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District Court 13 August 2020

Moore v Moore

[2020] NSWDC 402

Other
PRACTICE AND PROCEDURE SUMMARY DISMISSAL APPLICATION TORTS MALICIOUS PROSECUTION WHETHER CASE WOULD BE DOOMED TO FAIL FACTUAL DISPUTE

Citation: Moore v Moore [2020] NSWDC 402
Court: District Court of New South Wales
Date: 13 August 2020
Judge(s): Dicker SC DCJ

Background

The plaintiff brought proceedings in malicious prosecution against the defendant, his brother. The claim arose from an altercation on 31 May 2014, during which part of the defendant's ear was separated from his body. The parties disputed whether this occurred deliberately, with the defendant alleging the plaintiff bit off his ear and the plaintiff offering an alternative account.

Following the incident, the defendant attended Belmont Police Station in an injured state. Police subsequently charged the plaintiff by indictment with causing grievous bodily harm with intent. A jury trial before North J concluded in 2016 with a verdict of not guilty.

The plaintiff filed a Statement of Claim in November 2019, alleging the defendant had instigated the prosecution by making deliberately false statements to police. The defendant then moved to have the proceedings dismissed summarily under Part 13 r 4 of the Uniform Civil Procedure Rules 2005 (NSW).

  • Whether the plaintiff's claim disclosed a reasonable cause of action in malicious prosecution, such that the proceedings should not be summarily dismissed.
  • Whether the defendant's conduct in attending the police station and providing a statement could, as a matter of law and on the pleaded facts, constitute instigation or initiation of the prosecution.
  • Whether the plaintiff's case was so clearly hopeless or doomed to fail that summary dismissal was warranted.

Decision

Dicker SC DCJ identified the four elements a plaintiff must establish to succeed in malicious prosecution, as stated by six judges of the High Court in A v State of New South Wales (2007) 230 CLR 500: that criminal proceedings were initiated by the defendant against the plaintiff; that they terminated in the plaintiff's favour; that the defendant acted maliciously; and that the defendant acted without reasonable and probable cause.

A key question was whether the defendant, as a civilian complainant rather than the prosecuting authority, could be said to have initiated or instigated the prosecution. His Honour referred to Johnston v Australia and New Zealand Banking Group Limited [2006] NSWCA 218, in which Basten JA affirmed that a person who is not a formal party to a prosecution may still be sued if they were in fact instrumental in bringing it about. The substance of the conduct, not its legal form, governs the analysis.

His Honour applied the established principle that on a summary dismissal application the plaintiff's evidence must be taken at its highest, drawing on the approach articulated in Comninos v Buckley [2019] NSWSC 968. Assessed on that basis, the plaintiff's case was found to be arguable. The plaintiff relied on inferences to be drawn from witness statements and trial transcript material.

The Court was not satisfied the proceedings were hopeless or doomed to fail. His Honour noted that even a view that the plaintiff was unlikely to ultimately succeed would not, of itself, be sufficient to warrant summary dismissal. The factual dispute regarding what the defendant said to police, and whether those statements caused the prosecution to be brought, remained live and could not be resolved on the motion.

Orders Made

  • The Notice of Motion filed 21 May 2020 was dismissed.

Key Takeaways

  • A civilian who makes statements to police may, in appropriate circumstances, be found to have instigated a prosecution for the purposes of the tort of malicious prosecution. The court must look to substance over legal form.
  • The District Court confirmed that on a summary dismissal application, the plaintiff's evidence and pleaded case must be taken at its highest, and the court proceeds on the assumption the plaintiff can prove the facts asserted.
  • Arguability is the relevant threshold on a Part 13.4 application. A case that raises legitimate inferences from established facts is not doomed to fail, even where the plaintiff faces a difficult evidentiary path at trial.
  • A court's assessment that a plaintiff is unlikely to succeed at trial does not, without more, justify summary dismissal. The proceedings must be shown to be hopeless or clearly untenable.
  • In refusing the motion, the court underscored the caution appellate courts have consistently urged against the summary termination of proceedings, particularly where genuine factual disputes remain unresolved.

Legislation and Cases Referenced

Legislation
- Uniform Civil Procedure Rules 2005 (NSW), Part 13 r 4
- Evidence Act 1995 (NSW), s 140

Cases
- A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
- Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432
- Johnston v Australia and New Zealand Banking Group Limited [2006] NSWCA 218
- Spencer v The Commonwealth of Australia (2010) 241 CLR 118
- Comninos v Buckley [2019] NSWSC 968
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Wood v New South Wales [2019] NSWCA 313
- Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245
- AD v Commissioner of the Australian Federal Police [2018] NSWCA 89
- Agar v Hyde (2000) 201 CLR 552
- Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83
- Sahade v Bischoff [2015] NSWCA 418
- Mahon v Rahn (No 2) [2000] 1 WLR 2150
- Jackamarra v Krakouer (1998) 195 CLR 516
- Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343
- Fan v South Eastern Sydney Local Health District [2020] NSWSC 1038