District Court New South Wales Medium Neutral Citation: Mohareb v State of New South Wales & Ors (No.2) [2021] NSWDC 215 Hearing dates: On the papers Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 62 and 63 Catchwords: JUDGMENTS AND ORDERS - liberty to apply in relation to dispositive orders relating to multiple interlocutory applications - application by plaintiff to set aside or vary orders - whether applications feature attempt to reargue decision or amount to fresh applications for further amendments and joinder applications previously rejected by the Court Legislation Cited: Bankruptcy Act 1966 (Cth) s 60 Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60, 61, 91 Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, 36.16, 36.16 Cases Cited: Aquaqueen International Pty Limited (No 2) [2014] NSWSC 947 Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Katter v Melhem (2015) 325 ALR 351 L Shaddock & Associates Pty Ltd v Parramatta City Council (No.2) (1982) 151 CLR 590 Mohareb v State of New South Wales & Ors [2021] NSWDC 177 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 Woodcroft v DPP (Cth) (2000) 174 ALR 60 Texts Cited: Nil. Category: Procedural rulings Parties: Nader Mohareb (Plaintiff) State of New South Wales (First Defendant) Northern Beaches Council (Second Defendant) Dr M Bowler (Proposed Third Defendant) Nine Entertainment Co Pty Ltd (Proposed Fourth Defendant) Representation: Counsel: Plaintiff, in person Mr A Williams for the First Defendant Mr J Guihot for the Second Defendant Mr S Blackman for the Proposed Third Defendant Solicitor Advocate for the Proposed Fourth Defendant Solicitors: Crown Solicitor's Office for First Defendant Moray & Agnew for the Second Defendant Meridian Lawyers for the Proposed Third Defendant Banki Haddock Fiora for the Proposed Fourth Defendant File Number(s): 2018/221230 Publication restriction: Nil. Judgment BACKGROUND 1. On 14 May 2021, I delivered reasons for decision in respect to a multiplicity of interlocutory applications after a two-day hearing (Mohareb v State of New South Wales & Ors [2021] NSWDC 177 ("My Reasons")). All of those applications, in one way or another, focussed upon the content of a proposed amended Statement of Claim by the plaintiff1, which had followed the plaintiff's previous amendment application made before Wass SC DCJ; resulting in her Honour's judgment on 1 October 2020 [1] . The applications determined by My Reasons might be regarded as something of a sequel to her Honour's judgment. An issue in the applications was whether the plaintiff had filed an amended pleading in accordance with her Honour's orders. A fair reading of My Reasons would suggest that the applicant did not, in several respects. 2. At paragraphs 178-192 of My Reasons, I set out a summary of orders for the disposition of the interlocutory applications. Because of the extensive citation in My Reasons of individual paragraphs of the version of the proposed amended pleading in issue, and in order to meet the contingency that some of those orders may not have fully reflected the reasoning in adjudicating whether the amendments should be allowed, at paragraphs 188-189, I granted the parties liberty to apply to seek variation of those orders. 3. By a notice of motion filed on 24 May 2021, the plaintiff, as applicant, purportedly invokes that liberty and applies for variation of no less than 7 of those orders. Annexed to that Notice of Motion, and unsolicited by the orders in My Reasons, was a document titled 'Revised Proposed Further Amended Statement of Claim'. Aside from the annexure of that document, there was no other evidence before the Court to support the application for the multiple variations sought. 4. The proposed variations the subject of the application, in essence, are: 1. variation of the order at paragraph 187 of My Reasons, so as to be consistent with the intention of Wass SC DCJ (when the matter was before her Honour) that the mediation occur after pleadings had been closed and not after the provision of particulars; 2. variation of the order at paragraph 180 of My Reasons, so as to permit retention of what had been the particulars (b)-(l) of paragraph 16 of the version of the proposed pleading that was the subject of argument in the Court; 3. setting aside or varying the order at paragraph 180 so as to permit the retention of paragraphs 2(c), 7-13, particulars (b)-(jj) to paragraphs 17, 18, 19-22, 33-34, 60-62 & 66-67 of the version of the proposed pleading that was the subject of argument in the Court. This particular application makes reference to the Revised Proposed Further Amended Statement of Claim; 4. setting aside or varying the order at paragraph 181 so as to permit the retention of paragraphs 19-22, particulars (a)-(b) to paragraph 58 and particulars (d)(ii),(iii) and (iv) to paragraph 58. This particular application also makes reference to the Revised Proposed Further Amended Statement of Claim; 5. setting aside the costs order in favour of the First and Second Defendants in paragraph 185; 6. setting aside the order in paragraph 178 refusing the joinder application against the proposed third and fourth defendants and substituting the order that the joinder application is granted; 7. setting aside the order in paragraph 186 being that the plaintiff pay the costs of the joinder application of the proposed third and fourth defendants. 1. Upon receipt of the applicant's Notice of Motion, I directed the respondents to serve short written submissions (not exceeding 2 pages) and the applicant to serve written submissions in reply (not exceeding 8 pages) within dates (and also the page limits) to be strictly enforced. 2. The Court received submissions from the first and second defendants and also the proposed third and fourth defendants. The first defendant accepted that there was a basis for correction of the order expressed in [180] to the extent that two paragraphs should be removed. Otherwise, the first defendant submitted that there was no occasion for any variation and that in respect to orders 3 to 5 inclusive of the Notice of Motion what was essentially being sought was a form of appeal. The second defendant and the proposed defendants also argued that what the applicant was seeking to do was to appeal the orders without taking the proper course to invoke rights of appeal. 3. What follows assumes familiarity with My Reasons. The applications exceed the grant of liberty to apply 1. It is immediately obvious that at least some of these applications go beyond the liberty to apply that was provided when the Court delivered its reasons on 14 May 2021. The expression 'liberty to apply' does not extend to substantive amendment of the orders in respect of which the liberty to apply was granted. In Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201, Campbell JA (with the agreement of Tobias JA) said: "[50] When final relief has been granted in a suit, an order granting liberty to apply enables further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced or, as it is sometimes called, 'working out the order': Poisson and Woods v Robertson and Turvey (1902) 50 WR 260 at 261; Cristel v Cristel [1951] 2 KB 725 at 729, 730; Nicholson v Nicholson [1974] 2 NSWLR 59 at 63; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [97]. [51] In Abigroup Limited v Abignano (1992) 39 FCR 74 at 88, the Full Federal Court (Lockhart J, Morling and Gummow JJ) held that an order that a particular sum of money be paid to a particular party was a final order, notwithstanding that the order also reserved liberty to apply. Their Honours gave a general indication of where and how reservation of liberty to apply operates: 'The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. … Historically orders reserving liberty to apply are for limited purposes. They arise, for example, upon a decree for specific performance where the unsuccessful defendant declines to sign all documents and do whatever is necessary to ensure that the contract the subject of the suit is performed. The reservation of liberty to apply ensures that the court may then make orders to secure that the relevant contract is enforced by the defendant by, for example, appointing the appropriate officer of the court to execute the necessary documents of conveyance so as to give title to the successful plaintiff. Historically the reservation by the Court of Chancery of further consideration of a decree was intended to cover the circumstance where following the pronouncement of the decree (a final decree) a further hearing was necessary for the court to deal with some outstanding issue sometimes requiring taking further evidence and making further declarations or orders. But this did not detract from the initial orders as being final orders. Rather it was a mechanism designed by the Court of Chancery to obviate the necessity of a further suit being instituted to deal with matters that were essentially consequential upon the making of the initial final decree. This demonstrates that there is no inconsistency between the making of final decrees, judgments or orders or declarations and subsequent orders of the court. It all depends upon the circumstances of the case and the particular orders or decrees formulated by the court. …' [52] Liberty to apply cannot be used to alter the substance of an order already made: Dowdle v Hillier (1949) 66 WN (NSW) 155 at 156; Cristel v Cristel [1951] 2 KB 725; Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 at 559. … [54] In Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 598, McPherson SPJ considered what is involved in 'working out' an order: '… a judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. What is meant in this context by "working out" the terms of an order is considered in some of the cases on the point. In Cristel v Cristel [1951] 2 K.B. 727, 728, Somervell LJ said it "involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied". A simple judgment for a money sum requires no "working out" in any sense, so that liberty to apply is quite inappropriate in such a case. …" (Emphasis added.) [2] 1. At most, only orders 1 and 2 to the Notice of Motion fell within the grant of liberty to apply. Power to set aside, vary or correct orders 1. Notwithstanding that the application exceeds the grant of liberty to apply, the plaintiff is entitled by Court rules (such as rules 36.15, 36.16 and 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR')) to seek orders, more generally, for setting aside or varying the orders made on 14 May 2021. This application, as indicated, was merged with the invocation of liberty to apply which would naturally come before the Judge who made the orders. 2. Rules 36.15, 36.16 and 36.17 provide different means for the Court to set aside, vary or correct orders. 3. Rule 36.15 deals with the entitlement of a litigant, as of right, to have orders set aside for sufficient cause, being one or more of the grounds set out in the rule. 4. Rule 36.17 is the 'slip rule', which permits an "accidental slip or omission, in … an order" (emphasis supplied) to be corrected. That power is discretionary. There is no time limit to correct an error of that kind: L Shaddock & Associates Pty Ltd v Parramatta City Council (No.2) (1982) 151 CLR 590 at 594-5. 5. The possibility of the applicant invoking r 36.16 was enlivened as the application has been made within the 14 day period provided for by r 36.16(3A) of the UCPR. 6. The power to set aside an order under r 36.16, which is also discretionary in nature, is potentially exercisable where an applicant may demonstrate error in the Court's reasoning, because of misapprehension of the facts or law where such misapprehension cannot be attributed solely to the neglect or default of the applicant. But it is improper to invoke the power for the purpose of re-arguing a question decided after full argument: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 and Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300. As Mason CJ said in the latter decision (at 301-2) that the exercise of a jurisdiction to open a judgment is to be "exercised with great caution, having regard to the importance of the public interest in the finality of litigation". His Honour added (at 303) that the purpose of the rule is "not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases". 7. In the decision in the matter of Aquaqueen International Pty Limited (No 2) [2014] NSWSC 947 at [2] and [3], Brereton J stated that the Court's power to vary or set aside orders under 36.16(3)(a) "is subject to the significant limitation imposed by the public interest in maintaining the finality of litigation, which requires great caution in the exercise of the power, especially where the variation sought would have the practical effect of reopening the proceedings to enable a significant rehearing. The power will be exercised in such circumstances as where it is established that the original judgment or order was affected by a misapprehension of law or fact or a failure to afford a proper opportunity to be heard, but it is not exercised so as to permit a general reopening of the case." 8. Rule 36.16(3) plainly envisages variation of interlocutory orders, but not where the application for variation is, in substance or effect, an attempt to appeal against the original order: Woodcroft v DPP (Cth) (2000) 174 ALR 60 at [52], or, perhaps an attempt reargue the merits of what I had determined: Mahommed v Unicomb [2021] NSWCA 108 at [7]. Further, even if the application does not amount to a de facto appeal, or application to re-open, but amounts to the same or similar application being brought as was dealt with, a court should not alter an interlocutory order unless there has been a material change in circumstances since the application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44; also De Varda v Austin [2019] NSWCA 133. 9. In his written submissions filed in support of the application, the applicant referred to observations by Basten JA and Simpson JA in other litigation he was involved in, which was heard in the Court of Appeal, being Mohareb v Kelso (No.2) [2017] NSWCA 173, when their Honours identified, as one category of circumstance where the Court of Appeal might reopen its refusal of an application for leave to appeal, namely, a 'demonstrable misunderstanding' of a 'material aspect of the applicant's case' (at [5]). The authority cited could be, at best, no more than analogous to the circumstances in which a primary judge might vary or set aside an order. Plainly, different constitutional considerations affect the decision of an intermediate appellate court to vary its own interlocutory applications to those affecting a primary judge's discretion to vary or set aside orders. I do not understand their Honours' reasoning in the passage referred to by the applicant as authorising primary judges using r 36.16 to bypass the ordinary routes to appeal from their decisions at the behest of litigants; even self-represented litigants. Paragraph 187 of My Reasons 1. In this paragraph I wrongly attributed to Wass SC DCJ the view that a mediation of the matter should occur after the provision of particulars on the plaintiff's amended claim. The applicant says that her Honour, like myself, regarded the appropriate time for a mediation to occur as being only after the close of pleadings. The applicant relies upon the 'slip rule' under r 36.17. 2. If there was, in this respect, a 'slip', it was not "in (an) .. order" which provided for the mediation (in paragraphs 187 and 190). The relevant substantive order in question concerned the date by which a mediation should take place by. Any error was only in the reasons for the timing for the mediation. In other words, any error in the explanation had no effect on the determination of whether or not to make the order or the term of the order. Courts should not exercise procedural powers for no practical purpose. 3. I decline to correct the first sentence in paragraph 187. Order 1 in the motion is accordingly rejected. Particulars (b)-(l) of paragraph 16 of the version of the proposed amended pleading referred to in argument 1. These particulars set out in extensive detail what the plaintiff described as Mr Kelso's intent to kill him and the subsequent investigation and prosecution of him. 2. The plaintiff's case against the Police Force, and therefore the State, in this regard, was (in substance) that it knew, or should have known of Mr Kelso's violent tendencies and should have taken some steps to protect the plaintiff. 3. As the applicant correctly points out, in paragraphs 124-125 of My Reasons, although I queried the necessity for much of the information contained within these particulars, I was not prepared to disentitle the applicant from relying upon them. 4. However, as the applicant also correctly points out, that would be the effect of the current wording of the order in paragraph 180 of My Reasons. 5. The applicant also relies upon the 'slip rule' under r 36.17. I accept that, in this case, the order does not reflect the reasoning. 6. The order in paragraph 180 of My Reasons is varied so as to exclude reference to particulars (b)-(l) to paragraph 16. 7. To that extent, the substance of order 2 sought in the notice of motion is made. Paragraphs 2(c), 7-13, particulars (b)-(jj) to paragraph 17, paragraphs 18-22, 33-34, 60-62 & 66-67 of the version of proposed amended pleading referred to in argument 1. These paragraphs of the version of the amended pleading all related to the plaintiff's case against the First Defendant. They were all rejected. That rejection is reflected in paragraph 180 of My Reasons. 2. The reasoning underlying the rejection of these paragraphs may be viewed in the following table: Paragraph reference(s) in version of proposed amended pleading Paragraph reference(s) in My Reasons for rejecting amendments Summary description of reasons for rejection 2(c), 66-67 [110]-[112] Attempt to circumvent order by Wass SC DCJ that plaintiff not permitted to run defamation claim 7-13 [114]-[122] Attempt to circumvent order by Wass SC DCJ that plaintiff not permitted to run defamation claim Particulars (b)-(jj) to paragraph 17, 18, 60-62 [126]-[129] First Defendant not vicariously liable for alleged medical evidence 33-34 [123] Attempt to circumvent order by Wass SC DCJ that plaintiff not permitted to run defamation claim 1. The applicant relies upon rr 36.15 and 36.16 to set aside the order in paragraph 180 of My Reasons. 2. However, there is no identification of the 'irregularity', or other basis for 'sufficient cause' to engage r 36.15. 3. That leaves, as the only remaining basis for setting aside or varying this order, r 36.16. However, the applicant has not by his motion, identified any misapprehension of fact, or law, which could conceivably support setting aside the order in paragraph 180 of My Reasons. Nor has he identified any change in circumstances which should lead to setting aside or variation of those orders. 4. By his submissions, the applicant argues that I misapprehended or mischaracterised his case and, for the purported sake of clarity, he relies upon a proposed amended document, titled 'Revised Proposed Further Amended Statement of Claim'. 5. As to the first part of this, the applicant says that he did not mean to say the words in his pleading in the manner that those words were construed in My Reasons. He argued, in relation to paragraphs 7-13 of the version of the amended pleading before the Court when the applications were heard, that the 'words and actions' used by the police constituted a 'diagnosis' manifesting a united front with the aggressors against him. As I had indicated in My Reasons, although the applicant's subjective intention may have been to disclaim an action in defamation, the proposed pleading, as it was placed before the Court, was in substance, just that. If I was wrong to reject those paragraphs, then the applicant would need to invoke appellate rights. 6. The applicant argued, in relation to 2(c) and 66-67 of the proposed pleading, that his complaint against the Attorney- General had 'nothing to do with the words' that she used, and everything to do with 'the manner' in which she disregarded certain things. However, without the words, there could be no actionable harm. Then, in something of a contradiction, the applicant argues that what the Attorney-General (in conjunction with the proposed fourth defendant) did "gave comfort" to his aggressors. She could only have given comfort to them however, because of the words she used. Thus, the complaint is that the words harmed him and I determined in My Reasons that the applicant's recourse, if any, was under the law of defamation; but, conformably with the reasoning and orders of Wass SC DCJ, he was precluded from relying upon such claim. In his submissions, the applicant refers to a re-drawn paragraph 66-67 of a proposed new version of an amended pleading. That would require consideration of a fresh amendment application. 7. In relation to paragraphs 33-34 the applicant disclaimed any subjective intention that he was arguing that the first defendant was responsible for criminal defamation by third parties. His subjective purpose was only that the first defendant did not do anything reasonable in response to it. However, the harm here is harm caused by the criminal defamation of third parties was to his reputation and, as indicated in My Reasons, it is the law of defamation, and not the tort of negligence, which provides redress for alleged omissions to repair harm to reputation. If I am wrong in that view, then the proper course was for the plaintiff to exercise what appellate rights he had. In addition, it would be necessary for the applicant to show not only the existence of an actionable claim in 'criminal' defamation against the third parties, but also the police force's awareness of it. The police force generally does not intervene in civil disputes between citizens and there were no facts alleged which sustained a basis for the police force to respond, in the way that the applicant desired it respond, to a claim that he had been defamed. 8. In relation to particulars (b)- (jj) to paragraph 17 & paragraph 18, the applicant engages in argument about the correctness of my view that the first defendant (and/or the proposed third defendant) could not be legally responsible for the alleged medical negligence that followed from treatment he received following an assault on him. This, he argued in his submissions, would need to be dealt with at one time or another. That submission, it appeared to me, amounted to something of a threat to, if not actual defiance of the Court's orders. At any rate, if my view be wrong, the place to vent that argument is in the Court of Appeal. A large part of the applicant's submissions (at paragraph 8) comprised either re-stated arguments or additional supportive facts to earlier arguments. 9. Although not said in so many words, in connection with all of these complaints, the applicant's reassertion of the argument must amount to the contention that I have committed some error in My Reasons. If so, the proper recourse for the applicant is, as I have said, to invoke the appellate process. Much of the reasoning he gives in his submissions involves some restatements of prior arguments, or elaboration of his position by new arguments not demonstrated to be unavailable when the applications were heard. 10. The fundamental difficulty for the applicant is that if the Court is to exercise a power under r 36.16 to reopen argument on an amendment (or joinder) application on the ground that the Court misunderstood a litigant's case, especially where it is said that there is disconformity between the litigant's subjective intention underlying a proposed amended claim and the Court's construction of it, there may be no limit to the litigant continually raising arguments that his or her case was misunderstood. Fairness to the other parties affected by the proposed amendments would inevitably invite counter-arguments from another party, or parties, that it was not. That is hardly conducive to according finality to a Court's orders. Indeed, it is difficult to conceive how it could be consistent with case-management objectives which the Court is obliged to consider when deciding to grant amendments specifically, and its general decisions on matters of practice and procedure: Civil Procedure Act 2005 (NSW) '(CP Act)', s 58(1)(i) and (iii). 11. To the extent that the applicant puts before the Court a new proposed amended pleading, purportedly designed to 'clarify' what the applicant had intended on a prior amendment application, or to clarify deficiencies identified in My Reasons, that is in substance a fresh amendment application. That would, to adapt what Mason CJ said in Autodesk, amount to a 'backdoor' attempt to apply for a further amendment under the guise of a rule to set aside an order. Amendment applications take on a range of discretionary considerations beyond the question of whether an amendment, here or there, gives rise to an arguable cause of action; and this requires evidence and arguments for and against such amendments; and for this to occur, desirably, after consultation with the defendants. Every fresh application for amendment or joinder potentially imports consideration of the same or similar arguments as in previous applications, and/or new discretionary matters which might justify a new application, but on neither basis would there be warrant for disturbing dispositive orders from a previous amendment or joinder application. 12. Overall, the Court is not inclined to reopen the hearing, featuring many of the same, or substantially similar, arguments, as occurred on 29 and 30 April 2021. Further to the extent that new considerations arise (beyond just a differently worded proposed amended pleading), this would need to be the subject of a properly argued fresh application, with opportunity for the respondents to adduce evidence, among other things, about discretionary reasons why the new application should not succeed. The ultimate issue for the Court, consistent with what was contained in paragraphs 188-189, and the application actually brought by the applicant, is whether there is some reason to disturb the orders made on 14 May 2021. The applicant has not established any such basis. 13. Order 3(a) of the applicant's notice of motion is rejected. Paragraphs 19-23, particulars (a)-(b) to paragraph 58 and particulars (d)(ii)-(iv) to paragraph 58 of the version of proposed amended pleading referred to in argument 1. These paragraphs of the version of the amended pleading all related to the plaintiff's case against the Second Defendant. They were all rejected. That rejection is reflected in paragraph 181 of My Reasons. 2. As with the position concerning the first defendant, it is convenient to depict the challenges to the findings. Paragraph reference(s) in version of proposed amended pleading Paragraph reference(s) in My Reasons for rejecting amendments Summary description of reasons for rejection 19-23, particulars (a)-(b) to paragraph 58 and particulars (d)(ii), (iii) and (iv) [91]-[93] This part of claim does not fall within s 60(4) of Bankruptcy Act 1. In his written submissions on the application, the applicant complains, implicitly, that I did not understand that his fundamental claim was not that he suffered property damage, but rather that such damage to his chattels was only incidental to a general campaign of intimidation and victimisation that the local council did not take reasonable steps to respond to. That criticism of My Reasons does not take into account that findings were made, in the applicant's favour, which distinguished a claim for property damage and a claim which could be sustainable under the Bankruptcy Act 1966 (Cth). If the distinction that I drew was not as broad as the applicant would have liked, having regard to my construction of the version of the amended pleading that was before me, then again, that is a matter for the applicant to consider his appellate rights. 2. As he did in relation to the first defendant, again, for the purpose of removing doubt about his intended claims, the applicant relied upon an altered version of a pleading. Again, that is, in substance, a fresh amendment application. 3. In relation to his arguments against My Reasons affecting the impugned paragraphs against the Second Defendant, I repeat what I have said at paragraphs 39-42 above. 4. Order 3(b) of the applicant's Notice of Motion is rejected. The costs order in favour of the first and second defendants 1. There is no evidence or basis to indicate why the costs order in paragraph 185 should be set aside or varied. The application appears to be no more than a complaint that the order, resulting from the exercise of a discretion, relevantly affected by r 42.1 of the UCPR, was made at all. To set aside that order would require appeal (preceded by a successful application for leave to appeal) to the Court of Appeal. 2. Order 4 of the applicant's Notice of Motion is rejected. The joinder application and the costs of the joinder application 1. By orders 5 & 6 on the motion, the applicant seeks to set aside orders resulting from the Court's rejection of his applications to join Dr Bowler and Nine Entertainment Co Pty Ltd, respectively, as third and fourth defendants. 2. In the case of Dr Bowler, I determined that his proposed cause of action was untenable so that it was futile to join him as a defendant ([30]-[35]). In the case of Nine Entertainment Co Pty Ltd, I determined that leave should not be granted for reasons set out at [53]-[61]. 3. In his written submissions in support of his application, the applicant restated his complaint about Dr Bowler 'sending' the applicant back to a 'situation' at the Royal North Shore Hospital. This primarily amounted to reargument of what occurred during the hearing of the applications. But the applicant also relied upon additional facts which, I took him to mean, were not those referred to in the hearing before me. If that be so, no explanation was supplied as to why those new facts could not have been brought to the Court's attention during the hearing. A combination of restated arguments, and new arguments on facts not brought to the Court's attention during a hearing of an interlocutory application, provides no basis for setting aside the relevant order. 4. In relation to the proposed fourth defendant, I have dealt with the point raised against it at paragraph 36, above. 5. That being so, there is the order expressed in paragraph 178 of My Reasons should stand. As a consequence, so too should the order for costs in paragraph 186 of My Reasons. 6. Instead, as he has done in relation to the first and second defendants, in the 'Revised Proposed Further Amended Statement of Claim' attached to his motion, the applicant has made changes to the paragraphs from the earlier version of his proposed amended pleading, which was before the Court on 29-30 April 2021, said to sustain his continuation of actions against these third parties. 7. However, that would require new joinder applications. It is not appropriate for the Court, at a time when the applicant is asking the Court to review the correctness of its orders made on 14 May 2021, to embark upon a fresh consideration of a new joinder action, with proposed amendments, without the parties having opportunity to adduce evidence and argue the range of discretionary considerations attending joinder applications. This again, amounts to an invitation by the applicant to the Court to resume, by other means, argument about applications heard in Court on 29-30 April 2021. 8. Orders 5 and 6 in the notice of motion are rejected. ORDERS 1. Nothing I have said above about a need for fresh application, or applications, for amendment or joinder should be understood by the applicant to represent actual encouragement to that course. Such application(s) would need not only conform with My Reasons (and those of Wass SC DCJ), but also compliance with the case management objectives in ss 56-60 of the CP Act and the rules of Court generally. 2. Subject to the correction of one matter in order 2 of the motion, (about which the first defendant – the only party affected by the order – acknowledged, and which did not need to occasion a filing of a notice of motion), the applicant has failed in his motion. It is appropriate that the costs orders on the motion reflect that result. 3. The following orders are made: 1. The order in paragraph 180 of my reasons for judgment of 14 May 2021 is varied so as to remove the reference to particulars (b)-(l) of paragraph 16. 2. The plaintiff's Notice of Motion dated 24 May 2021 is otherwise dismissed. 3. Save as to costs directed to order 2 in the said motion, the plaintiff is to pay the first defendant's costs of the motion, as agreed or assessed. 4. The plaintiff is to pay the costs on the motion of the second defendant, and proposed third and fourth defendants, as agreed or assessed. 1. I further direct that: 1. The time for the plaintiff to file an Amended Statement of Claim, in conformity with my judgment on 14 May 2021, is further extended to 11 June 2021. 2. The time for the defendants to file and serve Defences to the Amended Statement of Claim is also extended to 2 July 2021. 3. Mediation is to occur by 13 August 2021 with the First Defendant to notify the Court within 7 days thereafter of whether the mediation has resulted in any settlement. 4. Any further application by a party, by way of notice of motion, is to be addressed to the List Judge on 3 days' notice. 5. The proceeding is otherwise adjourned for mention before the List Judge on a date to be notified by the Registry to the parties after 20 August 2021. ********** Endnotes 1. It was Annexure 'A' to the applicant's affidavit affirmed on 22 April 2021 2. The applications before me on 29-30 April 2021 were premised upon the correctness of Wass SC DCJ's reasons on 1 October 2020. Amendments 31 May 2021 - Fixed typo 01 June 2021 - Fixed typo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2021