Tabbaa v State of New South Wales

HIS HONOUR: Mr Mouhammad Riad Tabbaa, by notice of motion filed on 7 April 2026, seeks a referral pursuant to UCPR r 7.36 for pro bono assistance, either by way of a solicitor or a barrister, to assist him in pending proceedings in this Court. It is necessary to say something about the nature of the application for leave to appeal which he has brought. Most of the following derives from an affidavit read on the motion before me, but evidently prepared in support of the State’s application for incompetency of what, at that stage, had been purportedly an appeal as of right brought by Mr Tabbaa.

Mr Tabbaa appears to have been arrested and detained twice in 2018. The first occasion was on the afternoon of 25 June for some two and a half hours. The second was on 7 July. On that occasion, he was detained for some hours in the late evening and early hours of the morning. Subsequently, he was charged with one count of intimidation, the precise circumstances of which are immaterial for present purposes. He was convicted in the Local Court but exercised his right of appeal to the District Court.

In the District Court, he was successful, and his conviction was quashed. Essentially, as summarised by that Court (constituted by Pickering DCJ), that was on the basis that although the judge, by reference to photograph 9 in evidence before him, was suspicious that he was holding some item, he could not be satisfied beyond reasonable doubt that it was a weapon.

Consequent upon his success in the District Court, he brought proceedings in the District Court, albeit almost four years later, in August 2023, advancing four tortious claims: wrongful arrest, false imprisonment, trespass to land and malicious prosecution. The statement of claim is a document of some 15 substantive pages, and deals comprehensively with the law (which is far from straightforward in claims against the State based on tortious conduct by police officers) and particulars of the allegations of fact giving rise to each tort, as well as allegations of loss and damage, including aggravated and exemplary damages. Mr Tabbaa has told me, and I accept, that he, with a great deal of effort, and reliance upon other precedents, prepared that pleading himself.

The evidence before me is that a solicitor was, for a time on the record for Mr Tabbaa as plaintiff, but he tells me, and for present purposes I shall accept, that that was at least primarily and perhaps wholly for the purpose of serving subpoenas. In any event, and this is what matters most for the exercise of discretion that is before the Court today, that solicitor ceased to act a considerable time before the matter went to trial. Also, and travelling concurrently with Mr Tabbaa’s action, was a separate action brought by his son. That pleading is not before me, and although the outcome was materially the same, as far as is known, no appeal or application for leave to appeal has been brought by him.

Both plaintiffs were unrepresented through the entirety of a trial which had been set down for seven days to commence on Monday, 25 August 2025. The hearing took an unusual course and it is that which gives rise to the entirety of the proposed notice of appeal.

The plaintiffs on the first day advised that they were not going to be giving evidence. It is apparent that the trials proceeded, as is common in the District Court, without the service of affidavits, and with lay evidence being adduced in chief. There was the following exchange (transcript, 25 August 2025, pp 10-11):

There was an exchange about the tender of documentary evidence, and the plaintiffs maintained that they sought to do that during the cross examination of the police officers. There was the following exchange (transcript, 25 August 2025, p 12):

There was an adjournment, and following receipt of the transcript, the State served a notice of motion seeking, relevantly, judgment in its favour with respect the trespass to land and malicious prosecution claims. The motion was returnable the following day, which was the second day of the trial.

On the second day, the plaintiffs sought an adjournment in order to respond to the motion. The primary judge accommodated that by adjourning it to the Wednesday. However, there was an exchange clarifying the essence of what the State sought, namely, only that the claims for trespass and malicious prosecution be struck out. His Honour said this (transcript, 26 August 2025, p 8):

The matter returned on the third day and there was mention of an application to reopen. There was also discussion between the judge and the plaintiffs about whether they had closed their case. There is a link between the two. The plaintiffs seem to have taken the view that because they denied that they had closed their case, they could not consistently with that apply to reopen it. After that debate, there was a short adjournment because the second plaintiff had said he wished to get some legal advice. A short adjournment was granted for that purpose. It is not clear on the face of the transcript how long it was for.

Following that adjournment, there was a further exchange concerning reopening of the case. Insofar as that exchange involved Mr Tabbaa Senior, it included the following:

Thereafter, the State moved on application and gained the orders that it sought on the basis that the plaintiffs bore the onus on the claims based on trespass and malicious prosecution. His Honour delivered short ex tempore reasons.

The hearing proceeded on the claims for wrongful arrest and false imprisonment, and with, once again, both plaintiffs being unrepresented. The State called four police officers who were cross-examined. Ultimately by a reserved judgment delivered on 28 November 2025, the District Court ordered that “there be judgment and verdict for the defendant against the plaintiff” in each matter: Tabbaa v State of New South Wales; Tabbaa v State of New South Wales [2025] NSWDC 495.

In the meantime, Mr Tabbaa (Senior) had filed process in this Court seeking to appeal from the dismissal of his causes of action for trespass and malicious prosecution on the third day of the trial. He says, and I accept, that this was done in order to prevent the expiration of the three month period from which to appeal. There has been – and still is (and will not be resolved by anything I say) – a dispute as to whether there is an appeal as of right or, in light of the likely best outcome of success on the appeal, only an application for leave to appeal because of the $100,000 threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW).

There has also been filed a notice of intention to appeal from what I will call the substantive judgment on the actions for wrongful arrest and false imprisonment. It seems likely, although the position is not entirely clear, that Mr Tabbaa (Senior) has sought to file either a notice of appeal or an application for leave to appeal from the orders made on 28 November 2025, and the consequent costs orders. He showed to me a notice of intention to appeal from those orders, but has said that there has been a difficulty in the Registry accepting it or, to be more precise, accepting his application for a waiver of fees for the filing of that process.

Constructively, and putting to one side the application before me today, the sensible course to which Ms Coventry, who appeared for the State, has no objection, is for there to be a single process in this Court, and for that single process to encompass the whole of Mr Tabbaa’s complaints with the District Court in the underlying action. That is probably most readily done – and may already have been suggested by the Registrar – by filing an amended summons seeking leave to appeal in this Court, with the summons referring to not only the interlocutory judgment on the third day of the trial, but also the judgment on 28 November 2025, and the proposed grounds of appeal extending to the grounds on the substantive judgment.

Mr Tabbaa has supplied a notice of appeal from the judgment on the third day of the trial. It contains five proposed grounds, all of which are directed to complaints of procedural fairness. The first is in general terms. The second asserts either that the primary judge erred, or did not provide procedural fairness, by striking out the claims for trespass and malicious prosecution “before the first plaintiff closed his case and/or concluded the tendering of documentary evidence”. The third deals with the inability to cross-examine prospective witnesses in relation to the police prosecutor's conduct, preventing the tender of documentary evidence, and omitting certain findings. The fourth squarely asserts that there was no procedural fairness in the finding that the plaintiffs had closed their case on the first day of the trial. The fifth was a complaint about his Honour's reaction to the proposition that the documents would be tendered through the cross-examination of the police witnesses.

I have not in that summary given full justice to the articulation of the appeal grounds. It is tolerably clear that at least in large measure, those grounds will stand or fall based on a review of the entire conduct of the trial. It is for that reason that I have set out in these reasons some – but not all, and I have made no attempt to be comprehensive – of the exchanges that occurred on the first, second and third days of the trial. The material before me does not extend to what happened on the fourth and fifth days of the trial, nor does it of course extend to the grounds of appeal from that judgment, although Mr Tabbaa has said from the Bar table that they are much the same, and his focus is upon a denial of procedural fairness. Having said that, these reasons do not, and should not be understood to, confine the grounds that ultimately are put forward.

Plainly enough, Mr Tabbaa says that he has suffered an injustice, including for the following reasons. The first concerns a distinction between testimonial evidence and documentary evidence. He says that the primary judge failed to appreciate that he wished to tender documentary evidence in support of his case after he had advised he would not be giving testimonial evidence.

Secondly, there is a dispute about what it means to have closed his case. He says, and so far as I can see he is right about this, that he never said explicitly during the trial that he had closed his case, and from time to time he denied having done so. On the other hand, the first day of the trial appears to proceed on the basis that any documentary tender was only to happen through cross-examination of the police witnesses.

Thirdly, there is a concern about whether Mr Tabbaa was sufficiently aware of an entitlement to apply to reopen his case, and perhaps it is said that the primary judge did not sufficiently ensure that Mr Tabbaa understood his rights, although there were exchanges about this, and at one stage an adjournment for at least the son to obtain legal advice about the course they were taking.

The points I have just distilled were also advanced, effectively and reasonably succinctly, by Mr Tabbaa, as I inquired of him as to the utility of the grant of pro bono assistance which he seeks. It is clear to me that, first of all, Mr Tabbaa has a more than adequate command of English, and secondly, is very familiar with the course of the trial, and the forensic steps taken by both sides.

Mr Tabbaa has also said that the appeal is complex and that he would be assisted by obtaining legal advice. I have no doubt that he would be assisted by obtaining legal advice. I also have no doubt that the Court would be assisted by his obtaining legal advice, especially if the assistance extended to appearing for him in this Court.

That, however, is not dispositive of the discretion I am called upon to exercise. This has been recognised in many cases. In Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288 at [42], Ward JA said (citations omitted):

In Lane v Northern NSW Local Health District (No 2) [2014] NSWCA 32 at [8], Basten JA said:

The same point was made by Campbell JA in Kelly v Mosman Municipal Council [2010] NSWCA 370 at [19], with his Honour noting that the resources of the pro bono panel are limited. His Honour said that the Court should ask them to give up their time and exercise their skill “only in circumstances where there is an appropriate reason, for the overall administration of justice, to make that request”. Similar authorities to the same effect were made in M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [21], in Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10] - [12] and in Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315 at [12] - [13].

Telling in favour of a grant of pro bono assistance is the fact that the underlying conduct is the exercise of public power by members of the NSW Police Force, which is of itself serious, involving, as it does, the personal liberty of members of our society. On the other hand, having heard Mr Tabbaa elaborate his submissions at some length, and having regard to their nature as best I can see from the notice of appeal that is before me, I do not agree that this is an especially complex case. To the contrary, this is a relatively straightforward matter, where the Court will determine whether or not the unrepresented litigant has been accorded procedural fairness by engaging in a careful review of the record (which, I note, given what happened at trial, is far from extensive).

I also note that over the course of a five-day trial, Mr Tabbaa appeared without a lawyer, and in addition to the forensic steps referred to above, proceeded to cross-examine police witnesses and make submissions on his own behalf. No doubt he took steps which a legally qualified person would have approached differently; however, he is far from incapable of articulating his points. I reiterate, if the question were simply whether Mr Tabbaa would be advantaged and whether the court would be advantaged by the appointment of pro bono legal assistance, the answer would readily be yes. However, in the particular circumstances of this case, I am not satisfied that the interests of the administration of justice warrant that course being taken.

Another way of putting this is that despite the advantages to the Court and to Mr Tabbaa – and incidentally to the State, which I should add has adopted a neutral stance to the application – the administration of justice will be adequately served without calling upon the limited resources of barristers and solicitors who are prepared to give their time pro bono so that Mr Tabbaa can vindicate his rights, and if appropriate, obtain the benefit of a judgment in a pecuniary sum in his favour.

For those reasons, I will dismiss the notice of motion dated 7 April 2026.

HIS HONOUR: Ms Coventry, I don’t see any reason for costs for you. You’ve been of assistance, but your stance has been neutral.

COVENTRY: That is correct. The only possible submission I would make would be that costs be costs in the cause and in the proceedings generally.

HIS HONOUR: I note the submission. Is there a basis for it?

COVENTRY: Simply to reflect that we have put material before the court that has assisted the Court.

HIS HONOUR: Mr Tabbaa, did you want to say anything about that?

APPLICANT: About what, your Honour?

HIS HONOUR: About costs. You’ve come to the Court, you've asked by your motion for pro bono assistance. I have ruled against you. Ms Coventry says that her costs should be costs in the cause. Do you want to say anything against that?

APPLICANT: A matter for the Court.

HIS HONOUR: The State seeks an order that its costs of the notice of motion be costs of the cause. Ms Coventry says, accurately, that she has put material before the court appropriately which would not otherwise have been before the court. In the circumstances of this case, and bearing in mind that Mr Tabbaa’s complaint is against the State, I think the appropriate order is that there be no order of the costs of the State, which did not participate in a partisan way on the notice of motion, with the intent that the State bear its own costs of the notice of motion.