[2007] HCA 10
Beckett v New South Wales (2013) 248 CLR 432
[2013] HCA 17
Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734
[2019] NSWCA 245
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343
[2000] HCA 63
Emanuele v Hedley (1998) 179 FCR 290
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134
Source
Original judgment source is linked above.
Catchwords
[2007] HCA 10
Beckett v New South Wales (2013) 248 CLR 432[2013] HCA 17
Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734[2019] NSWCA 245
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343[2000] HCA 63
Emanuele v Hedley (1998) 179 FCR 290
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134[1964] HCA 69
Kable v New South Wales (2012) 293 ALR 719
[2012] NSWCA 243
Leerdam v Noori (2009) 255 ALR 553
[2009] NSWCA 90
Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481
[2014] NSWCA 146
Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359
[2011] NSWCA 40
Spencer v Commonwealth of Australia (2010) 241 CLR 118
[2010] HCA 28
State of New South Wales v Kable (2013) 252 CLR 118
[2013] HCA 26
Trkulja v Google LLC (2018) 263 CLR 149
[2018] HCA 25
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35
[1911] HCA 46
Wickstead v Browne (1992) 30 NSWLR 1
Zappia v Grant Baines Transport Pty Ltd (2010) 77 ACSR 273
Judgment (10 paragraphs)
[1]
Background
The proceedings were brought against the background of ongoing disputes between the applicant and the first and second respondents, who are the applicant's brother-in-law and sister respectively. In 2019 the applicant commenced family law proceedings seeking contact orders with respect to the first and second respondents' children. It is because of the connection of the parties to those family law proceedings that pseudonyms were employed below, and are used again here, for the applicant and the first and second respondents.
In 2020, a provisional apprehended domestic violence order (ADVO) against the applicant had been made by a police officer pursuant to ss 25-28A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and an application for an ADVO was then made to the Local Court by a police officer: see judgment (J) [7] and [13]. The "persons in need of protection" under the order were the first and second respondents, who apparently sought that the ADVO be made.
By statement of claim filed on 21 May 2020 the applicant brought proceedings in the Supreme Court against the first and second respondents. It appears that the pleadings as originally formulated included claims in defamation and in contract, as well as for malicious prosecution and abuse of process. The pleadings then underwent a series of revisions, as follows.
An amended statement of claim was filed on 11 June 2020.
Another amended statement of claim was, according to the primary judge, "circulated" to the defendants and to several proposed defendants: J [22], [33]. The third to fifth proposed defendants (being the third to fifth respondents in the present application) were partners in a law firm who had represented the first and second defendants in the family law proceedings.
The other proposed defendants, which included the State of New South Wales, were police officers said to be involved in the making of the provisional ADVO against the applicant. The State was granted leave to appear in the interests of the natural persons named in the draft amended pleadings as proposed defendants.
On 7 August 2020, the proceedings were transferred by Sackar J to the District Court under s 146(1) of the Civil Procedure Act 2005 (NSW). His Honour also made orders for the service on the defendants, and on the proposed additional defendants, of a further amended statement of claim within 28 days.
Another proposed further amended statement of claim was apparently sent to the defendants and proposed defendants on 4 September 2020.
Another version of the proposed further amended statement of claim appears to have been emailed on 12 October 2020.
On 15 October 2020 the matter was set down for hearing on 10 December 2020 of the applicant's application to file a further amended statement of claim, which was opposed by the respondents, along with the application of the respondents to have the proceedings summarily dismissed.
On 4 December 2020 the applicant sought and was granted an extension of time in which to file and serve a further amended statement of claim, as well as an adjournment of the hearing listed for 10 December 2020. The matter was set down for hearing on 26 February 2021. The Court orders required that any new version of the proposed further amended statement of claim should be filed and served by 15 January 2021, and noted that "this adjourned hearing date may not [be] further adjourned other than [in] exceptional circumstances".
A further version of a further amended statement of claim, dated 18 January 2022, was provided by the applicant. It was this version of the pleadings - labelled "Exhibit A" below - which was the subject of the applicant's application for leave to amend his pleadings.
By this point, it appears that the only claims still pressed as against the first and second respondents were for malicious prosecution and for the tort of abuse of process (J [11]). The claims sought to be pressed against the proposed third to fifth defendants (the third to fifth respondents here) were claims for malicious prosecution (J [15]). The claims sought to be pressed against the State of New South Wales - the proposed sixth defendant, and the sixth respondent in this application - were claims for malicious prosecution and for abuse of process (J [18]). Proposed claims against particular police officers were not pursued, given that those claims were appropriately made against the State.
On 5 February 2021 the applicant wrote to the District Court seeking an adjournment. He was advised to make a formal application for adjournment, which he did. That application was ultimately heard on 26 February 2021, on the date listed for hearing of the other applications. The adjournment was refused on the day, with reasons provided in the subsequent written judgment. During the course of the hearing, the primary judge treated the applicant as also effectively making an application for an adjournment and/or stay of the proceedings until December 2021.
In a judgment delivered on 11 March 2021, the primary judge:
1. refused the application for an adjournment and/or a stay of the proceedings;
2. refused the application for leave to further amend the statement of claim;
3. summarily dismissed the applicant's claims against the first and second respondents;
4. refused the application to join the third to fifth and the sixth respondents; and
5. awarded costs against the applicant.
The applicant seeks leave to appeal from these orders, which are interlocutory in nature.
In summarily dismissing the proceedings, the primary judge invoked rules 13.4 and 14.28 of the UCPR, as well as what she identified as general law principles relating to summary dismissal articulated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69: J [66]-[67].
Her Honour listed a catalogue of deficiencies which the respondents had identified in the pleadings and proposed pleadings (J [24]). In general, these identified deficiencies concern the confusing, narrative, opaque and incomplete nature of the pleadings. Her Honour seems to have adopted these objections (J [25]). Her Honour also found that the claims for malicious prosecution and the tort of abuse of process could not succeed on substantive legal grounds.
It seems that her Honour's summary dismissal of the claims against the first to fifth respondents was primarily based upon substantive legal grounds, though she would also have struck them out on pleading grounds: J [58] and [66]. As regards the sixth respondent, the State had accepted that there was no insuperable legal hurdle as regards the claim in abuse of process against it. However, her Honour accepted its submissions that the proposed pleading against it was deficient (J [60]), and, relying on the remarks of Adamson J in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [36]-[43], held that there was no likelihood that the applicant "could produce a workmanlike statement of claim setting out a recognisable pleading of abuse of process, containing the appropriate particulars and claims of damage" (J [64]). She thus declined to allow any opportunity to replead.
[2]
Proposed ground 1 - abuse of process
Proposed ground 1 is that the primary judge erred in "applying the general law finding that the first and second defendant did not initiate (civil) proceedings the subject of the plaintiff's claim". It is apparent from the written submissions of the applicant that this ground is directed to the primary judge's conclusions with respect to his claims for the tort of abuse of process, which claims were sought to be made against the first and second respondents and against the State. This ground is only directed to the primary judge's decision as regards the first and second respondents, and not as regards the State.
The primary judge identified the principal deficiency in the abuse of process claims against the first to fifth respondents as being the absence of an element of the relevant cause of action, stating at J [59] that the abuse of process claim "is not maintainable because they did not commence the proceedings". Her Honour referred in that regard to Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90, at [29]-[44]. The proceedings in question were those in the Local Court relating to the ADVO.
In fact, by the time of the hearing below an abuse of process claim was not alleged as regards the third to fifth respondents. The issue arose only as regards the first and second respondents. As for the State, it, through a police officer, had on any view commenced the ADVO proceedings in the Local Court. The State relied on pleading deficiencies in resisting the application to amend the pleadings to include the abuse of process claims against it. Her Honour accepted this submission and declined leave to replead: J [60]-[65]. I address that issue below when addressing grounds 5 and 12-14.
There is significant support in the case law for the conclusion reached by the primary judge that the abuse of process claim is not maintainable against the first and second respondent because they did not commence the proceedings - most notably Leerdam v Noori, as referred to by her Honour. In Kable v New South Wales (2012) 293 ALR 719; [2012] NSWCA 243, at [116], Basten JA contrasted malicious prosecution with abuse of process as regards commencement of proceedings as follows (noting that this Court's decision was subsequently overturned on other grounds in State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26):
"an action for malicious prosecution may be brought against a person who takes steps to initiate proceedings even if that person is not the informant: by contrast, in relation to collateral abuse of process, it has been held that the defendant must be the party who actually instituted the proceedings: Emanuele v Hedley [(1998) 179 FCR 290] at [44]], relying on three passages in the joint judgment in Williams v Spautz, at 523, 524 and 526. Whether or not such a principle can be derived from the discussion in Spautz at those pages, it has been affirmed by this Court in Leerdam (see [73] above), particularly in the judgment of Spigelman CJ at [32]-[44], Allsop P and Macfarlan JA agreeing at [65] and [126] respectively."
[3]
Proposed grounds 2 and 4 - malicious prosecution
As noted above, the applicant sought to make claims for malicious prosecution against all of the respondents. The primary judge explained at J [53], correctly, that it is an element of a claim for malicious prosecution that the prosecution has terminated favourably to the plaintiff, citing Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17. Her Honour noted that the application for an ADVO had not yet been determined finally, let alone favourably to the applicant, so that no cause of action had yet accrued: J [55].
This conclusion is not challenged by the applicant. Indeed, the applicant accepted below that the prosecution had not terminated in his favour as at the date of the hearing: J [12]. Rather, his complaint is that determination of the issue should have been stood over, for two reasons.
Proposed ground 2 says there was a breach of procedural fairness by the primary judge in failing to take account of, or give effect to, an agreement between the parties that the malicious prosecution issue would not be determined in dealing with the summary dismissal applications on 26 February 2021. The factual foundation of the point is as follows. Following a directions hearing, the primary judge's associate sent an email to the parties on 16 October 2020, which relevantly read:
"The timetabling difficulties arising from the absence of a 'result' in the malicious prosecution claim can be dealt with at a later date by the parties agreeing to limit the issues for determination to the first two causes of action and deferring the issue of malicious prosecution until a final resolution of that claim (including any appeal) is made.
Her Honour suggests that the timetable proposed by the defendants should be made, but only in relation to the claims for abuse of process and defamation …
As to the claim for malicious prosecution, that pleading may remain in the claim on the understanding that it will be ruled on at a later date, if any such rulings are in fact necessary."
In responsive emails, the first and second respondents and the third to fifth respondents appeared to have agreed to the proposal. But the sixth respondent stated that it did not agree. As a result, in an email of 19 October 2020 the primary judge's associate stated that "[t]he parties can address the malicious prosecution claim, depending on the state of the other litigations". It is clear that the question of whether the malicious prosecution claim should be struck out was in issue at the hearing on 26 February 2021. Indeed, the applicant addressed the issue both in written and oral submissions. Proposed ground 2 thus has no prospect of success.
[4]
Proposed grounds 6 and 10 - proceeding with the hearing on 26 February 2021
Proposed ground 6 complains that the Court below breached the requirements of procedural fairness by giving the applicant the Christmas holidays "to finalise pleadings of considerable magnitude and complexity in circumstances where the court-ordered referral was not picked up". Proposed ground 10 is to similar effect.
On 19 October 2020 the primary judge had referred the applicant "to the registry for legal advice from the lawyers of pro bono panels for advice as to the further proposed Amended Statement of Claim and answering the submissions from [the] Defendants". The same orders listed the various interlocutory applications for hearing on 10 December 2020. As noted above, that hearing was stood over at the applicant's request to 26 February 2021.
The primary judge had given the applicant significant time and latitude to seek to plead his claim prior to the hearing on 26 February 2021. There is no prospect of House v The King error being made out with respect to the discretionary decisions involved.
[5]
Proposed ground 3 - the events of 11 November 2020
This ground is put in terms of breach of procedural fairness and failure to take into account a material consideration. The focus of the ground is what occurred in the course of the Local Court ADVO proceedings on 11 November 2020, specifically, that the police office conducting the application on that date did not seek to call a particular witness. The concern seems to be that this meant that the ADVO proceedings were not finalised on that date and thus remained outstanding as at 26 February 2021.
This complaint has no relevance to the decisions made by the primary judge beyond, perhaps, being a matter relevant to whether or not an adjournment or stay of the applications should have been granted. That issue has been addressed above. This proposed ground does not raise any point sufficiently arguable to merit a grant of leave.
[6]
Proposed ground 8 and 9 - errors of fact and bias
Proposed ground 8 asserts that the primary judge's decisions to refuse the applicant an adjournment and/or stay, and refusal to permit him to replead, miscarried because they were based on 16 alleged errors of fact, namely the following (to quote):
1. That the plaintiff was involved in criminal proceedings; the plaintiff was charged more than once; the plaintiff received convictions for said charges; and the plaintiff is appealing said convictions.
2. That there are criminal proceedings underlying the subject of the plaintiff's claim.
3. That the plaintiff stated that all criminal charges would be dismissed by 26 April 2021 or 11 May 2021.
4. That the plaintiff stated he is waiting for 3 matters to resolve, specifically, the Local Court, Supreme Court and High Court matters.
5. That the plaintiff told the Court the 26 April 2021 and 11 May 2021 hearings would result in all criminal charges against the plaintiff dismissed and contempt proceedings initiated against the first and second defendant, the police and a prosecutor.
6. That the plaintiff makes no concessions and clings to the entitlement of bringing proceedings in the current form.
7. That the plaintiff was reluctant in amending the pleadings.
8. That the plaintiff maintained the Court itself would settle the proceedings.
9. That the plaintiff objected to the 11 Nov 2020 local court transcript being filed into evidence.
10. That interim ADVO orders were made against the plaintiff and that the plaintiff conceded to same.
11. That the plaintiff maintained he required until Dec 2021 to re-plead.
12. That the plaintiff should be allowed to maintain proceedings on the basis of res judicata.
13. That the 11 Nov 2020 transcript demonstrates vivid and disturbing hostility by the plaintiff.
14. That the plaintiff stood idly by doing nothing (whilst awaiting the Court's referral).
15. That it was pointed out to the plaintiff in writing that the Court had no power to order apologies…
16. That the plaintiff stressed the "importance" of this matter when stating the magnitude and complexity.
The matters raised at (f), (g), (k) and (n), and the issue of being permitted to replead, are addressed below when dealing with grounds 5 and 12-14.
As to matter (l), to the effect that the applicant should have been allowed to maintain proceedings on the basis of res judicata, that was indeed one of the arguments made by him: see J [36] and [41].
[7]
Proposed ground 11 - claim that first and second respondents fled
This ground asserts that the primary judge erred in failing to take into account the applicant's "assertion that the first and second [respondents] have fled the jurisdiction to El Salvador taking up permanent residence in late Dec 2020". The ground also refers to events occurring after the judgment was handed down in 2021.
This ground raises no arguable error by the primary judge. Whether or not the first and second respondents had moved elsewhere was not relevant to the issues before the primary judge. They were represented by counsel at the hearing on 26 February 2021. And events subsequent to the judgment cannot establish error by the primary judge.
[8]
Proposed grounds 5, 8 (in part) and 12-14 - procedural fairness and no leave to replead
These proposed grounds, to the extent they go beyond what is raised in other grounds, in essence complain that the primary judge acted unfairly in denying the applicant leave to replead his statement of claim. Further, as noted above, proposed ground 8 includes allegations that the primary judge erred in finding that the plaintiff made no concessions and clung to the entitlement of bringing proceedings in the current form (J [26] and [45]), that the plaintiff was reluctant in amending the pleadings (J [26]), that the plaintiff maintained he required until Dec 2021 to re-plead (J [46]), and that the plaintiff stood idly by doing nothing whilst awaiting the Court's referral.
There is some force in some of the applicant's complaints, given that a reading of the transcript of the hearing as a whole reveals that:
1. the applicant accepted that there were deficiencies in the pleading, and that he would have to make amendments to it (see eg transcript pp 48/38-49/16, 53/10-15, 53/45-54/1, 55/30-35, 56/22-36, 57/12-20);
2. he was thus prepared to make some concessions; and
3. whilst he did initially ask for the matter to be stood over to December 2021, by the end of the hearing he had reduced this request to two or three months (transcript pp 56/40-57/36).
It is true that there had been many previous iterations of the pleading, as set out above. On the other hand, this was the first time that an application for summary dismissal or strike-out had been heard and determined. That is in contrast to the position in the case relied upon by her Honour, Dickens v State of New South Wales (No 3) [2018] NSWSC 485. The decision made by Adamson J in that case was the third occasion on which iterations of pleadings had been the subject of negative judicial evaluation.
Further, some of the pleading deficiencies apparently accepted by the primary judge here appear mistaken. For example, the primary judge appears to have considered that it was inappropriate for the applicant, as a self-represented litigant, to claim costs: J [24(o)]. But such litigants are perfectly entitled to include such a claim in a pleading: they may later retain legal representation, and in any case they may incur disbursements which they can claim from the other side if they succeed (eg filing or witness fees): see, as to the latter point, Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40 at [183]-[185]. That being said, there is little doubt that there were significant problems with the proposed further amended statement of claim.
[9]
Orders
For the reasons set out above, I propose the following orders:
1. Extend time for filing and service of the applicant's notice of intention to appeal and summons seeking leave to appeal so as to permit the applicant to rely on those documents;
2. Grant leave to appeal as regards claims against the first and second respondents on the following proposed grounds in the draft notice of appeal:
1. ground 1; and
2. ground 5, limited as follows: "Breach of procedural fairness - the Court in refusing to grant leave to replead as against the first and second respondents under the circumstances denoted above or otherwise acted contrary to ss 56-59 of the Civil Procedure Act 2005 (NSW)";
1. The application for leave to appeal is otherwise dismissed;
2. Applicant to pay the costs of the third to fifth and the sixth respondents to the application.
I note that the applicant will be required to file a notice of appeal consistently with these orders within 7 days: UCPR, r 51.16(1)(a).
[10]
Endnotes
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91 (Isaacs J); [1911] HCA 46.
See, for example, A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [34]-[36].
Leerdam v Noori [2009] NSWCA 90 at [29]-[44]; (2009) 255 ALR 553; Kable v New South Wales; [2012] NSWCA 243, at [116]; (2012) 293 ALR 719; Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 at [59] (Barrett JA), Beazley P agreeing at [1], and McColl JA agreeing at [2]); Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 at [42] (Bell P).
Emanuele v Hedley (1998) 179 FCR 290 at [44]; Leerdam v Noori [2009] NSWCA 90 at [29]-[44] (Spigelman CJ; Allsop P and Macfarlan JA agreeing); (2009) 255 ALR 553; Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146.
(1998) 179 FCR 290 at [44].
See for example Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30.
Draft Amended Statement of Claim, [44].
Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134 at [64].
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: 16 May 2022
Solicitors:
Colin Biggers & Paisley Pty Ltd (third to fifth respondents)
Sparke Helmore Lawyers (sixth respondent)
File Number(s): 2021/00175377
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Civil
Citation: [2021] NSWDC 52
Date of Decision: 26 February 2021
Before: Gibson DCJ
File Number(s): 2020/156610
Judgment
BRERETON JA: I have had the benefit of reading in draft the reasons to be delivered by Kirk JA, in which the facts are more fully set out and the proposed grounds of appeal more comprehensively addressed. For my purposes, it suffices to record that the applicant 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 - allegedly acting on the complaint of the Bellos - made a provisional apprehended domestic violence order 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". 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, both malicious prosecution and abuse of process were alleged. On 11 March 2021, Gibson DCJ refused leave to file the further amended statement of claim, and summarily dismissed the proceedings. Mr Marino seeks leave to appeal, and an extension of time in which to do so.
For the reasons given by Kirk JA, I would extend time for the applicant to apply for leave to appeal to the date on which the summons was filed.
Any cause of action for malicious prosecution was incomplete when the proceedings were instituted, and remained incomplete when the application was heard by her Honour, as the apprehended domestic violence order proceedings in respect of which they were brought had not yet been terminated in favour of Mr Marino. There was thus no valid pleading, against any respondent, of a cause of action for malicious prosecution. Although, as Kirk JA explains, an amendment made after the favourable termination of the ADVO Proceedings could result in a valid pleading, this provides no basis for joinder of the Solicitors or the State before there was any complete cause of action against them. Moreover, although the pleading contains an allegation that the Solicitors were "the Architect … or otherwise Instrumental in … the Initiation and Maintenance and/or Continuation of" the ADVO Proceedings, it is difficult in the extreme to see how they, who were not party to nor acting as solicitors in those proceedings, could be liable for their malicious prosecution. In any event, her Honour's decision not to permit them to be joined, on a cause of action which had not and might never have accrued, was plainly correct.
Against the State, in addition to malicious prosecution, Mr Marino relied on 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 attained, and which is 'entirely outside the ambit of the legal claim upon which the court is asked to adjudicate'. [1] Although the pleading contains a bare assertion that the State acted for "an improper purpose", its alleged collateral purpose is (unlike in the case of the Bellos, as elaborated below) nowhere identified and is not apparent. The proposition that the State was acting for a collateral purpose - that is to say, to obtain some benefit not lawfully attainable, outside the ambit of the proceedings - is sufficiently implausible that it may be concluded, in the absence of that purpose having been identified, that there is no reasonable prospect of such being established. In any event, the proposed pleading did not sufficiently articulate a viable case of abuse of process. As the pleading failed to articulate a viable case of malicious prosecution (which was inchoate) or abuse of process (because of lack of collateral purpose), her Honour was right to refuse leave to join the State.
Unlike the other respondents, the first and second respondents did not appear to oppose the application for leave to appeal. The substantive basis on which the claims against them were dismissed was, in respect of the claim for malicious prosecution, that it was inchoate; and, in respect of the claim for abuse of process, that the Bellos not being the nominal prosecutor could not be liable. As Kirk JA also explains, while a claim for malicious prosecution may be brought not only against the nominal prosecutor but also against others involved in instigating the prosecution, [2] there is significant authority that that is not so in the case of a claim for damages for the tort of collateral abuse of process. [3] However, I agree with his Honour that the proposition that liability might extend beyond the nominal party to an instigator should not be regarded as foreclosed. The rule confining liability to nominal parties has evolved in the context where it was sought to make their agents, such as their solicitors, liable, [4] rather than in the context of instigators. In principle, it seems to me at least arguable that one who procures an abuse of process should not be immune from liability. This is supported by the notion of agency, referred to by the Full Federal Court in Emanuele v Hedley in stating that "[n]o 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". [5] It is also supported by analogy with the tort of malicious prosecution, where it has long been accepted that an instigator can be liable, though not in name a party to the proceedings. [6] In my view, there is a strongly arguable case that the abuse of process claim ought not have been summarily dismissed on this basis. Although, on an interlocutory appeal, this Court would not likely finally resolve the question of principle, it might well conclude that the issue ought to have been permitted to go to trial.
Mr Marino's contention was that the ADVO Proceedings were instituted "for a single or dominant collateral and/or wrongful purpose", namely "to hurt, sabotage, and otherwise destroy the Plaintiff's Family Law proceedings and thereby bolster the First and Second Defendant's case". [7] The tort of abuse of process is committed inter alia by the institution of proceedings for the predominant purpose of delaying the enforcement of a claim made against the instigator. [8] Although the pleading has its shortcomings, a valid abuse of process claim against the Bellos is sufficiently discernible; if the particulars are lacking, that can be remedied by a request for further and better particulars.
If the abuse of process claim is to remain on foot, it is plainly preferable that the malicious prosecution claim be included in the same proceeding, a result which can be achieved by amendment under Civil Procedure Act 2005 (NSW), s 64(3), with effect from the date of the amendment. However, the difficulty that it was then inchoate is not the only defect; for example, there is no express allegation of want of reasonable and probable cause, and although it might be considered implicit in what is alleged, it ought to be expressly pleaded. Nonetheless, it seems to me that once the pleading is confined to the first and second respondents, the remaining defects, such as they are, are not such as to warrant refusing leave to replead.
In my opinion, the applicant should be granted leave to appeal against the dismissal of his claims against the first and second respondents. The application as against the other respondents should be dismissed with costs. I agree with the orders proposed by Kirk JA.
KIRK JA: By summons filed on 18 June 2021 the applicant seeks leave to appeal against orders made by Gibson DCJ on 26 February 2021 and 11 March 2021. Her Honour refused the applicant's applications for an adjournment or stay of proceedings, for leave to further amend the applicant's statement of claim, and for the joinder of additional defendants. Her Honour also summarily dismissed the plaintiff's claims for malicious prosecution and abuse of process against the first and second respondents. The other respondents in the present application were proposed additional defendants, identified in a proposed further amended statement of claim.
The application for leave to appeal to this Court was listed for separate hearing. The applicant's draft notice of appeal sets out 14 grounds of appeal, although proposed ground 7 was not pressed.
The main material date for the purpose of this application was 11 March 2021. It appears that the applicant served a notice of intention to appeal on or about 28 April 2021 (it is not entirely clear if it was filed on that date), where such a notice should have been filed within 28 days, that is, by 8 April 2021: Uniform Civil Procedure Rules (UCPR), r 51.8. He subsequently filed a summons seeking leave to appeal on 18 June 2021 where, assuming that the notice of intention to appeal had been filed on time, it should have been filed by 11 June 2021: UCPR, r 51.9.
The delays in filing these two documents were not substantial; the third to fifth and the sixth respondents do not claim to have been prejudiced by the delays (the first and second respondents did not appear in this Court); and the applicant has provided some evidence of various medical conditions which he says explain his delays. In these circumstances, I would grant the applicant an extension of time to file his notice of intention to appeal and his summons seeking leave to appeal.
As for the application for leave, this Court has regularly stated that ordinarily to attract a grant of leave an applicant needs to establish that there is an issue of principle, a question of general public importance or a reasonably clear injustice going beyond something that is merely arguable: eg, recently, Coshott v Commonwealth Bank of Australia [2020] NSWCA 279 at [25] per Gleeson JA, and the authority there cited.
In my view, none of the proposed grounds of appeal other than ground 1 raises an issue of principle, and I propose a grant of leave on that ground. With one possible exception, none of the other proposed grounds raises a question of general public importance or a reasonably clear injustice, nor any other matter warranting the granting of leave to appeal. The possible exception relates to having leave to replead the claims put against the first and second respondents, which is sufficiently raised by a confined form of proposed ground 5. The application should otherwise be refused with costs.
This judgment first sets out the context in which this application arises, then addresses the proposed grounds of appeal in a convenient order.
In Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146, at [59], Barrett JA stated that "[t]he 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" (Beazley P agreeing at [1], and McColl JA agreeing at [2]). On that basis, this Court upheld the dismissal of an allegation that a solicitor who had acted for a party had committed an abuse of process. That was in a context where "there are no allegations of specific conduct on [the solicitor's] part", other than having acted in litigation for a party alleged to have been acting for an improper purpose (see at [59]).
More recently, in Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245, at [42], Bell P enumerated the elements of the tort of abuse of process, the first of which was that "[t]he alleged tortfeasor must have instituted a legal process for an improper purpose".
However, it is conceivable that there is room for argument as to whether a person who has instigated, if not formally commenced, legal proceedings might be liable for the tort. In Emanuele v Hedley (1998) 179 FCR 290, at [44], the Full Federal Court stated that "[n]o 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". That notion might leave some room for argument as to the position of an instigator. If any such argument were to be accepted, much would depend on the factual and legal circumstances in which the person came to instigate the proceedings, and what role was played by the person who actually commenced the proceedings: cf ss 48-49, Crimes (Domestic and Personal Violence) Act. I am not suggesting that such an argument has significant prospects of success. However, in my view the point is sufficiently arguable that it raises an issue of principle which might merit a grant of leave.
It might also raise for consideration whether such an issue was appropriately dealt with on a summary application. As French CJ and Gummow J stated in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24], "[s]ummary processes must not be used to stultify the development of the law". If there is the possibility of such development, where issues of degree may arise, it is best that consideration of the development of the law take place by reference to facts as found: note Wickstead v Browne (1992) 30 NSWLR 1 at 5-6 per Kirby P; Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25, at [55] per curiam; Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734, at [48]-[50] per White JA. The case might be argued to bear some similarity to Fuller-Wilson v State of New South Wales [2018] NSWCA 218, in which this Court upheld an appeal from a summary dismissal application on the basis that a claimed duty of care was sufficiently arguable on the current state of the law - even if ultimately unlikely to succeed - that it should have been permitted to go to trial. Some legal questions can appropriately be determined on a summary basis. But legal issues which may turn on precise facts would rarely fall into that category. It is not necessary to resolve such matters on this leave application because it is sufficient to note that this proposed ground does potentially raise a matter of principle.
In the circumstances, I would grant leave to appeal on this ground.
Proposed ground 4 asserts that there was a breach of procedural fairness by the primary judge in failing to take into account, or give sufficient weight to, "the fact that the final element of the MP claim would likely be finalised by 26 April 2021, or failing that, 11 May 2021". As at the hearing on 26 February 2021, it was understood that the ADVO matter was listed for hearing in the Local Court on 11 May 2021. Nothing in particular was known at that time about 26 April 2021. The significance of that date is that it was in fact when a police prosecutor applied to the Local Court for an adjournment of the 11 May hearing on the basis that the two persons in need of protection would be overseas then. The adjournment application was refused, and on 11 May 2021 the police officer withdrew the application for an ADVO.
As the third to fifth respondents point out, whilst it was possible that the ADVO application would finally be determined on 11 May, it was by no means certain. The matter might have been stood over. Furthermore, the applicant himself flagged in his written submissions to the primary judge the possibility of appeals, and in oral submissions he sought, at least initially, that there be an adjournment until December in order to allow resolution of the ADVO proceedings (see eg transcript p 9).
The fact that the ADVO proceedings were in fact resolved on 11 May 2021 could not have been known to the judge on 26 February 2021, and failure to take that fact into account could not be error by her. As her Honour noted at J [46], in effect the applicant was seeking a stay of the proceedings. Whether or not to refuse the application for a long adjournment or stay was a discretionary judgment. Her Honour's decision was entirely reasonable, there was no breach of procedural fairness by the primary judge, and no House v The King error has any prospect of being made out in this regard. Proposed ground 4 is thus without merit.
Further, standing the matter over would not have cured the fact that the pleading disclosed no cause of action for malicious prosecution as at the date when the proceeding was commenced. That being said, pursuant to s 64(3) of the Civil Procedure Act an amendment may be permitted even though it adds a cause of action that has arisen after the commencement of the proceedings. Such a claim is taken to have been commenced on the date on which the amendment is made. It is thus possible that amendments made after the ADVO proceedings had ended could have been taken newly to assert the cause of action: cf Zappia v Grant Baines Transport Pty Ltd (2010) 77 ACSR 273; [2010] NSWSC 98 at [48]-[56]. It is not necessary to address that point further here. If the applicant succeeds on his appeal on the grounds for which leave is granted, and the matter is remitted to the District Court, then it is possible that he may seek leave to amend his pleading to add claims for malicious prosecution. The question of the application s 64(3) might then arise.
It should be noted that her Honour also explained that the first element of a claim for malicious prosecution is that the defendant has initiated the prosecution in question, and stated that the pleadings "fail to establish this" in respect of the first and second defendants, and the third to fifth proposed defendants: J [53] and [56]. It is not the case that liability for malicious prosecution is limited to the formal prosecutor. There are some circumstances in which liability can extend to others who can be regarded as having instigated the prosecution: see eg A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [34]-[36]. Her Honour's point seems to have been that the applicant had not pleaded material facts going to establish that the relevant respondents should be treated as having instigated the ADVO proceedings.
Her Honour also found that the pleading of the malicious prosecution claim in each of the five statements of claim "would warrant the striking out of the proceedings for the reasons given by Adamson J in Dickens (No 3)", which is to say that the pleadings were embarrassing. There is little doubt that the proposed further amended statement of claim being considered had many pleading problems. The key issue, then, was whether or not leave to replead should have been given. That point is addressed further below.
As to the matters raised at (a), (b), (c) and (e), the third to fifth respondents made the following response in their written submissions to this Court at [26]:
"A number of the alleged 'incorrect findings of fact' concern the Trial Judge describing the ADVO proceedings as "criminal" proceedings (see Grounds 8 (a), (b), (c) and (e)). However the Applicant himself described the Local Court ADVO as being heard 'in the Local Court's Criminal Jurisdiction' in the proposed Amended Statement of Claim he drafted (see text between paragraphs 49 and 50); this was noted at TJ [7] and may well have been the reason for her Honour's use of the 'criminal' description. Even if the ADVO proceedings are held not to be not strictly 'criminal' proceedings, in the sense that on a successful prosecution a conviction does not result, it is clear from TJ [7]-[9] that her Honour was properly apprised of the type of proceedings under consideration. Further, provisional ADVOs are issued under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and in Franks v Franks [2012] NSWCA 209 at [8] Basten JA, with whom Barrett and Hoeben JJA agreed, stated 'it is by no means clear that they should not be understood to fall within the criminal jurisdiction of the court making the order.'"
That response puts in context how the characterisation of the proceedings as "criminal" may have arisen. Moreover, characterising the ADVO proceedings as "criminal" is not surprising (whether or not correct) in circumstances where the applicant is suing for malicious prosecution. Whilst it is correct that the primary judge on a number of occasions misdescribed or mischaracterised the ADVO proceedings as criminal or as an appeal, it is clear enough that her Honour was well aware of the true nature and character of those proceedings.
In any event, neither that possible error, nor any of the other matters identified in proposed ground 8, appears to have been material in the sense of having been significant to the impugned decisions of the primary judge. There is no reasonably clear injustice going beyond something that is merely arguable.
Proposed ground 9 states that the "sheer number of incorrect findings and their nature such as criminal charges, convictions and appeals against same which have no foundation amount to bias or apprehension of same against the plaintiff". This ground also cross-refers to other of the proposed grounds of appeal.
The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, at [6]. Self-evidently, an assessment of bias always turns on the particular facts. It is possible that some particular mistake of fact, or set of mistakes, could suffice to raise a reasonable apprehension of bias in some circumstances. Here, however, even presuming that all of the alleged errors were in fact mistakes, those errors neither individually nor cumulatively suffice to reach the level of establishing a reasonably clear injustice going beyond something that is merely arguable.
The description of the proceedings as "criminal" does not found any apprehension of bias, which in any event cannot arise from an adverse final judgment. In Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48, at [67]-[68], it was held that the reasons for judgment delivered in determining issues are not relevant to an assessment of whether a fair-minded lay observer might reasonably have apprehended before delivery of the judgment that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.
To the extent that this ground depends upon the other proposed grounds, they are each addressed separately in this judgment.
The decision as to whether or not to permit the applicant to replead his proposed pleading was a discretionary one. The errors in question do not appear to have been material to the primary judge's decision.
That being said, as regards the claim against the first and second respondents, if leave is granted on proposed ground 1 (as suggested above), then if the appeal on that ground were to succeed, an issue may arise as to whether or not leave to replead should have been granted in circumstances where there may have been an arguable legal claim, but one which was not yet properly articulated in a sufficient pleading. Further, it is open to argue that the primary judge's conclusion on this issue was affected by her conclusion on the legal issue addressed in proposed ground 1.
In that context, it seems appropriate that this Court should also consider the issue of leave to replead on the hearing of the appeal. That point is sufficiently accommodated if leave to appeal is granted on proposed ground 5, limited to the first and second respondent, and further limited to the issue of leave to replead (where in its current form it also extends to the refusal to grant a stay or adjournment). That ground would thus be as follows:
"Breach of procedural fairness - the Court in refusing to grant leave to replead as against the first and second respondents under the circumstances denoted above or otherwise acted contrary to ss 56-59 of the Civil Procedure Act 2005 (NSW)."
As regards claim against the State, a key issue was whether or not the State should be joined as a party to the litigation. The pleading of the claim for malicious prosecution suffered from the prematurity issue addressed above with respect to proposed grounds 2 and 4. As regards the abuse of process claim, this was articulated in only one paragraph, at [129] of the proposed further amended statement of claim, in a way which did not grapple with the elements of the tort and which was clearly deficient. In those circumstances the primary judge's decision to refuse the joinder application, on the proposed pleading at issue, was reasonable. Her Honour's decision was not based upon a conclusion that such claims against the State could never be made: note J [60] and [67].
In these circumstances, I am not persuaded that leave to appeal is warranted on these proposed grounds, beyond the extent I have identified as regards proposed ground 5.