Mohareb v Nine Entertainment Co Holdings Limited

1. [1]

   THE COURT: By an amended summons filed on 11 November 2025, the applicant, Nader Mohareb, seeks leave to appeal against interlocutory orders made in the District Court of New South Wales by the primary judge (Catsanos DCJ) on 10 April 2025. By those orders, the primary judge (1) dismissed the applicant’s amended statement of claim (ASOC) insofar as it made claims against Nine Entertainment Co Holdings Ltd (Nine) and the Northern Beaches Council (the Council); (2) struck out the ASOC insofar as it made claims against the State of New South Wales (the State) and the Director of Public Prosecutions (incorrectly described as “the Office of the Director of Public Prosecutions”) (the DPP); (3) gave leave to the applicant to re-plead a claim against the State and/or the DPP for malicious prosecution and a claim against the DPP in negligence or intentional infliction of harm; (4) otherwise dismissed the claims against the State and DPP: see Mohareb v Nine Entertainment Co Holdings Limited [2025] NSWDC 122 (PJ).

2. [2]

   By cross-summons filed on 29 October 2025, the DPP seeks leave to appeal from the order made by the primary judge granting the applicant leave to re‑plead aspects of his claim against the DPP.

3. [3]

   With the agreement of the parties both the application for leave to appeal and the application for leave to cross-appeal is to be determined on the papers.

4. [4]

   Both applications require leave because the challenged orders are interlocutory: District Court Act 1973 (NSW), s 127(2)(a). Leave will only be granted if the proposed appeal raises an issue of principle or question of general importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: see eg Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342 at [15] (Bell CJ, Ward P and Basten AJA agreeing). As the primary judge’s decision was discretionary, appellate intervention will only be warranted upon the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. Moreover, this Court exercises particular caution in granting leave to appeal from an interlocutory decision on a matter of practice and procedure: In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

5. [5]

   The reluctance of an appellate court to interfere with a primary judge’s decision on a matter of practice and procedure may be tempered where the decision either directly or by its practical effect finally determines the legal rights of the parties: see In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323 (Jordan CJ, Nicholas CJ in Eq agreeing); see also Karl Suleman Enterprizes Pty Ltd (In Liq) v Pham [2013] NSWCA 93 at [13] (Meagher and Barrett JJA); Garrard t/as Arthur Anderson & Co v Email Furniture Pty Ltd (1993) 32 NSWLR 663 at 664–665 (Kirby ACJ). As Basten JA observed in Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 at [6], which, like the present case, involved an application for leave to appeal against a summary dismissal of proceedings as being out of time:

Background

1. [6]

   From about 2013, the applicant resided in Scotland Island, which is located in Pittwater near the northern beaches of Sydney. He became involved in disputes with other residents on the island and, in particular, between 2014 and 2016 he commenced proceedings against Alexander Kelso, Taylor Booth, and Matthew Palmer. After defamation proceedings against Mr Palmer were dismissed in 2015 (see Mohareb v Palmer (No 2) [2015] NSWDC 141), the applicant brought several unsuccessful applications seeking leave to prosecute Mr Palmer for perjury. As a result of this Court’s decision in Mohareb v Palmer (No 2) [2020] NSWCA 324, the applicant remains subject to an order under the Vexatious Proceedings Act 2008 (NSW) (Vexatious Proceedings Act) in respect of proceedings commenced against Mr Palmer.

2. [7]

   In May 2016, the then Attorney-General, the Honourable Gabrielle Upton, applied to the Supreme Court for broader orders against the applicant under the Vexatious Proceedings Act. For reasons which are not presently relevant, that application was dismissed by Schmidt J in December 2016: Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823.

3. [8]

   In January and May 2016, Harbour Radio Pty Ltd (Harbour Radio), broadcast two radio programs involving interviews between Ray Hadley and Ms Upton about vexatious litigants. The later program mentioned the applicant by name.

4. [9]

   On 29 May 2016, Fairfax Media Publications Pty Limited (Fairfax) published news articles in The Sydney Morning Herald newspaper about the application by the Attorney-General against the applicant.

5. [10]

   In early 2017, the applicant commenced proceedings in the Supreme Court against Harbour Radio, Fairfax and the State for defamation (the Defamation Proceedings) in relation to the news articles and radio programs and the Attorney-General’s involvement in those programs.

6. [11]

   On 4 December 2017, Mr Kelso assaulted the applicant. Mr Kelso pleaded guilty to a charge of assault with intent to cause grievous bodily harm. On 17 April 2020 he was sentenced to a term of imprisonment of 1 year and 10 months to be served by way of an intensive correction order, and was required to perform 400 hours of community service: R v Kelso [2020] NSWDC 157.

7. [12]

   On 18 July 2018, the applicant commenced proceedings in the District Court (the 2018 Proceedings) against the Council and the State. The applicant’s claims were initially for defamation and negligence, although the defamation claim against the Council was abandoned by the applicant by an amendment made on 3 October 2018, and the defamation claim against the State was dismissed by Wass SC DCJ on 1 October 2020.

8. [13]

   On 26 November 2019, the applicant was ordered to provide security for costs in the Defamation Proceedings: Mohareb v Fairfax Media Publications Pty Limited; Mohareb v Harbour Radio Pty Limited [2019] NSWSC 1685. Leave to appeal from that decision was refused (see Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231). The applicant sought special leave to appeal from the decision of the Court of Appeal, which was refused on 10 December 2020. The Defamation Proceedings were dismissed on the same day, in view of the applicant’s failure to provide security and the failure of the applicant’s special leave application: see Mohareb v Fairfax Media Publications Limited; Mohareb v Harbour Radio Pty Limited (No 2) [2020] NSWSC 1427.

9. [14]

   On 19 April 2021, the applicant applied to consolidate the 2018 Proceedings with his proceedings against Mr Kelso and Mr Booth, and to join additional defendants, one of which was Nine Entertainment Co Pty Ltd (Nine Entertainment Co) (the 2021 Motion). Those applications, among others, were heard by Abadee DCJ and determined on 14 May 2021: see Mohareb v State of New South Wales [2021] NSWDC 177. The applicant’s proposed claim against Nine Entertainment Co was framed in negligence. The applicant sought to allege that, by broadcasting the radio programs and publishing the news articles, Nine Entertainment Co had encouraged the applicant’s aggressors to escalate and to intensify their mistreatment of him, had prejudiced police officers against him, and had caused medical practitioners to refuse to treat him, all of which caused the applicant’s injuries: see Mohareb v State of New South Wales [2021] NSWDC 177 at [42]-[46]. The application to join Nine Entertainment Co was dismissed. Various paragraphs of the applicant’s pleading were struck out, and the applicant was given leave to file an amended pleading.

10. [15]

    On 8 June 2021, the applicant filed a further amended statement of claim in the 2018 Proceedings. The claims against the Council and the State, as reflected in that document, were for negligence and for intentional acts calculated to cause harm to the applicant: see PJ[9]-[26]. The claim against the State concerned alleged failures by NSW Police properly to investigate and to deal with the applicant’s complaints about Mr Kelso, in the knowledge that Mr Kelso posed a risk to the applicant. Similarly, the claim against the Council concerned alleged failures by the Council to protect the applicant from Mr Kelso and alleged participation or assistance by the Council in Mr Kelso’s “campaign of vilification, defamation, bullying & intimidation” against the applicant.

11. [16]

    On 1 March 2024, the applicant filed a notice of motion seeking to join Nine to the 2018 Proceedings, to broaden the claim against the State to include the former Attorney-General and the DPP, and to plead further matters which Abadee DCJ had previously declined to allow the applicant to plead.

12. [17]

    On 5 July 2024, Weber SC DCJ dismissed the applicant’s notice of motion. Leave to appeal from that decision was refused by Mitchelmore JA and Price AJA on 18 July 2025: Mohareb v State of New South Wales [2025] NSWCA 156.

13. [18]

    The 2018 Proceedings are yet to be heard.

The 2024 Proceedings

1. [19]

   On 7 July 2024, the applicant commenced new proceedings in the District Court (the 2024 Proceedings) against Nine, the Council, and the State. The DPP is named as the fourth defendant, although, as the primary judge observed, that is a claim against the State: Crown Proceedings Act 1988 (NSW), s 5. The State and the DPP were jointly represented in the proceedings before the primary judge, and in this Court. The applicant filed an amended statement of claim in the 2024 Proceedings on 2 August 2024.

2. [20]

   Broadly speaking, the claim against Nine (as amended) relates to the radio programs broadcast by Harbour Radio, the news articles published by Fairfax, and the defences filed by those entities in the Defamation Proceedings, which the applicant says contained misrepresentations about him and had the effect of encouraging the applicant’s aggressors to continue and to escalate their harassment of him, leading to the attack on him by Mr Kelso. The applicant alleges that Harbour Radio and Fairfax were subsidiaries of Nine, and Nine was at all times vicariously liable for their acts and omissions.

3. [21]

   Similar allegations are made against the State, in relation to the actions of the Attorney-General in participating in the radio programs and bringing applications in 2016 and 2019 for orders under the Vexatious Proceedings Act. The applicant also alleges that the Attorney-General is vicariously liable for “the torts that befell the[applicant]”.

4. [22]

   In addition, the ASOC contains a claim against the State “in negligence and /or intentional tort” in relation to allegedly defamatory publications by Mr Kelso and Mr Palmer in 2014. In relation to those matters the ASOC states that the applicant “asserts the same allegation [sic] of negligence and/or intentional tort … pleaded in the [amended statement of claim filed on 8 June 2021 in the 2018 Proceedings]”.

5. [23]

   Paragraphs 23 to 25 set out a “joint claim” against the State and the Council “in negligence and/or intentional tort” in relation to alleged damage to the applicant’s property caused by Mr Kelso after December 2017. Again, the ASOC states that in relation to those matters the applicant repeats the allegations made in the amended statement of claim filed on 8 June 2021 in the 2018 Proceedings.

6. [24]

   A further “joint claim” is pleaded against NSW Police and the DPP, on the basis that they were negligent or acted “in a manner that was intentionally [tortious]” in relation to their investigation and prosecution of Mr Kelso, which resulted in Mr Kelso receiving a “manifestly inadequate sentence” and the Court making “false findings”.

7. [25]

   Paragraphs 32 to 34 of the ASOC plead:

The decision of the primary judge

1. [26]

   Each of Nine, the Council and the State filed applications seeking to dismiss the 2024 Proceedings. Before the primary judge, each defendant submitted that the ASOC did not disclose a reasonable cause of action and was an abuse of process, and that the applicant’s claims were statute barred.

2. [27]

   During argument, the primary judge raised with the parties that no party had addressed the limitation period applicable to causes of action for damages relating to personal injury contained in Pt 2 Div 6 of the Limitation Act 1969 (NSW) (Limitation Act). Further submissions on that topic were sought and provided: see PJ[73]-[74].

3. [28]

   The dispositive conclusion reached by the primary judge in relation to the dismissal of claims against Nine, the Council and the State was that they were statute barred. This was on the basis that each was a claim for damages for personal injury, subject to Pt 2 Div 6 of the Limitation Act, and that any cause of action relied on by the applicant was discoverable more than three years before the commencement of the 2024 Proceedings: see Limitation Act, ss 50C(1) and 50D. In relation to Nine, the applicant sued for injury sustained in the attack by Mr Kelso or events prior to that: PJ[87]. At least from the commencement of the 2018 Proceedings, the applicant considered that those injuries were caused by the fault of Nine: PJ[93]. So much was apparent from the 2021 Motion seeking to join Nine Entertainment Co to the 2018 Proceedings, through which the applicant “sought to pursue who he considered to be the controlling media entity responsible for the publications and actions of which he complains”: PJ[95]. Moreover, the commencement of the 2018 Proceedings and the 2021 Motion showed that, prior to 7 July 2021, the applicant was aware that his injuries were sufficiently serious to justify the bringing of an action on the cause of action pursued against Nine in the 2024 Proceedings: PJ[96]. For the same reasons, the primary judge considered that the claims against the Council and the State for negligence or intentional infliction of harm were statute barred, as any cause of action relied on was discoverable at the time of, if not before, the hearing of the 2021 Motion: see PJ[153]-[157], [159]-[161] (the State), and PJ[184]-[188] (the Council).

4. [29]

   The primary judge also thought there were other reasons why the claims for negligence or intentional infliction of harm ought to be dismissed. In relation to the claim against Nine, even if it were subject to s 14 of the Limitation Act, rather than the provisions of Pt 2 Div 6 of the Limitation Act, the claim was still statute barred because it arose more than six years before the 2024 Proceedings were commenced: PJ[98]. The allegations of vicarious liability against Nine had no prospects of success for two reasons. The first was that a parent company could not be vicariously liable for the acts of its subsidiaries: PJ[105], citing Bird v DP (a pseudonym) [2024] HCA 41; (2024) 419 ALR 552 at [48], where the High Court held that vicarious liability did not extend beyond an employment relationship. The second was that, as the applicant acknowledged, the companies that it was alleged breached duties to the applicant were not subsidiaries of Nine at the time the relevant conduct occurred: PJ[107]-[109]. Furthermore, the claim against Nine was an abuse of process because, insofar as the applicant relied on the radio interviews, or the defences filed in the Defamation Proceedings, the applicant was in effect seeking to prosecute a claim in defamation, which would circumvent the findings made by Abadee DCJ in relation to the 2021 Motion, and the dismissal of the Defamation Proceedings: PJ[115]-[123].

5. [30]

   The claims against the State were an abuse of process because they were, in substance, either rejected by Abadee DCJ in his determination of the 2021 Motion, or the subject of the 2018 Proceedings (which are yet to be heard): PJ[169]. The claim against the Council was an abuse of process because paragraphs 23, 24, and 25 of the ASOC (which set out that claim) were identical to paragraphs which the applicant had sought leave to introduce to the 2018 Proceedings as part of the 2021 Motion, and that leave had been refused by Abadee DCJ: PJ[187]-[190].

6. [31]

   In the primary judge’s view, different considerations applied to the claim for malicious prosecution against NSW Police and the DPP, and the claim for tortious wrongdoing by the DPP. Counsel for the State conceded that the applicant had not previously sought to pursue allegations of malicious prosecution: PJ[133]. Insofar as such a claim was made in the ASOC, it was not adequately pleaded: PJ[133]. To the extent that the claim for malicious prosecution did not involve a claim for damages for personal injury, it was not statute barred: PJ[150]-[152]. And if it did involve a claim for damages for personal injury, the primary judge was unable to conclude when the cause of action became discoverable: PJ[157]-[158]. For those reasons, the primary judge thought that it was appropriate to give the applicant leave to re-plead those claims.

The proposed grounds of appeal

1. [32]

   The applicant’s draft notice of appeal contains 20 proposed grounds of appeal. Grounds 1 and 20 are general grounds directed at the dismissal of each of the claims. They can be taken together. Ground 1 raises a number of issues concerning the primary judge’s description of the history of the litigation and the allegations made by the applicant in the 2018 Proceedings and the 2024 Proceedings which are said to “[cast] doubt on the reliability of the [primary judge’s] apprehension of the relevant facts” and “[give] rise to apprehension of confirmation bias against the applicant”. Ground 20 appears to be an allegation of actual bias arising from the applicant’s status as a self-represented litigant.

2. [33]

   Neither ground has merit. In relation to ground 1, what the applicant would need to do is to identify the findings made by the primary judge concerning the earlier proceedings which were necessary for the conclusions the primary judge reached and which the applicant says are mistaken. The applicant makes no attempt to do that. Instead, the applicant points to alleged errors in the description of events given by the primary judge and seems to suggest that it can be inferred from those errors that the primary judge misapprehended the relevant facts, and that gave rise to an apprehension of “confirmation bias” against the applicant. Even if it is accepted that the primary judge misdescribed the events in some respects, it does not follow from that the primary judge misapprehended the relevant facts. The primary judge identifies the facts he regarded as relevant to the conclusions that he reached (for example, his conclusions in relation to the application of the limitation period). The description of those facts does not appear to be challenged. Moreover, any misapprehension of relevant facts does not itself establish a reasonable apprehension of “confirmation bias” on the part of the primary judge, whatever precisely that phrase is meant to mean. An error in the fact-finding process is not itself evidence of bias.

3. [34]

   As to ground 20, the complaint appears to be that the primary judge recognised at PJ[71] that, in reaching his conclusions, due allowance should be made for the fact that the applicant is self-represented but then fails to make that due allowance by criticising the applicant’s conduct. The following paragraph of the judgment (PJ[64]) is said to be an example:

4. [35]

   There was no inconsistency in what the primary judge said, let alone one establishing bias on his part. The fact that the primary judge recognised that it was appropriate to make some allowance for the fact that the applicant was self-represented and not legally trained did not mean that the applicant’s conduct was beyond criticism. An allegation that a party, presumably through counsel, has attempted to mislead the court is a very serious one and should not lightly be made. It was perfectly proper for the primary judge to criticise the applicant for making such an allegation. The fact that the primary judge did not identify the precise respects in which he made allowance for the fact that the applicant was self-represented is not evidence that the primary judge was biased.

5. [36]

   In his submissions in reply to the submissions of the State and DPP, the applicant states that grounds 1 and 20 “are not pressed as independent disqualification grounds alleging actual or apprehended bias …”. However, if that is the case, it is difficult to see what they add to the other grounds raised by the applicant.

6. [37]

   Grounds 2 to 11 all concern the dismissal of the claim against Nine. Grounds 2 to 9 relate to the primary judge’s conclusions in relation to the limitation period. Ground 10 relates to the primary judge’s conclusion in relation to vicarious liability. Ground 11 relates to the primary judge’s conclusion in relation to abuse of process.

7. [38]

   It is not necessary to deal with each of grounds 2 to 9 separately. To some extent, they overlap. Not all of them, and the submissions in support of them, are easy to follow. In substance, the applicant appears to raise two issues by these grounds. First, he contends that the primary judge erred because he failed to recognise that the claims were not only for personal injuries but were also for “wrong to person” damages and were based on deceit and fraudulent misconduct, with the result that ss 14 and 55 of the Limitation Act applied. Section 14 provides a limitation period of six years for relevantly a cause of action founded on tort. Section 55 relevantly provides:

8. [39]

   Second, the applicant submits that applying the correct limitation period, the proceedings have been commenced within time.

9. [40]

   It is not clear what the applicant means when he says that the claims were for “wrong to person” damages. The applicant does allege that Mr Kelso damaged his property and to the extent that Nine is said to be responsible for that damage, the claim is plainly for property damage. That point aside, the primary judge was entitled to take the view that the claim was correctly characterised as one for personal injuries.

10. [41]

    In any event, the primary judge dealt with the position if a six-year limitation period applied. At PJ[98] his Honour said this:

11. [42]

    The primary judge did not specifically deal with s 55. That is not surprising. Although the applicant raised s 55 in his written submissions before the primary judge, he did not identify which facts he maintained were concealed from him that were relevant to the causes of action that he now seeks to pursue against Nine. In his submissions before the primary judge, he did point to a lengthy chronology that he prepared. However, that chronology does not identify any facts that were concealed from him. The applicant’s claims arise out of the broadcasts by Harbour Radio, the newspaper articles published by Fairfax, his subsequent assault by Mr Kelso and the damage Mr Kelso is alleged to have caused to the applicant’s property. All those events occurred more than six years before the 2024 Proceedings were commenced.

12. [43]

    In his written submissions before this Court, the applicant submits that it was only after the Defamation Proceedings were dismissed (because of his failure to provide security) that “it became necessary for me to think about whether there was a cause of action other than defamation which I could pursue” and that in all the circumstances “[i]t was impossible for it to occur to me to take legal action, on top of the ongoing defamation claim against the State & Nine’s subsidiaries”. However, that is not the test. The question is not when the applicant appreciated that some other cause of action may have been available to him. The question is when he became aware of the relevant fraud, deceit or concealment. The applicant does not address that question. For the reasons already given, it is apparent from the nature of the applicant’s claims that he became aware of the relevant events at or about the time that they occurred. Consequently, even if the claim can be characterised at least in part as a claim other than one for personal injuries, the conclusions of the primary judge on the limitation period are not seriously open to question.

13. [44]

    As the primary judge recognised, his conclusions in relation to the limitation period were dispositive of Nine’s application for summary dismissal. In those circumstances, it is unnecessary to consider the other grounds of appeal in relation to the claim against Nine.

14. [45]

    Grounds 12 to 17 concern the claims against the State and the DPP.

15. [46]

    Ground 12 attacks a comment made by the primary judge that in considering a pleading a defendant and the Court are not required to “sift through a narrative and then a list of complaints” to try to identify the nature and basis of a cause of action (quoting from McGuirk v University of New South Wales [2009] NSWSC 1424 at [50]). The point made by the primary judge is uncontroversial and this ground of appeal goes nowhere.

16. [47]

    Grounds 13 to 15 relate to the primary judge’s conclusions in relation to the limitation period so far as they concern the State and the DPP. Ground 16 relates to the primary judge’s conclusion that apart from the potential claims he identified and gave leave to re-plead, the claims against the State were an abuse of process. Ground 17 is difficult to follow. It is in the following terms:

17. [48]

    The gravamen of that ground appears to be that if grounds 13 to 16 fail, but the Court regards the claims against the State and DPP as inadequately pleaded, then the applicant should be given leave to re-plead those claims.

18. [49]

    Ground 13 is essentially concerned with the claim against the State insofar as it relates to the conduct of the Attorney-General and her involvement in the events which are relied on in relation to Nine. It repeats the grounds relied on in relation to Nine, and the applicant relies on the same submissions. For the reasons already stated, this ground has no reasonable prospects of success.

19. [50]

    Ground 14 concerns the allegation that NSW Police and the DPP breached duties they owed to the applicant because of the way in which they prosecuted Mr Kelso, which was said to have resulted in a manifestly inadequate sentence being imposed on Mr Kelso and the court making manifestly false findings “which caused extreme hurt and humiliation to the [applicant]”. Ground 14 challenges the primary judge’s conclusion at PJ[159] that the factual allegations that underlie this claim can be found in paras 54(t), 54(u), 55(bb), 55(dd) and 55(ee) of the amended statement of claim in the 2018 Proceedings, with the result that it can be inferred that the applicant had the requisite factual knowledge under s 50D(1)(b) of the Limitation Act, so far as NSW Police were concerned, more than three years before the 2024 Proceedings were commenced.

20. [51]

    The applicant appears to accept as much, since he says in his written submissions that “[i]t then follows that I could not have taken legal action against NSW Police until after the trial & sentencing of Alexander Edward Kelso on 17th April 2020…”. His submissions appear to proceed on the basis that a six-year limitation period applied from that time. However, it seems clear from the pleading that the damages claimed by the applicant are damages for psychological injury. Consequently, the primary judge was correct to apply the limitation period found in s 50D(1)(b). There is no merit in ground 14 which would justify a grant to leave.

21. [52]

    Ground 15 challenges the primary judge’s conclusion in PJ[160] that the same analysis applies to the other claims against the State apart from any claim for malicious prosecution and the possible claim against the DPP arising from the prosecution of Mr Kelso.

22. [53]

    As the applicant points out, apart from those already mentioned, three other claims are advanced against the State (and the Council) in the ASOC. One is said to arise from the failed application to have the applicant declared a vexatious litigant in 2016. The second is said to arise from a poster published by Mr Kelso on notice boards on Scotland Island on or about 21 July 2014 that were defamatory of the applicant and from a republication of that poster by Mr Palmer on the Scotland Island Community Facebook page, for which the State and Council are said to be liable in “negligence and/or intentional tort”. The third is said to arise from damage done to the applicant’s property between March 2018 and February 2019 by Mr Kelso. Again, the State and Council are said to be liable in “negligence and/or intentional tort” for that damage.

23. [54]

    Any claim arising from the application to have the applicant declared a vexatious litigant was plainly out of time. The proceedings were completed in December 2016. The applicant must have known all relevant facts by that time. He does not point in his submissions to any relevant facts which he only learned subsequently.

24. [55]

    The same is true of any claim arising out of the poster published by Mr Kelso. The following “Particulars” are given of this claim:

25. [56]

    The equivalent paragraphs were struck out of the 8 June 2021 pleading. It is plainly not a proper pleading to plead a claim by repeating allegations struck out from a pleading in another case. In any event, relating as it does to events that occurred in 2014, the claim is clearly statute barred.

26. [57]

    It is unnecessary to consider whether the primary judge was correct to conclude that the claim arising out of damage to the applicant’s property is statute barred. That claim in substance remains in the 8 June 2021 amended statement of claim, which has not yet been heard. Even accepting that the limitation period in respect of that claim is six years and has not yet expired, the primary judge was correct to conclude that it was an abuse of process to repeat the claim in the 2024 Proceedings when it is already the subject of the claim in the 2018 Proceedings (as amended). The only submissions advanced by the applicant on this aspect of the draft notice of appeal are advanced by reference to the claim in paras 21 and 22 of the ASOC. But as has been explained, the equivalent claim in the 2018 Proceedings was struck out.

27. [58]

    In view of the conclusions that have been reached, nothing further needs to be said about ground 17.

28. [59]

    Grounds 18 and 19 concern the claim against the Council. Ground 18 concerns the primary judge’s conclusion in relation to the limitation period. Ground 19 concerns the primary judge’s conclusion that the claims against the Council are an abuse of process.

29. [60]

    The claims against the Council arise out of the same facts as the claims against the State as referred to in para [52] above. For the same reasons, the primary judge was correct to conclude that they were either statute barred or an abuse of process.

The cross appeal

1. [61]

   The proposed notice of cross-appeal contains one ground. It is in the following terms:

2. [62]

   Paragraphs 26 to 31 of the ASOC in effect contain an allegation that the DPP owed the applicant “duties and obligations” in relation to the prosecution of Mr Kelso and that it breached those duties and obligations because it conducted the prosecution “in an incompetent and/or negligent manner, and/or in a manner that was intentionally [tortious] to the [applicant]” with the result that a manifestly inadequate sentence was imposed on Mr Kelso and the Court made “manifestly false findings that caused extreme hurt and humiliation to the [applicant]”.

3. [63]

   The primary judge concluded that this claim was not properly pleaded and expressed the view that as pleaded it was not possible to determine whether it was statute barred. However, the primary judge did not expressly deal with the State’s argument that it was not reasonably arguable that the DPP owed the victim of a crime a duty when prosecuting the perpetrator of the crime, with the result that paras 26 to 31 should have been struck out as failing to disclose a cause of action. That is the issue raised by the ground of cross-appeal.

4. [64]

   In considering the cross-appeal, it is important to bear in mind what the primary judge did. The primary judge did not determine whether the claim sought to be advanced by the applicant should proceed to trial. All he did was give the applicant an opportunity to re-plead the claim in circumstances where, whether that opportunity was given or not, the proceedings would, at least for the time being, remain on foot against the State and where a claim in those terms had not previously been advanced by the applicant. That is a paradigm example of a decision on practice and procedure where an appellate court should be reluctant to intervene.

5. [65]

   The State submits that this is an appropriate case in which to grant leave because the question whether “the Director of Public Prosecutions owes a duty to a victim of crime with respect to particular aspects of the conduct of sentencing proceedings against an assailant is of public and general importance” and “[t]he primary proceedings are a very poor vehicle for testing whether a duty exists in such circumstances, and the Court would have no confidence that the [applicant] will ever be able to properly plead a novel claim”. However, these submissions address the wrong issue. The only issue currently before the Court is whether leave should have been given to the applicant to re-plead the claim against the DPP. The question whether that leave should have been granted does not raise an issue of public and general importance. There is a question whether the applicant has been given sufficient opportunity to plead an arguable case, and relevant to that question is whether the applicant will ever be able to properly plead a claim against the DPP. But the primary judge’s conclusion that the applicant should be given at least one further opportunity does not involve any error of principle or clear injustice to the State. It follows that the application for leave to cross-appeal must be dismissed with costs.

6. [66]

   For the avoidance of doubt, we express no view about whether or not it is reasonably arguable that the DPP owed the applicant, as a victim of a crime, a duty of care when prosecuting the perpetrator of the crime. If it transpires that the applicant is able to articulate a properly pleaded claim of this type against the DPP, it would be a matter for the State whether it seeks to agitate that question on a summary basis.

Orders

1. [67]

   The orders of the Court are:

   1. (1)

      The amended summons seeking leave to appeal filed on 11 November 2025 is dismissed with costs;

   2. (2)

      The summons for leave to cross-appeal filed on 29 October 2025 is dismissed with costs.