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District Court 6 May 2013

Edwards v Edwards

[2013] NSWDC 56

Other
INTERLOCUTORY APPLICATIONS PLAINTIFF AND CROSS TEST FOR SUMMARY DISMISSAL

Citation: Edwards v Edwards [2013] NSWDC 56
Court: District Court of New South Wales
Date: 6 May 2013
Judge(s): Gibson DCJ

Background

The plaintiff (a mother) commenced proceedings against her son under the Uncollected Goods Act 1995 (NSW), seeking court authorisation to dispose of goods stored in a commercial storage unit, together with recovery of associated costs including insurance, transport, valuation and storage charges. The son had previously lived in his mother's home under what he described as a licence arrangement, before she changed the locks and obtained an apprehended domestic violence order (ADVO) against him.

The son filed a defence and a lengthy cross-claim against both his mother (the first cross-defendant) and his sister (the second cross-defendant). The cross-claim ran to 78 paragraphs over 18 pages and raised multiple causes of action including breach of contract, estoppel, trespass, conversion, detinue, malicious prosecution, abuse of process, and what he described as "oppressive conduct."

Three notices of motion came before the court on the same occasion. The mother and sister sought to strike out parts of the cross-claim; the son sought summary dismissal of parts of the plaintiff's summons and also sought summary judgment on portions of his own cross-claim.

  • Whether the plaintiff's claims under the Uncollected Goods Act 1995 should be summarily dismissed on the basis that the goods were not bailed but converted or "stolen."
  • Whether the son's cross-claim disclosed a recognisable cause of action for "false and malicious reports to the police" or abuse of process arising from the ADVO application.
  • Whether malicious prosecution as a cause of action is limited to criminal proceedings, or whether it can extend to civil or quasi-civil proceedings such as an ADVO application.
  • Whether the son's claims for summary judgment on his trespass and conversion claims were properly made out.
  • Whether the cross-claim in its current form was sufficiently pleaded to go forward.

Decision

Gibson DCJ dismissed both of the son's notices of motion in their entirety. The son's bid to summarily dismiss the plaintiff's Uncollected Goods Act claims failed because the claims were not plainly unarguable, and summary dismissal is reserved for cases where there is no real question to be tried. Similarly, the son's attempt to obtain summary judgment on portions of his own cross-claim (for trespass and conversion) was refused.

The mother's and sister's notice of motion to strike out the cross-claim was granted. Her Honour found that multiple parts of the cross-claim failed to disclose a cause of action known to law, were inadequately pleaded, or were otherwise deficient. The claim for "false and malicious reports to the police" and the "oppressive conduct" claim were identified as legally problematic categories, as neither corresponded to a recognised tort in the form pleaded.

The malicious prosecution issue proved more nuanced. The cross-defendants argued that malicious prosecution is confined to criminal proceedings, and that an ADVO application is not criminal in nature. However, following concessions made by counsel for the cross-defendants during argument, Gibson DCJ declined to summarily dismiss the malicious prosecution claim on that ground. Her Honour noted that whether the tort extends to proceedings such as ADVO applications was a question properly left to the trial judge rather than resolved on a strike-out application.

The son was granted leave to replead the cross-claim within 21 days. Because the son was legally qualified (holding law and commerce degrees), albeit not in practice, the court observed that he possessed the skills to produce clear and succinct pleadings. Costs of all three notices of motion were ordered against the son, given he was wholly unsuccessful on his own motions and achieved only the limited benefit of leave to replead rather than outright dismissal.

Orders Made

  • The son's Notices of Motion of 10 and 30 April 2013 were struck out and dismissed.
  • The mother's and sister's Notice of Motion of 5 April 2013 was granted; the cross-claim was struck out with leave to file and serve an amended cross-claim within 21 days (by 27 May 2013).
  • The mother and sister were at liberty to bring a fresh Notice of Motion to strike out the amended cross-claim or for summary judgment, returnable at the Newcastle District Court sittings commencing 12 August 2013.
  • If no such Notice of Motion was filed within 28 days of service, the mother and sister were to file a defence to the amended cross-claim within 28 days of service.
  • The proceedings were stood over for further directions to the Newcastle District Court sittings commencing 12 August 2013, with a hearing date to be allocated if possible.
  • The son was ordered to pay the costs of the mother and sister on all three Notices of Motion.

Key Takeaways

  • Summary dismissal under the Uniform Civil Procedure Rules 2005 (NSW) is a high bar: the District Court refused to dismiss the Uncollected Goods Act claims despite the son's characterisation of the situation as conversion or theft, because the matter was not beyond argument.
  • Whether the tort of malicious prosecution can extend to proceedings that are not criminal in nature, such as an ADVO application under the Crimes (Domestic and Personal) Violence Act 2007, was treated as a question of sufficient legal complexity to be reserved for the trial judge rather than resolved on a strike-out application.
  • A cross-claim may be struck out entirely where it fails to plead recognised causes of action in adequate form, even where the cross-claimant is legally qualified.
  • Leave to replead is not automatic on strike-out, but the court exercised its discretion to grant it here, preserving the defendant's opportunity to advance a properly pleaded case.
  • Costs followed the event across all three motions: the party who was wholly unsuccessful on his own motions and secured only leave to replead bore the costs of all interlocutory proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal) Violence Act 2007 (NSW), s 15
- Residential Tenancies Act 2010 (NSW)
- Uncollected Goods Act 1995 (NSW), ss 5, 9, 18
- Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 15.1

Cases:
- A v State of New South Wales & Anor (2007) 233 ALR 584
- Agar v Hyde (2000) 201 CLR 552
- Gregory v Portsmouth City Council [2000] 1 AC 419
- Hanrahan v Ainsworth (1985) 1 NSWLR 370; (1990) 22 NSWLR 73
- John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512
- Kable v State of NSW (2010) 203 A Crim R 66
- Martin v Watson [1996] AC 74
- Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391
- QIW v Feldview [1989] 2 Qd R 245
- Various other Queensland, Victorian, Western Australian and Federal cases noted in the judgment