Edwards v Edwards

Judgment 1The plaintiff and defendant are mother and son. The defendant brings a cross-claim against his mother and sister. This judgment relates to three Notices of Motion brought by the parties to strike out pleadings in the Summons and Cross-Claim filed in these proceedings. 2These proceedings have been listed for determination of interlocutory issues on two prior occasions. No date has yet been given for hearing. The unfortunate procedural history of this claim, the nature of the relationship between the parties and the prolix pleadings of the defendant/cross-claimant require me to give full reasons for dismissing the two notices of motion brought by the defendant and, in relation to the plaintiff's notice of motion, strike out the defendant's cross-claim with liberty to replead. 3The defendant/cross-claimant is self-represented. Although he is a litigant in person, he is legally qualified, although not in practice. He holds Bachelor of Commerce and Bachelor of Law degrees and has spent many years in the business world. More recently, he has been helping his sister with a complex court case. His years of business experience and his law degree mean that he has skills and knowledge which should enable him to conduct his defence and cross-claim by providing clear and succinct pleadings which tell his opponents the case they have to meet. 4I shall first set out the pleadings, identifying those pleadings which are challenged.

The pleadings 5The plaintiff's Summons, filed on 13 November 2012, seeks orders pursuant to the Uncollected Goods Act 1995 (NSW) as follows: (1)Pursuant to s 18(1) of the Uncollected Goods Act 1995, leave is granted to bring these proceedings in the District Court; (2)Pursuant to s 9 of the Uncollected Goods Act 1995, Mrs Elaine Edwards, or any person acting on her behalf, is entitled, by way of public auction held not earlier than seven (7) days after the date of making this order, to dispose of all items currently held at Storage Unit Number D494, Storage King, 55 Bailey Street, Adamstown NSW 2289, and the relevant charges due to Mrs Elaine Edwards are: (a)$3,770.08 on account of the reasonable cost of insurance of the items; (b)$7,127.62 on account of the reasonable cost of transport of the items; (c)$4,492.50 on account of the reasonable cost of obtaining a valuation of the items; (d)$3,492.00 on account of the reasonable cost of storage of the items and continuing at the rate of $380.00 per month; and (e)The reasonable cost incurred by Mrs Elaine Edwards in disposing the items. (3)Interest pursuant to s 100 of the Civil Procedure Act 2005; (4)Any other orders the Court deems appropriate; and (5)Costs. 6In the Notice of Motion filed on 10 April 2013 the defendant/cross-claimant seeks orders striking out paragraphs 2 and 3 of the Summons. 7I should formally note, as to paragraph 1, that the plaintiff was required, under s 18(1) Uncollected Goods Act 1995 (NSW) to obtain the court's leave to exercise the jurisdiction conferred upon the Local Court, as the value of the goods exceeded the Local Court's jurisdictional limit. On 13 February 2013 Olsson SC DCJ granted that leave, and made orders for the filing of any defence and cross-claim, as well as the parties' evidence. Directions to this effect had earlier been made on 26 November 2012 but these were not complied with by the defendant. The defendant did not challenge these pleadings but, in the 10 April 2013 Notice of Motion before me today seeks summary dismissal of the claim on the basis that the goods are not bailed but converted, or "stolen" by the plaintiff/cross-defendants. 8The defendant complied with Olsson SC DCJ's orders and filed a Defence and a Cross-Claim on 25 March 2013. The Defence pleads: (1)The defendant denies the plaintiff is able to enliven jurisdiction pursuant to the Uncollected Goods Act 1995 or to obtain an Order to Dispose of Goods. (2)In the alternative the Defendant denies that an unreserved auction at Newcastle with only seven (7) days' notice is an appropriate method of disposal of the subject chattels which include valuable and highly specialised chattels. (3)In the alternative the Defendant denies that the Plaintiff is entitled to claim any "relevant charges" and submits that relevant charges: (a)Do not include the alleged cost of insurance in the sum of $3,770.08 or any other quantum save for insurance costs from the date of the filing of any successful Application for an Order to Dispose of Goods; (b)Do not include the alleged costs of carriage in the sum of $7,127.62 or any other quantum as no charges for carriage were agreed. (c)Do not include the alleged cost of obtaining a Valuation of the chattels in the sum of $4,492.50 or any other quantum. (d)Do not include the alleged cost of storage in the sum of $3,492.00 or any other quantum save for storage costs from the date of the filing of any successful Application for an Order to Dispose of Goods. (e)Do not include any reasonable costs of disposal in the circumstances of this case. (4)The Defendant further denies that there are any reasonable prospects of success of the Plaintiff's filed Summons seeking an Order to Dispose of Goods and that an Indemnity Costs Award and an award for directly consequential losses incurred by the Defendant be made in the Defendant's favour. (5)Any other Orders this Honourable Court may deem appropriate. 9The plaintiff then brought an application for summary judgment on 5 April in relation to the 25 March cross-claim (these proceedings were to be listed for hearing for the 8 April 2013 sittings). This is the first notice of motion before me. 10The Statement of Cross-Claim which is challenged in the first notice of motion contains 78 paragraphs over a total of 18 pages. Its contents may be summarised as follows: (a)A summary of background facts (paragraphs 1 - 4) including the circumstances in which the first cross-defendant "for good consideration" granted the cross-claimant an "occupancy licence" to live in her home until she changed the locks and obtained an apprehended domestic violence order (ADVO) (paragraphs 5 - 7). (b)A claim for estoppel based on proceedings commenced in the Consumer Trader and Tenancy Tribunal (paragraphs 8 - 16). (c)Particulars of the "de facto early termination of subject license [sic] agreement" including claims for compensation of $3,450 for faux stone paving and edging, accommodation costs of $10,800, storage costs of $3,800, board of $13,500 (and continuing at $120 per week) (paragraphs 17 - 21). (d)Particulars of breach of contract by the first cross-defendant (paragraphs 22 - 30). This includes claims of $600 for car service, $500 travel expenses, and $750 for a plasma television. (e)Particulars of a claim for trespass (paragraphs 31 - 35). The sum of $5,000 is claimed. The defendant/cross-claimant seeks summary judgment in relation to the claim in paragraph 34 in his 30 April Notice of Motion. (f)A claim for conversion of the cross-claimant's chattels (paragraphs 36 - 39) or alternatively trespass against chattels (paragraphs 40 - 41) or alternatively detinue (paragraphs 42 - 43). This is a claim for $10,000 plus $2,000 per month. The cross-claimant seeks summary judgment in relation to the claims in paragraphs 36 and 40 in his 30 April Notice of Motion. (g)A claim for "false and malicious reports to the police" on 26 September 2010, resulting in an apprehended domestic violence order ("ADVO"). This is set out at paragraphs 44 - 49. It is alternatively pleaded as an abuse of process (paragraph 49). The cross-defendants have moved to strike out this part of the pleading in the Notice of Motion filed on 5 April 2013 on the basis that there is no cause of action known to law disclosed in the pleadings (cf Hanrahan v Ainsworth (1985) 1 NSWLR 370). (h)A claim for malicious prosecution in relation to the ADVO application (paragraphs 50 - 55). The cross-claimant seeks damages for being "publicly humiliated" and because "his reputation was irreparably damaged such that he cannot appear at the Toronto Local Court" (paragraph 55). A claim for unliquidated damages is made for damage to his professional reputation and nervous shock suffered as a result of the malicious nature of the second cross-defendant. The cross-defendants moved to strike out this part of the pleading in the Notice of Motion filed on 5 April 2013 on the basis that the proceedings are not criminal in nature (John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at [20]) and on the basis that these were proceedings brought by the police and not by the cross-defendants (A v State of New South Wales & Anor (2007) 233 ALR 584 at [1]; cf Martin v Watson [1996] AC 74). (i)A claim for damages for "oppressive conduct by cross defendants" (paragraphs 56 - 61) in relation to the ADVO. Damages are sought (paragraph 61). The cross-defendants submit there is no cause of action for "oppressive conduct" and seek orders that these paragraphs be struck out; the cross-claimant submits that they are further particulars of abuse of process. (j)A claim arising out of the second cross-defendant's having obtained a sole power of attorney by undue influence (paragraphs 62 - 65). The plaintiff submits that there is no cause of action and that any relief sought is "not within the jurisdiction of the court". The cross-claimant submits that these paragraphs are further particulars of the breach of contract claimed in relation to his entitlement to reside at the premises, which contract was breached by the cross-defendants. (k)A claim of negligence brought against the second cross-defendant for selling the first cross-defendant's home for $50,000 below market value (paragraphs 66 - 73). The cross-defendants seek orders that these paragraphs be struck out on the basis that the duty of care owed, the identity of the person owing that duty, the breach of duty and the damage resulting are not pleaded. As to paragraphs 72 - 73, the "legal costs and expenses incurred in defending the misconceived CTTT application" cannot be pleaded as arising from negligence; they should be claimed from the court at the time (but cf Coleman v Buckingham's Ltd [1964] NSWR 363). The cross-claimant has informed the court that no claim for negligence is brought, and that these paragraphs relate to the claim for breach of the licence agreement the first cross-defendant entered into with the plaintiff. (l)A claim for compensation for losses arising from the "improper representations" made by the second cross-defendant (paragraphs 74 - 75). The cross-defendants submit that a bare statement of "misrepresentation" does not disclose any reasonable cause of action and should be dismissed. In addition, the loss the cross-claimant has suffered is not identified. (m)A claim for interest and for indemnity costs, on the basis that the proceedings brought against the cross-claimant have no reasonable prospects of success.

The plaintiff's Notice of Motion 11By Notice of Motion filed on 5 April 2013 ("the first notice of motion"), the cross-defendants sought orders as follows: (1)Leave be granted to serve this Notice of Motion on the Defendant/Cross-Claimant by 5:00pm, 5 April 2013. (2)That the following parts of the Statement of Cross-Claim filed 25 March 2013 be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 13.4: (a)Paragraphs 44 to 49, (b)Paragraphs 50 to 55, (c)Paragraphs 56 to 61, (d)Paragraphs 62 to 65, (e)Paragraphs 66 to 71, (f)Paragraphs 72 and 73, and (g)Paragraphs 74 and 75. (3)Further, or in the alternative, that the following parts of the Statement of Cross-Claim filed 25 March 2013 be struck out as contravening UCPR r 14.28: (a)Paragraphs 44 to 49, (b)Paragraphs 50 to 55, (c)Paragraphs 56 to 61, (d)Paragraphs 62 to 65, (e)Paragraphs 66 to 71, (f)Paragraphs 72 and 73, and (g)Paragraphs 74 and 75. (4)That the Defendant/Cross-Claimant pay the Plaintiff's/Cross-Defendants' costs of this motion. (5)That the costs of this motion be payable on an indemnity basis. (6)Such other Orders that the Court sees fit. 12This is the Notice of Motion which was listed for hearing in the 8 April 2013 sittings before Colefax SC DCJ. As Colefax SC DCJ was an acquaintance of the defendant, his Honour disqualified himself from hearing the application and listed the matter for the 29 April sittings. 13Following that adjournment, the defendant/cross-claimant filed two further notices of motion, as is set out below. The first of these sought summary dismissal of the plaintiff's claim, and the second sought summary judgment in relations to specified paragraphs of the cross-claim.

The defendant/cross-claimant's Notices of Motion for summary dismissal and summary judgment 14As set out above, the plaintiff/cross-defendants sought summary dismissal of the cross-claim as well as a hearing on the merits of the relief sought in the Statement of Claim. After Colefax SC DCJ disqualified himself from hearing the proceedings, the defendant/cross-claimant filed two motions for summary judgment. On 10 April 2013, the defendant/cross-claimant filed a Notice of Motion ("the second notice of motion") seeking orders as follows: (1)That the following paragraphs of the Summons filed 13 November 2012 be dismissed pursuant to UCPR r 13.4: (a)Paragraph 2, (b)Paragraph 2(a), (c)Paragraph 2(b), (d)Paragraph 2(c), (e)Paragraph 2(d), (f)Paragraph 2(e), (g)Paragraph 3. (2)Further or in the alternative, that the following paragraphs of the Summons filed 13 November 2012 be dismissed pursuant to UCPR r 14.28: (a)Paragraph 2, (b)Paragraph 2(a), (c)Paragraph 2(b), (d)Paragraph 2(c), (e)Paragraph 2(d), (f)Paragraph 2(e), (g)Paragraph 3. (3)That the Plaintiff's Summons filed 13 November 2012 and certified by the Plaintiff's solicitor pursuant to the Legal Profession Act 2004 (NSW) failed to disclose any reasonable prospects of success. (4)That the Plaintiff pay the Defendant/Cross-Claimant's costs of this motion and that the Plaintiff's solicitor repay to the Plaintiff any costs order so made. (5)That the costs of this Motion be payable on an indemnity basis. (6)Any additional Order that the Court considers appropriate. 15After the matter came before me for directions on 29 April, and without leave, the defendant/cross-claimant filed a further Notice of Motion on 30 April 2013 ("the third notice of motion") seeking orders as follows: (1)That Summary Judgment be entered in relation to paragraph 34 of the Cross-Claim filed 25 March 2013 pursuant to UCPR r 13.1. (2)That Summary Judgment be entered in relation to paragraph 36 of the Cross-Claim filed 25 March 2013 pursuant to UCPR r 13.1. (3)That Summary Judgment be entered in relation to paragraph 40 of the Cross-Claim filed 25 March 2013 pursuant to UCPR r 13.1. (4)That the Cross-Defendants' pay the Cross-Claimant's costs of this motion. (5)That the costs of this Motion be payable on an indemnity basis as there was no reasonable prospects of success of any Defence pursuant to the Legal Profession Act 2004. (6)Any additional Order that the Court may consider appropriate. 16Both parties have filed and served a number of affidavits, and these are referred to in more detail in my analysis of the claims of both parties as set out below.

The factual issues of the claim in the Summons and Cross-Claim 17The background to the claim is as follows. The plaintiff/first cross-defendant ("Mrs Edwards") seeks orders for the disposal of goods owned by the defendant/cross-claimant ("Russell Edwards" or "Mr Edwards") remaining at her home and thereafter in storage, and costs for the storage and care of these items. 18Russell Edwards came to live in Mrs Edward's garage from the end of 2007. He sets out in paragraph 8 of his affidavit sworn 27 January 2013 a conversation in which his mother invited him to come and live with her. As he had "very little money" (paragraph 9), he accepted his mother's offer that he live there rent-free but pay his share of the electricity and telephone bills. He regards this as a binding contract. 19In February 2008 Mrs Edwards had a stroke. As Mr Edwards was driving his mother to many doctors' appointments, she offered to pay his next car service in March 2010. He also did gardening work, cooked her meals and looked after her. At the same time, Mr Edwards was helping his sister Laureen with a legal case in which she was involved, which took a lot of his time. In March 2010 following a family conference Mrs Edwards appointed her daughters Laureen and Mrs Frances Smith (the second cross-defendant, hereafter called "Frances") as joint powers of attorney. Then, in March 2010, his sister, Frances Smith, accused him of stealing money (paragraph 18 of Mr Edward's affidavit). 20In April 2010 Mr Edwards and his mother had an argument about a domestic matter. These arguments escalated and, on 8 April 2010, a police officer told Mr Edwards "You are trespassing and your mother wants you to leave". Mr Roberts states that he replied "I am not trespassing. I have a licence to occupy for good consideration." The police officer said "It's your mother's house and she wants you to leave". He warned that an apprehended violence order could be taken out if he did not leave. He then said "Your mother has requested that I give you this letter" (paragraph 34, affidavit of Mr Edwards). 21Mr Edwards consulted solicitors (paragraph 39) about this visit, and about his mother's allegation that he was committing fraud. His mother had locked him out of her part of the house, which meant he could not use the bathroom, so he took steps to install a bathroom in the garage. Mrs Edwards had told him "I have spoken to a free legal service for seniors and they told me that by you attempting to install a bathroom in the garage amounts to you committing fraud". Mr Edwards repudiated this allegation (paragraph 37). 22Mr Edwards continued to reside in the garage. In late May 2010, Mrs Edwards asked him to pay for some long distance telephone calls he had made on her telephone. Mr Edwards explained that they related to "Laureen's legal work" (paragraph 43) which he was doing on her behalf. She said "I can't afford to keep you any longer." Mr Edwards pointed out that in addition to the payment of half the water and council rates, which had been agreed in 2008, he was also paying half her council rates, which was not his understanding of the original agreement. 23Mrs Edwards and Mr Edwards travelled together to a party at Frances' home, but there was an argument about payment of expenses. Mr Edwards also bought her a plasma television set. However, the relationship between mother and son had broken down. Mrs Edwards took out an ADVO and commenced CTTT proceedings. 24Mr Edwards told his mother that they had a "binding agreement" that he could stay there, and that he had altered his position because he was using this time to carry out legal work for her daughter Laureen. Mrs Edwards said "But Laureen's work is taking such a long time" (paragraph 55). 25There was a dispute about whether the CTTT had jurisdiction to hear the matter, as there was no residential lease. The CTTT proceedings were withdrawn, but I understand there are proceedings in the Supreme Court. 26Mrs Edwards told Mr Edwards that she was going to sell the house and move to a nursing home. Mr Edwards replied that this change of heart was "purely vindictive" because she had had to withdraw the CTTT proceedings against him. Mrs Edwards said "You should not speak to your mother like that" (paragraph 64). 27In July 2010 Mrs Edwards called the police and said that Mr Edwards had threatened her. Mr Edwards says that as a result he suffered a breakdown and required "urgent and prolonged medical intervention" (paragraph 78). He attempted suicide several times. It was very hard for him to cope with being without money or a home when he had been used to an affluent lifestyle and first class travel (paragraph 80A). 28Mr Edwards stayed away for some weeks, during which time Mrs Edwards cut off the electricity to the garage. The police were called a third time. Mr Edwards told the police officer he was not a trespasser and that it was "a matter for the Equity Division of the Supreme Court". The police officer replied "You would take your mother to the Supreme Court?". Mr Edwards said she would need to go to the Supreme Court to get an order for him to vacate. He complained of trespass to his goods, which had been moved to the garage by unknown persons. The police officer said "your mother doesn't want to press charges however I will seek advice whether the police will bring charges against you". Mr Edwards was "absolutely stunned" (paragraph 92). 29The police attended a fourth time, on 7 October 2010, when they served an application for an Apprehended Domestic Violence Order. Mr Edwards told the police officer "That may well be a very dangerous attitude for the police to take" (paragraph 98). An interim ADVO was made on 13 October 2010. This application (Exhibit A in these proceedings), which is the subject of the abuse of process and malicious prosecution claims, was later withdrawn and dismissed. 30Mr Edwards states he was forced to leave the premises, and that he had to leave behind his furniture and other items, including antiques he had acquired, as he was homeless. He was in a state of suicidal depression (paragraph 117) and knew nothing about the transfer of these goods to a storage facility. The house was sold. 31Russell Edward's sister Laureen, with whom he was living for a brief period, came to collect some items, but the rest remained in Mrs Edward's home. On 9 November 2010 Mrs Edwards wrote to her son, providing an inventory of the goods and the key to the storage shed where they were kept. These were sent back by Mr Edwards, marked "return to sender". His mother then had the letter personally delivered to his brother Allen Edwards, with whom he was still in contact. 32Mrs Edwards sold the home at about this time, and went to reside in a nursing home. Since that time she, or persons on her behalf, has paid for transport, storage and insurance for these goods, although for one 10-month period, storage was paid by an unknown person. Mrs Edwards states that she believes that this was the defendant, or at least someone on his behalf. Mr Edwards has said in court that he had paid these amounts. 33After further requests to Mr Edwards to collect the goods, they were transferred to Storage King, Adamstown on 28 June 2012. On 29 June 2012 Mrs Edwards' solicitors wrote to Mr Edwards asking him to collect them. He wrote back refusing to do so, and asking his mother to provide accommodation of a similar size to that which he occupied at the Booragul home owned by his mother. 34Mr Edwards says that from late 2011 until 28 July 2012, he was paying the storage costs for the goods when, without any prior notice or permission, they were taken out of storage by the cross-defendants and stored in another facility. These proceedings were then commenced. He claims this amounts to conversion, or theft, or both. This is a key date in the defendant's cross-claim, according to Mr Edwards' submissions, because that is the date upon which the goods were converted or stolen. 35However, Mr Edwards' version of events is challenged by the affidavit of Frances Smith sworn 18 December 2012. Her evidence is that in early June 2012 she asked Laureen to tell Mr Edwards to collect his goods or the storage owners would take them. She received a letter from Mr Edwards dated 19 June 2012 saying that he had no contract with the storage company, that he was not liable for these payments, and that the storage payments (and responsibility for safekeeping) were her responsibility. He concluded "You achieved what you wanted to achieve (vacant possession) illegally and you are therefore required at Equity to pay for it." The goods were then transferred to another storage facility and these proceedings were commenced. 36Mrs Edwards wants an order that all of Mr Edward's goods be sold at auction as they are "uncollected goods" for the purposes of s 5 Uncollected Goods Act. That is a straightforward claim. The whole purpose of this legislation is to prevent parties who find themselves obliged to keep or store goods belonging to another persons, in circumstances where they cannot divest themselves of them by taking the appropriate steps, from being obliged to continue to do so. 37The defendant/cross-claimant seeks orders for summary judgment on the cross-claim on these issues, and for summary dismissal of the whole of the plaintiff's Summons. I shall deal with this application first, and then with the matters the subject of the cross-claim.

The defendant/cross-claimant's application for summary dismissal of paragraphs 2 and 3 of the Summons and for summary judgment for paragraphs 34, 36 and 40 of the Cross-Claim 38Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 15.1 provides that pleadings must give such particulars as are necessary to enable the opposing party to know the case to be met. The defence filed in these proceedings challenges the court's jurisdiction, but Olsson SC DCJ has already granted leave. The remaining issues in paragraphs 2 and 3 are matters of timing and disputed storage costs. There is no evidence before me as to timing, and the dispute about storage costs is not supported by evidence as to what is asserted to be a reasonable cost. 39UCPR rr 13.4 and 14.28 provide that the court may strike out any claim or defence where the issues raised are frivolous and vexatious, where there is no reasonable cause of action or defence, or where the proceedings are an abuse of the court. The test is a high one: Agar v Hyde (2000) 201 CLR 552 at [57]. In Agar v Hyde, Gaudron, McHugh, Gummow and Hayne JJ stated that ordinarily a party is not to be denied the opportunity to place his or her case before the court "in the ordinary way". 40The real issue, as it emerged from the defendant/cross-claimant's submissions, is his claim that the cross-defendants' conduct, by moving his goods on 28 July 2012 (nearly two years after he had left his mother's home, and in circumstances where they had paid storage fees for at least some of the time thereafter), amounts to theft and/or conversion. It is on this basis that he submits he is entitled to seek the summary dismissal of the plaintiff's Summons, and judgment for the claims in paragraphs 34, 36 and 40 of the cross-claim, because, he asserts, these claims are unassailably correct and cannot be defended. 41However, the affidavit material filed by the plaintiff and cross-defendants in these proceedings makes it clear that these are contested issues of fact. The affidavit sworn by the plaintiff/first cross-defendant on 12 December 2012 sets out the circumstances in which she invited her son to live in the premises in 2008 and asked him to leave on 7 April 2010. There are three affidavits of the second cross-defendant Frances Smith sworn on 18 December 2012, 2 February and18 February 2013, concerning the events of June and July 2012, transportation costs and charges. There is an affidavit of Mr Colin McWilliam, a registered valuer, sworn 15 February 2013 annexing a list of the goods and their value, which is nearly $900,000 less than the sum the defendant/cross-claimant is seeking. These affidavits all raise issues as to the circumstances in which the defendant/cross-claimant has not collected goods he left in his mother's garage, including quantum issues. 42The defendant/cross-claimant has disputed the circumstances in which he went to live in his mother's house and later left, but has not responded to those issues relevant to the claim under the Uncollected Goods Act. His affidavits of 26 January and 9, 18 and 30 April 2013 describe the breakdown of his relationship with his mother, but through the prism of the issues he has raised in the cross-claim, rather than by way of rebuttal of issues relevant to the Uncollected Goods Act issues. Even if they did, the issues for determination would be disputed issues of fact for the hearing. 43Whether the plaintiff was a tenant and therefore subject to the Residential Tenancies Act 2010 (NSW), or merely a lodger, or holding a licence to occupy premises, if goods are left behind and not collected when the relevant request is made, the availability of relief under the Uncollected Goods Act is a disputed issue of fact for the hearing. Whether the goods are properly valued at $939,710.00 (as the defendant/cross-claimant states) or $60,085.00 (as the expert valuer for the plaintiff and cross-defendants sets out in his report), the goods must be either collected by the owner upon request or, if uncollected, stored and then sold in accordance with the procedures set out in the Uncollected Goods Act. 44The defendant/cross-claimant's application for summary dismissal of the Summons (sought in the third Notice of Motion) and summary judgment on the conversion claim in the cross-claim (sought in the second Notice of Motion) are dismissed with costs. 45This brings me to a consideration of the issues raised in the defendant's cross-claim, and to the challenges to this pleading brought by the cross-defendants.

The Cross-Claim 46The portions of the cross-claim the subject of objection fall into the following areas: (a)Paragraphs 44 - 49: "false and malicious reports to Police". This was asserted by the defendant/cross-claimant to fall within the abuse of process claim and/or the malicious prosecution claim in paragraphs 50 - 55, as do the matters in paragraphs 72 - 73. They also contain matters which appear to relate to the breach of contract claims, according to Mr Edwards' submissions to me today. These paragraphs have been conceded by him to require repleading. (b)Paragraphs 50 - 55: the malicious prosecution claim, which relates to the bringing of apprehended domestic violence order applications pursuant to s 15 Crimes (Domestic and Personal) Violence Act 2007. This is discussed in more detail below. (c)Paragraphs 62 - 65 and 66 - 71: these appear to assert claims for undue influence and negligence. The defendant/cross-claimant stated, in response to this objection, that these paragraphs solely relate to the breach of contract claim and that no claim for undue influence or negligence is made. They are accordingly struck out and, since they relate to the prior paragraphs concerning the breach of contract claim, the entire breach of contract claim should be repleaded in order to include any matter arising from paragraphs 62 - 71. For this reason, the order I have made is for the whole of the cross-claim to be repleaded, not merely those sections to which challenge has been made by the cross-defendants. (d)Paragraphs 74 - 75: these particulars refer to "misrepresentation". The defendant/cross-claimant stated that the intention was to plead fraudulent misrepresentation. If so, this should be pleaded with full particulars of the fraudulent misrepresentation, the reliance upon it and the loss suffered.

The abuse of process claim 47The proper pleading for a claim for damages for the tort of abuse of process is set out in detail in the learned judgments of Hunt J in Hanrahan v Ainsworth (1985) 1 NSWLR 370 and of Clarke JA in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 107 - 120. The cross-claimant has totally failed to set out his claim in accordance with those principles. 48It came as a surprise to Mr Weightman that paragraphs 44 - 55 were in fact a claim for abuse of process. Given the convoluted pleading and references to other causes of action that appear to include a claim of defamation for statements made in court proceedings, that is understandable. Having now been informed that a claim for abuse of process will be pleaded, he submits that these paragraphs should be struck out with leave to replead, so that his clients know the case that they have to meet. Leave should accordingly be granted to replead paragraphs 44 - 55 in order to plead this abuse of process claim with the appropriate care and precision.

Malicious prosecution 49The apprehended violence proceedings are not criminal in nature; nor were the proceedings in the CTTT (which may also be caught up in this claim, judging by the scope of the proposed amendments put forward by the cross-claimant). 50The nature of apprehended violence orders was explained in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512, where Spigelman CJ stated at [20] (referring to the repealed Pt 15A Crimes Act 1900): "[20] The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law." 51There are many statements by appellate courts that actions for malicious prosecution are restricted to criminal proceedings. The New South Wales Court of Appeal (Fenn v Paul (1932) SR (NSW) 315; Coleman v Buckingham's Ltd, supra; Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 107-120), the Queensland Court of Appeal (Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307 at [14]) and the House of Lords (Gregory v Portsmouth City Council [2000] 1 AC 419) have held that the tort of malicious prosecution is not available for civil proceedings. These principles have been followed at first instance, most recently in the Federal Court of Australia (Fuller v Toms [2012] FCA 27 at [78]) and in the Western Australian Supreme Court (Noyce v Robbins [2007] WASC 98 at [221]-[229]). The weight of this authority should be sufficient for any court to be able to dismiss summarily a claim for malicious prosecution unless the proceedings are criminal in nature. 52However, this has not been the case in other jurisdictions in Australia, particularly where proceedings have a criminal flavour (as in fact occurred in Coleman v Buckingham's Ltd, supra). Claims of malicious prosecution arising from proceedings which are not criminal in nature have either survived strike-out applications, or been rejected in circumstances where the court has been reluctant to shut and lock the door. In Little v Law Institute of Victoria (No 3) [1990] VR 257 Kaye and Beach JJ (with whom Ormiston J, at 289, concurred) considered that what Ormiston J called "malicious use of civil proceedings" was possible in circumstances where a solicitor was committed for contempt and imprisoned for three weeks at the application of the Law Institute of Victoria. (The malicious prosecution plea nevertheless was rejected, but for other reasons.) In Jervois Sulphates (NT) Ltd v Petrocarb Explorations NL (1974) 5 ALR 1 Foster J held such a claim was available in relation to an injunction preventing mining leases. 53A similarly liberal approach has been taken in the Supreme and District Courts in New South Wales. In Kable v State of NSW (2010) 203 A Crim R 66 Hoeben J held (at [47]) that proceedings for malicious prosecution could be brought in respect of proceedings under the Community Protection Act 1994, although essentially by reason of its "unique" nature. (The claim for malicious prosecution did fail, however, on other grounds.) Harrison AsJ, in Chapel Road Pty Ltd v Australian Securities and Investments Commission (ASIC) (2006) 203 FLR 322 at [67] went further, stating that there had been "considerable criticism" of the current boundaries of the tort of malicious prosecution "and that the development of the law should not be stifled at an interlocutory stage", a statement cited with approval and followed in Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd (2010) 11 DCLR (NSW) 192. Neither of these decisions refer to Fenn v Paul, supra; Coleman v Buckingham's Ltd, supra, or Hanrahan v Ainsworth, supra; both refer to with approval, and follow, Little v Law Institute of Victoria (No 3), supra. 54Cases outside Australia are more difficult to find, but one example from the United Kingdom is Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 470-472, where a novel claim of "malicious institution of civil proceedings" survived a strike-out application. 55Little v Law Institute of Victoria (No 3), supra, which is referred to in two of the New South Wales cases referred to in paragraph 53 above, has been much criticised. In Butler v Simmonds Crowley & Galvin (Solicitors) (Queensland Supreme Court, Chesterman J, 8 October 1998) Chesterman J pointed out that Little v Law Institute of Victoria (No 3), supra, had conflated malicious prosecution with abuse of process. In Chapel Road Pty Ltd v Australian Securities and Investments Commission (ASIC), supra, Harrison AsJ rejected these criticisms, but the careful analysis of the elements of these causes of action by Clarke JA in Hanrahan v Ainsworth, supra, to which Harrison AsJ was not referred, makes this error clear. The New South Wales Court of Appeal's judgment in Hanrahan v Ainsworth, supra, postdates Little v Law Institute of Victoria (No 3), but the 1985 judgment at first instance of Hunt J, which was discussed in QIW v Feldview [1989] 2 Qd R 245, certainly was. 56Although not referred to in any of the Australian cases where a more liberal view has been taken of the entitlement of a party to bring a claim for malicious prosecution of civil proceedings, there is a potential ambiguity in the opening paragraph of A v State of New South Wales & Anor (2007) 233 ALR 584 at [1]. Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ state that the requirements include that: "proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant" [emphasis added]. 57What does "generally" mean? The High Court does not take the matter further, but the defendant/cross-claimant submits that this is enough to give him the entitlement to bring a claim for malicious prosecution despite those proceedings not being criminal in nature. 58The defendant/cross-claimant also relies upon the fact that he has brought proceedings for abuse of process, as was the case in Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd, supra. In both actions, malicious prosecution and abuse of process are put as alternative or cumulative claims. One of the reasons for not striking out the malicious prosecution claim in Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd, supra, was that the evidence would overlap (at [35]) and it would therefore not add greatly to the time or costs of the proceedings. Mr Edwards made a similar submission here. Given the convoluted nature of the cross-claim and its inadequate drafting, I consider the addition of this novel claim to be productive only of additional complexity, but I must acknowledge that such submissions have met with success in other proceedings. 59Following the raising of all these complex issues and arguments, Mr Weightman, having read Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd, supra, and taken instructions during the morning tea adjournment, has now withdrawn the application for summary judgment in relation to the claim for malicious prosecution. He stated frankly that the cost and delay likely to result from an application for leave to appeal to the New South Wales Court of Appeal would, in proceedings that would be before the Local Court but for the sum claimed, be ruinous for his clients. Accordingly I am not called upon to determine whether a plaintiff may bring an action for malicious prosecution of civil proceedings. This is an unsatisfactory resolution of the issues for both the parties and the court. It is, however, an appropriate step to take having regard to the modest amount of the claim in the Summons and the ongoing storage expenses the plaintiff faces. 60By reason of the extensive pleading errors, I have struck out the whole of the cross-claim with leave to replead. That leave to replead will, by reason of Mr Weightman's concessions, include any claim the defendant/cross-claimant elects to bring in the form of a claim for malicious prosecution, notwithstanding that those proceedings are not criminal in nature. This will effectively leave this issue to the trial judge (as to the role of stare decisis in the common law system, see N M Garoupa & C G Ligüerre, "The Syndrome of the Efficiency of Common Law", Boston University International Law Journal, Vol. 29, No. 2, 2011).

Costs 61The defendant/cross-claimant was wholly unsuccessful in obtaining the relief he sought in his Notices of Motion dated 10 and 30 April 2013. The plaintiff/first cross-defendant and second cross-defendant were obliged to deal with the 30 April motion "on the run", as it was only served on 1 May 2013. The only success the defendant/cross-claimant has enjoyed is that he is entitled to amend the cross-claim instead of having his claims for abuse of process and malicious prosecution summarily dismissed. In those circumstances it is appropriate that he should pay the costs of the plaintiff and cross-defendants.

Orders (1)The defendant/cross-claimant's Notices of Motion of 10 and 30 April 2013 struck out and dismissed. (2)Plaintiff/cross-defendants' Notice of Motion of 5 April 2013 granted; cross-claim struck out, with leave to the defendant/cross-claimant to file and serve the amended cross-claim in 21 days (27 May 2013). (3)The plaintiff/cross-defendants are at liberty to bring a fresh Notice of Motion to strike out the amended cross-claim or for summary judgment, to be returnable in the Newcastle District Court sittings commencing on 12 August 2013. (4)If no Notice of Motion seeking such relief by the plaintiff/cross-defendants is filed within 28 days of service, the plaintiff/cross-defendants are to file a defence to the amended cross-claim within 28 days of service (24 June 2013 or such later date as may amount to 28 days after service of the amended cross-claim). (5)These proceedings stood over for further directions (including the hearing of any fresh application by the plaintiff/cross-defendants to strike out the amended cross-claim) to the Newcastle District Court sittings commencing on 12 August 2013 and, if possible, the allocation of a hearing date. (6)The defendant/cross-claimant is to pay the plaintiff/cross-defendants' costs of all three Notices of Motion.

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