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District Court 11 February 2021

Moore v Moore (No 2)

[2021] NSWDC 73

Public order & justice offences
TORTS DEFECTIVE STATEMENT OF CLAIM LEAVE GRANTED TO REPLEAD COSTS EACH PARTY IN DEFAULT NO ORDER AS TO COSTS.

Citation: Moore v Moore (No 2) [2021] NSWDC 73
Court: District Court of NSW
Date: 11 February 2021
Judge(s): Neilson DCJ

Background

The plaintiff and defendant are brothers who were involved in a physical altercation in May 2014. The plaintiff was subsequently prosecuted by NSW Police, committed for trial in the District Court at Newcastle, and ultimately acquitted by a jury in May 2016. Following the acquittal, the defendant made three applications for an Apprehended Domestic Violence Order (ADVO) against the plaintiff, all of which were unsuccessful.

The plaintiff then brought proceedings in the District Court claiming damages for the tort of malicious prosecution. His statement of claim relied both on the criminal prosecution and on the three ADVO applications. The statement of claim was, however, found to be inadequately pleaded and contained an ambiguous certificate under the Legal Profession Uniform Law Application Act 2014.

This was the second attempt by the defendant to have the proceedings dismissed. A first notice of motion under UCPR 13.4 (which permits a court to dismiss proceedings that disclose no cause of action or are otherwise an abuse of process) had already been dismissed by Dicker DCJ in August 2020, with costs awarded against the defendant.

  • Whether the proceedings as a whole should be dismissed under UCPR 13.4 on the defendant's second application.
  • Whether the paragraphs of the statement of claim referring to the ADVO applications (paragraphs 17 to 20) should be dismissed under UCPR 13.4 or struck out under UCPR 14.28, on the basis that an ADVO application cannot ground an action for malicious prosecution.
  • What costs order was appropriate given the conduct of both parties.

Decision

Neilson DCJ declined to dismiss the proceedings. His Honour found that the defendant's second application under UCPR 13.4 lacked substantive merit and, in substance, should have been dismissed for the same reasons given by Dicker DCJ in the earlier motion. The underlying dispute between the parties was well understood; the difficulties with the pleading were matters of form rather than substance.

On the ADVO question, his Honour found it arguable that an application for an ADVO can ground an action for malicious prosecution. He referred to obiter remarks by Rothman J in Clavel v Savage [2013] NSWSC 775 suggesting an AVO application could support such a claim, and noted that while the Court of Appeal in Clavel v Savage [2015] NSWCA 61 treated the AVOs in that case as elements of collateral abuse of process rather than malicious prosecution, the broader principle that civil litigation can found a malicious prosecution claim is well established, including in Coleman v Buckingham's Limited (1963). The question was therefore arguable and the paragraphs could not be struck out.

However, his Honour accepted that the statement of claim was inadequately pleaded and encouraged the plaintiff's counsel to file an amended statement of claim. Once the court indicated leave would be granted for repleading, the defendant's counsel conceded the notice of motion should be dismissed. On costs, his Honour concluded that fault lay on both sides: the motion lacked substantive merit, but the plaintiff had also failed to proactively remedy the defective pleading during the three months the motion was on foot. Accordingly, no costs order was made.

Orders Made

  • Leave granted to the plaintiff to file and serve an amended statement of claim within 21 days.
  • The defendant to file a defence to the amended statement of claim within 28 days of service.
  • The notice of motion filed 11 November 2020 dismissed by consent.
  • Each party to pay his own costs of the notice of motion.

Key Takeaways

  • It is at least arguable, as a matter of law, that an application for an ADVO can ground an action for malicious prosecution, making it inappropriate to strike out such allegations at an interlocutory stage without a fully developed argument.
  • The District Court applied the well-established principle that civil litigation, not only criminal proceedings, can in appropriate circumstances support a malicious prosecution claim, drawing on both Clavel v Savage and Coleman v Buckingham's Limited.
  • A second application under UCPR 13.4 covering substantially the same ground as a dismissed first application is unlikely to succeed where no new substantive basis is advanced.
  • Where a notice of motion lacks substantive merit but the respondent has also failed to address deficiencies in their own pleading during the period the motion was on foot, the court may decline to award costs to either party.
  • Defective pleadings, including an ambiguous certificate under the Legal Profession Uniform Law Application Act 2014, can prompt a court to order repleading even when the underlying substantive claim is found to be arguable.

Legislation and Cases Referenced

Legislation
- Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
- Legal Profession Uniform Law Application Act 2014, Sch 2 cl 4

Cases
- Moore v Moore [2020] NSWDC 402
- Clavel v Savage [2013] NSWSC 775
- Clavel v Savage [2015] NSWCA 61
- Coleman v Buckingham's Limited (1963) 63 SR (NSW) 171