SAFFARI -v- STATE OF WESTERN AUSTRALIA [2026] WASC 272

[2026] WASC 272 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : SAFFARI -v- STATE OF WESTERN AUSTRALIA [No 3] [2026] WASC 272 CORAM : STRK J HEARD : 1 FEBRUARY 2024 DELIVERED : 3 JULY 2026 FILE NO/S : CIV 3183 of 2019 BETWEEN : SHAHRIAR SAFFARI Plaintiff AND STATE OF WESTERN AUSTRALIA Second Defendant THE COMMISSIONER OF POLICE Third Defendant DANIEL TALBOT Fourth Defendant MAHER FLEYFEL Fifth Defendant ANDREW MACKAY Sixth Defendant -- 1 of 58 -- [2026] WASC 272 Page 2 Catchwords: Practice and procedure - Application for judgment in default of defence and alternative application to restrain - Turns on own facts Practice and procedure - Application to strike out pleading in its entirety - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 20 r 19(1) Result: Application by the plaintiff dismissed Application by the fifth defendant granted in part Category: B Representation: Counsel: Plaintiff : In Person Second Defendant : JN Harman Third Defendant : No appearance Fourth Defendant : JN Harman Fifth Defendant : A McDonald Sixth Defendant : No appearance Solicitors: Plaintiff : In Person Second Defendant : State Solicitor's Office Third Defendant : State Solicitor's Office Fourth Defendant : State Solicitor's Office Fifth Defendant : Pragma Lawyers Sixth Defendant : No appearance -- 2 of 58 -- [2026] WASC 272 Page 3 Cases referred to in decision: A v The State of New South Wales (2007) 230 CLR 500 Amin v Bannerjee [1947] AC 322 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432 Bride v Peat Marwick Mitchell [1989] WAR 383 Briggs v Curtis Quick & Associates [1999] WASCA 139 Burton v Shire of Bairnsdale (1908) 7 CLR 76 Casey v Automobiles Renault Canada Ltd [1965] SCR 607; (1965) 54 DLR (2d) 600 Coe v Commonwealth (1979) 24 ALR 118 Culleton v Permanent Custodians Ltd [2018] WASC 251 Dart v Norwich Union Life Australia Ltd [2002] FCA 168 Davis v Gell (1924) 35 CLR 275 Edwards v New South Wales [2021] NSWSC 181 Edwards v New South Wales [2022] NSWCA 187 English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 Freeman v Rabinov [1981] VR 539 Gibbs v Rea [1998] AC 786 Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 Hrdavec v State of New South Wales [2021] NSWSC 560 Insurance Commission of Western Australia v Antony Leslie John Woodings as liquidator of the Bell Group Ltd (in liq) [No 2] [2017] WASC 372 J & J Products v Ken Gray & Co (Unreported, WASCA, Library No 960219, 24 April 1996) Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 Le v Plummer [2023] WASCA 178 Le v Plummer [No 2] [2023] WASC 377 Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243 McKechnie v Campbell (1996) 17 WAR 62 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 Mutton v Baker [2014] VSCA 43 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Saffari v State of Western Australia [2024] WASCA 77 Saffari v State of Western Australia [No 2] [2023] WASC 46 Saffari v Western Australia Police [2022] WASC 200 -- 3 of 58 -- [2026] WASC 272 Page 4 Savile v Roberts (1698) 1 Ld Raym. 374 The State of Western Australia v Cunningham [No 3] [2018] WASCA 207 Tobin v Dodd [2004] WASCA 288 Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 -- 4 of 58 -- [2026] WASC 272 STRK J Page 5 STRK J: Introduction 1 These reasons concern the claim pleaded by the plaintiff, Shahriar Saffari, against the fifth defendant, Maher Fleyfel, for malicious prosecution. The tort of malicious prosecution involves maliciously, and without reasonable and probable cause, instituting a groundless criminal prosecution.1 To succeed in an action for malicious prosecution against Mr Fleyfel Mr Saffari must establish that:2 (a) proceedings of the kind to which the tort applies (generally, criminal proceedings) were initiated by Mr Fleyfel; (b) the proceedings were terminated in favour of Mr Saffari; (c) Mr Fleyfel, by initiating or maintaining the proceedings acted with malice; and (d) the proceedings were brought or maintained without reasonable and probable cause. 2 As was noted by the Court of Appeal in Le v Plummer [2023] WASCA 178 at [7]: (a) it will be necessary for Mr Saffari to prove that Mr Fleyfel played an active role in the conduct of the prosecution (by instigating or setting them in motion);3 (b) as to Mr Fleyfel having acted without reasonable and probable cause, that may be established by proving either that Mr Fleyfel did not honestly conclude that the material or information on which he acted provided a proper case for prosecution,4 or the material or information on which Mr Fleyfel acted, considered in light of all of the facts of the particular case, was not objectively sufficient to support the conclusion that there was a proper case for prosecution;5 and (c) it will be necessary for Mr Saffari to prove that Mr Fleyfel acted maliciously in instituting or maintaining the prosecution: ie, that 1 The State of Western Australia v Cunningham [No 3] [2018] WASCA 207 [152]. 2 A v The State of New South Wales (2007) 230 CLR 500 [1]; Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432 [4]. 3 A v The State of New South Wales [34]. 4 A v The State of New South Wales [71], [77], [80] - [81], [118]. 5 A v The State of New South Wales [82] - [87], [118]. -- 5 of 58 -- [2026] WASC 272 STRK J Page 6 he was actuated by a sole or dominant purpose other than the proper invocation of the criminal law.6 3 Mr Saffari must also have suffered loss and damage as a result. The damage suffered must be of the type recognised in Savile v Roberts (1698) 1 Ld Raym. 374, that is, damage to reputation, damage to person, or damage to property.7 4 Mr Saffari remains unrepresented in this proceeding. His claim as pleaded against Mr Fleyfel has on two occasions been struck out, with leave to re-plead.8 5 Two further applications fall to be determined. First, the application by Mr Saffari seeking that judgment be entered against Mr Fleyfel, in default of Mr Fleyfel filing a defence, and for other relief.9 Second, the application by Mr Fleyfel to again strike out the claim pleaded against him, without there being leave to re-plead. 6 While the applications were programmed and listed to be heard together,10 only Mr Saffari's application was heard and reserved on the first date fixed for hearing.11 As to Mr Fleyfel's application, it came before the court on multiple occasions in circumstances where, among other things, the claim pleaded against Mr Fleyfel continued to be amended by Mr Saffari (presumably in an attempt to address the concerns raised so as to negate the need for a hearing of the application in which the claim against Mr Fleyfel was sought to be dismissed). 7 It is necessary to provide an overview as to the procedural history of the applications in the context of the proceeding as a whole, before turning to each application below. Overview of procedural history and ambit of the applications 8 On 29 December 2019 Mr Saffari commenced proceedings by writ of summons indorsed with a statement of claim in which he named six defendants. Appearances were entered on behalf of the first to fifth defendants. The sixth defendant, Andrew Mackay, was not served and has not entered an appearance. 6 A v The State of New South Wales [1], [91] - [92]. 7 As discussed in Saffari v State of Western Australia [No 2] [2023] WASC 46 [103], and see the authorities referenced there at footnote 71. 8 Saffari v Western Australia Police [2022] WASC 200; Saffari v State of Western Australia [No 2]. 9 Application made by Mr Saffari by letter filed on 28 June 2023; chamber summons filed by Mr Saffari on 23 January 2024. 10 Directions made by Registrar Whitbread on 13 July 2023. 11 Orders 1 and 2 of the orders made on 21 September 2023. -- 6 of 58 -- [2026] WASC 272 STRK J Page 7 9 In the course of the proceeding, there have been a number of applications concerning Mr Saffari's pleaded claims. Applications were prosecuted on behalf of the first to fifth defendants seeking, among other things, for their removal as parties to the proceeding pursuant to the Rules of the Supreme Court 1971 (WA) O 18 r 6(2)(a), and to strike out the writ of summons and statement of claim in their entirety as they relate to them pursuant to the Rules of the Supreme Court O 20 r 19(1). 10 For reasons that were published on 15 June 2022, I was satisfied that the defendant applicants were entitled to a significant part of the relief then sought: Saffari v Western Australia Police. Among other things, I concluded that it was appropriate that the first defendant, Western Australia Police, be removed as a party to the proceeding; and that the substituted statement of claim be struck out in its entirety, with leave granted to Mr Saffari to re-plead subject to certain constraints. That is, Mr Saffari was not given leave to re-plead certain claims.12 11 After Mr Saffari filed a further substituted statement of claim on 10 August 2022, strike out applications were again made by the second, third, fourth and fifth defendants. However, after Mr Saffari filed on 25 October 2022 another amended pleading titled 'amended further substituted statement of claim', the complaints narrowed and parts were not prosecuted. The (then narrower) application was heard on 1 December 2022, and for reasons that were published on 21 February 2023, among other things, it was determined that the application to remove Mr Fleyfel as a party pursuant to the Rules of the Supreme Court O 18 r 6(2)(a) was refused. However, Mr Saffari's pleading filed on 25 October 2022 was struck out and Mr Saffari was again given leave to re-plead: Saffari v State of Western Australia [No 2]. While a number of the orders made on 21 February 2023 as they applied to the third defendant (now described in this proceeding as the Commissioner of Police) were set aside on appeal, the orders made on 21 February 2023 as they concerned Mr Saffari's pleaded claim against Mr Fleyfel were not disturbed.13 12 On 22 February 2023 Mr Saffari filed an amended writ of summons with an indorsement of claim, and on 3 March 2023 Mr Saffari filed a further substituted statement of claim. By an order made on 21 February 2023 Mr Saffari was given leave to re-plead his 12 Order 12 of the orders made on 15 June 2022; see also Saffari v Western Australia Police; and Saffari v State of Western Australia [No 2] [4]. 13 Saffari v State of Western Australia [2024] WASCA 77. -- 7 of 58 -- [2026] WASC 272 STRK J Page 8 claim as against, among others, Mr Fleyfel,14 and by filing a further substituted statement of claim on 3 March 2023 Mr Saffari re-pleaded his claim as against Mr Fleyfel. 13 Mr Fleyfel filed a chamber summons on 12 July 2023 seeking to strike out parts of the re-pleaded claim and for security for costs against Mr Saffari. When listed for hearing, that part of the chamber summons which concerned security for costs as against Mr Saffari was not pressed in circumstances where the court was informed that Mr Saffari had attended to paying what had been an outstanding cost order in favour of Mr Fleyfel (that is, payment was made after the application was filed but before it was heard where the failure to pay had, in part, grounded the application for security for costs).15 14 As to that part of Mr Fleyfel's application which concerned strike out, in the course of the hearing of the application it was made plain that Mr Fleyfel sought that the claim pleaded by Mr Saffari against him be struck out in its entirety (that is, that the application to strike out was not limited to an attack on paragraphs 92 and 94 of Mr Saffari's pleading).16 To ensure fairness to Mr Saffari, additional programming orders were made which contemplated Mr Fleyfel filing an amended application (making plain the ambit and proposed consequence of the application to strike out the case pleaded by Mr Saffari against him) and the filing of further affidavits or submissions with respect to any amended application.17 15 An amended application was filed on behalf of Mr Fleyfel, by which leave was sought to strike out parts or the whole of Mr Saffari's pleaded claim as against Mr Fleyfel (as it stood on 3 March 2023), and for the claim made against Mr Fleyfel to be dismissed.18 The application for security for costs was not agitated in the amended application. 16 Before the amended application was listed for hearing or determined on the papers in accordance with the programming orders that had been made, Mr Saffari without notice filed an amended further 14 Order 4 of the orders made on 21 February 2023, as amended by order 4 of the orders made on 28 June 2024 in CACV 24 of 2023. 15 ts 119 - 120 (21 September 2023); outline of submissions filed on behalf of Mr Fleyfel on 20 September 2023 pars 40 - 44. 16 ts 118 - 119 (21 September 2023). 17 Orders 3 - 9 of the orders made on 21 September 2023. 18 Application made on behalf of Mr Fleyfel by amended chamber summons filed on 16 October 2023. -- 8 of 58 -- [2026] WASC 272 STRK J Page 9 substituted statement of claim.19 As a consequence, the application was listed for further directions.20 17 The utility of determining an application to strike out a pleading which had been superseded by amendment was ventilated at the directions hearing that followed.21 Further, there was some equivocation or uncertainty expressed on the part of Mr Saffari as to whether he wished to rely on the pleading he had then most recently filed, the amended further substituted statement of claim,22 or revert to the pleaded claim as it stood on 3 March 2023.23 18 Among other things, by orders made on 31 October 2023 Mr Saffari was afforded additional time to form a view as to the form of pleading upon which he intended to rely, and should he wish to do so, file and serve any further amended pleading, with costs reserved.24 Programming orders were also made which contemplated the second, fourth and fifth defendants filing any application with respect to the plaintiff's pleaded claim, and any submissions and affidavits in support of such application, and if such an application was made, listing the same for a special appointment.25 19 Mr Saffari availed himself of the opportunity to file and serve a reamended further substituted statement of claim on 7 November 2023.26 20 On 27 November 2023 a chamber summons was filed on behalf of Mr Fleyfel seeking, among other things, that Mr Saffari's pleaded claim be struck out in its entirety as it related to him pursuant to the Rules of the Supreme Court O 20 r 19(1); alternatively that certain paragraphs be struck out, and that Mr Saffari's claim against Mr Fleyfel be dismissed with costs. Submissions were filed on behalf of Mr Fleyfel and Mr Saffari in relation to the application.27 19 Amended further substituted statement of claim filed by Mr Saffari on 26 October 2023. 20 Orders made on 26 October 2023. 21 ts 165, 169 (31 October 2023). 22 That is, the amended further substituted statement of claim filed by Mr Saffari on 26 October 2023. 23 That is, the further substituted statement of claim filed by Mr Saffari on 3 March 2023; ts 163 (31 October 2023). 24 Orders made on 31 October 2023. 25 Orders 2 - 5 of the orders made on 31 October 2023. 26 That is, the reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023. 27 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023; outline of submissions filed by Mr Saffari on 11 January 2024; responsive outline of submissions filed on behalf of Mr Fleyfel on 18 January 2024. -- 9 of 58 -- [2026] WASC 272 STRK J Page 10 21 By a chamber summons filed on 23 January 2024, Mr Saffari moved for orders dismissing the various strike out applications filed on behalf of Mr Fleyfel; for judgment to be entered in the proceeding against Mr Fleyfel in default of his filing of a defence; for costs; and for an order restraining Mr Fleyfel from bringing further applications. Mr Fleyfel's application 22 It is convenient to first address Mr Fleyfel's application. Pleadings 23 The facts pleaded, in so far as the matters pleaded concern Mr Fleyfel or provide context to the claim made against him, can be summarised as follows.28 It is important to note that none of the matters pleaded have yet been tested by a court. (a) Mr Saffari lived in Perth between June 2000 and May 2001, and worked at a restaurant in Fremantle for approximately eight months (primarily for the morning shift) with Mr Fleyfel (who was the night shift coffee maker) and Andrew Mackay (who was named as the sixth defendant to the proceeding and was the manager).29 (b) There was some tension and conflict as between Mr Saffari and Mr Fleyfel that came about through their interaction at work. This was described by Mr Saffari as 'territorial' conflicts, and particulars were provided.30 (c) On or about 19 May 2001 Mr Saffari left Fremantle and moved to Brisbane.31 (d) On 27 September 2001 Mr Talbot began his prosecution of Mr Saffari by filing a report of a complaint that was filed by Mr Fleyfel on 14 September 2001. Mr Talbot reported that on 14 September 2001 Mr Fleyfel filed a complaint that four months prior, on 18 May 2001, Mr Fleyfel had been threatened 28 As pleaded in the reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023. 29 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 1, 5, 6 and 7. 30 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 8. 31 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 9. -- 10 of 58 -- [2026] WASC 272 STRK J Page 11 to be killed by Mr Saffari, and that Mr Fleyfel was a witness to the offence.32 (e) On 22 March 2002 Mr Talbot charged Mr Saffari with 'threatening to kill'.33 (f) No charge sheet was created, and the charge was not lodged with the court.34 (g) The charge was kept in the Western Australian Information Release Centre (IRC) and the Office of Information Management System (OIM), as the criminal record of Mr Saffari.35 (h) On 25 March 2002 Mr Talbot signed a warrant for Mr Saffari's arrest.36 (i) In November 2005 the Australian Federal Police, in carrying out routine background checks for permanent residency applicants, obtained the criminal record of Mr Saffari and contacted Mr Talbot for clarification. (j) On 24 November 2005 Mr Talbot provided information about Mr Saffari to the Australian Federal Police, and contacted and provided false information to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).37 (k) Mr Talbot and the Police Force, without being asked, recommended that DIMIA should not approve Mr Saffari's visa application.38 (l) DIMIA refused the appellant's visa application. That decision was later overturned on appeal in the Federal Court on 6 December 2007. Mr Saffari's visa was then approved on 2 April 2008.39 32 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 10. 33 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 12. 34 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 12.1. 35 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 13. 36 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 16. 37 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 18 - 21. 38 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 23. 39 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 26. -- 11 of 58 -- [2026] WASC 272 STRK J Page 12 (m) Some time in 2009 through a Freedom of Information request, Mr Saffari obtained a document which disclosed that Mr Fleyfel had been the complainant.40 (n) On 8 June 2011 Mr Saffari applied for Australian citizenship for the first time. The application was refused on 6 December 2013.41 (o) Before seeking to appeal the refusal to the Administrative Appeal Tribunal and before making a second application for Australian citizenship, Mr Saffari contacted Mr Fleyfel through Mr Saffari's legal representative. On 16 June 2014 that legal representative forwarded a letter to Mr Fleyfel and asked him to withdraw the complaint he made against Mr Saffari in 2002.42 (p) On 17 June 2014 Mr Fleyfel had stated that he 'wanted to help' but sought clarification because he could not remember Mr Saffari and could not remember having made a complaint.43 (q) While described as particulars to the above, Mr Saffari recorded that on 24 June 2014 Mr Fleyfel 'deductively remembered Mr Saffari and the making of false accusations and signed the [statutory declaration] without modification'.44 (r) An appeal was made to the Administrative Appeal Tribunal concerning the refusal for Australian citizenship on 6 December 2013, which was refused despite production of the statutory declaration because of the seriousness of the allegations which culminated in Mr Saffari having been charged for a crime and there being an outstanding warrant for his arrest.45 (s) Mr Saffari made a second application for Australian citizenship, to which was attached a copy of the statutory declaration made by Mr Fleyfel, and which application was refused in 2018 on character grounds, the charge and the warrant for arrest being cited.46 40 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 33, 33.1. 41 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 34. 42 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 35, 36. 43 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 37. 44 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 37 (particulars). 45 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 40. 46 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 41. -- 12 of 58 -- [2026] WASC 272 STRK J Page 13 (t) On behalf of Mr Saffari, approaches were made to Mr Talbot and the Police in August 2018, and then to the Director of Public Prosecutions to discontinue the charge. Mr Talbot and the Police refused to do so.47 (u) A statement of material facts was produced which was dated 19 September 2018 which among other things recorded:48 45.1. 'When being taken from the Café … the Accused said when I come back in three years I am going to kill the Complainant'. 45.2. 'The Accused escaped and remains at large in Australia'. 45.3. 'The Accused has been in contact with the Complainant's employer and maintains the threat to kill the Complainant'. 45.4. 'The Accused has the capacity to carry out the threat'. 45.5. 'The Accused has caused the Complainant great fear and anxiety'. (v) Mr Talbot and the Police produced the falsified report in 2018 unaware that Mr Fleyfel could no longer remember Mr Saffari and had denied making any complaint, therefore could not possibly suffer 'great fear and anxiety'.49 (w) On 10 October 2018 Mr Saffari petitioned the 'Western Australia Prosecuting Services Division' to discontinue the charge, supported by the legal submissions, the statutory declaration and the 'falsified "statement of material facts"'.50 (x) On 14 November 2018 the charge was discontinued and on 12 December 2018 the Perth Magistrate Court cancelled the warrant.51 24 In that part of the pleading in which Mr Saffari developed his claim as against the State of Western Australia, Mr Saffari pleaded that Mr Talbot 'never lodged the charge with the Court and there have not been proceedings in a Court and there never was a conviction. 47 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 42 - 44. 48 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 45. 49 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 47. 50 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 48. 51 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 49, 50. -- 13 of 58 -- [2026] WASC 272 STRK J Page 14 Therefore, it should not have shown up on any police clearances (emphasis added) and in any case the information that were [sic] provided ought to have been accurate.'52 25 Mr Saffari pleaded that he is entitled to an award of damages as against, among others, Mr Fleyfel. It is convenient to set out in full that part of Mr Saffari's pleading in which he pleaded his claim particularly against Mr Fleyfel:53 [Mr Fleyfel's] Liabilities 88. [Mr Fleyfel], without reasonable cause knowingly made false and maliciously fabricated accusations with deliberate intent to cause [Mr Saffari] harm and cause [Mr Saffari] to be prosecuted for an offence he knew [Mr Saffari] did not commit. 89. The level of malice involved in [Mr Fleyfel's] offending had devastating effects. Everything that followed was a result of [Mr Fleyfel's] accusations. 90. This was a Malicious Prosecution from the beginning and everything that followed, including refusal of the protection visa and citizenship, inability to obtain employment, inability to obtain a passport to travel abroad to see dying family members or travel to do business activities, the prevention of attracting business investment and loss of life opportunities and significant loss of enjoyment of life was because of [Mr Fleyfel's] false accusations and lies and the ensuing Malicious Prosecution. 91. It was but for [Mr Fleyfel's] false accusations and counselling and persuading [Mr Talbot] that instigated the proceedings and [Mr Fleyfel] was the moving force behind the prosecution. 92. [Mr Fleyfel] perjured himself in 2014 when he knowingly signed a [statutory declaration] he admitted had incorrect information indicative of his character. Particulars [Mr Fleyfel] remembered [Mr Saffari], remembered making false accusations and remembered being told of the charge and the warrant and signed the [statutory declaration] that he knew had further incorrect information without modifying it to reflect the truth. 93. …. [Not used] 52 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 60. 53 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 88 - 99. -- 14 of 58 -- [2026] WASC 272 STRK J Page 15 94. [Mr Fleyfel's] Solicitor admitted to having a copy of the recent accusation but unilaterally decided the accusation was 'not very damaging' and refused to provide a copy of the report to [Mr Saffari] after offering to do so, forcing [Mr Saffari] to drop the defamation claim. Particulars In August 2018, [Mr Saffari's] attorney contacted [Mr Talbot] to discontinue the Charge, but he refused. During that period, before the Charge was discontinued, [Mr Fleyfel] [having been informed by [Mr Talbot] of [Mr Saffari's] attempts to have the Charge dropped], contacted the Fremantle Police for a second time falsely accusing [Mr Saffari] as a continued threat to his safety. Particulars [Mr Saffari] relies on the statement in the Particulars above to give rise to each of the following accusations: (a) [Mr Saffari] is violent. (b) [Mr Saffari] is a dangerous person. (c) [Mr Saffari] is a danger to [Mr Fleyfel]. (d) [Mr Saffari] threatened [Mr Fleyfel], again. (e) [Mr Saffari] continues to threaten [Mr Fleyfel]. Further Particulars of [Mr Fleyfel's] most recent accusations will be provided following Discovery and Interrogatories. 95. [Mr Fleyfel] acted with malice in bringing the prosecution which was then maintained without reasonable and probable cause and the malice was repeated in 2018 apathetic to the damage his lies had caused and would continue to exact on [Mr Saffari] with reckless disregard of the consequent of his false accusations. 96. The facts of the false accusations [that he was lying to the police claiming he was threatened to be killed by [Mr Saffari]] were solely within [Mr Fleyfel's] knowledge and 'Initially' the police could not exercise an independent discretion. 97. [Mr Fleyfel] misled the police in exercising their discretion by lying to procure the laying of the charge accusing [Mr Saffari] of a crime he knew [Mr Saffari] did not commit. -- 15 of 58 -- [2026] WASC 272 STRK J Page 16 98. The prosecution was initiated by [Mr Fleyfel] by falsely portraying himself as the victim of a crime, persuading the police to institute the prosecution: (a) The prosecution was initiated by [Mr Fleyfel]. (b) The prosecution was terminated favourably to [Mr Saffari]. (c) [Mr Fleyfel] acted with malice in instigating the prosecution. (d) The Prosecution was maintained without reasonable and probable cause. Particulars [Mr Fleyfel] falsely accused [Mr Saffari] of a crime to instigate prosecution out of spite and animosity and personal vendetta. Legal Proceedings commenced against [Mr Saffari] with a charge for an indictable offence and an arrest warrant. [Mr Fleyfel] repeated false accusations in 2018 to prevent the charge from being dropped by the DPP. Legal Proceedings terminated when the charge was dropped and the warrant removed. 99. As a consequence of [Mr Fleyfel's] malice, [Mr Saffari] has suffered injury, loss and damage. The position of Mr Fleyfel as to the pleaded claim 26 In summary, Mr Fleyfel maintained that the pleading disclosed no reasonable cause of action against him. Alternatively, he maintained that it was vague, scandalous and embarrassing and failed to apprise him of the case he must meet at trial.54 It was his primary contention that the pleading ought be struck out in its entirety without leave to replead, and he emphasised the issues outlined below. No proceedings in a court 27 The most significant of the issues raised concerned paragraphs 12.1 and 60 of the pleading, where Mr Saffari pleaded that 'the charge was not lodged with the Court' and Mr Talbot 'never lodged 54 Outline of submission filed on behalf of Mr Fleyfel on 14 December 2023 par 2. -- 16 of 58 -- [2026] WASC 272 STRK J Page 17 the Charge with the Court and there have not been proceedings in a Court …'.55 28 On behalf of Mr Fleyfel it was noted that in order to establish a claim of malicious prosecution, Mr Saffari had to plead and establish that he was prosecuted by Mr Fleyfel, in that proceedings on a criminal charge were instituted or continued by Mr Fleyfel against Mr Saffari.56 In relation to the same, it was noted that malicious prosecution lies only in relation to proceedings which expose a person to imprisonment or other corporeal punishment, damage to reputation or pecuniary harm; and that it is a requirement of the tort of malicious prosecution that proceedings be commenced against that person.57 29 As the institution of proceedings is a necessary element of the tort, and as Mr Saffari had positively pleaded that there was no proceeding in a court, it was submitted that Mr Saffari's claim against Mr Fleyfel was doomed to fail, and that the flaw was so fundamental that re-pleading could not remedy it.58 Initiated or maintained a prosecution 30 It was also submitted that Mr Fleyfel was not an individual who could initiate or maintain a prosecution, and even if it was the case that Mr Fleyfel knowingly gave false information by way of making a complaint (as pleaded), this would not give rise to liability on the part of Mr Fleyfel to Mr Saffari.59 31 That is, it was submitted that there was nothing in the pleaded claim to suggest that the complaint 'operated on the mind' of Mr Talbot such that it persuaded Mr Talbot to continue the investigation as against Mr Saffari.60 Further, there was nothing in the pleaded claim to suggest Mr Fleyfel counselled or persuaded Mr Talbot or was 'actively instrumental' in the prosecution (to the extent there was a prosecution). 32 Counsel for Mr Fleyfel complained that Mr Fleyfel could not be seen to have 'initiated' or played any decisive role in the charges being 55 Described at [23(f)] and [24] above. 56 Outline of submission filed on behalf of Mr Fleyfel on 14 December 2023 par 4. 57 Outline of submission filed on behalf of Mr Fleyfel on 14 December 2023 par 5, referring to Halsbury's Laws of Australia [415-1700], [415-1710]. 58 Outline of submission filed on behalf of Mr Fleyfel on 14 December 2023 pars 10 - 11. 59 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 par 17, citing Le v Plummer [No 2] [2023] WASC 377 [102(a)]. 60 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 par 18, citing Edwards v New South Wales [2022] NSWCA 187 [96] - [100]. -- 17 of 58 -- [2026] WASC 272 STRK J Page 18 brought against Mr Saffari (to the extent that any charge was brought).61 Prosecution terminated in favour of Mr Saffari 33 Counsel for Mr Fleyfel noted that it was arguable that Mr Saffari was not 'prosecuted' in the sense to give rise to a claim for malicious prosecution, let alone that a prosecution was terminated in his favour. Putting the claim at its highest, it was submitted that the 'cancellation' of any arrest warrant by the Perth Magistrates Court was akin to an entry of a nolle prosequi or notice of discontinuance.62 34 Counsel noted that this poses difficulties for Mr Saffari, as Heenan J said in Noye v Robbins; Noye v Crimmins [2007] WASC 98 at [241], considering the High Court's decision in Davis v Gell (1924) 35 CLR 275:63 [241] I consider that Davis v Gell (supra) demonstrates that, in any action for malicious prosecution, the plaintiff must establish the falsity of the charge complained of and must do so by showing his innocence. In cases where the plaintiff was acquitted after trial (whether on facts or because of any technical defect or inadequacy in the indictment or the charge), that acquittal is to be treated as the establishment of innocence. However, without such an acquittal, because a nolle prosequi was filed, that is not conclusive evidence of innocence and it is still for the plaintiff to prove that by other means in the subsequent civil action. 35 Counsel further noted that Mr Saffari had failed to plead his alleged innocence in his pleaded claim, and submitted that there was simply no 'other means' for him to do so in this proceeding.64 Malice 36 Counsel for Mr Fleyfel noted that the existence of a dominant purpose other than the proper invocation of the criminal law is an essential element of the cause of action and must be pleaded against Mr Fleyfel so that he may be aware of the case Mr Saffari advances.65 37 Mr Fleyfel complained that Mr Saffari had either left his improper purpose 'at large' or again, putting Mr Saffari's claim at its highest, that 61 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 par 20. 62 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 pars 21 - 22. 63 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 par 23. 64 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 par 24. 65 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 par 25, citing Le v Plummer [No 2] [151]. -- 18 of 58 -- [2026] WASC 272 STRK J Page 19 he had based the claim solely on a wholly unsubstantiated and subjective belief that Mr Fleyfel was motivated by some form of revenge against Mr Saffari. It was suggested that Mr Saffari was simply unable to plead to Mr Fleyfel being motivated by malice to any sufficient level to give rise to a reasonable cause of action, and that Mr Fleyfel as a consequence did not know the case he would be required to meet.66 Absence of reasonable probable cause 38 Counsel for Mr Fleyfel also complained that Mr Saffari had not, and was unable to, plead to facts that established Mr Fleyfel held an absence of reasonable probable cause in bringing or maintaining any prosecution (which Mr Fleyfel says never occurred in any event).67 The paragraphs sought to be struck out 39 In the chamber summons, in the alternative to the pleading as it related to Mr Fleyfel being struck out in its entirety, the strike out of 18 paragraphs of the pleading was pressed. In a table created on behalf of Mr Fleyfel, various paragraphs of the pleading that was sought to be struck out were addressed.68 40 Among other concerns raised (outlined above), it was submitted that the pleading was replete with scandalous and prejudicial pleas with respect to Mr Fleyfel that would embarrass and delay the fair trial of the action. Further, given the opportunities afforded to Mr Saffari to plead his case, and given that leave to re-plead could not remedy the issue described at [27] to [29] above (no proceedings in a court), it was submitted that leave should not be granted to re-plead. Applicable principles 41 In Saffari v Western Australia Police I described the principles to be applied when considering whether a pleading ought be struck out, and when leave to amend will be granted. I adopted these principles in the determination of Mr Fleyfel's latest application. For ease of reference, I reproduce the principles below. 42 The requirements of a proper pleading and the grounds upon which a pleading may be struck out were summarised by Smith J in 66 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 pars 26 - 27. 67 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 par 28. 68 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table). -- 19 of 58 -- [2026] WASC 272 STRK J Page 20 Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] as follows:69 (a) the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet; (b) a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet; (c) a statement of claim must state specifically the relief or remedy claimed; (d) the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial; (e) in alleging no reasonable cause of action: (i) the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and (ii) 'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable; (f) the mere fact that a case appears weak is not of itself sufficient to strike out the action; (g) in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision; 69 Which summary was approved on appeal: English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55]. -- 20 of 58 -- [2026] WASC 272 STRK J Page 21 (h) provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment; (i) pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and (j) irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues. (Footnotes omitted.) 43 Mr Saffari is a litigant in person. In Culleton v Permanent Custodians Ltd [2018] WASC 251, Allanson J observed: [34] This case presents many of the difficulties attending the conduct of cases where a party is not legally represented. The role of the judge in civil proceedings where a party is not represented has been discussed in many authorities.70 It is well settled that leniency may be required in relation to compliance with the procedural rules. And the court will approach an application to summarily determine a claim brought by a self-represented litigant with special care, 'to ensure that within the possibly ill-expressed and unstructured statement of claim, there is no viable cause of action'. [35] But the allowances that can be made are necessarily limited, both as a matter of fairness to the other party, and because compliance with procedure may be necessary to ensure that the court can properly decide the dispute before it. Pleadings ensure a basic requirement of procedural fairness, and, to do so, must state the case sufficiently clearly to allow the other party a fair 70 See, for example, Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26] - [30]; and see Tobin v Dodd [2004] WASCA 288. -- 21 of 58 -- [2026] WASC 272 STRK J Page 22 opportunity to meet it.71 In Nyoni v Patterson [2012] WASCA 171, Pullin JA said: After allowing for the disadvantage an in person litigant suffers, it is still necessary, out of fairness to defendants, that the statement of claim is drawn so that when the opponent pleads to it, the pleadings will define with clarity and precision the issues or questions which are in dispute between the parties and fall to be determined by the court. A statement of claim must state all material facts to support the claim to relief so that fair and proper notice is given to the defendants to enable them to frame and prepare their own case for trial. Such clarity and precision is also necessary to inform the court about the precise matters in issue between the parties which are to be determined by the court and which set the limits of the action. … clear and precise pleadings are necessary because they form a permanent record of the issues and questions raised in the action and decided so as to prevent future litigation upon matters already adjudicated upon between the litigants: Opperman v The State of Western Australia [2011] WASC 25 [38] (EM Heenan J). 44 The court has the discretion to grant a plaintiff leave to amend a pleading following a successful strike out application.72 Leave to amend is commonly given when an application to strike out is successful.73 Where the deficiency in the pleading arises due to the pleading failing to disclose a reasonable cause of action, a plaintiff is ordinarily permitted to amend the pleading to address the deficiency.74 Conversely, leave to re-plead will be refused when the whole proceeding is infected by an abuse of process,75 or when it can be seen that no amendment will improve the case.76 It is not usually appropriate to give leave to amend a pleading into a form which is inconsistent with existing particulars.77 71 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286 - 287; Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490, 517; Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 [26]. 72 Rules of the Supreme Court O 21 r 5(2). 73 Coe v Commonwealth (1979) 24 ALR 118, 132. 74 Insurance Commission of Western Australia v Antony Leslie John Woodings as liquidator of the Bell Group Ltd (in liq) [No 2] [2017] WASC 372 [32]. See also ts 15 (16 June 2021). 75 McKechnie v Campbell (1996) 17 WAR 62, 82. 76 Bride v Peat Marwick Mitchell [1989] WAR 383, 394; Dart v Norwich Union Life Australia Ltd [2002] FCA 168 [46], [47]. 77 Briggs v Curtis Quick & Associates [1999] WASCA 139 [25]. -- 22 of 58 -- [2026] WASC 272 STRK J Page 23 Disposition 45 Mr Saffari was heard in opposition to Mr Fleyfel's application and relied upon a written outline of submissions filed in advance of the hearing.78 46 Mr Saffari submitted that the continued prosecution of strike out applications with respect to his pleading was an abuse of the court's processes.79 He also maintained that his latest pleading was sufficient to inform Mr Fleyfel of the case he must meet, and in this regard, I understood him to have suggested that his claim had been explained and particularised in various communications with the solicitors for Mr Fleyfel, and comprehensively in the outline of submissions filed by Mr Saffari in opposition to the application.80 47 I considered and addressed each of the complaints with respect to the pleading below. I have approached the question of whether Mr Saffari's pleading fulfilled its basic functions of identifying the issues, disclosing an arguable cause of action, and apprising the parties of the case that has to be met, by reference to the pleading (and not by reference to the pleading when read with other documents, such as the submissions filed or correspondence as between the parties). In this case, pleadings are the vehicle by which the issues to be determined in the case are to be defined. That is not to say that those submissions were not given careful consideration in the disposition of the application. Abuse of process 48 Mr Saffari submitted that the continued prosecution of strike out applications with respect to his pleadings, and the continued requests for particulars with respect to the pleadings, was an abuse of the court's processes.81 As a threshold matter, it is important to record here that I did not accept the same. 49 Mr Saffari has experienced difficulty in pleading a cogent claim against Mr Fleyfel, and he made a number of attempts after he was given leave to re-plead for the second time. 78 Outline of submissions filed by Mr Saffari on 11 January 2024. 79 See for example the outline of submissions filed by Mr Saffari on 11 January 2024 par 24. 80 ts 218, 220 - 221 (1 February 2024). 81 See for example the outline of submissions filed by Mr Saffari on 11 January 2024 pars 20, 24. -- 23 of 58 -- [2026] WASC 272 STRK J Page 24 50 As is recorded above, earlier pleadings were struck out with Mr Saffari being granted leave to re-plead.82 51 Before an application to strike out the 3 March 2023 pleading was heard and determined, Mr Saffari filed an amended pleading without notice.83 52 Among other things, by orders made on 31 October 2023 Mr Saffari was afforded additional time to form a view as to the form of pleading upon which he intended to rely, and should he wish to do so, file and serve any further amended pleading, with costs reserved.84 Programming orders were also made which contemplated the second, fourth and fifth defendants filing any application with respect to the plaintiff's pleaded claim, and any submissions and affidavits in support of such application, and if such an application was made, listing the same for a special appointment.85 53 Mr Saffari then availed himself of the opportunity to file and serve a reamended further substituted statement of claim on 7 November 2023.86 The application to strike out that pleading was then filed on behalf of Mr Fleyfel. 54 While concerns with respect to Mr Saffari's pleading and requests for particulars have been consistently agitated since he was last given leave to re-plead, Mr Saffari has continued to file amended pleadings in response to the same. While no doubt Mr Saffari was frustrated with the attacks made on his pleaded claim, Mr Fleyfel's conduct in the proceeding to date, when considered in light of the procedural history as a whole, did not constitute an abuse the court's processes. Was the application made within time? 55 For completeness I note that I also considered whether the application which fell to be determined was made within time. An application to strike out a pleading pursuant to the Rules of the Supreme Court O 20 r 19(1) must be made within 21 days of the service of the pleading. While it is not readily apparent from the court record as to when the pleading which was filed on 7 November 2023 was served on Mr Fleyfel, the chamber summons by which Mr Fleyfel applied to 82 Saffari v Western Australia Police; Saffari v State of Western Australia [No 2]. 83 As outlined at [15] to [18] above. 84 Orders made on 31 October 2023. 85 Orders 2 - 5 of the orders made on 31 October 2023. 86 That is, the reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023. -- 24 of 58 -- [2026] WASC 272 STRK J Page 25 strike out that pleading was filed on 27 November 2023, within 21 days of the pleading having been filed. No extension of time was sought and I proceeded on the basis that an extension of time was not required with respect to the making of the application. No proceedings in a court 56 I turn to the issue described at [27] to [29] above. 57 In response to the same Mr Saffari submitted that the suggestion that he had admitted or conceded that there was never any proceeding against him was a misrepresentation of his pleading. In this regard, he noted that he had pleaded that he '… was charged with an indictable offence which set in motion the Prosecution with years of proceedings against [him] including an arrest warrant.'87 (Mr Saffari's emphasis.) 58 However, the pleas sought to be emphasised by Mr Saffari, particularly the reference to 'years of proceedings', did not sit comfortably with his plea that 'there have not been proceedings in a Court'.88 59 As was recorded in Mutton v Baker [2014] VSCA 43 at [28]: In Martin v Watson [[1996] 1 AC 74], Lord Keith said 'the essential feature of malicious prosecution is an abuse of the process of the court.' In Amin v Bannerjee [[1947] AC 322], the Privy Council said: The action for damages for malicious prosecution is part of the common law of England … The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose. 60 While the foundation of the tort has been described as being the 'intentional abuse of the processes of the court',89 there are cases which have extended the tort to circumstances where there was court involvement in what might be seen as the administrative or investigative stage of a matter.90 However, extension of the tort to a circumstance where there has been no court proceeding or step of any kind, was in Mutton v Baker described as being inconsistent with the 87 Outline of submissions filed by Mr Saffari on 11 January 2024 par 5, referring to the reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 12 and 15. 88 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 60. 89 Gibbs v Rea [1998] AC 786, 797C-D, cited in Mutton v Baker [29], [54(1)]. 90 Mutton v Baker [33] - [36], [54(2)], citing Amin v Bannerjee [1947] AC 322 and Casey v Automobiles Renault Canada Ltd [1965] SCR 607; (1965) 54 DLR (2d) 600. -- 25 of 58 -- [2026] WASC 272 STRK J Page 26 elements of the tort and with the cases analysing those elements, in particular with the analysis concerning the identification of who is the prosecutor, concerning the required state of mind of the prosecutor at the time of institution of the prosecution, and concerning what constitutes termination of the prosecution.91 61 I accepted that Mr Saffari must plead (and ultimately establish) that proceedings of the kind to which the tort applies were initiated by Mr Fleyfel. If no proceedings of the kind to which the tort applies were initiated, then there can be no relief for malicious prosecution. 62 Mr Saffari addressed in his outline of submissions what might constitute a proceeding for the purposes of a malicious prosecution. He suggested Mr Fleyfel 'erroneously equates Law Enforcement Prosecutorial Proceedings to Court Judicial Proceedings',92 and complained that Mr Fleyfel 'completely fails to reference that [Mr Saffari] was charged with an indictable offence which set in motion the Prosecution with years of proceedings against [him] including an arrest warrant'.93 (Mr Saffari's emphasis.) As to his pleading, Mr Saffari noted:94 My plea was that there was no court proceeding, but my plea was also there was criminal proceeding. 63 In this regard I noted that in the particulars to Mr Saffari's plea at paragraph 16 (that is, the particulars to the plea that on 25 March 2002 Mr Talbot signed a warrant for Mr Saffari's arrest) Mr Saffari recorded that: Particulars Criminal 'Proceedings' against [Mr Saffari] began by [Mr Talbot] lodging an investigation into [Mr Fleyfel's] claim that he was threatened to be killed and by charging the Plaintiff with an indictable offence and by the arrest warrant. 91 Mutton v Baker [54(3)], by reference to the cases cited there at footnotes 66 - 69. See also Hrdavec v State of New South Wales [2021] NSWSC 560 [40]; Edwards v New South Wales [2021] NSWSC 181 [12]. 92 Outline of submissions filed by Mr Saffari on 11 January 2024 par 2. 93 Outline of submissions filed by Mr Saffari on 11 January 2024 par 5, referring to the reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 12 and 15. 94 ts 209 (1 February 2024). -- 26 of 58 -- [2026] WASC 272 STRK J Page 27 64 Further, in the particulars provided to paragraph 98 of the pleading (reproduced above at [25]), Mr Saffari had recorded that: Legal Proceedings commenced against [Mr Saffari] with a charge for an indictable offence and an arrest warrant. 65 Mr Saffari further submitted that the 'first element' of the tort of malicious prosecution was met by him having pleaded that he was charged and a warrant was issued for his arrest.95 66 The plea that 'there have not been proceedings in a Court'96 might well be sufficient to ground the conclusion that there is no reasonable cause of action in malicious prosecution. However, as was made plain by the submissions made by Mr Saffari, he does not maintain that plea as drafted. He instead invites the reader to understand the plea in the context of the various explanations he has proffered outside of the pleaded claim. He particularly relies upon having been charged with an indictable offence and the issue of a warrant (which were referenced in his pleading). 67 As was alluded to by counsel for the State of Western Australia and Mr Talbot at the hearing of the application,97 Mr Saffari has not (and it appears to be the case that he does not have access to the information necessary to) described the form by which a complaint was made to Mr Talbot by Mr Fleyfel (as is alleged); or the vehicle by which the charge was laid under the now repealed Justices Act 1902 (WA).98 I do not consider that the inability to provide such particulars to be a matter that warrants the striking out of the plea. 68 That said, the pleading, with the inconsistency created by the plea at paragraph 60, suffers from ambiguity and inconsistency, and ought not be permitted to stand in its current form. As Mr Saffari does not maintain that plea as drafted, paragraph 60 will be struck out with leave to replead. 95 Outline of submissions filed by Mr Saffari on 11 January 2024 par 8, having referred to Mutton v Baker [35] - [36], and footnote 46 (where Casey v Automobiles Renault Canada Ltd is discussed by Santamaria JA, and Prosser and Keeton on Torts Fifth Edition (1984) at 871-872 as to the law in the United States). 96 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 60. 97 ts 206 (1 February 2024). 98 Which Act was from 1 May 2005 titled the Criminal Procedure (Summary) Act (WA), as per Gazette 251 of 31 December 2004 page 7128, and which was repealed by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA). -- 27 of 58 -- [2026] WASC 272 STRK J Page 28 Initiated a prosecution 69 As is recorded above, Mr Saffari must establish that proceedings of the kind to which the tort applies (generally, criminal proceedings) were initiated by Mr Fleyfel. The element that the prosecution was initiated by Mr Fleyfel comprises two sub-elements. First, that a prosecution was initiated and secondly, that it was initiated by Mr Fleyfel.99 70 Upon the inconsistency created by the plea at paragraph 60 being corrected and affording Mr Saffari some flexibility, I accepted that Mr Saffari had pleaded that a prosecution was initiated. In this regard, he had pleaded that on 27 September 2001, Mr Talbot began his prosecution of Mr Saffari by filing a report; on 22 March 2002 Mr Saffari was charged; and on 25 March 2002 Mr Talbot signed a warrant for Mr Saffari's arrest.100 71 In considering whether Mr Saffari had pleaded that the prosecution was initiated by Mr Fleyfel, as to the pleaded role of Mr Talbot, I was cognisant that several defendants may be liable for malicious prosecution if each was involved in actively, and maliciously, putting the criminal process in motion.101 72 Mr Saffari also pleaded that the prosecution was initiated by Mr Fleyfel. As to how that was done, he pleaded that Mr Fleyfel falsely portrayed himself as the victim of a crime and persuaded the police to institute the prosecution: 91. It was but for [Mr Fleyfel's] false accusations and counselling and persuading [Mr Talbot] that instigated the proceedings and [Mr Fleyfel] was the moving force behind the prosecution. … 96. The facts of the false accusations [that he was lying to the police claiming he was threatened to be killed by [Mr Saffari] were solely within [Mr Fleyfel's] knowledge and 'Initially' the police could not exercise independent discretion. 99 Mutton v Baker [32]. 100 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 10, 12 and 15. 101 Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 [37] (Basten JA) (Santow & Giles JJA agreeing). -- 28 of 58 -- [2026] WASC 272 STRK J Page 29 97. [Mr Fleyfel] misled the police in exercising their discretion by lying to procure the laying of the charge accusing [Mr Saffari] of a crime he knew [Mr Saffari] did not commit. 98. The prosecution was initiated by [Mr Fleyfel] by falsely portraying himself as the victim of a crime, persuading the police to institute the prosecution: (a) The prosecution was initiated by [Mr Fleyfel]. (b) The prosecution was terminated favourably to [Mr Saffari]. (c) [Mr Fleyfel] acted with malice in instigating the prosecution. (d) The Prosecution was maintained without reasonable and probable cause. Particulars [Mr Fleyfel] falsely accused [Mr Saffari] of a crime to instigate prosecution out of spite and animosity and personal vendetta. Legal Proceedings commenced against [Mr Saffari] with a charge for an indictable offence and an arrest warrant. [Mr Fleyfel] repeated false accusations in 2018 to prevent the charge from being dropped by the DPP. Legal Proceedings terminated when the charge was dropped and the warrant removed. 73 Albeit when read as a whole, the pleading can be difficult to follow, I considered the pleading to not be liable to be struck out by reason of a failure to plead the first element of the tort. The plea at paragraphs 96 to 98 identify the basis upon which Mr Saffari contends that Mr Fleyfel persuaded Mr Talbot, or was 'actively instrumental', in the alleged prosecution. 74 What is not made plain in the pleading is whether Mr Saffari alleges that Mr Fleyfel maintained the prosecution, in addition to having intitiated it. 75 By paragraph 98 Mr Saffari pleaded that the prosecution was initiated by Mr Fleyfel by falsely portraying himself as the victim of a crime, persuading the police to institute the prosecution. The plea is repeated at paragraph 98(a) where he pleads that the prosecution was initiated by Mr Fleyfel. At paragraph 98(d) Mr Saffari does not plead -- 29 of 58 -- [2026] WASC 272 STRK J Page 30 that it was initiated and maintained without reasonable and probable cause, only that it was so maintained. 76 At paragraph 95 Mr Saffari pleaded that: [Mr Fleyfel] acted with malice in bringing the prosecution which was then maintained without reasonable and probable cause and the malice was repeated in 2018 apathetic to the damage his lies had caused and would continue to exact on [Mr Saffari] with reckless disregard of the consequent of his false accusations. 77 While there is a reference in paragraph 95 to the prosecution having been maintained, it is not clear as to whether it is alleged by Mr Saffari that it was maintained by Mr Fleyfel or Mr Talbot, or both. The pleading at paragraph 98 suggests that Mr Saffari only alleges that the prosecution was initiated by Mr Fleyfel, although the plea at paragraph 98(d) and the particulars to paragraph 98 suggest otherwise. 78 The lack of precision as to this aspect of the pleading is likely to prejudice the fair trial of the action because of the ambiguity that exists. Prosecution terminated in favour of Mr Saffari 79 Mr Saffari expressly pleaded that the prosecution had been terminated in his favour.102 By way of particulars, he noted that 'Legal Proceedings terminated when the charge was dropped and the warrant removed.' 80 Earlier in the pleading, Mr Saffari pleaded that on 10 October 2018 he petitioned the 'Western Australia Prosecuting Services Division' to discontinue the charge, supported by the legal submissions, the statutory declaration and the 'falsified "statement of material facts"'.103 He further pleaded that on 14 November 2018 the charge was discontinued and on 12 December 2018 the Perth Magistrate Court cancelled the warrant.104 81 If a prosecution was terminated in the manner pleaded by Mr Saffari, that may well pose difficulties for Mr Saffari for the reasons expressed by counsel for Mr Fleyfel (outlined at [34] of these reasons). Those evidentiary difficulties did not warrant the strike out of the pleading. 102 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 98(b), as reproduced at [25] and [72] of these reasons. 103 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 48. 104 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 49, 50. -- 30 of 58 -- [2026] WASC 272 STRK J Page 31 82 Counsel for Mr Fleyfel also complained that Mr Saffari had failed to plead his alleged innocence in his pleaded claim. While Mr Saffari's pleading was in parts difficult to follow, there was no question that he had pleaded that the allegations which grounded Mr Fleyfel's complaint and the prosecution were false. Indeed, he described the allegations made as being both false and fabricated.105 83 At trial, Mr Saffari will be required to establish the falsity of the charge complained of by showing his innocence. He has sufficiently pleaded the material fact that he will be required to establish at trial, that the allegations made were both false and fabricated. Malice 84 As is noted above, Mr Saffari must prove that Mr Fleyfel acted maliciously in instituting (or maintaining) the prosecution: ie, that he was actuated by a sole or dominant purpose other than the proper invocation of the criminal law. I turned next to consider Mr Saffari's pleading of this element of the alleged tort. 85 While there were other pleas which described Mr Fleyfel acting maliciously or referred to the level of malice shown,106 the allegation of malice on the part of Mr Fleyfel was squarely contained in paragraph 95 of the pleading, where Mr Saffari pleaded that Mr Fleyfel acted with malice in instigating the prosecution which was then maintained. The allegation of malice was also repeated at paragraph 98 where Mr Saffari pleaded that Mr Fleyfel acted with malice in instigating the prosecution. 86 These pleas were consistent in so far it was alleged that Mr Fleyfel acted with malice in instigating the prosecution. As is noted above, there is some ambiguity as to whether Mr Saffari alleges that Mr Fleyfel acted so as to maintain the prosecution with malice. 87 While Mr Saffari did plead that Mr Fleyfel by initiating the proceedings acted with malice, he did not plead for what purpose, other than the proper invocation of the criminal law, Mr Fleyfel initiated the prosecution. Nor did he plead that Mr Fleyfel was actuated by a sole or dominant purpose other than the proper invocation of the criminal law 105 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 88. 106 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 pars 88 and 89. -- 31 of 58 -- [2026] WASC 272 STRK J Page 32 (which may in the circumstances have been sufficient).107 Mr Saffari's plea with respect to malice is deficient in this regard. 88 The particulars to paragraph 98 were provided within the body of the pleading. To the extent that they addressed the plea of malice, Mr Saffari recorded that: [Mr Fleyfel] falsely accused [Mr Saffari] of a crime to instigate prosecution out of spite and animosity and personal vendetta. … [Mr Fleyfel] repeated false accusations in 2018 to prevent the charge from being dropped by the DPP. 89 The second of the particulars concerned conduct that was said to have occurred years after the alleged prosecution was initiated and did not appear to be a circumstance which, if proven at trial, would make a finding of malice in initiating the prosecution open on the evidence (noting that it is not clear whether Mr Saffari also seeks to plead that Mr Fleyfel acted with malice in maintaining the prosecution). 90 Counsel submitted that Mr Saffari was simply unable to plead to Mr Fleyfel being motivated by malice to any sufficient level to give rise to a reasonable cause of action, and that Mr Fleyfel as a consequence did not know the case would be required to meet.108 91 In the outline of submissions filed by Mr Saffari in advance of the hearing, he noted that in the pleading particulars to paragraph 98 had been provided (as are reproduced above at [88]), and noted that 'materials to support the cause of action have already been provided, are well understood and repeated many times'.109 92 Mr Saffari's case, as reflected in the particulars to paragraph 98, was that Mr Fleyfel was motivated to instigate the alleged prosecution 'out of spite and animosity and personal vendetta'. Details as to the circumstance in which the 'personal vendetta' arose were not provided in the particulars to paragraph 98 (as recorded in the latest pleading). However, it appeared to be a circumstance which, if proven at trial, and subject to Mr Saffari addressing the issue identified at [87] above, would make a finding of malice in initiating the prosecution open on the evidence. 107 Le v Plummer [40]. 108 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 pars 26 - 27. 109 Outline of submissions filed by Mr Saffari on 11 January 2024 par20 (t)(a) (page 26). -- 32 of 58 -- [2026] WASC 272 STRK J Page 33 93 While paragraph 8 of the pleading may give some clue as to the circumstances which gave rise to the alleged 'spite and animosity and personal vendetta', there is no link in the particulars to paragraph 98 and the pleading and particulars at paragraph 8, which are reproduced below: 8. There were 'territorial' conflicts between [Mr Fleyfel] and [Mr Saffari]. Particulars [Mr Saffari] (at the owner's request to restructure the 'front' of the restaurant), among others, identified [Mr Fleyfel] as uncultured, aloof, ignorantly rude to customers and the weakest link who ought to have been sacked. Particulars The attempts to sack [Mr Fleyfel] created animosity and hostility towards [Mr Saffari]. 94 In the submissions filed by Mr Saffari in opposition to the application, he recorded that 'paragraph 8 particularises why [Mr Fleyfel] had animosity towards [Mr Saffari] relevant to the cause of action and the source of [Mr Fleyfel's] malice.'110 (Mr Saffari's emphasis.) 95 If the matters pleaded at paragraph 8 are intended to be relied upon with respect to the circumstances which gave rise to the alleged 'spite and animosity and personal vendetta', amendment must be made to make that plain. 96 While Mr Saffari also submitted that 'materials to support the cause of action have already been provided, are well understood and repeated many times', to the extent that there are particulars of circumstances that he proposes to prove at trial (beyond the particulars to paragraph 98 provided within the body of the pleading), he must articulate the same. To avoid confusion those additional particulars would ideally be set out as particulars to paragraph 98 within the one document. 110 Outline of submissions filed by Mr Saffari on 11 January 2024 par 20(a)(b) (page 9). -- 33 of 58 -- [2026] WASC 272 STRK J Page 34 Absence of reasonable probable cause 97 It is a necessary element of the tort of malicious prosecution for Mr Saffari to establish that more probably than not the prosecution was brought or maintained without reasonable and probable cause. 98 As to this element of the tort, I noted that while Mr Saffari pleaded at paragraphs 95 and 98(d) that the prosecution was maintained without reasonable and probable cause, there is no plea that the prosecution was maintained by Mr Fleyfel; and there is no plea that the prosecution was initiated by Mr Fleyfel without reasonable and probable cause. 99 The lack of precision as to this aspect of the pleading is likely to prejudice the fair trial of the action because of the ambiguity that exists. 100 As to Mr Fleyfel having acted without reasonable and probable cause, as is recorded above, that may be established by Mr Saffari proving either that: (a) Mr Fleyfel did not honestly conclude that the material or information on which he acted provided a proper case for prosecution;111 or (b) the material or information on which Mr Fleyfel acted, considered in light of all of the facts of the particular case, was not objectively sufficient to support the conclusion that there was a proper case for prosecution.112 101 As a matter of fairness to Mr Fleyfel, and in the interests of the efficient conduct of the trial, it is imperative that the pleadings alleging absence of reasonable and proper cause specifically identify in respect of Mr Fleyfel:113 1. The conduct of the respondent which constituted the playing of an active role in the conduct of the prosecution. 2. The material [or information] considered by the respondent at the time of engaging in that conduct. 3. What it was about that material [or information] which was objectively insufficient to support a conclusion that there was a proper case for prosecution. 111 A v The State of New South Wales [71], [77], [80] - [81], [118]. 112 A v The State of New South Wales [82] - [87], [118]. 113 Le v Plummer [30]. -- 34 of 58 -- [2026] WASC 272 STRK J Page 35 102 As is recorded above, counsel for Mr Fleyfel complained that Mr Saffari had not, and was unable to, plead to facts that established Mr Fleyfel held an absence of reasonable probable cause in bringing or maintaining any prosecution (of which Mr Fleyfel says never occurred in any event).114 103 In this regard, Mr Saffari did plead that: (a) on 27 September 2001 Mr Talbot began his prosecution of Mr Saffari by filing a report of a complaint that was filed by Mr Fleyfel on 14 September 2001. Mr Talbot reported that on 14 September 2001 Mr Fleyfel had filed a complaint that four months prior, on 18 May 2001, Mr Fleyfel had been threatened to be killed by Mr Saffari, and that Mr Fleyfel was a witness to the offence;115 (b) Mr Fleyfel, without reasonable cause, knowingly made false and maliciously fabricated accusations with deliberate intent to cause Mr Saffari harm and cause Mr Saffari to be prosecuted for an offence Mr Fleyfel knew Mr Saffari did not commit;116 (c) as to the damage suffered by Mr Saffari, it was suffered because of Mr Fleyfel's 'false accusations and lies and the ensuing Malicious Prosecution';117 (d) it was but for Mr Saffari's false accusations and counselling and persuading Mr Talbot that instigated the proceedings and Mr Fleyfel was the moving force behind the prosecution;118 (e) the facts of the false accusations (that Mr Fleyfel lied to the police claiming he was threatened to be killed by Mr Saffari) were solely within Mr Fleyfel's knowledge and 'Initially' the police could not exercise an independent discretion;119 (f) Mr Fleyfel misled the police in exercising their discretion by lying to procure the laying of the charge accusing Mr Saffari of a crime he knew Mr Saffari did not commit;120 and 114 Outline of responsive submissions filed on behalf of Mr Fleyfel on 18 January 2024 par 28. 115 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 10. 116 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 88. 117 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 90. 118 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 91. 119 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 96. 120 Reamended further substituted statement of claim filed by Mr Saffari on 7 November 2023 par 97. -- 35 of 58 -- [2026] WASC 272 STRK J Page 36 (g) the prosecution was initiated by Mr Fleyfel by falsely portraying himself as the victim of a crime, persuading the police to institute the prosecution. 104 By way of particulars to the pleading at paragraph 98 (reproduced at [25] and [72] above), Mr Saffari further recorded that Mr Fleyfel falsely accused him of a crime to instigate prosecution out of spite and animosity and personal vendetta; and that Mr Fleyfel repeated false accusations in 2018 to prevent the charge from being dropped by the DPP. 105 As is noted above, as to Mr Fleyfel having acted without reasonable and probable cause in initiating and maintaining the prosecution (if indeed both are alleged), that may be established by Mr Saffari proving that Mr Fleyfel did not honestly conclude that the material or information on which he acted provided a proper case for prosecution.121 The absence of reasonable and probable cause in an appropriate case may be described as the absence of belief in the guilt of the accused.122 Mr Saffari's pleading that Mr Fleyfel, without reasonable cause, knowingly made false and maliciously fabricated accusations was sufficient to plead that Mr Fleyfel did not honestly believe the case that was instituted and maintained. 106 As to the matters that must be specifically identified, as the summary at [103] above reveals, the conduct of Mr Fleyfel which constituted the playing of an active role in the conduct of the prosecution was pleaded. The pleading that Mr Fleyfel lied to the police claiming he was threatened to be killed by Mr Saffari disclosed what it was about his complaint which was objectively insufficient to support a conclusion that there was a proper case for prosecution. That is, from the pleading it can be discerned that when Mr Saffari asserted that Mr Fleyfel acted without reasonable and probable cause, the content of that assertion was that Mr Fleyfel acted on a lie. 107 Subject to Mr Saffari addressing the ambiguity noted at [98] above, I did not consider the pleading to otherwise be deficient in having failed to address this element, nor did it lack sufficient clarity or detail to ensure fairness. 121 A v The State of New South Wales [71], [77], [80] - [81], [118]. 122 A v The State of New South Wales [71]. -- 36 of 58 -- [2026] WASC 272 STRK J Page 37 Other pleading issues 108 In the alternative to seeking that the pleading be struck out in its entirety as it concerned him, Mr Fleyfel applied to strike out individual paragraphs of the pleading. There was some overlap in the grounds relied upon to strike out the pleading in its entirety and the grounds relied upon to strike out individual paragraphs. Paragraph 8 109 As to paragraph 8 of the pleading, which is reproduced at [93] above, Mr Fleyfel complained that the plea was scandalous and irrelevant to any element of the cause of action. 110 Mr Saffari's case included a plea of malice in initiating criminal proceedings, and as was recorded in the particulars to paragraph 98, he claimed that Mr Fleyfel was motivated to instigate the alleged prosecution 'out of spite and animosity and personal vendetta'. Further, Mr Saffari's outline of submissions filed in opposition to the application made plain that by paragraph 8, he intended to describe the circumstance in which the 'personal vendetta' arose.123 111 As is recorded above at [95], if the matters pleaded at paragraph 8 are intended to be relied upon with respect to the circumstances which gave rise to the alleged 'spite and animosity and personal vendetta', that must be made plain. While describing the conflicts as being 'territorial' did not aid comprehension, and would best be omitted, I did not otherwise consider the plea to be prejudicial so as to warrant being struck out. Paragraph 10 112 While Mr Fleyfel applied to strike out paragraph 10,124 the paragraph was not expressly addressed by counsel for Mr Fleyel in the outlines of submissions filed nor in the course of oral submissions. Mr Saffari did seek to defend the plea in his outline of submissions.125 113 There would appear to be an inconsistency in the pleading at paragraph 10 and the particulars to that plea, as highlighted below: 10. On 27 September 2001, [Mr Talbot] began his prosecution of [Mr Saffari] by filing a report that on 14 September 2001 123 Outline of submissions filed by Mr Saffari on 11 January 2024 par 20(a)(b), (a)(c) (page 9). 124 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 125 Outline of submissions filed by Mr Saffari on 11 January 2024 par 20(b) (pages 9 - 10). -- 37 of 58 -- [2026] WASC 272 STRK J Page 38 [Mr Fleyfel] filed a complaint that four months prior, on 18 May 2001, he was threatened to be killed by [Mr Saffari] and that [Mr Fleyfel] 'was a witness to the offence'. Particulars On 18 May 2001, [Mr Fleyfel] Instigated Prosecution of [Mr Saffari] out of spite as 'payback' for [Mr Saffari] trying to have him sacked, by lying to the police accusing [Mr Saffari] of a crime he knew [Mr Saffari] did not commit. 114 That is, while it was pleaded that the complaint was made on 14 September 2001, the particulars record that the prosecution was instigated on 18 May 2001 (on the day it is alleged he was threatened). While it was not addressed by counsel for Mr Fleyfel, I noted the apparent inconsistency as between the plea and the particulars, and ambiguity created. I suggest Mr Saffari give consideration to the same. Paragraph 15 115 Again, while Mr Fleyfel applied to strike out paragraph 15,126 the paragraph was not expressly addressed by counsel for Mr Fleyfel in the outlines of submissions filed nor in the course of oral submissions. 116 At paragraph 15 Mr Saffari pleaded that on 19 March 2002, Mr Talbot in his continued prosecution, instigated by Mr Fleyfel, made a further accusation in his Statement of Material Fact that Mr Saffari had 'the capacity to carry out his threat [to kill]'. 117 At paragraph 15.1 Mr Saffari pleaded that the allegation was asserted fact, false and used as an excuse to issue a warrant for Mr Saffari's arrest. 118 The plea only concerned Mr Fleyfel to the extent that it recorded that the prosecution had been instigated by him. 119 I accepted that Mr Saffari had otherwise pleaded that a prosecution was instigated. He also pleaded that it was instigated by Mr Fleyfel. Upon the inconsistency created by the plea at paragraph 60 being corrected, the plea at paragraph 15 is not liable to be struck out on the basis of it referring to a prosecution instigated by Mr Fleyfel. 126 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. -- 38 of 58 -- [2026] WASC 272 STRK J Page 39 Paragraph 33 120 While Mr Fleyfel applied to strike out paragraph 33,127 I understood from the outline of submissions filed on behalf of Mr Fleyfel that he took issue with the plea at paragraph 33.1.128 That plea must be read with paragraph 33 and both are reproduced below, together with the particulars recorded in the pleading. 33. Sometime in 2009, through a personal FOI [Mr Saffari] obtained redacted information about the nature of the allegations and the catalyst for the ensuing prosecution. 33.1. In one of the documents the complainant's name was mistakenly not redacted and that was the first time [Mr Saffari] learned that [Mr Fleyfel] was the complainant. Particulars The document disclosed that it was [Mr Fleyfel] who lied to the police procuring the Malicious Prosecution. It also indicated that the allegation was not articulated well and may have been hearsay where [Mr Fleyfel] may have claimed to be quoting [Mr Mackay] or someone else. At that time, [Mr Saffari] knew of the charge but still unaware that there was a warrant for his arrest. 121 Mr Fleyfel complained that the plea was prejudicial, would embarrass or delay the fair trial of the action; did not relate to an element of the cause of action; was ambiguous, not reasonably intelligible and irrelevant and it failed to confine the issues of Mr Saffari's case with reasonable particularity.129 122 By these paragraphs Mr Saffari had described the circumstances by which he was informed of the role of Mr Fleyfel in the instigation of the prosecution. From a review of the pleading as a whole, it would appear that the paragraphs are not pleadings of material facts, but describe a document (and how it was obtained) which document might be relied upon by Mr Saffari to prove the involvement of Mr Fleyfel in the prosecution. 123 Further, while the particulars to paragraph 33.1 reveal what Mr Saffari says can be discerned from the document, it contains 127 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 128 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, page 5). 129 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, page 5). -- 39 of 58 -- [2026] WASC 272 STRK J Page 40 information and commentary that goes beyond being a proper particular to the plea at paragraph 33.1. 124 While the court will approach matters involving litigants in person with a degree of flexibility, the pleading must only contain a statement in a summary form of the material facts on which the party pleading relies for their claim but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.130 Paragraphs 33 and 33.1 ought therefore be struck out. Paragraphs 35 and 37 125 While Mr Fleyfel applied to strike out paragraph 35,131 the paragraph was not expressly addressed by counsel for Mr Fleyfel in the outlines of submissions filed nor in the course of oral submissions. Mr Fleyfel also sought to strike out paragraph 37, which was addressed in the outline of submissions.132 It is convenient to reproduce here paragraphs 35 to 37 in full: 35. Prior to lodging an unsuccessful appeal through the Administrative Appeals Tribunal and subsequently applying for citizenship a second time, [Mr Saffari] contacted [Mr Fleyfel] through an attorney. 36. On 16 June 2014, [Mr Saffari's] solicitor forwarded a letter to [Mr Fleyfel] asking him to withdraw the complaint he made in 2002. Particulars A prepared Statutory Declaration was provided for [Mr Fleyfel] to sign, unconditionally withdrawing his complaint. 37. On 17 June 2014, [Mr Fleyfel] stated that he 'wanted to help' but was asking for clarification because he could not remember [Mr Saffari], could not remember making a complaint or knew about the charge. Particulars On 24 June 2014, [Mr Fleyfel] deductively remembered [Mr Saffari] and the making of false accusations and signed the SD without modification. 130 Rules of the Supreme Court O 20 r 8(1). 131 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 132 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 (table, pages 5 - 6). -- 40 of 58 -- [2026] WASC 272 STRK J Page 41 126 As to paragraph 37, Mr Fleyfel complained that the plea was prejudicial, would embarrass or delay the fair trial of the action; did not relate to an element of the cause of action; was ambiguous, not reasonably intelligible and irrelevant and it failed to confine the issues of Mr Saffari's case with reasonable particularity. It was further noted that if it were true, it supported the position that Mr Saffari has no cause of action against Mr Fleyfel. Mr Fleyfel also complained that there were no particulars provided with respect to the source of the words quoted at paragraph 37.133 127 It is not clear from paragraph 37 whether Mr Saffari sought to plead the purport of a conversation or the effect of a document. Nor does the pleading make plain to whom the statement was made. The particulars recorded in the pleading did not assist in making the position clear. 128 By paragraph 37 it would appear that Mr Saffari sought to describe a conversation or document which might go to establishing the falsity of the charge complained of, by showing his innocence. It cannot however be discounted that what was sought to be pleaded was a material fact, obscured by the language adopted. 129 Further, the particulars recorded under paragraph 37 were not proper particulars of the plea at paragraph 37. Instead, what was described in the particulars was conduct (the signing of the statutory declaration without modification) and a state of mind attributed to Mr Fleyfel by Mr Saffari. 130 Paragraph 37 lacks precision in its drafting and if Mr Saffari wishes to maintain the plea, it must be amended. It will be struck out with leave to amend. As to particulars, the existing form of particulars as recorded in the pleading must be removed. Mr Saffari maintained that he has provided to Mr Fleyfel's legal representatives with particulars as to the source of the words quoted at paragraph 37.134 For the sake of clarity and to ensure there is no confusion, it would be best that those particulars be included in the pleading with respect to an amended paragraph 37. 133 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, pages 5 - 6). 134 Outline of submissions filed by Mr Saffari on 11 January 2024 par 20(g)(b) (page 12). -- 41 of 58 -- [2026] WASC 272 STRK J Page 42 Paragraph 50 131 While Mr Fleyfel applied to strike out paragraph 50,135 the paragraph was not expressly addressed by counsel for Mr Fleyfel in the outlines of submissions filed nor in the course of oral submissions. 132 At paragraph 50 Mr Saffari pleaded that on 12 December 2018, the Perth Magistrate Court cancelled the warrant, removing the Sword of Damocles dangling above Mr Saffari's head for 16 years. 133 While reference to the 'Sword of Damocles' was wholly unnecessary, it was otherwise a plea of a material fact which went to the issue of whether the prosecution was terminated in his favour. Paragraph 58 134 Mr Fleyfel applied to strike out paragraph 58,136 which must be read with paragraph 57. Both paragraphs are reproduced below: 57. The 'criminal record' included information accusing [Mr Saffari] of: 57.1. having used 8 aliases with a list of 8 different ridiculous names; 57.2. having committed an offence in Australia; 57.3. having a pending charge since April 2002; 57.4. having a pending warrant in WA; 57.5. having pending proceedings for an offence against an Australian law; and 57.6. having been found guilty of an offence in Australia. 58. The criminality attributed to [Mr Saffari] at (57.1) (57.2) (57.5) (57.6) were incorrect information, and the items at (57.3) (57.4) were instigated by [Mr Talbot] and [Mr Fleyfel] in their malicious prosecution of [Mr Saffari]. 135 As to paragraph 58, Mr Fleyfel's complaint was as follows:137 If we accept the plea as true, [Mr Saffari's] 'criminal record' is not a basis for a claim in malicious prosecution. Indeed, in order for [Mr Saffari] to have a maintainable action in malicious prosecution he 135 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 136 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 137 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, page 6). -- 42 of 58 -- [2026] WASC 272 STRK J Page 43 must establish that a criminal proceeding was commenced against him and the proceedings were determined in his favour by, for example, an acquittal or a discontinuation (see Halsbury's Laws of Australia at [415-1730].). [Mr Fleyfel] is left to guess how this is relevant to the cause of action brought against him, how the information contained in paragraph 57 is said to be incorrect, how the matter was 'instigated' by [Mr Fleyfel]. 136 The plea at paragraph 58 was one which formed part of the case pleaded against the State of Western Australia concerning the maintenance of false records. Paragraphs 51 to 62 of the pleading all relate to the 'Second Defendant's Liabilities' (as described by Mr Saffari). 137 I otherwise understood Mr Saffari to plead at paragraph 58 (by reference to paragraphs 57.3 and 57.4) a consequence of the prosecution he alleged was initiated by Mr Fleyfel and Mr Talbot, which ground his claim for damages. Other parts of the pleading addressed the elements of the tort pleaded against Mr Fleyfel. I did not accept that the plea ought be struck out. Paragraph 77 138 Again, while Mr Fleyfel applied to strike out paragraph 77,138 the paragraph was not expressly addressed by counsel for Mr Fleyfel in the outlines of submissions filed nor in the course of oral submissions. 139 The plea at paragraph 77 was one which formed part of the case pleaded against Mr Talbot concerning the maintenance of false records. While Mr Fleyfel was referenced at paragraph 77.3, there appeared to be no link to the claim pleaded against Mr Fleyfel. Nor did Mr Talbot join Mr Fleyfel in seeking to strike out the plea. While the paragraph lists a number of questions, and is not a not pleading of material facts, I did not consider it to be a plea which ought be struck out upon the application of Mr Fleyfel. Paragraph 88 140 Mr Fleyfel applied to strike out paragraph 88,139 by which Mr Saffari pleaded that Mr Fleyfel, without reasonable cause, knowingly made false and maliciously fabricated accusations with deliberate intent to cause Mr Saffari harm and to cause Mr Saffari to be prosecuted for an offence he knew Mr Saffari did not commit. 138 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 139 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. -- 43 of 58 -- [2026] WASC 272 STRK J Page 44 141 Mr Fleyfel complained that the plea was scandalous; that Mr Saffari failed to give particulars of knowledge; that it was not made plain what 'accusations' were relied upon; he queried how the accusations were made intentionally; and queried how Mr Fleyfel caused Mr Saffari to be prosecuted for an offence that Mr Fleyfel knew Mr Saffari did not commit. 142 Mr Fleyfel further complained that the plea was prejudicial; would embarrass or delay the fair trial of the action; did not relate to an element of the cause of action; was ambiguous, not reasonably intelligible and irrelevant; and it failed to confine the issues of Mr Saffari's case with reasonable particularity. It was further noted that if it were true, the plea supported the position that Mr Saffari has no cause of action against Mr Fleyfel.140 143 It was a fair complaint that the pleading did not make plain what particular 'accusations' were the subject of the plea (for example, if the accusations there referenced were only the accusations Mr Saffari contends were made on 14 September 2001 when Mr Fleyfel made a complaint to police). In the submissions filed by Mr Saffari he explained that the accusations relied upon were Mr Fleyfel having accused Mr Saffari of threatening to kill Mr Fleyfel; that Mr Fleyfel witnessed the offence in 2001; and that Mr Fleyfel accused Mr Saffari of continuing to be a danger to him in 2018.141 144 If Mr Saffari contends that Mr Fleyfel maintained the prosecution by making accusations in 2018, then paragraph 88 ought identify clearly whether all or only some of the accusations are there referenced. 145 As to the complaint that particulars of knowledge had not been provided, the gist of what was alleged was that Mr Fleyfel reported to police that he had witnessed Mr Saffari threatening to kill him in 2001, and that threat was never made - that is, that Mr Fleyfel made a false report to police. Given that the gist of what was pleaded was that Mr Fleyfel had intentionally lied, the basis for Mr Fleyfel's knowledge of the lie was made plain. So too was the basis for the plea that the accusations were made intentionally. 146 As to the complaint that it was not clear how Mr Fleyfel caused Mr Saffari to be prosecuted for an offence that Mr Fleyfel knew Mr Saffari did not commit, that is answered by paragraph 97, in which 140 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, pages 6 - 7). 141 Outline of submissions filed by Mr Saffari on 11 January 2024 par 20(k)(b)(i) and (ii) (page 15). -- 44 of 58 -- [2026] WASC 272 STRK J Page 45 it was pleaded that '[Mr Fleyfel] misled the police in exercising their discretion by lying to procure the laying of the charge accusing [Mr Saffari] of a crime he knew [Mr Saffari] did not commit.' 147 Paragraph 88 must be amended so that the accusations intended to be referenced are clearly defined and identified. It was not a plea otherwise liable to be struck out. It will be struck out with leave to amend. Paragraph 89 148 Mr Fleyfel applied to strike out paragraph 89,142 in which Mr Saffari pleaded that '[t]he level of malice involved in [Mr Fleyfel's] offending had devastating effects. Everything that followed was a result of [Mr Fleyfel's] accusations.' 149 Mr Fleyfel complained that the plea was scandalous; that particulars of malice had not been provided; that the plea was also prejudicial and would cause embarrassment or delay of the fair trial of the action.143 150 Mr Saffari observed in response that particulars of malice had already been provided. At [88] to [96] above, I made a number of observations as to the particulars provided, and the need for additional clarity in the pleaded claim (particularly with respect to any reliance on the circumstances described in paragraph 8). As to the words '[e]verything that followed' I considered that they were to be understood in the context of the material facts pleaded, paragraph 90, and the particulars of damages provided at paragraph 63. 151 While further clarity was called for with respect to the particulars of malice, affording Mr Saffari some leeway in his manner of expression, paragraph 89 was not a plea that ought be struck out. Paragraph 90 152 Mr Fleyfel applied to strike out paragraph 90,144 in which Mr Saffari pleaded that: This was a Malicious Prosecution from the beginning and everything that followed, including refusal of the protection visa and citizenship, inability to obtain employment, inability to obtain a passport to travel 142 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 143 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, page 7). 144 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. -- 45 of 58 -- [2026] WASC 272 STRK J Page 46 abroad to see dying family members or travel to do business activities, the prevention of attracting business investment and loss of life opportunities and significant loss of enjoyment of life was because of [Mr Fleyfel's] false accusations and lies and the ensuing Malicious Prosecution. 153 Mr Fleyfel complained that the plea was scandalous; that it was also prejudicial and would delay the fair trial of the action; that it was conclusionary and failed to set out the material facts Mr Saffari relied upon to establish a viable cause of action.145 154 It was a fair complaint that the pleading did not make plain what were the 'false accusations' the subject of the plea (for example, if the false accusations and lies there referenced were only the accusations Mr Saffari contends were made on 14 September 2001 when Mr Fleyfel made a complaint to police). The plea ought to identify (by clear cross referencing or otherwise) what particular accusations and lies were the subject of the plea (for example, whether it included accusations made in 2018). 155 Making appropriate allowances for an unrepresented party, I did not otherwise accept that the plea was conclusionary, scandalous or embarrassing when the pleading was read as a whole, nor would it likely prejudice or delay the fair trial of the action. Paragraph 90 must be amended so that the accusations intended to be referenced are clearly defined and identified. It was not a plea otherwise liable to be struck out. It will be struck out with leave to amend. Paragraph 91 156 Mr Fleyfel applied to strike out paragraph 91,146 in which Mr Saffari pleaded that '[i]t was but for [Mr Fleyfel's] false accusations and counselling and persuading [Mr Talbot] that instigated the proceedings and [Mr Fleyfel] was the moving force behind the prosecution.' 157 Mr Fleyfel complained that the plea was scandalous; that it was also prejudicial and would delay the fair trial of the action; that it did not relate to an element of the cause of action; that it was ambiguous, not reasonably intelligible and irrelevant; and that it failed to confine Mr Saffari's case with reasonable particularity. He also complained of 145 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, page 7). 146 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. -- 46 of 58 -- [2026] WASC 272 STRK J Page 47 the lack of particularity, which left Mr Fleyfel having to guess the case he must meet.147 158 Again, it was a fair complaint that the pleading did not make plain what were the 'false accusations' the subject of the plea (for example, if the false accusations and lies there referenced were only the accusations Mr Saffari contends were made on 14 September 2001 when Mr Fleyfel made a complaint to police). While Mr Saffari answered this in his submissions,148 the plea ought clearly identify (by clear cross referencing or otherwise) what accusations were the subject of the plea. 159 The plea was one which (among others) grounded Mr Saffari's plea that the prosecution was initiated by Mr Fleyfel (how that was done);149 and his plea that there was an absence of reasonable probable cause.150 160 Paragraph 91 must be amended so that the accusations intended to be referenced are clearly defined and identified. It was not a plea otherwise liable to be struck out. It will be struck out with leave to amend. Paragraph 92 161 Mr Fleyfel applied to strike out paragraph 92,151 in which Mr Saffari pleaded that '[Mr Fleyfel] perjured himself in 2014 when he knowingly signed a [statutory declaration] he admitted had incorrect information indicative of his character.' 162 Mr Fleyfel complained that the plea was scandalous. It was submitted that 'perjury' has a specific meaning within s 124 of the Criminal Code and the giving of a statutory declaration cannot amount to the giving of false testimony and therefore cannot constitute perjury. Among other things, he complained that in any event the plea was prejudicial; would cause the embarrassment or delay of the fair trial of the action; and did not relate to an element of the cause of action.152 163 By paragraph 92 it would appear that Mr Saffari sought to describe a document which might go to establishing the falsity of the charge complained of, by showing his innocence. It cannot however be 147 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, page 8). 148 Outline of submissions filed by Mr Saffari on 11 January 2024 par 20(n)(d)(i) (page 19). 149 As discussed at [72] of these reasons. 150 As discussed at [103] of these reasons. 151 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 152 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, pages 8 - 9). -- 47 of 58 -- [2026] WASC 272 STRK J Page 48 discounted that what was sought to be pleaded was a material fact, obscured by the language adopted. 164 Further, the particulars recorded under paragraph 92 were not proper particulars of the plea at paragraph 92. Instead, what was described in the particulars was conduct (the signing of the statutory declaration without modification) and a state of mind attributed to Mr Fleyfel by Mr Saffari. 165 Paragraph 92 lacks precision in its drafting and if Mr Saffari wishes to maintain the plea, it must amended. As to particulars, the existing form of particulars as recorded in the pleading must be withdrawn. Mr Saffari maintained that he has provided to Mr Fleyfel's legal representatives adequate particulars.153 For the sake of clarity and to ensure there is no confusion, it would be best that those particulars be included in the pleading with respect to an amended paragraph 92. Paragraph 92 will be struck out with leave to amend. Paragraph 94 166 Counsel for Mr Fleyfel and Mr Saffari both addressed paragraph 94 of the pleading.154 By paragraph 94 Mr Saffari pleaded that: [Mr Fleyfel's] Solicitor admitted to having a copy of the recent accusation but unilaterally decided the accusation was 'not very damaging' and refused to provide a copy of the report to [Mr Saffari] after offering to do so, forcing [Mr Saffari] to drop the defamation claim. 167 Mr Fleyfel complained that the plea was scandalous; that it unnecessarily included a claim against Mr Fleyfel's solicitors; that he plea could not form a part of the cause of action against Mr Fleyfel; that the plea was vague and was also therefore prejudicial and would cause the embarrassment or delay of the fair trial of the action. Among other things, Mr Fleyfel noted that it did not relate to an element of the cause of action; it was ambiguous, not reasonably intelligible and irrelevant; and failed to confine the issues of Mr Saffari's case with reasonable particularity. 168 Again, while the court will approach matters involving litigants in person with a degree of flexibility, the pleading must only contain a 153 Outline of submissions filed by Mr Saffari on 11 January 2024 par 20(o)(g) - (i) (page 21). 154 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, pages 9 - 10); outline of submissions filed by Mr Saffari on 11 January 2024 par 20(p) (pages 21 - 23). -- 48 of 58 -- [2026] WASC 272 STRK J Page 49 statement in a summary form of the material facts on which the party pleading relies for their claim. The paragraph (in which conferral as between a solicitor for a party to this proceeding and another party, which took place in the course of this proceeding after the alleged prosecution was terminated was described) did not go to an issue to be determined in the case. Paragraph 94 will therefore be struck out. 169 In the particulars to paragraph 94 Mr Saffari described (among other things) conduct on the part of Mr Fleyfel in the period between August 2018 and November 2018, by which further accusations were alleged to have been made to police by Mr Fleyfel with respect to Mr Saffari to the effect that Mr Saffari was a continued threat to the safety of Mr Fleyfel. As is recorded above, there was some difficulty experienced in identifying the 'false accusations' the subject of various pleas (for example, if the false accusations referenced were only the accusations Mr Saffari contends were made on 14 September 2001 when Mr Fleyfel made a complaint to police). If by the particulars provided to paragraph 94 Mr Saffari had intended to plead that further accusations were made by Mr Fleyfel in 2018, then the material fact ought be pleaded and not only recorded in particulars. Paragraph 95 170 Mr Fleyfel applied to strike out paragraph 95,155 in which Mr Saffari pleaded that '[Mr Fleyfel] acted with malice in bringing the prosecution which was then maintained without reasonable and probable cause and the malice was repeated in 2018 apathetic to the damage his lies had caused and would continue to exact on [Mr Saffari] with reckless disregard of the consequent of his false accusations.' 171 Mr Fleyfel complained that the plea was scandalous; was prejudicial and would cause the embarrassment or delay of the fair trial of the action; was lacking in particulars; was ambiguous, not reasonably intelligible and irrelevant; and that it failed to confine the issues of Mr Saffari's case with reasonable particularity. Counsel also posed the question 'how did [Mr Fleyfel] "bring… the prosecution" in circumstances where no proceeding was ever commenced?' Counsel also recorded by way of objection that '[t]he prosecution was not maintained, as [Mr Fleyfel] signed a statutory declaration to clear [Mr Saffari's] name in 2014.'156 155 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 156 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, page 10). -- 49 of 58 -- [2026] WASC 272 STRK J Page 50 172 As was observed above, while there is a reference in paragraph 95 to the prosecution having been maintained, it was not clear as to whether it was alleged by Mr Saffari that it had been maintained by Mr Fleyfel or Mr Talbot, or both. The pleading at paragraph 98 would suggest that Mr Saffari only alleged that the prosecution was initiated by Mr Fleyfel, although the plea at paragraph 98(d) and the particulars to paragraph 98 suggest otherwise. The lack of precision as to this aspect of the pleading is likely to prejudice the fair trial of the action because of the ambiguity that exists. 173 The reference in paragraph 95 to the malice being 'repeated in 2018' lacks precision. Again, it was a fair complaint that the pleading did not make plain what conduct was alleged to have been repeated in 2018. 174 As to the question posed by counsel (how did Mr Fleyfel bring the prosecution in circumstances where no proceeding was ever commenced?), I understood this to be further agitation of the issue described at [27] to [29] above. For the reasons set out above, the pleading, with the inconsistency created by the plea at paragraph 60, suffers from ambiguity and inconsistency, and ought not be permitted to stand in its current form. Subject to that inconsistency being addressed, I did not consider the issue described at [27] to [29] above to ground a proper basis to strike out paragraph 95. 175 As to counsel's submission that '[t]he prosecution was not maintained, as [Mr Fleyfel] signed a statutory declaration to clear [Mr Saffari's] name in 2014', while it might be a matter pleaded by way of defence to the claim, I did not consider that to ground a proper basis for paragraph 95 to be struck out. 176 Paragraph 95 lacks precision in its drafting. Again, while the court will approach matters involving litigants in person with a degree of flexibility, if Mr Saffari wishes to maintain the plea at paragraph 95 it ought be amended so as to address the matters described at [172] and [173]. As recorded above, Mr Saffari must also address the inconsistency created by the plea at paragraph 60. Paragraph 95 will be struck out with leave to amend. -- 50 of 58 -- [2026] WASC 272 STRK J Page 51 Paragraph 96 177 Mr Fleyfel applied to strike out paragraph 96 of the plea,157 in which Mr Saffari pleaded that '[t]he facts of the false accusations [that he was lying to the police claiming he was threatened to be killed by [Mr Saffari] were solely within [Mr Fleyfel's] knowledge and 'Initially' the police could not exercise independent discretion.' 178 Mr Fleyfel complained that the plea was prejudicial and would cause the embarrassment or delay of the fair trial of the action; did not relate to an element of the cause of action; was ambiguous, not reasonably intelligible and irrelevant; failed to confine the issues of Mr Saffari's case with reasonable particularity. He further complained that Mr Fleyfel did not know what 'accusation' Mr Saffari referred to.158 179 Again, it was a fair complaint that the pleading did not make plain what were the 'false accusations' the subject of the plea (for example, if the false accusations described in the underlined text were only the accusations Mr Saffari contends were made on 14 September 2001 when Mr Fleyfel made a complaint to police). While Mr Saffari addressed this in his submissions,159 the plea ought clearly have identified (by clear cross referencing or otherwise) what accusations were the subject of the plea. 180 If Mr Saffari wishes to maintain the plea at paragraph 96 it ought be amended so as to address the matter described at [179]. It will be struck out with leave to amend. Paragraph 97 181 Mr Fleyfel applied to strike out paragraph 97 of the plea,160 in which Mr Saffari pleaded that '[Mr Fleyfel] misled the police in exercising their discretion by lying to procure the laying of the charge accusing [Mr Saffari] of a crime he knew [Mr Saffari] did not commit.' 182 Mr Fleyfel complained that the plea was scandalous, prejudicial and would embarrass or delay the fair trial of the action. He complained that it did not relate to an element of the cause of action; that it was ambiguous, not reasonably intelligible, and irrelevant; and that it failed to confine the issues of Mr Saffari's case with reasonable particularity. He also complained that the plea did not particularise how Mr Fleyfel 157 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 158 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, pages 10 - 11). 159 Outline of submissions filed by Mr Saffari on 11 January 2024 par 20(r)(b)(c) and (d) (page 24). 160 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. -- 51 of 58 -- [2026] WASC 272 STRK J Page 52 misled the police or engaged in lying, each of those matters in any event not being required to establish a claim for malicious prosecution and being extraneous to the elements of the cause of action and ought to be struck out.161 183 Mr Saffari was required to plead to facts that established that Mr Fleyfel played an active role in the conduct of the prosecution (by instigating or setting them in motion); and that Mr Fleyfel held an absence of reasonable probable cause in bringing or maintaining any prosecution. The plea goes to those matters and to whether Mr Fleyfel did not honestly conclude that the information on which he acted provided a proper case for prosecution. The plea ought not be struck out. Paragraph 98 184 Mr Fleyfel applied to strike out paragraph 98 of the plea,162 in which Mr Saffari pleaded that: The prosecution was initiated by [Mr Fleyfel] by falsely portraying himself as the victim of a crime, persuading the police to institute the prosecution: (a) The prosecution was initiated by [Mr Fleyfel]. (b) The prosecution was terminated favourably to [Mr Saffari]. (c) [Mr Fleyfel] acted with malice in instigating the prosecution. (d) The Prosecution was maintained without reasonable and probable cause. Particulars [Mr Fleyfel] falsely accused [Mr Saffari] of a crime to instigate prosecution out of spite and animosity and personal vendetta. Legal Proceedings commenced against [Mr Saffari] with a charge for an indictable offence and an arrest warrant. [Mr Fleyfel] repeated false accusations in 2018 to prevent the charge from being dropped by the DPP. Legal Proceedings terminated when the charge was dropped and the warrant removed. 161 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, page 11). 162 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. -- 52 of 58 -- [2026] WASC 272 STRK J Page 53 185 Mr Fleyfel complained that the plea was prejudicial and would embarrass or delay the fair trial of the action. He complained that it repeated elements of the cause of action without setting out the material facts to support them, and therefore failed to confine Mr Saffari's case with reasonable particularity. He also complained that the particulars provided were not adequate.163 186 Mr Saffari pleaded at paragraph 98(a) that the prosecution was initiated by Mr Fleyfel - the requisite first element of the tort. As to how that was done, at paragraph 98 he pleaded that Mr Fleyfel falsely portrayed himself as the victim of a crime and persuaded the police to institute the prosecution. 187 The plea also concerned the other elements of the tort. In other parts of the pleading material facts are pleaded with respect to the same. To the extent further particulars are required (or are otherwise contained in paragraph 8), that has been addressed earlier in these reasons. 188 Making appropriate allowances for an unrepresented party, I did not accept that the plea ought be struck out. Paragraph 99 189 Mr Fleyfel applied to strike out paragraph 99 of the plea,164 in which Mr Saffari pleaded that 'As a consequence of [Mr Fleyfel's] malice, [Mr Saffari] has suffered injury, loss and damage.' 190 Mr Fleyfel complained that the plea was prejudicial and would embarrass or delay the fair trial of the action; that it repeated the elements of the cause of action without setting out the material facts to support them; and failed to confine the issues of Mr Saffari's case with reasonable particularity. He further complained that the plea did not disclose how the prosecution was apparently initiated by Mr Fleyfel and how Mr Fleyfel acted with malice, and noted previous complaints regarding the failure to adhere to the Rules of the Supreme Court O 20 r 13(1)(b).165 191 Malice in initiating or maintaining a proceeding was only one of the elements of the tort of malicious prosecution. At paragraph 99 163 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, page 11). 164 Chamber summons filed on behalf of Mr Fleyfel on 27 November 2023 par 3. 165 Outline of submissions filed on behalf of Mr Fleyfel on 14 December 2023 par 14 (table, pages 11 - 12). -- 53 of 58 -- [2026] WASC 272 STRK J Page 54 Mr Saffari pleaded that as a consequence of (only) the malice of Mr Fleyfel Mr Saffari suffered injury, loss and damage. 192 It might be inferred from the pleading as a whole that Mr Saffari alleges that he has suffered loss and damage as a consequence of Mr Fleyfel having maliciously, and without reasonable and probable cause, instituted (and if he so contends, maintained) a groundless criminal prosecution. If this is what was intended, then paragraph 99 ought be amended to record the same, with clear reference to the material facts as pleaded. Should Mr Saffari be given leave to amend his pleaded claim against Mr Fleyfel? 193 While Mr Saffari may have attempted to clarify his pleading through conferral with the solicitors representing Mr Fleyfel, submissions and particulars, it remained the case that elements of the cause of action must be pleaded in the statement of claim with clarity, precision and sufficient detail to ensure fairness. 194 When Mr Saffari was given leave to re-plead, it was recorded that he ought plead the facts giving rise to the alleged liability, rather than the legal basis on which he contends those facts give rise to liability; and refrain from pleading evidence which does not constitute a material fact or particulars and conclusions of law.166 For the reasons recorded above, there remain a number of significant pleading issues that Mr Saffari must address. 195 Having given careful consideration to the pleading as a whole and to the submissions made on behalf of Mr Fleyfel and by Mr Saffari, for the reasons set out above I was satisfied that a number of paragraphs of the pleading ought be struck out and others struck out with leave to amend. None of the matters raised warranted the pleaded claim being struck out in its entirety without leave to amend. When his pleaded claim was considered as a whole, if the required amendments are made (as identified in these reasons), I considered it to be open to Mr Saffari (on his pleading) to prove facts at trial which would constitute a cause of action. 196 While cognisant that Mr Saffari had made numerous attempts to plead the tort of malicious prosecution as against Mr Fleyfel, and that there is a limit to the opportunities a party ought be given to properly 166 Saffari v State of Western Australia [No 2] [121]. -- 54 of 58 -- [2026] WASC 272 STRK J Page 55 plead their case, I did not consider it to be the case that the whole proceeding was infected by an abuse of process, nor was it the case that no amendment would improve the position. While Mr Saffari prosecutes what appears at this stage to be a weak claim, it is not so obviously untenable that it could not possibly succeed.167 In all of the circumstances, he will have leave to amend. Mr Saffari's application for judgment in default of defence 197 On 14 March 2023 it was ordered that by 14 April 2023 the State of Western Australia, Mr Talbot and Mr Fleyfel file and serve their respective defences to Mr Saffari's further substituted statement of claim; and by the consent of the parties, the time for the defendants to file their defence was extended to 28 April 2023. 198 On 2 May 2023 the State of Western Australia and Mr Talbot requested that Mr Saffari provide further and better particulars of his further substituted statement of claim; and on 9 May 2023 particulars were filed. 199 On 31 May 2023 the time for the defendants to file their defence was again extended by consent to 16 June 2023. 200 On 26 June 2023 a defence was filed on behalf of the State of Western Australia, and on the same day a defence was filed on behalf of Mr Talbot. 201 Mr Fleyfel did not file a defence. He instead pursued a further strike out application as against Mr Saffari. The first of the applications to strike out Mr Saffari's further substituted statement of claim was made by chamber summons filed on 12 July 2023 (in circumstances where his defence was then due to be filed by 16 June 2023). By that chamber summons and the applications that followed, Mr Fleyfel sought to be relieved from the obligation to file and serve a defence to give discovery until the determination of the same. 202 After the first of the applications to strike out Mr Saffari's further substituted statement of claim was made by chamber summons filed on 12 July 2023, Mr Saffari filed an amended further substituted statement of claim on 26 October 2023, and a reamended further substituted statement of claim on 7 November 2023. 167 Vantage Holdings Group Pty Ltd v Donnelly [No 4] [60(f)]; Burton v Shire of Bairnsdale (1908) 7 CLR 76, 92, cited with approval in Mutton v Baker [15]. -- 55 of 58 -- [2026] WASC 272 STRK J Page 56 203 By the chamber summons filed on 23 January 2024, Mr Saffari moved for judgment against Mr Fleyfel as per Mr Saffari's application made by letter dated 28 June 2023 for default of filing a defence and for the relief sought in Mr Saffari's amended writ of summons dated 22 February 2023. 204 Mr Saffari has pressed that judgment be entered against Mr Fleyfel in default of him filing a defence. In short, Mr Saffari was aggrieved that a defence was not filed on behalf of Mr Fleyfel within the time prescribed and submitted that Mr Fleyfel was to be taken to have consented to not having a proper defence to the claims made against him.168 He noted that his claim against Mr Fleyfel is for unliquidated damages, and requested that judgment be entered conditional on an assessment on the basis of the claim as pleaded.169 205 Order 22 of the Rules of the Supreme Court is no longer available to the court to order judgment in default of pleadings, having been repealed with effect from 23 November 2016.170 206 Order 13 of the Rules of the Supreme Court concerns judgment in default of an appearance to a writ. It has no application in these circumstances. 207 This was not a case where a springing order was made with respect to Mr Fleyfel filing his defence. That said, it is wrong to say that some peremptory order is necessarily required before an action could be dismissed.171 The court has inherent power to control its own proceedings and to arrest an abuse of process. 208 The striking out of a defence or the summary dismissal of an action for failure to comply with an order or orders of the court is a power that the court will exercise only with some reluctance.172 Relevant to the exercise of the court's power will include consideration of whether the failures are repeated; if they are repeated and unexplained; and if there is no acceptable explanation for repeated and deliberate failures. 168 Application by Mr Saffari by letter filed on 28 June 2023 par 8. 169 Application by Mr Saffari by letter filed on 28 June 2023 pars 11 - 12. 170 Gazette 204 of 16 November 2016, r 9. 171 LexisNexis, Civil Procedure Western Australia (at 30 June 2026) at [1.4B.1A], citing Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243 [66], [75], [76]. 172 LexisNexis, Civil Procedure Western Australia (at 30 June 2026) at [1.4B.1A], citing Freeman v Rabinov [1981] VR 539, 544; J & J Products v Ken Gray & Co (Unreported, WASCA, Library No 960219, 24 April 1996); Mariotti v Wanneroo North Pty Ltd [55], [75], [76]. -- 56 of 58 -- [2026] WASC 272 STRK J Page 57 209 In this case, the defence was not filed within the time prescribed by the court. However, it was not filed in circumstances where the strike out of the statement of claim was being prosecuted by which Mr Fleyfel in circumstances where he complained that the pleaded claim ought be struck out in its entirety on the basis that it did not disclose a reasonable cause of action against him, and parts were scandalous, frivolous and/or vexatious. 210 This is not a case where Mr Fleyfel had been persistently dilatory in taking steps in the action, or where it could be inferred that he would not (or was unlikely to) take all necessary steps. 211 No doubt Mr Saffari was frustrated that his pleading continued to be the subject of complaint and application. It must be remembered however that he came to re-plead against Mr Fleyfel in March 2023 after his substituted statement of claim as against Mr Fleyfel was twice successfully struck out, with leave granted to Mr Saffari to re-plead subject to certain constraints. Further, he complains that a defence was not filed in June 2023 to his pleading as it then stood, which came to be amended on Mr Saffari's own volition in October and November 2023. 212 In all of the circumstances, not filing a defence within the time prescribed where Mr Saffari subsequently filed amended pleadings and where further applications to strike out Mr Saffari's pleadings were prosecuted, and by those applications Mr Fleyfel sought to be excused from filing a defence, did not amount to a calculated or a reckless disregard for his obligations in the conduct of the litigation.173 The exercise of the court's inherent jurisdiction to deny Mr Fleyfel the opportunity to defend the claim would be unjust in all of the circumstances. Mr Saffari’s application for judgment in default must be dismissed. Mr Saffari's application to restrain Mr Fleyfel 213 Further and alternatively to the court refusing Mr Fleyfel's application filed on 27 November 2023 for filing, or dismissing the same with costs, Mr Saffari sought an order in the following terms:174 … an Injunction preventing the Fifth Defendant from continuing to delay the proceedings and frustrating the self-represented Plaintiff by attrition (through numerous out-of-time applications, chamber summons, blatantly excessive and never ending requests for further 174 Chamber summons filed by Mr Saffari on 23 January 2024 par 6. -- 57 of 58 -- [2026] WASC 272 STRK J Page 58 particulars, demand for production of evidence, demands for the Plaintiff to prove the claims at this stage of the proceedings and by continuing to pretend not understanding the Causes of Action which has been ruled to have been met by This Court) by barring further Strikeout Applications considering the authority in Saffari v State of Western Australia [No 2] [2023] WASC 46 at [17]. 214 For the reasons set out above, I did not accept Mr Saffari's submission that the continued prosecution of strike out applications with respect to his pleadings, and the seeking of particulars with respect to the pleadings, was an abuse the court's processes. Further, while Mr Fleyfel was not successful in having the claim against him dismissed, some paragraphs were struck out and on Mr Fleyfel's application, Mr Saffari will be required to amend and develop his pleaded claim against Mr Fleyfel. 215 In the circumstances, it would not be appropriate for the court to impose a fetter on Mr Fleyfel in defence of the action prosecuted against him. Any future application by Mr Fleyfel (or any party to the action) ought be determined on its merits. The making of an order in the form promoted by Mr Saffari would be unjust in all of the circumstances, and the application for such relief must be dismissed. Conclusion 216 With respect to the application to strike out Mr Saffari’s pleaded claim against Mr Fleyfel, orders will be prepared which reflect these reasons. Mr Fleyfel will not be required to file a defence or give discovery until after Mr Saffari has filed an amended pleading. Mr Saffari’s application will be dismissed. I will hear the parties as to costs of these applications and the superseded strike out applications. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DS Associate to the Honourable Justice Strk 3 JULY 2026 -- 58 of 58 --