Citation: Marino v Bello [2024] NSWDC 149
Court: District Court of New South Wales
Date: 8 May 2024
Judge: Waugh SC DCJ
Background
The plaintiff (referred to by the pseudonym Marino) brought proceedings against his brother-in-law (referred to as Bello) for malicious prosecution and collateral abuse of process. The dispute arose after Bello made a complaint to police while Family Court proceedings were on foot in which Marino was seeking contact orders in relation to Bello's children. Acting on that complaint, police obtained a provisional apprehended domestic violence order (ADVO) against Marino and commenced ADVO proceedings in which the Bellos were the persons in need of protection.
Marino's core allegation was that Bello had instigated the ADVO proceedings not for any genuine protective purpose, but predominantly to damage and derail Marino's family law proceedings and strengthen Bello's own position in those proceedings. The ADVO remained in force for approximately 13 months before the proceedings were terminated in Marino's favour on 11 May 2021.
Bello failed to file a defence, and default judgment for damages to be assessed was entered against him on 16 May 2023. This hearing concerned only the assessment of those damages. Marino appeared unrepresented via audiovisual link; Bello did not appear at all.
Legal Issues
- What facts were "necessarily and with complete precision" established by the entry of default judgment, so as to constitute an issue estoppel binding at the damages assessment?
- Whether prior court judgments tendered by the plaintiff could be used to prove facts under section 91 of the Evidence Act 1995 (NSW).
- What quantum of compensatory, aggravated, and exemplary damages, if any, was appropriate given the evidence before the court.
Decision
Effect of the default judgment. The court applied the principles from Blair v Curran (1939) 62 CLR 464 and the Court of Appeal's analysis in Sneddon v State of New South Wales [2012] NSWCA 351, confirming that a default judgment for unliquidated damages gives rise to issue estoppel only in respect of what was "necessarily and with complete precision" determined, that is, the bare legal minimum indispensable to the judgment. Rule 14.26 of the Uniform Civil Procedure Rules 2005, which deals with admitted facts in pleadings, has no application where a defendant simply fails to file a defence.
Liability findings taken as established. Drawing on the elements of each tort as identified in A v The State of New South Wales (2007) 230 CLR 500 and the earlier Court of Appeal proceedings in this matter, the court concluded that the default judgment necessarily established the core ingredients of both claims. Those elements included that Bello initiated or procured the ADVO proceedings, that those proceedings terminated in Marino's favour, that Bello acted without reasonable and probable cause and with malice (for malicious prosecution), and that Bello's dominant purpose was collateral to any legitimate objective of the ADVO process.
Assessment of damages. The court found that Marino had not demonstrated specific pecuniary or economic loss. However, the court accepted his evidence of psychological distress, embarrassment, humiliation, and injury to feelings arising from the ADVO itself and from Bello's repeated deployment of it in the family law proceedings. The court also found that Marino suffered some reputational harm. Compensatory damages were assessed at $50,000, reflecting 13 months of living under the threat of arrest and the ongoing damage to his family law proceedings.
Aggravated and exemplary damages. The court awarded aggravated damages of $15,000, on the basis that Bello obtained the ADVO on a false basis and then repeatedly and deliberately used it against Marino in the family law proceedings. The court declined to award exemplary damages, finding the circumstances did not justify them.
Orders Made
- Judgment for the plaintiff against the first defendant in the sum of $65,000.
- The first defendant is to pay the plaintiff's costs of the proceedings.
Key Takeaways
- A default judgment for unliquidated damages creates issue estoppel only as to what was "necessarily and with complete precision" determined, not as to every fact alleged in the statement of claim. Courts must scrutinise default judgments carefully to identify only the bare essence of what they necessarily decided.
- Rule 14.26 of the Uniform Civil Procedure Rules 2005, which concerns deemed admissions arising from pleadings, does not apply where a defendant simply fails to file a defence altogether.
- Under section 91 of the Evidence Act 1995 (NSW), findings of fact made in prior proceedings are not admissible to prove the existence of those facts in subsequent proceedings, even where the prior decisions are otherwise relevant.
- Compensatory damages for malicious prosecution and collateral abuse of process can extend to psychological distress, injury to feelings, embarrassment, and reputational harm, even in the absence of medical evidence, provided the court is satisfied on the evidence before it that the plaintiff suffered those harms.
- Aggravated damages are available where the defendant's conduct in committing the tort was particularly high-handed or deliberate; in this case, the false procurement of the ADVO and its repeated misuse in separate proceedings justified a supplementary award of $15,000.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 91
- Uniform Civil Procedure Rules 2005 (NSW), rr 14.26, 16.3, 16.7, 30.1, 31.1(4)(b)
Cases
- A v The State of New South Wales (2007) 230 CLR 500
- Blair v Curran (1939) 62 CLR 464
- Emerton v Clerk of the Supreme Court [1992] NSWCA 65
- Hamer-Matthew v Gulabrai (No.2) (1995) Australian Torts Reports 81-334
- Lamb v Cotongo (1987) 164 CLR 1
- Lux Gulabrai v Carl Hamer-Mathew [1997] NSWCA 131
- Matthew v Gulabrai (1994) 35 NSWLR 92
- New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1
- Rock v Henderson [2021] NSWCA 155
- Sneddon v State of New South Wales [2012] NSWCA 351
- State of New South Wales v Spedding [2023] NSWCA 180
- State of New South Wales v Zreika [2012] NSWCA 37