Marino v Bello

District Court of NSW|2021-02-26|Before: Mr P

Proposed third Defendant to fifth Defendant : Mr B McManus Proposed sixth Defendant: Mr R Coffey

Solicitors: Defendants: Proposed third Defendant to fifth Defendant: Colin Biggers & Paisley Pty Ltd Proposed sixth Defendant: Sparke Helmore Lawyers File Number(s): 2020/156610

The plaintiff's application

The plaintiff seeks leave to file a proposed amended statement of claim in proceedings initially commenced in the Common Law Division of the Supreme Court of New South Wales on 21 May 2020 and later transferred to this court.
In the Supreme Court, the plaintiff claimed damages for malicious prosecution, breach of contract, defamation and abuse of process against his sister and brother-in-law. He has amended this claim and now proposes to bring claims for malicious prosecution and abuse of process only, but to enlarge the number of defendants from two to six.

The criminal proceedings the subject of these claims

The proceedings the subject of the plaintiff's claim for malicious prosecution and abuse of process are described in the proposed amended statement of claim (paragraph 49) as being proceedings number 22323775 and civil proceedings 2020/109007 ("the provisional orders") made in "the Local Court's criminal jurisdiction". It is asserted that these proceedings, in which interim ADVO orders were made against the plaintiff in April 2020, were commenced by the defendants for the sole or dominant purpose of hurting, impeding or otherwise defeating the plaintiff's proceedings PAC437/2020, where he sought orders for access to the first and second defendants' children.
I note, from the documentation provided by the proposed sixth defendant, that the ADVO was applied for by Leading Senior Constable Greg of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and was granted by Sgt Lincoln in her capacity as the senior police officer referred to in section 28A of the legislation. The plaintiff is the defendant in the application, and not the "Person in Need of Protection" (PINOP). The persons in need of protection are the first and second defendants.
The plaintiff acknowledges that interim orders having been made against him and that there has been no conclusion of the proceedings in his favour. He tells the court that he commenced proceedings in the Supreme Court (on 11 January 2021) which are listed for hearing on 26 April 2021, and that there is a part-heard hearing in the Local Court (adjourned to May 2021) in relation to the ADVO; both are certain to result in the dismissal of all criminal charges against him, as well as findings of contempt against the first and second defendants, the prosecutor and a police officer. He says he is (or should be) entitled to commence and maintain these proceedings now, for reasons of procedural fairness and to avoid what he calls "res judicata".

The basis for opposition to the amendments

The defendants' submissions are as follows:

The first and second defendants

The first and second defendants seek summary dismissal of all claims brought against them. There is some uncertainty in determining just what those claims are. For example, although the pleadings no longer use the word "defamation" and are couched in terms of abuse of process and malicious prosecution (paragraphs 23 - 47), order 2 of the relief claimed still seeks "a personal hand-written letter of apology" from each of the first and second defendants, and the factual material in relation to the breach of contract claim is still referred to in the current pleading, although asserted to be "background". The plaintiff assures the court that the only claims remaining against the first and second defendants are for malicious prosecution and abuse of process, and I have proceeded on that basis.
The challenge to the malicious prosecution claim is that, as the plaintiff himself acknowledges, the prosecution has not terminated in his favour: Beckett v New South Wales (2013) 248 CLR 432.
The challenge to the claim of abuse of process is made on the basis that such a claim is only maintainable against those who are parties to the proceedings: Leerdam v Noori [2009] NSWCA 90; 255 ALR 553 at [29] - [44]. The first and second defendants were never parties to the criminal proceedings, which were brought against the plaintiff by persons represented in this litigation by the proposed sixth defendant, who discharged their duties conformably with the procedure set out in ss 25 - 28A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
In addition, the first and second defendants submit that the proposed amended statement of claim, in its current and former forms, is manifestly hopelessly pleaded and should be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rr 13.4 and 14.28.

The proposed third, fourth and fifth defendants

As is noted in the proposed third to fifth defendants' written submissions of 1 February 2021, the latest iteration of the statement of claim only brings a claim for malicious prosecution against them (paragraphs 48 - 107 of the pleading) and abandons earlier claims for abuse of process and defamation.
The third to fifth defendants make the same submissions on malicious prosecution as those made by the first and second defendants, although adding submissions on advocates' immunity in relation to the claims based on their conduct in court (submissions, paragraph 17).
The plaintiff challenged the entitlement of the third to fifth defendants to rely upon updated submissions served the day before the hearing, and I granted him leave to reply to them in writing by Wednesday March 3 2021. I have read those submissions and they do not raise any new matter of substance in relation to the central difficulties the plaintiff faces in terms of identifying these defendants as prosecutors and the absence of a result favouring the plaintiff.

The proposed sixth defendant

The plaintiff seeks to bring claims for abuse of process and malicious prosecution against the State of New South Wales as the proposed sixth defendant.
The State of New South Wales has been granted leave to appear in the interests of four persons who were named in the third and fourth previous pleadings (cf Burton v Babb [2020] NSWCA 331), but it has not yet been joined as a defendant.
The State of New South Wales relies on the affidavit of Mr L J Westhoff sworn on 25 February 2021. Objection was taken by the plaintiff to the transcript of the part-heard Local Court proceedings attached to this affidavit, but no objection was taken to the tendering of his affidavit of 16 November 2020, the contents of which paint a vivid and disturbing picture of the plaintiff's hostility not only to the first and second defendants but also to the prosecutor and police officers.
Although the State of New South Wales relies upon the General Steel test (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125) in relation to the claim for malicious prosecution, the challenge to the abuse of process claim is principally put on the same basis as that put forward by the State of New South Wales in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 ("Dickens (No 3)") at [34] - [35]. Alternatively, it is submitted that, as no cause of action can be discerned from the pleadings, General Steel would apply. In practical terms, however, applications of this kind do not warrant any result different from that indicated by the General Steel test: Shaw v State of New South Wales [2012] NSWCA 102 at [134].

The proposed amended statement of claim

This is the plaintiff's fifth attempt to plead his claim. The four previous pleadings were as follows: 1. The statement of claim filed on 21 May 2020 in the Supreme Court (against only the first and second defendants); 2. The amended statement of claim filed on 11 June 2020 in the Supreme Court (against only the first and second defendants); 3. A document headed "amended statement of claim" circulated to the defendants and proposed defendants and provided to Sackar J in the Supreme Court of New South Wales during his Honour's period of case management of these proceedings, being a claim brought against an additional six defendants; and 4. A document headed "amended statement of claim" dated 4 September 2020, proposing to join the third to fifth defendants and four other named persons, making a total of nine defendants.
The differences between the latest pleading and the September 2020 pleading are, in the main, superficial: 1. The first is that all reference to "defamation" has been removed, although there are still requests for an apology and complaints about "false" statements made to police and in court. 2. The second is that the number of defendants has been reduced from nine to six. 3. The third is that the claim for abuse of process against the proposed third to fifth defendants has been dropped. 4. Finally, there is more factual material in this pleading, but the defendants submit that it remains objectionable for the same reasons as those previously raised by the defendants.

Challenges to the form and content of the current pleading

In submissions and oral argument, the defendants and proposed defendants point to the following deficiencies in the current pleading: 1. The pleading commences with a three-page summary headed "Background leading to causes of action", containing material such as conversations that, if relevant, should be set out in an affidavit and not a pleading. This includes the list of statements asserted to be false which appear to have been the subject of the now-abandoned claim for defamation against the first and second defendants. 2. The claims for malicious prosecution and collateral abuse of process against the first and second defendants are set out in paragraphs 23 to 47. These claims are impermissibly elided and must be separated. 3. In addition, the elements for each of the torts in paragraphs 23 to 47 must be pleaded separately (such as, for example, absence of reasonable and probable cause, which is not particularised at all). 4. The date of successful conclusion of the criminal proceedings is left blank; this is impermissible. 5. In addition, unless there is a claim that the first and second defendants acted jointly at all relevant times, specific particulars must be given for each of them in relation to each cause of action as well as in relation to the claims for special, aggravated and exemplary damages. 6. Paragraph 28 claims that the first and second defendants "made the following false assertions" but does not specify when or to whom; some appear to go back to the year 2002. The remaining "false assertions" are baldly asserted to be in a "witness statement" or other court document. This is in objectionable form and it is not specified how this would relate to either cause of action. 7. The claim for malicious prosecution brought against the proposed third, fourth and fifth defendants is set out at paragraphs 48 to 107. It suffers from the same defects as those identified in relation to the claim brought against the first and second defendants, with the additional problem that the nature of the claim(s) against the fourth and fifth defendants is not particularised at all. 8. I note that there are particulars of "harassment" at paragraphs 106 to 109 concerning communications between the third defendant and the plaintiff in relation to their actions as the legal representatives of the first and second defendants. The plaintiff says there is no claim for harassment and that the conduct referred to is relied on as evidence of malicious prosecution. Harassment is not an element of this tort. Additionally, this is some of the conduct which Mr McManus pointed out would be covered by advocates' immunity (as to which see Dickens v State of NSW [2017] NSWSC 1173). 9. The proposed claims against the sixth defendant for malicious prosecution and abuse of process are set out at paragraphs 127 to 142. These contain the same rolled-up pleading and particulars as those about which the first and second defendants complain. 10. The causes of action and claims for relief in this 49-page document are not framed as pleadings, but as argument, allegation and asserted fact. An example of one of many argumentative phrases is "surely there should be many [000 calls] given the many allegations of severe violence" (paragraph 110(f)). An example of unrelated (and scurrilous) allegations is the claim that "the plaintiff discovers the first and second respondent [sic] are engaging in an illegal enterprise… thereby posing a serious risk of injury and death to the community" (paragraph 68). 11. Portions of the claim rely upon asserted actionable conduct of the court staff including associates and registry staff (see for example paragraphs 134 and 135). Other examples include claims of the prosecutor "interfering with live Federal Circuit Court proceedings" (paragraph (m) on page 39). Allegations of misconduct are made against a prosecutor, whose "severe conflict of interest" as a named proposed defendant is asserted at paragraph 128(n), which adds that he "exercised prosecutorial duties under that conflict and purposefully frustrated or delayed the final hearing of 11 November 2020 by not being prepared". These matters need to be set out with the precision of an indictment if they are to constitute a claim of malicious prosecution and abuse of process, which are the only claims capable of challenging the court's process: Cumberland v Clarke (1996) 39 NSWLR 514. Material that is both scandalous and irrelevant may be struck out pursuant to UCPR r 4.15(1)(a). 12. The complaint of damage to reputation and the relief sought both fail to identify the special damage necessary for each of the torts pleaded (as to abuse of process, see Ainsworth v Hanrahan (1985) 1 NSWLR 370). They also fail to particularise the claims for aggravated and/or exemplary damages. 13. The request for apology (sought from each of the defendants other than the proposed sixth defendant) is not an order that any court can make in relation to the causes of action pleaded. 14. Even with the benefit of inherent jurisdiction of the Supreme Court (from which these proceedings were transferred), the request for a mandatory order for destruction of court and police records sought against the sixth defendant (paragraph 146, page 43 of the pleading) is not an order that this Court has jurisdiction to make in proceedings for damages for malicious prosecution and/or abuse of process. 15. Finally, the plaintiff claims costs; as a litigant in person, he is not entitled to claim legal costs. Although the plaintiff submitted that he is entitled to claim costs in case he is legally represented at a future date, he is not entitled to do so on behalf of any future solicitor. It only creates misapprehensions, given his status as a non-practising solicitor.
The result is that the proposed amended statement of claim in its current form is as deficient in terms of pleadings and particulars as each of its four predecessors, despite many of these errors being pointed out in written submissions as early as September 2020 and the 10 December 2020 hearing being adjourned to give the plaintiff another opportunity to replead.
In oral submissions, the plaintiff refused to engage in any specific discussion of these defects. He dismissed all of the pleading complaints as "technicalities" or "minor technicalities", adding that "with some time" (which he estimated at about three months) and pro bono legal assistance (drafting pleadings being "a foreign concept" to him in terms of his experience as a solicitor), he would be able to produce a more acceptable draft. While he spoke of being willing to accept a draft acceptable to the court, in fact, as his subsequent submissions of 3 March 2021, he still clings to the correctness of his entitlement to bring these proceedings in this form and against these parties, and will make no concessions.
As a result, contrary to the general practice where pleadings are challenged, it is not possible to set out the plaintiff's individual answers to each of the above complaints, because these consisted first of a denial that there was any problem and secondly of an expectation that, because of the magnitude, complexity and importance of the litigation, the court would itself settle the pleadings in accordance with the rules, a sentiment he expressed in earlier correspondence to the solicitors for the opposing parties, as the extract below demonstrates.

The applications for adjournment and summary dismissal

It is a very serious step to strike out proceedings summarily. While there has been greater emphasis on the importance of case management since the enactment of the Civil Procedure Act 2005 (NSW), the test set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 remains a high bar, and applications under the UCPR rules must satisfy a similarly high test (Dickens (No 3) at [37].
The plaintiff's proposed amended pleading suffers from three major problems. The first of these is that, as he acknowledges, the criminal proceedings the basis for the claims for damages have yet to be concluded in his favour. However, the other two problems are just as serious. The first is the hopelessness of the pleading in its current form, in circumstances where there have been repeated attempts of an unsatisfactory kind, suggesting a degree of reluctance to accept the need for amendment (Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; Dickens (No 3)); the procedural history of the plaintiff's claim, set out below, is relevant to this issue. The second is whether, as a matter of practical reality, the cause of action is likely to proceed in a satisfactory way if further indulgences in the form of adjournments and/or leave to amend are granted, given the plaintiff's failure to plead anything like a recognisable cause of action to date: Dickens (No 3).

The procedural history of the plaintiff's claim

Two aspects of the procedural history are relevant to the plaintiff's application for a lengthy adjournment and/or a period of three months to enable him to revise the statement of claim, namely: 1. Case management of his claim in the Supreme Court of New South Wales defamation list. 2. The procedural history of this application.

The commencement of proceedings in the Supreme Court

As set out above, the plaintiff's claims for damages and an apology, in the statement of claim filed on 21 May 2020, were originally brought against the first two defendants only, and consisted of complaints of reputational damage after they obtained ADVO provisional orders against him "by dishonest means" (paragraph 1).
The claim was transferred to the Supreme Court's Defamation List because the damage the plaintiff particularised was reputational and the remedies he sought included an apology. As noted above, he still seeks those remedies, although the claim for defamation has, in the latest iteration of the pleading, been abandoned, and despite the defendants pointing out, in written submissions, that such relief is not available from the court in any event.
The plaintiff filed an amended statement of claim in the Supreme Court Defamation List on 11 June 2020. After objection was taken to that pleading, he circulated a draft further amended statement of claim during July 2020. That pleading (in which the amendments were not underlined) sought to join another seven defendants and included a claim for defamation based on statements made by the first and second defendants, many of which were made at a police station and in court.
On 7 August 2020, the Defamation List Judge, Sackar J, rather than grant leave to the plaintiff to file this third proposed amended statement of claim, directed the plaintiff to serve a further amended statement of claim and transferred the proceedings to the District Court's Defamation List.

The proceedings in this court

Timetables were set down in this court for the provision of a fourth version of the statement of claim and a hearing date of 10 December 2020 was fixed for the amendment and summary dismissal arguments. Shortly beforehand, the plaintiff sought an adjournment of this hearing and for leave to circulate a fourth pleading. Those requests were granted, but on terms which included no further adjournments other than in exceptional circumstances.
On 5 February 2021, the plaintiff wrote to the Court complaining about representation problems and the asserted misconduct of the defendants in delaying the hearing of his appeal from his conviction in the criminal matter the subject of the malicious prosecution claim, concluding with a request for a long adjournment: "It follows in my respectful view that to proceed under these circumstances would be a denial of procedural fairness and inimical to the administration of justice as a new claim would be inevitably filed later making it very onerous on me and incurring further costs and there is danger to [sic] be barred by anshun [sic] res judicata etc. It also follows, in my view, that these are "exceptional circumstances" as noted in her Honour's order six and the proposed course is justified."
The plaintiff was advised by my associate that, if he wished to bring an application to adjourn the hearing, he would need to make a formal application to the court. The application he made came too late to be determined in the Defamation List on 11 February 2021 and the 18 February 21 Defamation List was full. The plaintiff was advised to raise his application for an adjournment of the hearing at the special fixture on Friday, 26 February 2021. I set out below the basis of that application, and my reasons for its refusal.

The basis for the plaintiff's application for adjournment

The plaintiff's complaints, as set out in his submissions of 19 February 2021, are of procedural fairness and of an imbalance in the playing field, in that he is a self-represented litigant. He raises the following grounds in support of his application: 1. He asserts that the defendants, following a letter from my associate dated 16 October 2020, agreed to the adjournment of the malicious prosecution argument. This is incorrect, as the subsequent orders for a hearing date demonstrate; the letter from my associate merely suggested a course of action about which the parties were unable to agree. 2. He asserts that there is procedural unfairness arising from the potential for what he calls "anshun res judicata" and that the conduct of the defendants is a deliberate course of action designed to prevent him from being able to run this case at a later date when the criminal proceedings are concluded in his favour. 3. He asserts that the complexities of the case he seeks to plead are of such importance and magnitude that he is at a disadvantage in presenting his arguments, and that he needs time and professional assistance to do so.

The need for legal assistance

The plaintiff submits that, for procedural fairness to occur, he needs to have legal representation by reason of the complexity of the matter and his unfamiliarity with the rules of pleading. He also complains of fraudulent and dishonest conduct by the defendants.
The plaintiff was in practice as a solicitor for some years. On 7 September 2020, the plaintiff sent an email to the sixth defendant's solicitors in the following terms in relation to complaints about the form of pleading of the proposed statement of claim: "Dear Lachlan Well I disagree. I think there is enough material facts pleaded to ensure your client knows the case it must meet. Having said that please be advised that this is the first time writing a pleading since law school. The area of law I have practiced in do not utilise pleadings. More importantly please be advised that I have sought legal representation as communicated to the other defendants. A law firm has expressed interest and advised to communicate with them when the fraudulent provisional orders are terminated in my favour. … Reverting back to the Pleadings I note that given I am self represented and magnitude and complexity of this matter it would be in the interests of justice that the Court itself settles the pleadings in accordance with the rules. …"
The plaintiff went on to add: "Regardless of that the MP cause of action must be pressed along with the others otherwise I risk of it being barred by Anshun, issue estoppel, res judicata, abuse of process etc. [sic] As communicated to the other defendants the matter should be stood over til the fraudulent provisional orders are determined noting it is set for summary dismissal this Friday and I will be seeking it be shortlisted given it has been 5 months and my "application to revoke" has not been heard and noting the chief magistrate's memorandum of 30 Mar 2020 which prevented any of those matters unaccompanied by charge to be listed or heard for 3 months unless "urgency" can be shown given Covid is responsible for it not being determined. Failing that the matter is listed for final hearing on 11 Nov. [sic]"
At the plaintiff's request, orders were made by me on 20 October 2020 for the registrar to endeavour to locate a pro bono lawyer to assist the plaintiff. However, this was not because I considered that the plaintiff was at a disadvantage by reason of his lack of legal representation; these are orders that this court frequently makes for unrepresented parties where the pleadings demonstrate serious problems. The court was unable to obtain pro bono assistance for the plaintiff, but that does not entitle him to inaction, particularly in circumstances where he has legal qualifications himself.
The plaintiff has addressed the legal issues raised by the defendants with considerable confidence, including pointing to submissions he considers to be in error, referring to authority and legislation and expressing opinions about legal principles. While I do not accept the plaintiff's interpretations of these issues as necessarily being correct, he is clearly capable of engaging in debate about them.

The plaintiff's status as a litigant in person

In both Dickens and Dickens (No 3), the judicial officers hearing an application of a similar nature referred to appellate observations as to how the court should address issues raised by a litigant in person. I drew the attention of the parties to the observations made by Bell P in Duraisamy v Sydney Trains [2019] NSWCA 269 at [25]: "25 I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court's endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep): "The absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.""

The practicality of an adjournment

This argument has been set down for hearing twice, and the plaintiff has had the opportunity of reading the helpful submissions provided by the defendants in terms of the inadequacies in his pleadings. Although acknowledging the likely correctness of at least some of the complaints (such as the running together of the claims for abuse of process and malicious prosecution), he is not prepared to make concessions or to proffer a revised pleading in a reasonable period of time, which does not bode well for any future amended pleading.
What the plaintiff is in fact seeking is not an adjournment of this argument to some date in the immediate future, but a stay of proceedings generally until December 2021, nearly ten months away, by which date he claims the criminal proceedings will be finalised in his favour. This is, however, mere speculation on his part. The defendants point out that he is seeking a stay or adjournment until the appeal process is exhausted, which could take years.
There is little likelihood, given his dismissive approach to the "technicalities" in his pleading is identified by his opponents, that even this lengthy delay would result in a pleading in proper form in the interim. Although the plaintiff claimed that he had rectified his pleadings by, for example, removing the claims for defamation and breach of contract based on promissory estoppel, much of the material particularised for these claims remains in the pleadings, and the form of relief has not changed. The plaintiff's refusal to provide a properly pleaded claim to date, despite the defendants' submissions pointing out the errors, makes it clear that an adjournment will not resolve this problem.

The plaintiff's request for an adjournment is refused

It was for the above reasons that I refused the plaintiff's application for an adjournment and/or a stay of these proceedings until December 2021. I informed the plaintiff at the hearing that his request for an adjournment (or stay) was refused, and that I would set out my reasons for doing so in my judgment.
The next question is whether leave to amend can usefully be granted in circumstances where, on the plaintiff's own acknowledgement, in the course of argument, any claim for malicious prosecution brought without a favourable termination is hopeless. The defendants and proposed defendants seek orders for leave to be refused and for the proceedings to be struck out summarily.

The relevant statutory provisions

The plaintiff requires leave to file his proposed pleadings as he has already amended the statement of claim once: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") Pt 19 r 19.1. The question is whether to grant leave and, if so, on what terms.
The relevant provisions are: 1. Division 3 - Form of pleading generally, UCPR Pt 13 and Pt 14, and in particular UCPR rr 13.4 and 14.28. 2. Section 64 of the Civil Procedure Act 2005 (NSW) and the relevant principles set out in ss 56 and 58 of the same legislation.
In practical terms, as the sixth defendant's written submissions point out at paragraph 16 - 20, there is a degree of overlap in the separate parts of UCPR r 14.28. In such circumstances, the correct way to approach any application to strike out proceedings is that taken by McCallum J (as her Honour then was) in Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365 and McGuirk v University of New South Wales [2009] NSWSC 1424, in terms of applying the test from General Steel Industries Inc v Commissioner for Railways; see also the observations of Adamson J in Dickens (No 3) at [34] - [48].

Malicious prosecution

Proceedings for malicious prosecution must contain the following elements (Beckett v New South Wales (2013) 248 CLR 432 ("Beckett"): 1. The prosecution was initiated by the defendant. 2. The prosecution terminated favourably to the plaintiff. 3. The defendant acted with malice in bringing and/or maintaining the prosecution. 4. The prosecution was brought and/or maintained without reasonable or probable cause.
The prosecution the subject of the claim for malicious prosecution is the application for an Apprehended Domestic Violence Order (ADVO) resulting in interim orders against the plaintiff, currently listed for hearing (part heard) on 11 May 2021. Any entitlement the plaintiff has to a claim for malicious prosecution is acknowledged by him to be a claim which will crystallise when the result is obtained.
Prior to successful completion, the malicious prosecution claim is simply not a cause of action at all, and should be struck out for that reason alone. Starting proceedings without an accrued cause of action can lead to real injustice. When a plaintiff brings proceedings for damages, issues such as interest pursuant to section 100 of the Civil Procedure Act, interest on general damages and interest on costs arise. Parties should not be able to bring such claims until the cause of action has accrued.
It is unacceptable in those circumstances to permit the bringing of proceedings for a cause of action before it has accrued.
For the first and second defendants and the proposed third to fifth defendants, there is the additional problem of satisfying the first of the four requirements in Becket. The pleadings in their current state fail to establish this.
In addition, the hopeless pleading of the claim in each of the five statements of claim to date would warrant the striking out of the proceedings for the reasons given by Adamson J in Dickens (No 3).

The abuse of process claim

The abuse of process claim against the first to fifth defendants is not maintainable because they did not commence the proceedings: Leerdam v Noori [2009] NSWCA 90; 255 ALR 553 at [29] - [44]. I note the alternate reliance upon UCPR rr 13.4 and 14.28, which is the main basis upon which the State of New South Wales brings its challenge to this pleading. (I briefly note that, unlike the malicious prosecution claim, there is no requirement that the abuse of process claim must accrue in an acquittal, in that it does not resemble the tort of malicious prosecution: see also McDonough v Smith 139 S. Ct. 2149, 204 L. Ed. 2d 506 (2019).)
The State of New South Wales submits that it is clear beyond doubt leave to file the statement of claim in its current form cannot be granted. For the reasons set out above, I agree. The question is whether the hopelessness of the pleadings has arrived at the stage warranting refusal of leave to amend at all, as occurred in Dickens (No 3).
In Dickens (No 3), Adamson J stated at [36]: "The importance of pleadings ought not be underestimated. A statement of claim serves a number of functions. It indicates, to the Court and to the defendant or defendants, the basis of the plaintiff's claim for relief. The statement of claim must set out, in numbered paragraphs, the material facts on which the plaintiff relies (UCPR rr 14.6 and 14.7). Where the rules require that certain matters be particularised (such as allegations of fraud or states of mind), the statement of claim must contain those particulars. It is an aspect of natural justice that the defendant be apprised of the case it has to meet by a properly pleaded statement of claim: Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [25] (French CJ, Gummow, Hayne and Kiefel JJ). Where unparticularised allegations of fraud and intention are made, there can be a tendency for the deficient pleading to amount to an abuse of process. Pleadings must be consistent, except where allegations are expressed to be in the alternative: UCPR 14.18. A pleading must not be "embarrassing" in any of the senses set out by Tamberlin J in Shelton v NRMA Ltd [2004] FCA 1393; 51 ACSR 278 at [18]: "'Embarrassment' in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense.""
Should further leave to amend be granted, or is it time to say (as counsel for the first and second defendants did) that "enough is enough"? At [39], Adamson J explains the factors to take into account in determining which order to make: "The matters to be taken into account in determining which order to make are set out in Part 6 of the Civil Procedure Act 2005 (NSW), the overriding purpose of which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56. A properly pleaded statement of claim is, in my view, a prerequisite for the just, quick and cheap resolution of the real issues in the proceedings."
Applying these principles, Adamson J stated: "40 It is not in the interests of justice to permit the current pleading to stand. For the reasons submitted by Mr Anderson, the current pleading is deficient in several respects. It is "embarrassing" in each of the senses outlined by Tamberlin J in Shelton v NRMA Ltd at [18]. 41 The current pleading is so opaque as to preclude any conclusion as to whether the plaintiff has a viable cause of action against the State. Although there is an apparent kernel of a cause of action for false imprisonment, there is no allegation that a reasonable person in the plaintiff's position would have inferred from the conduct of Detective Franklin that he had totally been deprived of his liberty. Nor is it apparent that this would be so, having regard to the facts alleged. 42 The defendant ought not be required to file a defence. I am satisfied that, at least, the further amended statement of claim should be struck out pursuant to UCPR r 14.28. The real issue is what ought flow from this. The two options are, in substance, first, to strike out the defective pleading and provide the plaintiff with another opportunity to re-plead his case; or, second, to dismiss the proceedings for want of due despatch or because they amount to an abuse of process. 43 I do not envisage any real prospect that, with more time and another opportunity, the plaintiff will be able to produce a better version than the current pleading. I accept that the plaintiff has dedicated much time and energy to the various iterations of the pleading. However, the drafting of a pleading which complies with the rules is not a question of application, energy and motivation. It is a question of skill. If there is no real prospect of the plaintiff being able to improve the current pleading, there is no utility in permitting or requiring an unknown number of further iterations before the proceedings are inevitably dismissed. Every time the defendant moves the Court to strike out the pleading or dismiss the proceedings, cost and time are spent which could be used otherwise in the administration of justice. That the State might be able, subject to other calls on its resources, to afford to bring such applications and argue them in a manner consistent with its obligations as model litigant, does not mean that the Court should require it to do so repeatedly without prospect of a better outcome in a revised pleading. What Beach J said in Knorr in [27]-[29] is apposite to the present case: . . . If I permitted this proceeding to remain on foot, and gave the plaintiff a further opportunity to plead a case in compliance with basic and fundamental rules of pleading, or more particularly with law, I am comfortably satisfied that the plaintiff would continue to deliver lengthy and impenetrable documents, upon which no trial could reasonably or fairly be conducted."
The same is the case here. If there was any likelihood that the plaintiff could produce a workmanlike statement of claim setting out a recognisable pleading for abuse of process, containing the appropriate particulars and claims of damage (including special damage) against the proposed sixth defendant, I would have been prepared to give him a final opportunity to do so. He clearly will not countenance any amendment which excludes claims for malicious prosecution and dropping the claims against the first to fifth defendants.
The prospects of this claim remaining in unacceptable form, both in pleading and content terms, for months, or even years, is wholly unacceptable and the claim should be struck out.

Conclusions and orders

The malicious prosecution and abuse of process claims brought against each of the first and second defendants and the proposed third to fifth defendants are clearly hopeless in terms of the General Steel test and should be struck out and dismissed with costs. I also accept their submission that the pleading should be struck out pursuant to UCPR rr 13.4 and 14.28.
The proposed sixth defendant's application for dismissal of the abuse of process claim was principally put on the basis of UCPR rr 13.4 and 14.28 and I have accordingly dismissed the proceedings under those rules. I have also accepted their General Steel submission that the pleading is so deficient that it is not really possible to discern whether there is in fact a reasonable cause of action and in those circumstances the pleading would fail on the General Steel test as well.

Costs

The general rule is that costs follow the event (UCPR r 42.1). I grant liberty to apply.

Orders 1. The plaintiff's application for adjournment and/or a stay of these proceedings until December 2021 (or such other dates as the court may be prepared to entertain) is refused with costs. 2. The plaintiff's application for leave to further amend the statement of claim in these proceedings in the form of the pleading which is exhibit A is refused with costs. 3. The plaintiff's claims for malicious prosecution and abuse of process against the first and second defendants are dismissed and the plaintiff is to pay their costs both of this application and of the proceedings. 4. 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 are dismissed with costs. 5. Liberty to apply in relation to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2021

Civil Procedure Act 2005(NSW)ss 56-58, 64

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