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District Court 11 March 2021

Marino v Bello

[2021] NSWDC 52

Other
TORT APPLICATION FOR LEAVE TO AMEND CROSS APPLICATION FOR SUMMARY DISMISSAL WHETHER ADJOURNMENT SHOULD BE GRANTED TURNS ON OWN FACTS

Citation: Marino v Bello [2021] NSWDC 52
Court: District Court of New South Wales
Date: 11 March 2021
Judge: Gibson DCJ

Background

The plaintiff commenced proceedings in the Supreme Court of New South Wales in May 2020, claiming damages against his sister and brother-in-law for malicious prosecution, breach of contract, defamation, and abuse of process. Those proceedings were transferred to the District Court. The parties were assigned court-determined pseudonyms because of related family law proceedings concerning the plaintiff's applications for access to his sister's children.

By the time the matter came before Gibson DCJ, the plaintiff had narrowed his claims to malicious prosecution and abuse of process only. He also sought to expand the defendant pool from two to six, adding three solicitors from the law firm retained by the first and second defendants, and the State of New South Wales. The underlying criminal proceedings concerned interim Apprehended Domestic Violence Orders (ADVOs) made against the plaintiff in April 2020, which had not yet been finally determined.

The plaintiff sought an adjournment or stay until December 2021, asserting that pending hearings in the Supreme Court, the High Court, and the Local Court would result in findings in his favour. All existing and proposed defendants opposed both the amendments and the continuation of the proceedings, seeking summary dismissal.

  • Whether the plaintiff was entitled to an adjournment or stay pending the outcome of related criminal proceedings
  • Whether a claim for malicious prosecution can be maintained where the underlying prosecution has not yet terminated in the plaintiff's favour
  • Whether a claim for abuse of process can be brought against persons who were not parties to the relevant criminal proceedings (the first and second defendants)
  • Whether leave should be granted to join three solicitors as defendants to a malicious prosecution claim
  • Whether leave should be granted to join the State of New South Wales and bring claims for malicious prosecution and abuse of process against it
  • Whether the proposed amended statement of claim disclosed a reasonable cause of action or was otherwise so deficient as to warrant dismissal under UCPR rr 13.4 and 14.28

Decision

Adjournment and stay refused. The court declined to adjourn or stay the proceedings pending the resolution of other matters. The plaintiff's expectation that pending hearings would resolve in his favour was not sufficient justification for an open-ended stay, particularly given the state of the pleadings.

Malicious prosecution claims against all defendants dismissed. A fundamental element of the tort of malicious prosecution is that the prosecution must have terminated in the plaintiff's favour: Beckett v New South Wales (2013) 248 CLR 432. The plaintiff acknowledged that no such termination had occurred. This applied equally to the claims against the first and second defendants and the proposed third to fifth defendants (the solicitors). The court found these claims clearly hopeless by the standard in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, which asks whether it is plain and obvious that the claim cannot succeed.

Abuse of process claims against the first and second defendants dismissed. The court accepted that an abuse of process claim is only maintainable against a person who was a party to the relevant proceedings: Leerdam v Noori [2009] NSWCA 90. The first and second defendants were never parties to the ADVO proceedings, which were initiated by police under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). There was accordingly no viable claim against them on this basis.

Claims against the proposed sixth defendant (State of NSW) dismissed. The State had been granted leave to appear but had not yet been formally joined. The court dismissed the abuse of process claim against the State primarily on the basis that the pleading was so deficient it failed to disclose a recognisable cause of action, satisfying both the UCPR rr 13.4 and 14.28 threshold and the General Steel test. The court noted that, had the plaintiff been prepared to file a properly particularised abuse of process claim against the State alone, a final opportunity to do so might have been considered. However, the plaintiff made clear he would not accept any amendment that dropped his other claims or defendants, rendering further amendment futile.

Orders Made

  • The plaintiff's application for adjournment and/or stay until December 2021 was refused, with costs.
  • The plaintiff's application for leave to further amend the statement of claim in the form of exhibit A was refused, with costs.
  • The plaintiff's claims for malicious prosecution and abuse of process against the first and second defendants were dismissed, with the plaintiff to pay their costs of both the application and the proceedings.
  • The plaintiff's applications to join the proposed third, fourth, fifth, and sixth defendants and to bring the causes of action identified in exhibit A against them were dismissed, with costs.
  • Liberty to apply in relation to costs.

Key Takeaways

  • An unresolved criminal proceeding is a complete bar to a malicious prosecution claim: the District Court confirmed that a plaintiff must establish the prosecution terminated in their favour before the tort is actionable, following Beckett v New South Wales (2013) 248 CLR 432.

  • Abuse of process is not available against a person who was not a party to the impugned proceedings. The court applied Leerdam v Noori [2009] NSWCA 90 to defeat the claims against the first and second defendants, who had no procedural role in the ADVO application.

  • Where a plaintiff indicates they will not accept amendments that cure the fundamental defects in a pleading, the court may decline to allow further amendment opportunities and proceed directly to dismissal.

  • Pleadings that fail to identify a recognisable cause of action or adequate particulars of damage may be struck out under UCPR rr 13.4 and 14.28, independently of whether the General Steel test for summary dismissal is also satisfied.

  • Proceedings brought under court-determined pseudonyms to protect family law confidentiality will be managed consistently with that regime throughout, as illustrated by the approach taken in Dickens v State of New South Wales [2017] NSWSC 1173.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 25, 28A
- Uniform Civil Procedure Rules 2005 (NSW), rr 4.15(1)(a), 13.4, 14.28, 19.1, 42.1
- Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64, 100

Cases
- Ainsworth v Hanrahan (1985) 1 NSWLR 370
- Beckett v New South Wales (2013) 248 CLR 432
- Burton v Babb [2020] NSWCA 331
- Cumberland v Clarke (1996) 39 NSWLR 514
- Dickens v State of New South Wales [2017] NSWSC 1173
- Dickens v State of New South Wales (No 3) [2018] NSWSC 485
- Duraisamy v Sydney Trains [2019] NSWCA 269
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
- Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595
- Leerdam v Noori [2009] NSWCA 90; 255 ALR 553
- McDonough v Smith 139 S Ct 2149 (2019)
- McGuirk v University of New South Wales [2009] NSWSC 1424
- Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365
- Shaw v State of New South Wales [2012] NSWCA 102