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[2026] NSWSC 1064
Supreme Court of NSW
2026-09-01
Emmett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Pridgeon v Commonwealth of Australia [2026] NSWSC 1064
Hearing dates: 01 September 2026
Date of orders: 01 September 2026
Decision date: 01 September 2026
Jurisdiction: Equity
Before: Emmett J
Decision: (1) Strike out the statement of claim filed 10 March 2026.
(2) The plaintiff is to serve on the parties and send to the associate of Justice Emmett any draft amended statement of claim against the first, second or fourth defendant by 13 October 2026.
(3) The defendants are to inform the plaintiff of their position in relation to the draft amended statement of claim by 27 October 2026.
(4) If the filing of the statement of claim is unopposed, the parties are to communicate this to the associate of Justice Emmett.
(5) Each party is to file, serve and send to the associate of Justice Emmett any written submissions in support of that party’s position by 5 November 2026, such submissions are to be no more than 5 pages in length.
(6) List the matter for further hearing on the question of costs, and to deal with any outstanding dispute as to any draft amended statement of claim that is served before Justice Emmett on 12 November 2026.
(7) The second defendant has leave to appear via AVL at the hearing on 12 November 2026.
(8) Liberty to restore on 3 days’ notice.
Original judgment source is linked above.
Catchwords: CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action — whether statement of claim discloses a cause of action — whether pleading articulates causes of action alleged against each respective defendant — whether asserted causes of action are tenable — whether properly pleaded — whether there is any reasonable prospect of the Court granting the remedy sought by the plaintiff
CIVIL PROCEDURE — Pleadings — Amendment — where plaintiff seeks leave to replead — where plaintiff has advanced four iterations of pleading in relation to the same underlying factual substratum — consideration of ss 56 to 60 of the Civil Procedure Act 2005 (NSW) — whether it is in the interests of justice, and consistent with the guiding principles of civil litigation to grant leave — whether any grant of leave should be limited by reference to particular causes of action — proposal to order timetable for service of a further draft pleading, and provision to the defendants of an opportunity to consider and be heard on further draft before leave to file is granted
Legislation Cited: Crimes Act 1914 (Cth), s 42
Criminal Code Act 1995 (Cth), s 400.4
Health Practitioner Regulation National Law 2009 (NSW), s 150
Supreme Court Act 1970 (NSW), ss 41, 52
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Bird v DP (2024) 283 CLR 45; [2024] HCA 41
East West Airlines (Operations) Ltd v Commonwealth of Australia (1983) 49 ALR 323
Hamilton v Kaljo (1989) 17 NSWLR 381
Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1; [2020] HCA 19
Kitchen v Quinlivan (No 3) [2025] QSC 351
Lewis Securities Ltd (in liq) v Carter [2018] NSWCA 118
McGuirk v the University of New South Wales [2009] NSWSC 1424
Mohareb v Nine Entertainment Co Holdings Ltd [2026] NSWCA 67
Porter v Magill [2002] 2 AC 357
Pridgeon v Medical Council of NSW [2022] NSWCA 60
St Paul’s College v Allan [2026] NSWCA 22
Szanto v Bainton [2011] NSWSC 985
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57
Texts Cited: The Hon Robert French AC, ‘The Interface between Equitable Principles and Public Law’, Speech, Society of Trust and Estate Practitioners, 29 October 2010
Category: Procedural rulings
Parties: William Pridgeon (Plaintiff) (Self-represented)
Commonwealth of Australia (First Defendant)
State of Queensland (Second Defendant)
State of New South Wales (Third Defendant)
Medical Council of New South Wales (Fourth Defendant)
Representation: Counsel:
T Liu (First Defendant)
P van Grinsven (Second Defendant)
A Williams (Third and Fourth Defendants)
Solicitors:
Australian Government Solicitor (First Defendant)
Crown Law (Second Defendant)
Crown Solicitor’s Office (Third and Fourth Defendants)
File Number(s): 2026/00099771
Publication restriction: Nil
The matter has a complicated procedural history.
On 17 February 2025, the plaintiff commenced proceedings in the Common Law Division of this Court against the Commonwealth, the State of Queensland, the State of NSW and the NSW Medical Council making claims, variously, for malicious prosecution, misfeasance in public office, breach of statutory duty and negligence.
The alleged factual substratum to those Common Law Division proceedings is substantially the same as the alleged factual substratum in these Equity Division proceedings. In substance, the plaintiff’s allegations include that:
On 17 October 2018, the plaintiff was arrested in New South Wales by Australian Federal Police (‘AFP’) officers.
On the same day, the plaintiff says at the direction of the AFP, the NSW police charged the plaintiff with two counts of conspiring to pervert the course of justice contrary to s 42 of the Crimes Act 1914 (Cth) and one count of dealing with more than $100,000 intended to be used in the commission of an offence, contrary to s 400.4(1) of the Criminal Code Act 1995 (Cth).
The plaintiff was moved to Queensland, where the AFP charged him with the same offences.
The Queensland police charged the plaintiff with unlawful stalking and three counts of child stealing.
The plaintiff alleges that the AFP released misleading information to the media. There was significant media coverage, on the plaintiff’s case, in which the plaintiff contends that his reputation was severely damaged.
The plaintiff also alleges that the AFP informed the NSW Health Care Complaints Commission (‘HCCC’) of the charges against the plaintiff, including providing a statement of facts and bail conditions. The HCCC was a potentially relevant body because the plaintiff was at the time (and is now) a registered medical practitioner.
On 29 October 2018, acting on the basis of information from the AFP, the NSW Medical Council purported to suspend his medical registration in what was later held to be erroneous reliance on s 150 of the Health Practitioner Regulation National Law 2009 (NSW).
On 14 April 2022, the NSW Court of Appeal held in Pridgeon v Medical Council of NSW [2022] NSWCA 60 that s 150 was not available in the circumstances of the case and that the NSW Medical Council erred in purporting to suspend Dr Pridgeon’s registration.
The criminal charges against the plaintiff were all ultimately dismissed, withdrawn or discontinued.
In the Common Law Division proceedings, the plaintiff alleged that:
officers of the AFP, the Queensland police, the NSW police, and the Commonwealth DPP and her staff, were guilty of misfeasance in public office and malicious prosecution; and
the NSW Medical Council was guilty of misfeasance in public office, breach of statutory duty and negligence.
The plaintiff does not presently seek to propound any of those causes of action, so it is unnecessary to develop precisely how they were framed.
On 19 May 2025, in response to the Commonwealth seeking further particulars, the plaintiff provided 71 pages of further particulars of his claim. On 1 June 2025, in response to the State of Queensland seeking further particulars, the plaintiff provided 39 pages of further particulars.
On 12 June 2025, the solicitors for the Commonwealth sent a letter to the plaintiff drawing attention to what Commonwealth said were defects in the pleading and invited him to propound an amended statement of claim. The Commonwealth’s solicitor also encouraged the plaintiff to take legal advice.
In July 2025, the first and fourth defendants (that is, the Commonwealth and the NSW Medical Council) filed notices of motion seeking that the claim be dismissed or that the plaintiff’s statement of claim in those proceedings be struck out. Later in July, the plaintiff filed a notice of motion seeking to file an amended statement of claim. The amended statement of claim alleged claims and sought relief in equity as well as common law.
On 17 September 2025, the plaintiff (who had previously been self-represented) retained solicitors.
On 18 September 2025, the plaintiff’s then-solicitor emailed the defendants stating that it was “abundantly clear” that the amended statement of claim would need to be repleaded.
On 21 November 2025, the plaintiff’s then-solicitor circulated a further draft amended statement of claim.
On 4 December 2025 the Commonwealth’s solicitor wrote drawing attention to some defects which the Commonwealth contended were in the draft amended statement of claim, including the allegation of an abuse of process of the NSW court system, in respect of which all conduct that occurred on 17 or 18 October 2018 was said to be necessarily statute-barred.
Following further correspondence, on 22 December 2025, the plaintiff’s then-solicitor circulated a further draft amended statement of claim.
On 4 February 2026, the Commonwealth’s solicitors indicated that, subject to a position on costs, the Commonwealth would consent to the filing of the further draft amended statement of claim including the allegation of abuse of process. On 20 February 2026, the State of Queensland, through its solicitors, indicated its consent to the draft amended statement of claim that had been proposed on 22 December 2025.
As at 2 March 2026, the motions were still pending. On that date, the plaintiff, who was again self-represented, at a directions hearing indicated that he wished to discontinue the Common Law Division proceedings with no order as to costs.
On 10 March 2026, the plaintiff commenced these proceedings in the Equity Division.
On 14 April 2026, the plaintiff filed a notice of motion seeking leave to discontinue the Common Law Division proceedings with no order as to costs. That notice of motion is pending before me. I have received argument in relation to it. However, with the consent or non-opposition of the parties, I have deferred that question of costs on the basis that it should await the outcome of the present pleading dispute in these Equity Division proceedings.
In an affidavit filed in support of his notice of motion seeking to discontinue the Common Law Division proceedings with no order as to costs, under a heading “Why there is no remedy at common law”, the plaintiff said that:
He has been advised by senior counsel that his common law claim against the Medical Council is statute barred. The plaintiff says that in equity “the clock works differently”.
He has been advised by junior counsel that “the law of ‘malicious prosecution’ cannot properly capture the six years of conspiracy charges”, which he describes as “the heart of my claim”. The plaintiff does not explain the basis of this advice. Suffice to observe that the plaintiff, having had an opportunity to take and consider legal advice, does not presently contend that the tort of malicious prosecution is one he wishes to pursue in respect of the charges of conspiracy to pervert the course of justice.
The plaintiff has been advised that his claim against the State of NSW for wrongful use of a Court Attendance Notice is time-barred.
The plaintiff concludes this section of his affidavit with:
The reality is that the common law offers me no adequate remedy and in some instances no remedy at all. The Equity Division is not just a preference; it is the only place where the full breadth of this wrong can be addressed.
This reflects a misconception about the jurisdiction of this Court. The business of the Court, other than the Court of Appeal, is assigned to the Common Law Division or the Equity Division “for convenient despatch”: s 52 of the Supreme Court Act 1970 (NSW). Any judge may exercise the jurisdiction of the Court in any Division with all the power and authority of a judge appointed or nominated to act in that Division: s 41(2) of the Supreme Court Act. Claims in equity can, and frequently are, pursued in the Common Law Division and vice versa. I return to this below.
On 1 May 2026, the plaintiff filed a supplementary affidavit in support of his notice of motion seeking leave to discontinue with no order as to costs. That affidavit included the following:
[13] I have received two legal advices which establish that the most important aspects of my claim have no adequate remedy at common law. Both advices confirm not that there is no claim, but that there is no viable claim at common law. That distinction is the foundation of my Equity proceedings.
[14] The first advice concerns the Medical Council claim. Ms Munro arranged for Mark Robinson SC to advise specifically on whether the Medical Council claim could be maintained at common law. On 9 February 2026 Mr Robinson SC wrote to Ms Munro declining to undertake the work, stating: ‘the client has certainly run out of time to raise these proposed issues (which are more than seven years old)’. That is unambiguous advice that the Medical Council claim is out of time. On 21 February 2026 Mr Robinson SC wrote again to Ms Munro indicating he would appear if a junior barrister was briefed with him, but maintaining his reluctance to act against the Medical Council and his view that the claims may be out of time. Both emails are annexed hereto and marked “Annexure H”. The advice that the Medical Council claim is out of time at common law is the reason the Medical Council was not included in the Amended Statement of Claim filed by Blaxland Law.
[15] The second advice concerns the section 42 conspiracy charges. Dean Woodbury advised that the law of malicious prosecution cannot properly capture the six years of conspiracy charges that consumed my life. Ms Munro confirmed that advice in her email of 21 November 2025 at 2:58pm in the terms I have described at paragraph 10 above.
[16] Both of these advices from respected and experienced Barristers are unequivocal: there is no claim in Law. The Medical Council claim is out of time at common law but not in equity, where laches rather than limitation periods apply. The section 42 conspiracy charges do not give rise to a maintainable malicious prosecution cause of action at common law but the same facts ground equitable fraud and abuse of public power. The inadequacy of the common law remedy is precisely the basis on which I have invoked the equitable jurisdiction of this Court in proceedings 2026/00099771.
The affidavit then deposes to offers made by the plaintiff to discontinue those proceedings with no order as to costs.
The plaintiff’s supplementary affidavit concludes with the following:
[29] On 10 March 2026 I filed a Statement of Claim in the Equity Division of this Court, proceedings No 2026/00099771. The Equity proceedings are not a duplication of these proceedings. They contain causes of action that do not and cannot exist at common law: the Medical Council claim (out of time at common law on legal advice); the section 42 conspiracy claim (no maintainable cause of action at common law on legal advice); and the New South Wales Court Attendance Notice wrongful use (out of time at common law).
[30] The concurrent existence of both proceedings is a consequence of the defendants’ refusal to consent to this discontinuance - not a consequence of any improper conduct by me. Had any defendant accepted my offer of discontinuance with no costs on 2 March 2026, or on 1 April 2026, or in my letter to the Crown Solicitor’s Office, there would be no concurrent proceedings. The defendants created the concurrency by refusing the discontinuance. They cannot now rely on that concurrency as a ground to deny me access to justice.
[31] The discontinuance of these proceedings is in the interests of justice and in the efficient use of this Court’s resources. No evidence has been called. No hearing on the merits has occurred. The real controversy between the parties will be determined in the Equity proceedings. Ending the Common Law proceedings now avoids the fragmentation and duplication of a defective pleading that cannot determine the real controversy.
These paragraphs again reflect a misconception about the jurisdiction of this Court, including in proceedings in the Common Law Division. Any cause of action that could be pursued in the Equity Division could be pursued in the Common Law Division.
Contrary to paragraph 30, the concurrence of both proceedings is not a consequence of the defendants’ refusal to consent to discontinuance. The concurrence of both proceedings is a consequence of the plaintiff deciding to commence a second set of proceedings in the same Court, in relation to the same underlying facts, by reason of a misunderstanding about the nature of this Court’s jurisdiction. I do not say this to criticise the plaintiff for his misunderstanding – I recognise he is not legally qualified – but to explain why I reject his submission that the conduct of the defendants brought about the multiplicity of proceedings. This is relevant because the plaintiff called that in aid of any matter of discretion being exercised in the plaintiff’s favour in the notices of motion before me.
The matter first came before me on 26 August 2026 to deal with the plaintiff’s application to discontinue the Common Law Division proceedings with no order as to costs. I refer to that hearing above.
In oral submissions before me on 26 August 2026 and again on 1 September 2026, the plaintiff stated his current position that, with one exception, the common law causes of action he had alleged in the Common Law Division proceedings were statute-barred or otherwise not maintainable at law. The exception is the claim for malicious prosecution in respect of the child-stealing charge against both the Commonwealth and the State of Queensland. The plaintiff says that the cause of action for malicious prosecution in respect of the child-stealing charge is maintainable, but confirmed before me that he did not wish to pursue that common law cause of action. The plaintiff did so despite my reminding him that this Court sitting in the Equity Division has all the powers of the Court, including to grant relief in respect of common law causes of action.
Turning to the Equity Division proceedings, on 14 May 2026, the State of NSW and the NSW Medical Council filed a notice of motion seeking that the Equity Division proceedings be dismissed, or the statement of claim be struck out.
On the same date, the Commonwealth filed a notice of motion seeking that the Equity Division proceedings be dismissed or the statement of claim be struck out. The Commonwealth’s notice of motion followed correspondence on 8 April 2026 in which the Commonwealth set out some of the matters which the Commonwealth contends are deficiencies. The Commonwealth expressly accepted the availability in principle (albeit not admitted as to liability) of malicious prosecution and misfeasance in public office.
On 18 May 2026, the State of Queensland filed a notice of motion seeking that the Equity Division proceedings be dismissed or the statement of claim struck out.
It is those three notices of motion that are the subject of these reasons.
It is convenient to deal first with whether the statement of claim in the Equity Division should be struck out, and second with whether the plaintiff should be given leave to replead.
The general principles in relation to pleadings are well-established. They were summarised in the Court of Appeal relatively recently by Kirk JA, Payne JA and Price AJA agreeing, in St Paul*’*s College v Allan [2026] NSWCA 22 at [30]-[38]. I adopt those paragraphs.
In East West Airlines (Operations) Ltd v Commonwealth of Australia (1983) 49 ALR 323 at 326-327, Dawson J struck out a statement of claim saying it was undesirable to try to “sift out” the necessary parts from the unnecessary and embarrassing passages. “The fair trial of the action would be delayed if the defendants were required to plead to” immaterial facts which were at best merely evidentiary and at worst not relevant at all.
In Mohareb v Nine Entertainment Co Holdings Ltd [2026] NSWCA 67 at [46], Free JA (Ball JA agreeing) described as uncontroversial the proposition that a defendant and the Court are not required to sift through a narrative and then a list of complaints.
While I am mindful that the plaintiff is self-represented, I am assisted by the approach to a pleading by a litigant in person of Ward J in Szanto v Bainton [2011] NSWSC 985 at [131], where her Honour said:
I accept that a more discretionary approach to the requirement for proper pleading may be appropriate where (as here) the plaintiff is a litigant in person (Mann v Cahill [1999] ACTSC 7; (1999) 149 FLR 298). However, whatever the status of the particular plaintiff, if the pleading as a whole is such as to embarrass the defendant and/or contains inconsistent, confusing or irrelevant allegations, to such an extent that the defendant is not able to appreciate the precise nature of the plaintiff’s case, the pleading should be struck out (Davy v Garrett (1877) 7 Ch D 473 at [488]; Shelton v National Roads)
I deal first with what emerges from the face of the current statement of claim in the Equity Division.
After a recitation of the history, which is not in chronological order and which contains matters in the nature of submissions, commentary or legal argument as well as material facts, the statement of claim at paragraph 41 introduces what it describes as “The Equitable Claim”, stated to be “equitable causes of action” in the plural.
There follow allegations under the headings “Unconscionable Conduct”, “Equitable Fraud and Abuse of Power” and “Equitable Compensation”. However, under each heading, the gravamen of the defendant’s complaint in the current statement of claim is what the plaintiff describes as “unconscionable misuse of public power”.
The alleged unconscionable conduct is described as follows at paragraph 44:
In those circumstances it is unconscionable for the Defendants to walk away without consequence. The unconscionability is not merely historical. It is present and continuing. Having deployed public power to destroy the Plaintiff, and having been found by the Supreme Court of Appeal to have done so without lawful foundation, conscience requires they do not now escape the consequences of that destruction.
Where public officers exercise powers that a Court of superior jurisdiction subsequently finds never existed, or that were exercised for improper purposes, for years, causing a citizen to lose his livelihood, his reputation, his liberty and his health; and where those officers face no consequence whatsoever while the citizen is left virtually bankrupt; equity must intervene.
There are at least two difficulties with this.
First, the only government entity which has been found to have acted in excess of its powers is the NSW Medical Council. The plaintiff contended in the Common Law Division that he had a remedy against the NSW Medical Council, including for breach of statutory duty and misfeasance in public office. The plaintiff’s position was that this claim is statute-barred (a matter to which I will return). To the extent that this is the reason why he lost a cause of action, it is a consequence of an Act of Parliament.
Second, if there were an equitable cause of action, whatever its label, for “unconscionable misuse of public power”, it is very hard to see why that cause of action would not operate by analogy to the common law causes of action for breach of statutory duty or misfeasance in public office. I take into account s 23 of the Limitation Act in this regard. If the plaintiff accepts that his common law causes of action are statute barred, it is difficult to see why an equitable cause of action for unconscionable misuse of public power, even if that cause of action existed, would not be subject to the same limitation periods as what I have described as its common law analogues.
Contrary to the plaintiff’s suggestions that the limitation point is some sort of technicality – the suggestion being that since the common law provides no remedy equity should intervene – if the plaintiff had common law causes of action arising out of negligence, breach of statutory duty, misfeasance in public office or malicious prosecution, the plaintiff had remedies. With certain exceptions in relation to what the plaintiff describes as the “fragment” of his claim in relation to the child stealing charges, his position at least as matters presently stand is that he lost those remedies through inaction and the operation of the Limitation Act 1969 (NSW). He does not contend that any of the provisions of the Limitation Act that postpone the applicable time bar apply. That includes the provisions of the Act that postpone the applicable time bar in cases of disability or fraud and deceit: ss 52 and 55. The Limitation Act reflects, as McHugh J put it in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 553, “the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.” (See also Leeming JA in Lewis Securities Ltd (in liq) v Carter [2018] NSWCA 118 at [29], Sackville AJA agreeing.) That is not a lacuna in the common law that calls for the intervention of equity.
The pleading then concludes, before setting out the relief claimed, at paragraph 55:
The equitable jurisdiction of this Court is invoked because the legal remedies available to the Plaintiff are inadequate to address the full extent of the wrong done to him. That inadequacy arises not from any concession that no legal claim exists but from the nature and breadth of the conduct complained of, which spans multiple defendants, multiple agencies, multiple years, and culminates in the present unconscionable position of the Plaintiff having been destroyed by State power exercised without lawful foundation while those responsible bear no consequence. Equity fills that gap. That is its oldest and most fundamental purpose.
This does not disclose a cause of action. A plaintiff cannot allege a “breadth of conduct” and contend that this absolves them of the need to articulate, clearly, the facts giving rise to a cause of action against each defendant.
The plaintiff has not pointed to any authority that supports his contention that the Court should recognise an equitable cause of action for unconscionable misuse of public power sounding in equitable compensation. He refers to a speech delivered by the Honourable Robert French (the Hon Robert French AC, ‘The Interface between Equitable Principles and Public Law’, Speech, Society of Trust and Estate Practitioners, 29 October 2010) referring to observations of Lord Bingham of Cornhill in Porter v Magill [2002] 2 AC 357 at [19], which included the following (references omitted):
Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely—that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended.
…
It follows from the proposition that public powers are conferred as if upon trust that those who exercise powers in a manner inconsistent with the public purpose for which the powers were conferred betray that trust and so misconduct themselves. This is an old and very important principle.
This passage does not provide a basis for an equitable cause of action for unconscionable misuse of public power, sounding in equitable compensation. Rather, it provides an explanation for the limit placed by courts on statutory powers. It may also inform causes of action which are well known to the law, such as misfeasance in public office and perhaps breach of statutory duty or negligence. However, the plaintiff does not presently seek to pursue any such causes of action.
The plaintiff relied orally on Justice Edelman’s comments to similar effect in Hocking v Director*-*General of the National Archives of Australia (2020) 271 CLR 1; [2020] HCA 19 at [243]. However, especially when read in context and having regard to the issues in that appeal, his Honour’s comments do not suggest, or provide support for, the availability of a free-standing cause of action for unconscionable misuse of public power that sounds in equitable compensation.
By way of remedy, the plaintiff seeks a declaration in the following terms:
A declaration that the conduct of the First, Second, Third and Fourth Defendants as particularised herein was unconscionable, constituted an abuse of public power, and was contrary to equity[.]
In light of my observations above, there is no reasonable prospect of the Court granting a declaration in those terms.
The other relief sought is equitable compensation and so-called “aggravated equitable compensation”. This relief only serves to reinforce the impression that the statement of claim for equitable relief is an impermissible attempt to place equitable labels on what are in essence causes of action in tort.
The Commonwealth and the State of Queensland both draw attention to the observations of the plurality in Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ). At [20], their Honours observed that terms such as ‘unconscientious’ and ‘unconscionable’ are used across a broad range of the equity jurisdiction, but their application in a particular case is determined by reference to well-developed principles. “It is to those principles that the court has first regard rather than entering into the case at that higher level of abstraction involved in notions of unconscientious conduct in some loose sense where all principles are at large.” At [23]-[24] their Honours went on to caution that the phrase ‘unconscionable conduct’ may tend to encourage the false notion that “there is a distinct cause of action, akin to an equitable tort, wherever a plaintiff points to conduct which merits the epithet ‘unconscionable’.”
As to the form of the statement of claim, I accept the submission of the Commonwealth that:
[M]any paragraphs of the statement of claim … are embarrassing, prolix, and discursive. The statement of claim does not articulate allegations in a way that allows the first defendant to fairly and efficiently plead in response. Rather than containing only a summary of the material facts relied on, the pleading repeatedly strays into evidence (cf rule 14.7). Therefore, requiring the first defendant to plead in response would unduly and significantly increase expense and cause delay as well as being “prejudicial and embarrassing to the fair trial of the action” (Dahler v Australian Capital Territory [2014] FCA 946 at [105]). Further … it is not for the Court or the defendants to try to “sift out”, and separate, the parts of the pleading that may contain relevant factual allegations from the unnecessary and embarrassing passages.
Indeed, one of the deficiencies in my view is that the statement of claim does not articulate the cause or causes of action alleged against each defendant, or the facts relied upon to make out that cause of action or those causes of action. Rather, the defendants are often dealt with collectively. This deficiency is particularly evident in the allegation at [55], which I have referred to above.
The same may be said of the allegations against the other defendants, and the other defendants made written submissions to similar effect.
As to the particularisation of the statement of claim, paragraph 17 of the statement of claim is as follows:
The material facts pleaded below are a summary of the factual foundation of this claim. The Plaintiff’s Further and Better Particulars provided to the Commonwealth and State of Queensland (‘the Particulars’ see Annexures A & B) and supporting Affidavit were provided to all Defendants in proceedings 2025/00064098 in support of the Plaintiff’s original comprehensive Statement of Claim filed by him in person. That original claim addressed the full scope of the conduct particularised herein and was subsequently amended by the Plaintiff’s legal representatives to a narrow malicious prosecution claim addressing only the child stealing charges discontinued at committal. The Particulars, which predate and are broader than that narrow amended claim, are re-served herewith. Where the Particulars contain additional detail of any matter pleaded herein they are to be treated as particulars in support of the pleaded facts, not as substitutes for them. The Defendants have been in possession of the Particulars throughout the prior proceedings and cannot claim ignorance of any matter contained in them.
Annexed to the statement of claim are the two lengthy sets of further particulars that were provided in connection with the pleadings in the Common Law Division that the plaintiff does not presently seek to pursue. That is not an appropriate way of providing particulars to a pleading. Paragraph 17 of the statement of claim accepts in terms that the particulars predate and are broader than the narrower claim for malicious prosecution and may involve particulars that go beyond the matters pleaded in the statement of claim.
The question is not whether the defendants are in ignorance of any matter, but whether the pleading is adequately pleaded and particularised. In saying this, I should not be understood to undercut the expectations which the Court has of model litigants. A statement of claim does not need to be a model pleading for the Court to require a defendant to respond to it: see, eg, St Paul*’*s College v Allan at [92] and [94].
In his oral submissions, the plaintiff sought to cast his claim as based on what he describes as two primary gates, equitable fraud and misuse of public power. He said that unconscionability is not a free-standing cause of action but is the conclusion to be drawn, something he says emerges from “the pleaded whole” – and he said his equity was anchored in his first two “gates”, that is, equitable fraud and misuse of public power. In relation to unconscionability, he called in aid Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 and Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59. I do not accept that those authorities assist his case, being concerned with the imposition of a constructive trust. The plaintiff specifically disavowed unconscionable taking advantage of a special disability of the kind addressed in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14.
As for equitable fraud, the plaintiff relied orally on alleged false statements by the Queensland Police, the AFP and possibly the staff of the Commonwealth DPP. That appears to overlap substantially with the malicious prosecution and misfeasance in public office claims he sought to bring in the Common Law Division and which the first and second defendants ultimately indicated a willingness to plead to.
The plaintiff’s pleading under this heading, that is, ‘Equitable Fraud and Abuse of Public Power’, does not make out an independent cause of action. Consideration of his statement of claim reinforces the concern that the complaint under this label is a restatement of his complaint about unconscionable misuse of public power. At its heart, it involves the allegedly knowing misuse of public power. The common law provides a remedy for that, being misfeasance in public office.
The third and fourth defendants submit further that equitable fraud is not a free-standing cause of action. They drew my attention in oral submissions to McGuirk v the University of New South Wales [2009] NSWSC 1424. At [161], Johnson J observed that “[t]here is no freestanding cause of action for fraudulent conduct. Fraud may be an element in other causes of action, but there is no cause of action for damages for conduct that is fraudulent. Absent a claim for deceit, a mere allegation of fraud does not give rise to a cause of action”.
Justice Johnson cites the High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [15]-[17] for this proposition. These paragraphs do not say in terms that an allegation of fraud does not give rise to a cause of action, but they do stress that the effect of fraud is to vitiate transactions or decisions and the effect of fraud is not always to vitiate transactions and decisions. I would add that the point of equitable fraud is that, where it applies, it may vitiate certain transactions or other matters even if the stricter requirements of common law fraud are not made out. In that sense, equitable fraud might provide a cause of action for relief that a particular transaction should be set aside (which may have consequences in terms of other relief once the transaction is set aside), but the plaintiff does not allege equitable fraud of this kind or in such a context.
Fraud including equitable fraud may also have a role in the context of the Limitation Act, in that in s 55, the postponement of a limitation period for “fraudulent concealment” extends to equitable fraud: see Hamilton v Kaljo (1989) 17 NSWLR 381. However, the engagement of that provision presupposes the existence of some other cause of action.
The plaintiff did not point to any authorities supporting a proposition that equitable fraud can be a free-standing cause of action sounding in equitable compensation. In fairness, the State of NSW only drew attention to the decision of McGuirk v the Uni**versity of N**ew South Wales during oral argument. I have determined that the interests of justice are favoured by making a decision now, but as that decision will include giving the plaintiff leave to replead the plaintiff will not be foreclosed from advancing a proper basis, if there is one, for relying on equitable fraud in a manner supported by authority.
As for misuse of public power, I have made my observations above. I do not accept that this provides a basis for a cause of action or equity sounding in equitable compensation.
Finally, the plaintiff says that it was unconscionable for the defendants to refuse or to fail to make restitution for their alleged wrongdoing, and that this unconscionable conduct was ongoing. The plaintiff when asked could not point to any authority in support of this proposition. It seems to me it is to turn the Limitation Act on its head. I do not accept that it provides a basis for a cause of action for equitable relief.
The defendants contended that if the Court strikes out this statement of claim, it should not grant leave to replead. The Commonwealth advanced cogent submissions, adopted by the other defendants, pointing to the fact that, in substance the plaintiff has already advanced four iterations of a pleading in relation to the same underlying factual substratum.
The Commonwealth also draws attention to its correspondence acknowledging that there may be pleadable causes of action against it for malicious prosecution and misfeasance in public office, although I stress that the Commonwealth has not accepted that those causes of action will be proved at final hearing.
The Commonwealth stresses the considerations in civil litigation that arise in ss 56 to 60 of the Civil Procedure Act 2005 (NSW). I have placed careful weight on those matters.
While the statement of claim in the Equity Division does not disclose a reasonable cause of action, in my assessment the plaintiff should have a final opportunity to advance a pleadable claim. I am mindful that, as matters stood in February 2026, the plaintiff had propounded a draft amended statement of claim which the Commonwealth and the State of Queensland were willing to consent to being filed, subject to questions of an appropriate costs order, and subject to other conditions which I take into account and recognise that it may have informed whether or not the plaintiff would have accepted the offer. Nevertheless, the Commonwealth and the State of Queensland have clearly communicated a readiness to respond in substance to the pleadings that had been propounded on 22 December 2025.
I am satisfied, dealing first with the claims against the Commonwealth and the State of Queensland, that it is in the interests of justice, and consistent with the guiding principles of civil litigation, to give the plaintiff an opportunity to replead his claim.
I have considered whether to limit the leave to replead by reference to particular causes of action. The difficulty with doing so is that the plaintiff has, at least to date before me, disavowed the common law causes of action which presently appear to be pleadable against the defendants. The only possible equitable cause of action which I have left open is equitable fraud, which has not been pleaded yet in a permissible way and the facts of which overlap substantially with the plaintiff’s asserted basis for alleging malicious prosecution or misfeasance in public office by Queensland and Commonwealth authorities. While I am not persuaded that equitable fraud has been shown to be a free-standing cause of action sounding in equitable compensation, if the plaintiff decides to plead a case for malicious prosecution or misfeasance in public office and says that the same facts entitle him to equitable relief, it does not appear to me that the Commonwealth or State of Queensland will suffer material prejudice in having to meet a claim which is labelled equitable fraud as well as a claim which they have accepted is arguable or pleadable against them for malicious prosecution or misfeasance in public office. In expressing that view much may depend on the terms of any further pleading that is advanced and I offer no concluded view.
In the circumstances, I consider it preferable to give the plaintiff another opportunity to advance a pleadable cause of action against the Commonwealth and the State of Queensland. I stress that plaintiffs are not given unlimited opportunities to replead their case and the plaintiff has already had a number of them. The plaintiff should not assume that he will be given a further opportunity should his next iteration not be in a form that can be permitted to be filed. Further, I do not propose to grant leave to the plaintiff to replead, rather I will make an order for a timetable that gives the defendants an opportunity to consider and be heard on any further draft before leave to file it is granted.
I will hear the plaintiff on whether, in light of s 41 of the Supreme Court Act, he seeks that leave to replead in the Common Law Division proceedings rather than the Equity Division proceedings. But I will only permit him to advance an amended statement of claim in one proceeding, and the other proceeding will be dismissed or discontinued.
The plaintiff’s position against the third and fourth defendants is somewhat different. The draft amended statement of claim served 22 December 2025 did not obviously assert causes of action against the third or fourth defendants. This may be consistent with the plaintiff’s earlier-stated position that his common law causes of action against those entities, at least as he pleaded them originally, are statute-barred.
Mr Williams who appears for both NSW entities says that looking first at the position of the third defendant, the State of NSW, the suggestion that State is vicariously liable for decisions of Medical Council cannot survive the High Court’s decision in Bird v DP (2024) 283 CLR 45; [2024] HCA 41.
The third defendant contends the position of the third defendant is really confined to the police. The allegations against the NSW police are patently out of time having regard to the fact that the NSW prosecution or criminal proceedings came to an end on 18 Oct 2018. I accept those submissions and I do not propose to give leave to replead against the State of NSW.
As for the claim against the NSW Medical Council, the Council submitted with appropriate candour that, in light of decisions such as, Kitchen v Quinlivan (No 3) [2025] QSC 351, in a medical disciplinary context, misfeasance in public office may have some work to do. The NSW Medical Council also accepted that, while a cause of action arising at the time of the first decision in October 2018 is out of time, a cause of action arising at the time of the NSW Medical Council’s s 150A decision, in December 2020, is within time.
The Medical Council submits, and I accept, that the plaintiff has not shown a basis for a cause of action based on breach of fiduciary duty or breach of trust by the regulator, but the Medical Council accepts that there are various common law causes of action that may arise in connection with the exercise of a statutory duty, including misfeasance in public office, breach of statutory duty and negligence.
If a further pleading is propounded by the plaintiff, when the defendants come to consider that pleading, I stress the Court’s expectation that they will consider it mindful of the fact that they are model litigants and the Court has particular expectations of government litigants before it. I also remind the parties of the approach of the Court of Appeal in St Paul*’*s College v Allan at [94].
I propose to order a timetable for the service of a further draft pleading and for the defendants to consider and communicate their position in relation to it. I will set down the matter for a hearing after that time in which I will deal with any further disputes about any statement of claim that may be propounded, and make directions accordingly. Assuming it is practicable and fair to do so, I will also hear and deal with outstanding questions of costs.
Accordingly, I make the following orders:
Strike out the statement of claim filed 10 March 2026.
The plaintiff is to serve on the parties and send to the associate of Justice Emmett any draft amended statement of claim against the first, second or fourth defendant by 13 October 2026.
The defendants are to inform the plaintiff of their position in relation to the draft amended statement of claim by 27 October 2026.
If the filing of the statement of claim is unopposed, the parties are to communicate this to the associate of Justice Emmett.
Each party is to file, serve and send to the associate of Justice Emmett any written submissions in support of that party’s position by 5 November 2026, such submissions are to be no more than 5 pages in length.
List the matter for further hearing on the question of costs, and to deal with any outstanding dispute as to any draft amended statement of claim that is served before Justice Emmett on 12 November 2026.
The second defendant has leave to appear via AVL at the hearing on 12 November 2026.
Liberty to restore on 3 days’ notice.
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Paragraph [64] first sentence - removed 'defendant', and inserted 'defendants'. Paragraph [66] first sentence - removed 'has', and inserted 'have'.
Pridgeon
Commonwealth of Australia
(1996) 186 CLR 541
(2024) 283 CLR 45
(1983) 49 ALR 323
(1989) 17 NSWLR 381
(2020) 271 CLR 1
(2007) 232 CLR 189
(2003) 217 CLR 315
(1999) 149 FLR 298
(1985) 160 CLR 583
(1987) 164 CLR 137
(1983) 151 CLR 447