Marino v Bello

Court of Appeal (NSW)|2022-08-18|Before: Macfarlan JA, Brereton JA, Kirk JA

Solicitor: Allens (applicant) File Number(s): 2021/175377 Decision under appeal Court or tribunal: District Court of New south Wales Jurisdiction: Civil Citation: [2021] NSWDC 52 Date of Decision: 26 February 2021; 11 March 2021 Before: Gibson DCJ File Number(s): 2020/156610

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was the applicant in proceedings in the Federal Circuit and Family Court of Australia for orders that children of the first and second respondents - his brother-in-law and sister - have contact with him ("Family Court Proceedings"). While those proceedings were pending, police - said to be acting on the complaint of the respondents - made a provisional apprehended domestic violence order ("ADVO") against the appellant, and applied for an interim and permanent ADVO ("ADVO Proceedings"). The appellant then sued the respondents (and other parties not relevant to the present appeal) in the District Court, alleging malicious prosecution and collateral abuse of process in that they caused the police to commence the ADVO proceedings for the purpose of disadvantaging him in the Family Court Proceedings. On 11 March 2021, after several iterations of his pleading had been filed, Gibson DCJ refused the appellant leave to file a proposed further amended Statement of Claim, and on the application of the respondents summarily dismissed the proceedings. The appellant appealed, pursuant to leave granted by this Court on 16 May 2022. Held, allowing the appeal, per Brereton JA [23]; Macfarlan JA [1] and Kirk JA [25] agreeing): As to the claim for abuse of process:

Although there is authority that a claim for collateral abuse of process is maintainable only against the person who actually brings the relevant proceedings, the proposition that the respondents in the present proceedings, though not in name a party to the ADVO proceedings, could be liable for collateral abuse of process as 'instigators', is sufficiently arguable that the claim ought not have been summarily dismissed: [1] (Macfarlan JA); [18] (Brereton JA); [24] (Kirk JA). Emanuele v Hedley (1998) 179 FCR 290; Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146, distinguished. As to the claim for malicious prosecution
Liability for malicious prosecution extends to an instigator who is not formally a party to the proceedings, so long as they are "actively instrumental" in having the proceedings commenced. Therefore, to the extent that the respondents' not being the nominal prosecutors was the basis for summarily dismissing that element of the proceedings, the primary judge was in error: [1] (Macfarlan JA); [19] (Brereton JA); [25] (Kirk JA). Danby v Beardsley (1880) 43 LT 603; A v State of New South Wales (2007) 230 CLR 500, considered.
Although at the time of the proceedings below the primary judge was correct to hold that the malicious prosecution claim was inchoate because the ADVO proceedings had not been resolved in favour of the appellant, by the time of the hearing they had been. The appellant is therefore entitled under Civil Procedure Act 2005 (NSW), s 64(3), to amend the pleading to add the claim for malicious prosecution: [1] (Macfarlan JA); [19]-[21] (Brereton JA); [25] (Kirk JA). As to the adequacy of the pleading
Although the claims are imperfectly formulated in the pleading, the causes of action are sufficiently discernible, and arguable, and any lack of particularity can be remedied by a request for further and better particulars. Leave to file the Further Amended Statement of Claim ought to have been granted: [1] (Macfarlan JA); [17]-[18], [22] (Brereton JA); [25] (Kirk JA).

Judgment

MACFARLAN JA: I agree with Brereton JA.
BRERETON JA: The appellant Mr Marino was the applicant in proceedings in the Federal Circuit and Family Court of Australia ("Family Court proceedings") for orders that children of the first and second respondents - his brother-in-law and sister Mr and Mrs Bello ("Bellos") - have contact with him. While the Family Court proceedings were pending, police - said to be acting on the complaint of the Bellos - made a provisional apprehended domestic violence order ("ADVO") against Mr Marino, and applied for an interim and permanent ADVO ("ADVO proceedings"), in respect of which the Bellos were the "persons in need of protection". In the present proceedings, Mr Marino sued the Bellos in the District Court on a number of causes of action. After several iterations of his pleading, he sought leave to file an amended Statement of Claim propounding causes of action against the Bellos for malicious prosecution and collateral abuse of process (both in respect of the ADVO proceedings), and joining as third, fourth and fifth defendants the solicitors who had acted for the Bellos in the Family Court proceedings ("Solicitors"), and as sixth defendant the State of New South Wales ("State"), as being responsible for the prosecutor of the ADVO proceedings. Against the Solicitors, Mr Marino ultimately alleged only malicious prosecution (in respect of the ADVO proceedings), while against the State he pleaded both malicious prosecution and abuse of process.
On 11 March 2021, Gibson DCJ refused leave to Mr Marino to file his proposed Further Amended Statement of Claim, and on the application of the defendants summarily dismissed the proceedings. On 16 May 2022, this Court granted Mr Marino leave to appeal as regards his claims against the Bellos, but not as against the Solicitors or the State. [1] The Court contemplated that upon hearing the appeal it would also consider the question of leave to replead. [2] Accordingly, before this Court is an appeal by way of rehearing of Mr Marino's application for leave to file the Further Amended Statement of Claim as against the Bellos only, and the Bellos' motion for summary dismissal of the District Court proceedings against them.
On 8 August 2022, the Court pursuant to UCPR r 7.36 referred the appellant to the Registrar for referral to a barrister on the pro bono panel for representation. [3] The Court is most grateful for the considerable assistance afforded by Ms B Tronson and Mr A H Edwards of counsel who pursuant to that referral appeared on the hearing, and to the solicitors of Allens Linklaters who instructed them.
As on the application for leave to appeal, so on the appeal, the Bellos did not appear when they were called outside the Court. According to an affidavit sworn by Mr Marino on 31 March 2022, he on 18 June 2021 transmitted to the second respondent's personal email address electronic copies of the sealed Summons seeking leave to appeal, the draft Notice of Appeal and his Summary of Argument. On 11 February 2022, the Registrar made orders confirming service of the Summons by email on 18 June 2021 to that email address, and deeming service to have been effected once the applicant had provided a copy of that decision to the first and second respondents at that same email address. On the same day, according to Mr Marino's affidavit of 31 March 2022, he transmitted a copy of the Registrar's judgment of 11 February 2022 confirming service to the same email address. Following the grant of leave to appeal, according to Mr Marino's affidavit of 27 May 2022, he forwarded to the respondents at the same email address the Amended Notice of Appeal filed on 19 May 2022. The Bellos have never filed an appearance in this Court.
The primary judge's summary dismissal of the proceedings was founded in part on formal and technical deficiencies in the proposed Further Amended Statement of Claim but in substance, so far as the claim for abuse of process against the Bellos was concerned, on the basis that the Bellos - not being the nominal prosecutor - could not be liable for that tort, and so far as the claim for malicious prosecution was concerned, on the basis that it was inchoate, the ADVO proceedings not (yet) having terminated in favour of Mr Marino.

Abuse of Process

The essence of the tort of collateral abuse of process is the employment of the machinery of the law to achieve a purpose which could not lawfully be obtained, and which is "entirely outside the ambit of the legal claim upon which the court is asked to adjudicate". [4] Here, Mr Marino's complaint is that the Bellos made a complaint to police "for a single or dominant collateral and/or wrongful purpose", namely "to hurt, sabotage, and otherwise destroy [Mr Marino's] family law proceedings and thereby bolster the [Bellos] case". [5] Those requirements will be satisfied if proceedings are instituted for the predominant purpose of delaying the enforcement of a claim made against the instigator. [6] Subject to the question of whether the Bellos are sufficiently implicated to incur liability, a valid abuse of process claim against them is sufficiently discernible from the proposed pleading.
There is at first sight not insignificant authority, however, for the view on which the primary judge understandably acted, that such a claim is maintainable only against the person who actually brings the relevant proceedings. In Emanuele v Hedley, [7] the appellant sued the respondent, a Commonwealth public servant, for (inter alia) abuse of process, consequent upon the appellant's conviction on a charge of bribery of a public official being quashed on the basis that it arose out of the improper conduct of the respondent in circumstances that amounted to entrapment. The Full Federal Court upheld the summary dismissal of the appellant's claim, relevantly on the basis that an action for abuse of process is available only against the party who actually instituted the proceedings that are alleged to constitute an abuse. The Court (Wilcox, Miles and RD Nicholson JJ) said: [8] "… We prefer not to venture into the baffling matter of Mr Hedley's thinking in the period leading up to the payment of the bribe and Mr Emanuele's arrest; it seems clear that, whatever be the position of informants in malicious prosecution cases, an action for abuse of process is available only against the party who actually instituted the proceedings: see Williams v Spautz in the passage quoted above and at 524 and 526. This is logical because the essence of the tort is that the proceeding was instituted for an improper purpose. If the person who actually instituted the proceeding had a proper purpose, the claim of abuse of process must fail irrespective of the motives and conduct of people who influenced the decision to institute the proceeding. No doubt a person may act through a servant or agent in instituting a proceeding, in which case the purpose of the principal will be the relevant purpose. But there is no suggestion that Commander Dau, a senior member of the Australian Federal Police, acted as Mr Hedley's servant or agent in laying an information against Mr Emanuele."
In Leerdam v Noori, [9] Spigelman CJ concluded that Emanuele v Hedley was not "clearly wrong" and that this Court would follow it. [10] Allsop P and Macfarlan JA agreed. [11] That was in a context where it was sought to make a solicitor who acted for the Minister for Immigration and Multicultural and Indigenous Affairs responsible for the Minister's defence of proceedings in the Administrative Appeals Tribunal, in which it was ultimately held that Mr Noori had been denied procedural fairness. In declining to apply United States authority indicating that an attorney could commit the tort of collateral abuse of process, Spigelman CJ observed that there were significant differences between the Australian and United States systems with respect to tort proceedings, in particular that the contingent fee system in the United States was such that in many cases the attorney could be seen to be the true moving party in litigation, which was not the case here. [12]
In Kable v New South Wales, [13] in which a five-judge bench was constituted to reconsider Leerdam v Noori, the point ultimately did not arise for determination, although Basten JA appears to have expressed some doubt as to whether the principle stated in Emanuele v Hedley could properly be derived from the passages in Williams v Spautz [14] upon which it was said to be founded. [15]
In Maxwell-Smith v S & E Hall Pty Ltd, [16] Barrett JA, with whom Beazley P and McColl JA agreed, said [17] : "The tort of collateral abuse of process can only be committed by a person who is a party to the proceedings said to constitute the abuse or in which the abuse is said to have occurred. This is made clear by the decision of this court in Leerdam v Noori … (to which the primary judge referred) and the decision of the Full Federal Court in Emanuele v Hedley … referred to therein."
Despite these authorities, for the reasons that follow, I am of the opinion that the proposition that in the circumstances of this case the Bellos, though not in name a party to the ADVO proceedings, could be liable for collateral abuse of process, is sufficiently arguable that it ought not have been summarily dismissed.
First, in distinction to Leerdam and Maxwell-Smith, this is not a case in which it is sought to visit liability upon a person who merely acts in a professional capacity for a party to proceedings.
Secondly, even if one sets aside the doubts expressed by Basten JA as to whether Emanuele v Hedley is supported by the authority on which it claims to rely, it allows that where a person acts by a servant or agent in instituting a proceeding, it is the purpose of the principal that will be relevant. Moreover, Emanuele v Hedley is explicable on the basis that the real instigator of the proceedings was the nominal prosecutor, and not Mr Hedley, who was but part of an extensive police operation ultimately found to involve an entrapment of Mr Emanuele. None of the cases deals with a situation in which it can be said that a person other than the nominal party was the real instigator of the proceedings. By way of contrast, in the present case, the (alleged) acts of the Bellos in making a complaint to police set in motion the process that culminated in the provisional order and the ADVO proceedings. [18]
Thirdly, recognition that an instigator could be liable for the tort of abuse of process would be consistent with the law of malicious prosecution, in which it is well established that an instigator may be liable. [19] Further, it would be consistent with more general principles of tort law which hold that where persons take "concerted action to a common end" and in the course of that action any one of them commits a tort, all are liable as joint tortfeasors. [20] A particular application of this is that a director who procures his or her company to commit a tort may be jointly liable with the company. [21] While this principle has developed in the context of the liability of directors for torts of their corporations, there is no reason why it should be so limited.
Fourthly, as Spigelman CJ observed in Leerdam v Noori, there is significant authority in courts of the United States of America which are entitled to respect which support the view that liability extends to the true instigator, or "the primary catalyst or the determining factor in the decision to" commence proceedings. [22] Thus, liability has been held to extend to a person who makes a criminal complaint triggering a chain of events leading to a prosecution, notwithstanding that he was not the prosecutor. [23]
Although, as I have said, the claim against the Bellos for collateral abuse of process is imperfectly formulated in the pleading, the cause of action is sufficiently discernible, and arguable, and any lack of particularity can be remedied by a request for further and better particulars. So far as concerns the technical defects, it is worth repeating the observation of Kirby P as he then was in Wentworth v Rogers (No 5): [24] "Thirdly, the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out."
In my opinion, therefore, the claim against the Bellos for collateral abuse of process ought not have been summarily dismissed. Leave to file the Further Amended Statement of Claim to that extent ought therefore have been granted.

Malicious Prosecution

Although it is unresolved whether ADVO proceedings are capable of founding a claim for malicious prosecution, it is plainly arguable that they are. [25] In dismissing Mr Marino's claim for malicious prosecution, the primary judge relied primarily on the circumstance that the claim was inchoate as the principal proceedings had not yet been terminated in his favour, [26] but also on the circumstance that the Bellos were not the prosecutors, [27] and the formal and technical defects in the pleadings. [28] As I have already indicated, the second basis was incorrect, as liability for malicious prosecution extends to an instigator who is not formally a party to the proceedings; so long as he or she is "actively instrumental" in having the proceedings commenced. [29] However, when the proceedings below were heard and determined, the primary judge was entirely correct to hold that the malicious prosecution claim was inchoate, and did not err in dismissing it on that basis.
However, this is an appeal by way of rehearing, and one that does not follow a hearing on the merits. The Court may receive further evidence, and is not constrained by any requirement that special circumstances be shown. [30] On the hearing of the appeal, the Court received evidence that the ADVO proceedings were ultimately dismissed on 11 May 2021.
Under Civil Procedure Act 2005 (NSW), s 64(3), a pleading may be amended to add a cause of action that has arisen after the commencement of the proceedings, the date of commencement of the proceedings in relation to such cause of action being taken to be the date on which the amendment is made. Accordingly, now that the malicious prosecution cause of action is no longer inchoate, an amendment to add it may be permitted.
If the abuse of process claim is to remain on foot, it is plainly preferrable that any renewed malicious prosecution claim be included in the same proceeding. Again, although imperfectly pleaded, the cause of action is sufficiently discernible and - notwithstanding the suggestion to the contrary in my judgment on the leave application [31] - contains an allegation of want of reasonable and probable cause. [32] Although at the time the proceedings were before the primary judge it was right that this claim be struck out and dismissed, in light of the subsequent dismissal of the ADVO proceedings, leave to file the Further Amended Statement of Claim to the extent that it pleads a claim of malicious prosecution against the Bellos ought now be granted.

Conclusion

I propose that the appeal be allowed, and that the following orders be made: 1. Set aside orders (2) and (3) made in the District Court on 11 March 2021. 2. In lieu thereof, grant leave to the plaintiff to further amend the Statement of Claim in the form of the Draft Amended Statement of Claim dated 18 January 2021, subject to: 1. omitting paragraphs 3 and 4 of the relief claimed; 2. omitting paragraphs 48 to 131; 3. inserting the date "11 May 2021" in paragraph 45; 4. omitting from paragraph 144 the words "and a formal letter of apology in proper form and letterhead from the Third and Sixth Defendants"; and 5. omitting paragraphs 145 and 146. 1. Order that the respondents pay the appellant's costs of the appeal. 2. Order that the plaintiff's costs of the motions in the District Court be costs in the proceedings in the District Court.
KIRK JA: The reasons of Brereton JA with respect to the abuse of process claim, with which I agree, illustrate that the claim is sufficiently open that it should not have been the subject of summary dismissal. His Honour's reasons are consistent with those I gave in determining that there should be a limited grant of leave to appeal: Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73 ("Marino No 1") at [35]-[43]. In particular, the points made at [13]-[16] above indicate that the issue of the potential liability of an "instigator" is arguable. That does not mean that those arguments are necessarily likely to be accepted. The key issue for present purposes is that such arguments as to the possible development of the law are best determined by reference to found facts: see Marino No 1 at [42], and authority there cited.
I also agree with the reasons expressed by Brereton JA in relation to the claim in malicious prosecution, and I agree with the orders proposed by his Honour.

Endnotes

Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73.
[2022] NSWCA 73 at [77].
Marino (a pseudonym) v Bello (a pseudonym) (No 2) [2022] NSWCA 143.
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91 (Isaacs J); [1911] HCA 46; Laferla v Birdon Sands Pty Ltd [2005] NTSC 12 at [122]; (2005) Aust Torts Reports 81-786 at 67,387 (Angel J); Balkin & Davis, Law of Torts (6th ed 2021) at [25.26]; Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 at [42] (Bell P).
Draft Amended Statement of Claim, [44].
Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134 at [64] (Lee, Hill and Sunberg JJ).
(1998) 179 FCR 290.
(1998) 179 FCR 290 at [44].
[2009] NSWCA 90; (2009) 255 ALR 553 ("Leerdam").
Leerdam at [44].
Leerdam at [65] and [126] respectively.
Leerdam at [41]-[43].
[2012] NSWCA 243; (2012) 268 FLR 1.
(1992) 174 CLR 509; [1992] HCA 34.
[2012] NSWCA 243 at [73], [116].
(2014) 86 NSWLR 481; [2014] NSWCA 146 at [59] ("Maxwell-Smith").
Maxwell-Smith at [59].
See Crimes (Domestic and Personal Violence) Act, ss 27, 28, 29, 49.
See for example A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [34]-[36], referring to Martin v Watson [1996] AC 74 (unsuccessful prosecution commenced by police on complaint that neighbour indecently exposed himself; held that since the facts were solely within the complainant's knowledge and as a practical matter police could not have exercised any independent discretion, the complainant had in substance procured the prosecution and could be sued for malicious prosecution).
The Koursk [1924] P 140 at 152 (Bankes LJ); XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia Pty Ltd (1985) 155 CLR 448; [1985] HCA 12 (trespass to land carried out by one party directed by another - both held jointly liable); Schumann v Abbott [1961] SASR 149; see also Myers Stores Ltd v Soo [1991] 2 VR 597.
Rainham Chemical Works Ltd (in liq) v Belvedere Fish Guano Co Ltd [1921] 2 AC 465 at 476 (Lord Buckmaster); Performing Rights Society Limited v Ciryl Theatrical Syndicate Limited [1924] 1 KB 1 at 14 (Atkin LJ); Keller v LED Technologies Pty Ltd [2010] FCAFC 55; (2010) 185 FCR 449 at [83] (Emmett J), [291] (Besanko J), [404]-[406] (Jessup J); JR Consulting and Drafting Pty Ltd v Cummings [2016] FCAFC 20 at [350]; (2016) 329 ALR 625.
Valles v Silverman, 135 N.M.91; 84 P.3d 1056 (N.M. App 2003) at 1062 [5], [6] (17).
Wozniak v Pennella 862A. 2d 539 (N.J.Supere.A.D. 2004) at 544, 549 (IV) and (13); Routh Wrecker Service, Inc. v Washington 335 Ark. 232; 980 S.W.2d 240 (Ark. 1998) at 243-244 [9].
(1986) 6 NSWLR 534 at 536-537.
HD v State of New South Wales [2016] NSWCA 85 at [69] (Gleeson JA; Leeming JA and Emmett AJA agreeing); Clavel v Savage [2013] NSWSC 775 at [43]-[45] (Rothman J); Lee v Deng (No 2) [2012] NSWSC 1245 at [169] (Ball J); Rock v Henderson [2021] NSWCA 155 at [34] (Brereton JA), [110] (Wright J), (Bell P agreeing).
Marino v Bello [2021] NSWDC 52 ("Primary judgment") at [55].
Primary judgment at [57].
Primary judgment at [58].
Danby v Beardsley (1880) 43 LT 603 at 604 (Lopes J); A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [34]-[36], referring to Martin v Watson [1996] AC 74 (discussed above).
Supreme Court Act 1970 (NSW), s 75A(8).
[2022] NSWCA 73 at [7].
Draft Amended Statement of Claim, heading preceding [23]. 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: 20 September 2022

Under Civil Procedure Act 2005(NSW)

(2019) 100 NSWLR 734

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