Citation: El-Saeidy v El-Shinawy [2025] NSWDC 229
Court: District Court of New South Wales
Date: 23 June 2025
Judge: Gibson DCJ
Background
The plaintiff commenced proceedings for malicious prosecution against his former wife, alleging she had made false reports of domestic violence to NSW Police in June 2016. Those reports led to two charges being heard in Bankstown Local Court, and the plaintiff was found not guilty in March 2018. He filed the statement of claim almost exactly six years later, in March 2024, shortly before the limitation period expired.
The proceedings had a protracted interlocutory history marked by repeated failures to comply with court orders. Despite being granted multiple extensions to file an amended statement of claim and affidavit evidence in chief, the plaintiff failed to meet each successive deadline. In January 2025, the plaintiff was diagnosed with stage IV inoperable cancer, a circumstance he relied upon to explain some of his defaults.
A four-day-plus hearing had been listed for 28 July 2025. By the time the matter came before Gibson DCJ at the final show cause hearing on 23 June 2025, the plaintiff had still not filed or served the required affidavits in chief, the amended pleading, or key documentary evidence such as the transcript of the criminal proceedings. The defendant, represented pro bono, sought dismissal and a gross sum costs order.
Legal Issues
- Whether the proceedings should be dismissed for want of due despatch under UCPR r 12.7, in circumstances of repeated and unexplained non-compliance with court orders, including guillotine orders.
- Whether the plaintiff's diagnosis with inoperable cancer provided a sufficient explanation for those defaults.
- Whether a gross sum costs order under s 98(4) of the Civil Procedure Act 2005 (NSW) should be made, including the question of how to treat costs where the defendant's lawyers were acting pro bono.
Decision
Gibson DCJ dismissed the proceedings under UCPR r 12.7, which empowers the court to dismiss proceedings if a plaintiff does not prosecute them with due despatch. Her Honour found that the plaintiff had repeatedly failed to comply with timetable orders, including guillotine orders, and that the failures had continued even after a formal show cause order was made. On 23 June 2025, a month before the scheduled hearing, the plaintiff still had not served essential evidence or the amended pleading.
While her Honour acknowledged the plaintiff's serious illness, she accepted the earlier finding that the medical evidence did not adequately explain the second and continuing round of failures. The plaintiff had, in fact, managed to file an amended statement of claim the day after receiving his cancer diagnosis, which suggested that illness alone was not the complete explanation for the subsequent defaults. The court also noted the certainty that, had the proceedings continued, the July hearing date would have had to be vacated, causing further prejudice and waste of court resources.
On costs, the defendant initially sought a gross sum order under s 98(4) of the Civil Procedure Act. Gibson DCJ declined to make such an order, finding there was insufficient information before the court to do so reliably. Her Honour noted particular difficulty in the absence of clear information about the terms of the pro bono arrangement under which the defendant's lawyers were acting, referring to longstanding concerns about the need for inquiry and reform in this area. After the court raised these matters, the defendant's solicitor withdrew the gross sum application, and the court made the standard order for costs as agreed or assessed.
Orders Made
- The proceedings are struck out and dismissed pursuant to UCPR r 12.7.
- The plaintiff is to pay the defendant's costs as agreed or assessed.
Key Takeaways
- The District Court dismissed proceedings for malicious prosecution after the plaintiff repeatedly failed to comply with timetable orders, including guillotine orders and a formal show cause order, and remained unprepared for trial a month before the listed hearing date.
- A serious medical condition does not automatically excuse non-compliance with court orders. Where a party manages to take procedural steps around the time of a diagnosis, that conduct may weigh against reliance on illness as a complete explanation for subsequent defaults.
- Guillotine orders carry real force: the court treated the self-executing orders as a baseline and continued to require compliance even while considering whether to grant further indulgences through the show cause process.
- A gross sum costs order under s 98(4) of the Civil Procedure Act 2005 (NSW) requires sufficient evidence before the court as to the costs actually incurred. Where that information is absent, or where the terms of a pro bono arrangement are unclear, a court may decline to make the order and instead direct costs to be assessed in the ordinary way.
- Gibson DCJ took the opportunity to reiterate the need for inquiry and reform around pro bono costs arrangements, referencing concerns first identified in the NSW Law Reform Commission Report 137 (December 2012) and noting they remain unresolved more than a decade later.
Legislation and Cases Referenced
Legislation:
- Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 13.4, 14.28
- Civil Procedure Act 2005 (NSW), ss 56-58, 61(3), 86(3), 91, 98(4)
- Federal Court of Australia Act 1976 (Cth), s 31A
Cases:
- Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
- Baron v Walsh [2014] WASCA 124
- Bi v Mourad [2010] NSWCA 17
- Dickens v State of New South Wales (No 3) [2018] NSWSC 485
- E1 v E2; E Pty Limited v E2 [2023] NSWDC 411
- Gabrielle v Abood (No 4) [2023] NSWCA 100
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
- Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595
- Golden v Howard (No 2) [2024] NSWSC 172
- Hamod v State of New South Wales [2011] NSWCA 375
- Kohkanzada v Amiri [2024] NSWSC 492
- Massarani v Kriz [2022] FCA 80; 400 ALR 718