be contrary to the principle of finality in litigation, relying on the fact that when the applicant was an undischarged bankrupt his trustee in bankruptcy had abandoned the claim in question. His Honour considered that there was a public interest in the applicant being bound by that election: at [72]-[74].
As to the joinder of Nine (prayer 1(d)), his Honour noted that a number of arguments were advanced in opposition to this application. Among the grounds on which his Honour refused to join Nine were: (i) the proposed negligence pleading did not give rise to common factual or legal questions relating to the 2018 proceedings to date; (ii) joinder would cause further unacceptable delay and expense; and (iii) the negligence that the applicant alleged occurred in July to August 2017 and was thus outside the limitation period: at [84]-[87]. His Honour also considered that the proposed pleading did not disclose a cause of action against Nine. Further, the application involved an abuse of process having regard to the applicant’s earlier (unsuccessful) attempt to join Nine as a defendant: at [88].
“These proceedings were commenced in 2018, and thus need to be set down for hearing for the earliest practicable time for trial. There is a clear public interest in that occurring, and a correlative public interest in the proceedings not being further extended and delayed, which would be the inevitable consequence of the plaintiff being granted leave to amend, as sought.”
In considering the application for leave to appeal, the Court has reviewed the applicant’s summary of argument dated 20 September 2024 together with the extensive white book, as well as his amended reply to the responses of the respondents, which comprised 15 closely-typed pages.
Only one of the ten proposed grounds of appeal related to the 2022 notice of motion (ground 9). It is the case that proposed ground 1 is described as common to all of the primary judge’s findings, but it is directed primarily to arguments that the applicant advanced in support of the 2024 notice of motion. Accordingly, the Court will address proposed ground 1 and the other grounds specific to the 2024 notice of motion before addressing proposed ground 9. In giving its reasons below the Court has adopted the approach to which Kirk and McHugh JJA referred in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [34], where their Honours stated:
“Deciding whether to grant leave to appeal is an interlocutory decision: Sanofi v Parke Davis Pty Ltd [1982] HCA 9; (1982) 149 CLR 147 at 152-153. It is not an appeal. It does not finally determine the legal issues at stake. The Court is exercising a broad discretionary power, guided by considerations relevant to the interests of justice, and which is in exercise of a provision meant to serve as a gateway mechanism to determine whether a full hearing of the appeal is appropriate. In this context, in general, the Court need not give extensive reasons for dismissing an application for leave to appeal. They should be sufficient to articulate for the benefit of the parties and, if special leave is sought, the High Court, the core reasons why the Court was not persuaded to exercise its discretion to grant leave to appeal. They can be short. To require extensive reasons – eg addressing in detail all arguments made or grounds raised by an applicant – would be to defeat the very purpose of having a leave gateway: see eg La La Land Byron Bay Pty Ltd v Independent Liquor and Gaming Authority [2015] NSWCA 254 at [9]-[10].”
Proposed grounds 1 to 8 and 10 concerned the primary judge’s refusal of leave to amend the further amended statement of claim in the 2018 proceedings, including to join Nine as a defendant. As summarised above, his Honour refused leave to amend on several independent bases, including the form of the proposed amendments, delay and associated costs (having regard to the provisions of Part 6 of the Civil Procedure Act), as well as difficulties with the substance of what the applicant sought to plead.
Although the applicant submitted that his application for leave to appeal raised questions of public importance and general principle, what he relied on in support of that submission was that part of his amendment application by which he sought to allege liability on the part of the Attorney General for the system of the administration of justice. Specifically, he contended that the proposed appeal involved consideration of: (1) the undermining of the independence of the judiciary by the Attorney General; (2) the liability of the Attorney General for torts; and (3) the prejudicial effect on vulnerable persons, chiefly self-represented litigants. Given that the decision at issue involved a refusal of leave to amend so as to raise these allegations, and that leave to amend was refused on a multitude of grounds, including but not limited to the underlying substance of the allegations, the prospect that any question of public importance of the nature the applicant asserted would arise for consideration was remote.
The applicant otherwise needed to demonstrate a reasonably clear injustice going beyond something that was merely arguable with respect to each of the bases on which his Honour declined the relief sought in the 2024 notice of motion: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (Campbell JA, Young and Meagher JJA agreeing). The applicant’s submissions highlight his dissatisfaction with the primary judge’s conclusions but do not support the existence of arguable error of a nature that would warrant leave to appeal.
The applicant’s proposed ground 1 comprised a series of complaints that the primary judge had disregarded points that he made in his evidence and submissions, including that: delay was not determinative on the proper application of the criteria in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 (“Hannaford”); the course his Honour took would cause disproportionately more delay and expense, having regard to Simpson JA’s observations in Mohareb v Kelso [2017] NSWCA 98 at [34]; and the proposed amendments to the pleading brought it into line with the evidence he had filed. The applicant also submitted that his Honour “baselessly” accepted the respondents’ submissions in circumstances where he had not made any adverse credit findings in relation to him. He also complained that he was denied procedural fairness.
It is not the case that the primary judge disregarded the applicant’s submissions and evidence. It is readily apparent from the material before the Court that the primary judge considered the applicant’s written submissions, not least because when the applicant was making oral submissions during the hearing, his Honour pointed out to the applicant that he was making points that were in his written submissions (Tcpt 28 June 2024, p. 14.42-47), and indicated that he had read the written submissions and understood what the applicant was saying (Tcpt 28 June 2024, p. 15.30-31). His Honour also referred specifically in his reasons to the applicant’s reply, and the document that he provided at that time, by which he sought to address the issue of his proposed further amended pleading sitting across two documents.
It does not otherwise follow from the primary judge not addressing the applicant’s submissions in detail that his Honour did not consider them or disregarded them. His Honour was not required to state his reasons for rejecting each of the arguments that the applicant advanced in 49 pages of submissions and 450 pages of evidence. The content and detail of reasons that a judge is required to provide, including on interlocutory decisions, “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] (French CJ and Kiefel J). The reasons his Honour gave were more than adequate to expose his path of reasoning. A judge’s reasons “are not required to mention every fact or argument relied on by the losing party as relevant to an issue”: Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [62] (Gleeson CJ, McHugh and Gummow JJ).
His Honour was not required to form an adverse view of the applicant’s credit as a precondition to refusing leave to amend, and his Honour did not do so. Rather, his Honour’s acceptance of the respondents’ submissions rested on his Honour’s assessment of matters including the form and content of the proposed pleading, the passage of time since the proceedings were commenced and the likely cost to the existing parties that would be associated with the amendments if accepted. All of those matters were well within his Honour’s realm of judicial experience to assess and form a view on.
“[45] The amendment application was governed by s 64 of the Civil Procedure Act 2005 which, in subsection (1), provides that, at any stage of proceedings, the court may order that any document in the proceedings be amended, or that leave be granted to a party to amend any document in the proceedings. Section 64(2) then provides:
‘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.’
[46] The judge's decision was obviously discretionary, so that appellate intervention will be warranted only upon the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. The fact that the decision was a decision on a matter of practice and procedure means that this Court should be slow to interfere and ought not to reverse the judge's decision unless convinced that it is plainly erroneous: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170. As Bryson JA said in State of New South Wales v Mulcahy [2006] NSWCA 303 at [3], ‘such appeals are, appropriately, kept on a tight rein’.
[47] Particularly in light of the opening words of s 64(2), it is not controversial that the provisions in Part 6 Division 1 of the Civil Procedure Act were binding on the primary judge and that, in accordance with s 58, his Honour was bound to seek to act in accordance with the dictates of justice and, in so doing, to have regard to s 56 concerning the ‘overriding purpose’ of the Act and rules of court in their application to civil proceedings; also that, in addressing the amendment application in the particular statutory context, his Honour was required to take into account a combination of factors identified by the High Court in Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and usefully summarised by Vickery J in Namberry Craft Pty Ltd v Watson [2011] VSC 136 (at [38]) as follows:
‘(a) Whether there will be substantial delay caused by the amendment;
(b) The extent of wasted costs that will be incurred;
(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;
(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;
(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.’
[48] As this Court has emphasised more than once, Part 6 Division 1 of the Civil Procedure Act made substantive and important changes to the law so that considerations of promptness and efficiency in the conduct of civil litigation are afforded a new and special importance which may sometimes provoke a sense of injustice in a party who has failed to proceed with despatch."
(Citations omitted.)
Proposed ground 2 concerned his Honour’s conclusion that the proposed amendments were bad in form. The applicant submitted that his Honour had no basis for concluding that his proposed further amended pleading was defective in form and that it was far from clear how the pleading and the Supplement Document interacted. He submitted that the manner in which the primary judge dealt with the various claims indicated that the amendments were readily comprehensible. Further, his appending of the Supplement Document to the proposed further amended pleading was an attempt on his part to overcome the purported impenetrability of the two documents and should have been considered on that basis. The applicant also submitted that although his Honour referred to the decision of Kunc J in Ghosh v Scott Newton t/a Shaw Gidley (No 9) [2024] NSWSC 740 (“Ghosh”), his Honour did not explain its relevance.
Those submissions, which the applicant developed in more detail in his reply, did not demonstrate any error in his Honour’s conclusions regarding the form of the proposed further amended pleading. Those conclusions were based on his Honour’s review of the proposed further amended pleading and the Supplement Document, along with the document that the applicant appended to his reply in an attempt to meet the respondents’ form arguments. As his Honour stated, the decision in Ghosh was an example of an application in which the judge, there Kunc J, stated that it was not for the parties or for him to undertake the task of trying to fashion a maintainable cause of action. It is apparent from [41] of the reasons that the primary judge relied on it for that limited purpose.
This proposed ground concerned the application to join Nine as a defendant to the 2018 proceedings. As Nine submitted, the primary judge dismissed that application on six separate bases. The applicant took issue with each of the bases on which his Honour concluded that Nine should not be joined. He contended that his Honour disregarded certain parts of his written submissions and his witness statement, a complaint we have addressed above. He reiterated his submissions as to why his Honour was wrong in his conclusions about delay, which we have also addressed above. Further, the applicant contended that his Honour erroneously concluded that the proposed causes of action against Nine were statute barred, when he had first raised and pursued a claim in negligence against Nine in the notice of motion that was before Abadee DCJ. This latter submission served only to emphasise the force of Nine’s submission, in opposing leave, that having previously been unsuccessful in his application to join a different company (Nine Entertainment Co Pty Ltd) (which he unsuccessfully sought leave to appeal from in both the Court of Appeal and the High Court), the applicant had effectively made the same application twice, and accordingly it was an abuse of process.
In any event, as the primary judge recognised, permitting the claim and the associated joinder when the claims did not give rise to common factual or legal questions would be productive of delay for the existing defendants and associated expense. Having regard to the circumstances and the provisions of ss 56-58 of the Civil Procedure Act, it was well open to his Honour to conclude as he did and the Court cannot discern any arguable error in that conclusion.
The Court makes the following order:
The summons seeking leave to appeal is dismissed with costs.
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Mohareb
State of New South Wales [2025] NSWCA 156
(1981) 148 CLR 170
(2007) 69 NSWLR 496
(2013) 82 NSWLR 268
(2011) 243 CLR 181
(1982) 149 CLR 147
(1936) 55 CLR 499
(2009) 239 CLR 175
The summons seeking leave to appeal was dismissed with costs: [48].
The primary judge concluded at [90]:
On the question of delay, the applicant emphasised certain aspects of the reasons in Hannaford about leave to amend, which he submitted did not apply in this case. Of greater significance however is the broader statement of the applicable principles concerning an application for leave to appeal from a refusal of an application for leave to amend, which Barrett JA set out in Kelly v Mina [2014] NSWCA 9 at [45]-[48], to which Sackville JA referred with approval in Hannaford at [16]: