[2007] HCA 10
Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
[1906] HCA 83
Bleyer v Google Inc (2014) 88 NSWLR 670
[2014] NSWSC 897
Briginshaw v Briginshaw (1938) 60 CLR 336
[1938] HCA 34
Cachia v Hanes (1994) 179 CLR 403
Source
Original judgment source is linked above.
Catchwords
[2007] HCA 10
Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379[1906] HCA 83
Bleyer v Google Inc (2014) 88 NSWLR 670[2014] NSWSC 897
Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34
Cachia v Hanes (1994) 179 CLR 403[1935] HCA 30
Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527[1938] HCA 2
Cooper v Mulcahy [2012] NSWSC 373
Cooper v Mulcahy [2013] NSWCA 160
Giller v Procopets (2008) 24 VR 1(2008) 40 Fam LR 378[2008] VSCA 236
Goldsmith v Sperrings Ltd [1977] 1 WLR 4782 All ER 566
Grizonic v Suttor [2008] NSWSC 914
Gwe v Commissioner of the Australian Federal Police (2020) 103 NSWLR 509[2020] NSWCA 247
HD v State of New South Wales [2016] NSWCA 85
Hickey, In the Marriage of (2003) 30 Fam LR 355
[2003] FamCA 395
Kennon, In the Marriage of (1997) 22 Fam LR 1
139 FLR 118
FLC ¶92-757
[1997] FamCA 27
Li v Deng (No 2) [2012] NSWSC 1245
Majory, A Debtor, Re
Ex parte The Debtor v F A Dumont Ltd [1955] Ch 600
2 WLR 1035
Marsh, In the Marriage of (1993) 17 Fam LR 289
(1994) FLC ¶92-443
[1993] FamCA 57
Martin v Watson [1996] AC 74
[1995] 3 All ER 559
Massarani v Kriz [2020] NSWCA 252
McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports ¶81-361
[1995] NSWSC 67
Ridgeway v The Queen (1995) 184 CLR 19
[2018] NSWCA 320
State of New South Wales v Landini [2010] NSWCA 157
Valceski v Valceski (2007) 70 NSWLR 36
36 Fam LR 620
210 FLR 387
FLC ¶93-312
[2007] NSWSC 440
Victoria International Container Terminal Limited v Lunt [2021] HCA 11
[1995] NSWSC 17
Williams v Spautz (1992) 174 CLR 509
Judgment (12 paragraphs)
[1]
Background
The applicant and the respondent were married and have two children together. Their relationship has, however, become very acrimonious and they separated in 2017. Family law proceedings were originally commenced in the Federal Circuit Court of Australia and have since been transferred to the Family Court of Australia. The judge at first instance found that "undoubtedly the [family law] proceedings have been bitter and heavily contested".
On 21 September 2018, there was an incident at Sydney Airport between the applicant and the respondent. This incident caused the respondent to attend Rose Bay Police Station on about 25 September 2018 where she made a written statement. Based on that statement, Constable Pitts sought and obtained a provisional apprehended domestic violence order (ADVO) against the applicant with the respondent as the person in need of protection. Under s 29 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a provisional ADVO is taken for the purposes of that Act to be an application for a final ADVO. On 14 June 2019, the application for a final ADVO was dismissed.
On 24 April 2020, the applicant's solicitors wrote to the respondent's solicitors alleging, inter alia, that the respondent had sold a property in Lilydale, Tasmania in late 2019 and had "in the vicinity of $265,000 by way of net proceeds of sale available to her since 2 December 2019". It was also said in effect that, because she had those funds available, an application made by the respondent in the family law proceedings for the applicant to meet certain expenses incurred by the respondent should be withdrawn.
On 15 June 2020, the applicant's solicitors sent a letter of demand to the respondent's solicitors in which:
1. it was alleged that the respondent had committed the torts of malicious prosecution, based on the unsuccessful application for a final ADVO, and trespass, based on the respondent attending the applicant's house; and
2. it was stated that the solicitors "assessed" the damages suffered by the applicant as a result of the malicious prosecution at $150,000 and those resulting from the trespass at $115,000, totalling $265,000.
[2]
The statement of claim
On 10 August 2020, the applicant's solicitors filed a statement of claim claiming, in addition to interest and costs, unliquidated damages as follows:
1. for malicious prosecution: "a. Consequential economic loss. b. Aggravated damages. c. Exemplary damages";
2. for trespass to land: "a. Vindicatory damages. b. Aggravated damages. c. Exemplary damages".
The statement of claim relevantly pleaded the following allegations of material fact, excluding particulars:
"Malicious prosecution
Procuring proceedings
2 On 21 September 2018, the plaintiff [Mr Rock, the applicant] caused the defendant [Ms Henderson, the respondent] humiliation and embarrassment after he approached her and her sexual partner, Mr Steve Weston (Weston), at the Sydney Domestic Terminal.
…
3 On or about 25 September 2018, the defendant procured the institution of proceedings against the plaintiff under s 16 of the Crimes (Domestic and Personal Violence) Act 2007 (Proceedings) in the Local Court of New South Wales at Waverley (Local Court).
…
Malice and lack of probable cause
4 The gravamen of the defendant's complaint was a course of threatening conduct that had allegedly been carried out by the plaintiff between July 2017 and 21 September 2018.
…
5 In reality, the parties had regular, positive, and affectionate interactions from July 2017 until 21 September 2018.
…
6 In her Written Statement [upon which Const Pitt relied in seeking a provisional Apprehended Domestic Violence Order or ADVO], the defendant alleged that she was fearful of the plaintiff's [sic] in circumstances where she harboured no such fears.
…
7 The defendant knowingly made false statements to Pitt when she procured proceedings against the plaintiff by virtue of the matters pleaded in the following paragraphs:
a. 4 and 5; and/or
b. 6.
8 By virtue of the matters pleaded in paragraph 8 [sic, should be 7] the defendant procured the proceedings without reasonable and probable cause.
9 By virtue of the matters pleaded in paragraphs 2, 3, and 7, the defendant procured proceedings against the plaintiff as a means of retribution for the embarrassment and humiliation he had caused her.
10 The defendant also believed that, by procuring the Proceedings, she would gain a forensic advantage with respect to the looming parenting proceedings between the parties.
…
11 By virtue of the matters pleaded in paragraph 9 - or, in the alternative, paragraph 10 - the defendant:
a. Procured the Proceedings for a purpose other than the proper invocation of the law; and
b. That was the sole, or dominant, purpose.
12 By virtue of the matters pleaded in paragraphs [sic] 8 [sic, should be 7?]- or, in the alternative, paragraph 11 - the defendant, in procuring the Proceedings, acted maliciously.
Termination of Proceedings in favour of the plaintiff
13 On 14 June 2019, the Proceedings were terminated in favour of the plaintiff when Pitt's application for a final Apprehended Domestic Violence Order against the plaintiff was dismissed.
Damages
14 In defending the Proceedings, the plaintiff incurred legal costs amounting to $28,345.10.
…
15 In all, whilst defending the Proceedings, the plaintiff was required to attend - and attended - the Local Court on 8 occasions.
…
16 For the purposes of the Proceedings, the plaintiff spent an aggregate total of approximately 7 business days instructing his solicitor and counsel and reviewing subpoenaed documents.
17 Throughout the Proceedings, the plaintiff was self-employed and earning approximately $700 per day.
18 The plaintiff also suffered injury as a result of the circumstances and manner of the defendant's wrongdoing.
…
19 By virtue of the matters pleaded in paragraphs 17 to 19, the plaintiff lost income in the amount of approximately $10,500.
20 By virtue of the matters pleaded in paragraphs 10 and 11, the defendant committed conscious wrongdoing in contumelious disregard of the plaintiff's rights.
Trespass
21 At all material times, the plaintiff was the sole registered proprietor of the property known as [XXX], Paddington in the State of New South Wales (Property).
22 On 16 July 2019, the defendant entered the Property without the plaintiff's consent and under circumstances in which she was prohibited from approaching the parties' children pursuant to an Apprehended Domestic Violence Order.
…
23 The defendants entry onto the Property was an intentional act.
…
24 The defendant knew that her entry was against the wishes of the plaintiff and would likely cause him distress.
…
25 The children were severely distressed as a result of the defendants entering the Property.
… ".
[3]
The strike out application
On 22 September 2020, the respondent filed a notice of motion effectively seeking that the statement of claim be struck under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
The strike out application was heard on 10 December 2020 and Robison DCJ delivered ex tempore reasons for judgment on that day and made orders as follows:
"1. Defendant's notice of motion filed on 22 September 2020 is granted.
2. The Statement of Claim filed in these proceedings by the plaintiff on 10 August 2020 is struck out in full, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
3. The plaintiff pay the defendant's costs of the notice of motion and the proceedings, as agreed or assessed."
[4]
The reason for judgment at first instance
In his reasons for judgment, Robison DCJ reviewed the allegations in the statement of claim. His Honour then noted that the claim for vindicatory damages based on the alleged trespass to land had been abandoned by the applicant's counsel.
The respective affidavits of the applicant and the respondent were referred to. Some findings were then made concerning the correspondence between the solicitors in April and June 2020, which has been referred to above. His Honour thought it "quite relevant", "when it comes to any motivation or any ulterior motive that may be evident from the commencement of these proceedings", that the letter of 15 June 2020 referred to amounts totalling $265,000 and the letter of 24 April 2020 referred "to the net proceeds of sale available to the defendant since 2 December 2019" in the same amount. The judge at first instance went on, however, to note that while in the letter of demand there was "some attempt at setting out the quantum of damages on a liquidated basis", the statement of claim "is for damages effectively at large".
His Honour then made some general observations concerning the nature of pleadings, the application of ss 56 and 58 of the Civil Procedure Act 2005 (NSW) and the material facts which must be pleaded to disclose a reasonable cause of action in malicious prosecution and trespass to land. The judge at first instance commented that there was a difficulty in that the pleadings in relation to trespass to land referred to the children and they were not parties to the proceedings. His Honour then summarised some of the submissions of the parties and noted that he was not aware of the issues in the family law proceedings.
Robison DCJ said that he agreed that ADVO proceedings were civil in nature but did not specify any consequence that might flow from this. His Honour then expressed the view that minds may well differ on whether the malicious prosecution action extended to a claim for loss of income and also noted that it was not necessary for him to turn his mind to the question of whether it extended to a claim for legal costs as that head of damage had been abandoned by the applicant's counsel.
As to the trespass claim, it was noted that vindicatory damages had been abandoned, but allegations concerning distress to the plaintiff remained. This led his Honour to wonder how what was said about the children could "possibly be relevant in this particular instance".
[5]
Grounds of appeal
The applicant formulated his grounds of appeal as follows:
"1. At page 15 of the transcript of his reasons, the primary judge erred in finding that the appellant's actions for malicious prosecution and trespass were an abuse of process, in that:
1.1. His Honour found that the applicant had commenced the proceedings for an improper or collateral purpose in absence of evidence capable of supporting that finding; and
1.2. Further, or in the alternative, the purpose for which his Honour found that the applicant had commenced the proceedings was not an improper or collateral purpose as a matter of law."
Since these grounds both concern the issue of whether the District Court proceedings involve an abuse of process, they can be conveniently dealt with together.
Grounds 1.1 and 1.2
[6]
Submissions
The applicant submitted, in relation to ground 1.1, that the judge at first instance was strikingly imprecise in the way that the improper or collateral purpose was identified with the only explicit identification being found in the phrase "I again refer to those components totalling the amount of $265,000". Otherwise, it was contended that all that was said was that his Honour agreed with the submissions of counsel for the respondent but those submissions only cited Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 (Williams v Spautz) and relied on "the reasons expressed in [the respondent's] supporting Affidavit". Notwithstanding these difficulties, the applicant's contention was that the primary judge accepted that the malicious prosecution and trespass proceedings were an abuse of process because they had been brought for the purpose of claiming, as damages, funds which were also in dispute in the family law proceedings.
The applicant submitted that there was no evidence that the proceeds of sale of the Lilydale property were in dispute in the family law proceedings. Nor, it was said, was there any evidence that the applicant had commenced the District Court proceedings in order to "circumvent" the family law proceedings or for any purpose other than having his grievances remedied by means of a damages award. It was submitted that it was significant that the applicant was not challenged in cross examination as to his purpose in commencing the District Court proceedings.
In all the circumstances, it was contended by the applicant that there was no evidence to support his Honour's conclusion that the proceedings had been brought for a collateral or improper purpose.
As to ground 1.2, the applicant's contention was that his purpose was to bring the District Court proceedings to a successful conclusion in his favour and the existence of an ulterior purpose, if one were found to exist in the present case, did not constitute an abuse of process, relying on Williams v Spautz at 526-7 and 535.
The respondent submitted that the evidence established that the family law proceedings included relief by way of property orders and thus there was evidence from which his Honour could conclude that if damages were awarded to the applicant in the District Court proceedings that would impact the scope of the matrimonial pool of assets, which would include the proceeds of sale of the Lilydale property.
[7]
Consideration
Under r 14.28(1)(c) of the UCPR, the Court may strike out the whole or any part of a pleading "if the pleading … is … an abuse of the process of the court".
From the passage from the reasons for judgment quoted above, it can be seen that the judge at first instance based his decision, at least in part, on the conclusion that the proceedings were brought for an improper and collateral purpose and, accordingly, the continuation of the proceedings "would be tantamount to allowing an abuse of process to continue". The applicant's grounds of appeal seek to challenge this conclusion that the pleadings in the District Court proceedings involved an abuse of process.
The applicable principles in relation to abuse of process are generally well established. In the context of r 14.28, among others, although abuse of process is not restricted to "defined and closed categories", the concept is not at large or, indeed, without meaning; it extends to proceedings that are instituted for an improper or collateral purpose: Ridgeway v The Queen (1995) 184 CLR 19 at 74-5; [1995] HCA 66; Victoria International Container Terminal Limited v Lunt [2021] HCA 11; 95 ALJR 363 at [14].
There will be an improper purpose for bringing the proceedings if the purpose is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers: Williams v Spautz at 526-7. It is sufficient if the improper purpose is the predominant but not the only purpose of the party concerned.
Where, however, the immediate purpose in prosecuting the proceedings is to bring about a result for which the law provides in the event that the proceedings terminate in the party's favour, the existence of an ultimate purpose outside the scope of the proceedings does not constitute an abuse of process: Williams v Spautz at 526; Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269 (Attila Boros) at [23]. In Williams v Spautz, Brennan J expressed the principle in the following terms, at 537:
"There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce. To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include - at least to any substantial extent - the obtaining of relief within the scope of the remedy."
[8]
Leave to appeal
Since the grounds of appeal relied upon by the applicant have merit and should be upheld, I accept that there is an injustice which goes beyond the merely arguable in this case. Leave to appeal should, therefore, be granted.
[9]
Additional matters and the appropriate orders
The applicant did not rely on any grounds of appeal which sought to challenge the conclusion by the judge at first instance that the statement of claim was defective in form. Similarly, the respondent did not indicate an intention to file a notice of contention raising issues whether proceedings for an ADVO were proceedings which could give rise to a cause of action for malicious prosecution or whether economic loss such as loss of earnings could be claimed in proceedings for malicious prosecution. Nonetheless, these issues were covered or touched upon in submissions. [39]
As to the form of the statement of claim, the relevant conclusions in Robison DCJ's reasons for judgment included:
"Firstly, the statement of claim frankly would be very difficult for defendant to properly plead to. It is a series of discursive, evidentiary matters as set forth in the series of allegations made by the plaintiff to the defendant, albeit with a degree of emotional overtures, and particularly of a personal nature. In respect of that I remind myself of Mr Davis' submissions about that.
… The statement of claim overall is bad in form; it lacks compliance with the rules when it comes to the need to state the facts, not conclusions or evidence, but the facts upon which a party relies. The statement of claim is somewhat discursive and a little disjointed here and there; that is on any fair reading of the document as I have carefully done in this particular case."
These conclusions are relevant for the orders to be made disposing of the appeal. If these conclusions were accepted, they would be a basis for not setting aside the order striking out the statement of claim but merely granting the applicant leave to replead. If, however, the pleading of the causes of action in the statement of claim were adequate, it would be appropriate to set aside Robison DCJ's orders and order that the respondent's notice of motion filed on 22 September 2020 be dismissed with costs.
The allegations of material fact contained in the pleading have been set out in full above. Paragraphs 2 to 20 seek to plead a cause of action for malicious prosecution.
The elements of a cause of action for malicious prosecution were set out in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10; at [1] as follows:
"…For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause."
[10]
Costs
The applicant has been entirely successful. There does not appear to me to be any reason why in this case the costs of the application for leave to appeal and the appeal should not follow the event.
[11]
Orders
For these reasons, the Court should order as follows:
1. Grant the applicant leave to appeal.
2. Direct the appellant to file a notice of appeal in the form of the draft notice of appeal in the White Folder within 7 days.
3. Allow the appeal.
4. Set aside the orders made by the District Court on 10 December 2020 and, in lieu, order that the notice of motion filed on 22 September 2020 be dismissed with the applicant on that motion to pay the cost of the respondent to that motion.
5. The respondent is to pay the applicant/appellant's costs of the application for leave to appeal and the appeal.
[12]
Endnotes
Rock v Henderson (District Court (NSW), 10 December 2020, Robison DCJ) at 14-15 ("Primary judgment").
Primary judgment at 15.
Savile v Roberts (1698) 1 LdRaym 374 at 378 (Holt CJ); 12 Mod Rep 208. See also Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 544 (Rich, Dixon, Evatt and McTiernan JJ); [1938] HCA 2; Soare v Ashley [1955] VLR 438 at 440 (Herring CJ).
Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR(NSW) 552 at 558 (Jordan CJ; Halse Rogers J and Street J agreeing) ("Smith"); Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 386 (Dixon J); [1935] HCA 30 ("Brain").
H Luntz, AD Hambly & R Hayes, Torts: Cases and Commentary (2nd ed, 1985, Butterworths) at 882; RP Balkin & JLR Davis, Law of Torts, (5th ed, 2013, LexisNexis Butterworths) at 715.
Smith at 558 (Jordan CJ; Halse Rogers J and Street J agreeing).
Cuthbertson at 133 [64]-[66] (Beazley P; McColl JA, Basten JA, Meagher and Payne JJA agreeing).
Cuthbertson at 132-133 [59]-[66] (Beazley P; McColl JA, Basten JA, Meagher and Payne JJA agreeing).
Coleman v Buckingham's Ltd (1963) 63 SR (NSW) 171 at 176 (Herron CJ and Walsh J; Wallace J dissenting).
Cuthbertson at 130 [47]-[49] (Beazley P; McColl JA, Basten JA, Meagher and Payne JJA agreeing).
(1995) Aust Torts Reports ¶81-361 at 62,691 (Powell JA); [1995] NSWSC 67.
(1924) 40 TLR 870.
Cachia v Hanes (1994) 179 CLR 403 at 410, 417 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); [1994] HCA 14; Walton v McBride (1995) 36 NSWLR 440 at 453 (Kirby P); [1995] NSWSC 17.
At 379 (Dixon J).
[2015] NSWCA 418 at [114] (Gleeson JA; Basten JA and Beech-Jones J agreeing).
Brain at 379 (Dixon J); see also Sahade v Bischoff [2015] NSWCA 418 at [114] (Gleeson JA; Basten JA and Beech-Jones J agreeing); Martin v Watson [1996] AC 74 at 81 (Lord Keith of Kinkel; Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead and Lord Steyn agreeing); [1995] 3 All ER 559.
rrings Ltd [1977] 1 WLR 478; 2 All ER 566
Grizonic v Suttor [2008] NSWSC 914
Gwe v Commissioner of the Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247
HD v State of New South Wales [2016] NSWCA 85
Hickey, In the Marriage of (2003) 30 Fam LR 355; [2003] FamCA 395
Kennon, In the Marriage of (1997) 22 Fam LR 1; 139 FLR 118; FLC ¶92-757; [1997] FamCA 27
Li v Deng (No 2) [2012] NSWSC 1245
Majory, A Debtor, Re; Ex parte The Debtor v F A Dumont Ltd [1955] Ch 600; 2 WLR 1035
Marsh, In the Marriage of (1993) 17 Fam LR 289; (1994) FLC ¶92-443; [1993] FamCA 57
Martin v Watson [1996] AC 74; [1995] 3 All ER 559
Massarani v Kriz [2020] NSWCA 252
McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports ¶81-361; [1995] NSWSC 67
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Robinson v Balmain New Ferry Co Ltd [1910] AC 295
Sahade v Bischoff [2015] NSWCA 418
Savile v Roberts (1698) 1 LdRaym 374; 12 Mod Rep 208
Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552
Soare v Ashley [1955] VLR 438
State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320
State of New South Wales v Landini [2010] NSWCA 157
Valceski v Valceski (2007) 70 NSWLR 36; 36 Fam LR 620; 210 FLR 387; FLC ¶93-312; [2007] NSWSC 440
Victoria International Container Terminal Limited v Lunt [2021] HCA 11; (2021) 388 ALJR 376
Walton v McBride (1995) 36 NSWLR 440; [1995] NSWSC 17
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Texts Cited: H Luntz, AD Hambly & R Hayes, Torts: Cases and Commentary (2nd ed, 1985, Butterworths)
RP Balkin & JLR Davis, Law of Torts (5th ed, 2013, LexisNexis Butterworths)
Category: Principal judgment
Parties: Darren Rock (Applicant)
Kim Henderson (First Respondent)
Representation: Counsel:
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant sued the respondent in the District Court for damages for malicious prosecution and trespass to land. The applicant and respondent were formerly husband and wife, and there are financial and children's proceedings between them pending in the Family Court of Australia. The malicious prosecution claim arose out of an unsuccessful application for an Apprehended Domestic Violence Order ("ADVO") brought by the respondent against the applicant, and the trespass claim from the respondent's alleged entry onto the applicant's property while he and the children - who the respondent was prohibited, by another ADVO, from approaching - were present. One of the respondent's assets was $265,000 proceeds of sale of a property in Lilydale, Tasmania. In a pre-action letter of demand, the applicant quantified his claim for damages (for trespass and malicious prosecution) in the same sum of $265,000.
The respondent filed a Notice of Motion in the District Court seeking that the applicant's Statement of Claim be struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 14.28. That order was made by the primary judge, and the applicant applied for leave to appeal. The application for leave and the appeal were heard concurrently.
Held (Brereton JA and Wright J writing separately; Bell P agreeing), granting leave to appeal, allowing the appeal, setting aside the orders made by the District Court, and in lieu thereof dismissing the respondent's Notice of Motion: [3] (Bell P), [48]-[50] (Brereton JA), [103], [121] (Wright J).
As to the form of the pleadings:
The Statement of Claim was clear and comprehensible, and pleaded the essential material facts: [10] (Brereton JA).
As to a reasonable cause of action for malicious prosecution:
Per Brereton JA: The claim for the applicant's legal costs of defending the ADVO proceedings, which was not abandoned, and the claim for loss of earnings, are both actionable damage: [12]-[27].
McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Tort Reports ¶81-361; [1995] NSWSC 67; Childs v Lewis (1924) 40 TLR 870, considered; State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320, distinguished.
Per Wright J: While the legal costs claim was conceded at first instance, the loss of earnings claim is at least arguable: [109], [114].
Per Brereton JA and Wright J: Malice, lack of reasonable and probable cause, and all other elements were adequately particularised, and it was not necessary to plead that the prosecutor was prejudiced by false information provided by the respondent: [28]-[33] (Brereton JA), [104]-[108], [111]-[113], [115] (Wright J).
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30, distinguished.
It is at least not unarguable that applications for ADVOs are among the categories of civil proceedings which may found a claim for malicious prosecution: [34] (Brereton JA), [110] (Wright J).
HD v State of New South Wales [2016] NSWCA 85; Clavel v Savage [2013] NSWSC 775; Li v Deng (No 2) [2012] NSWSC 1245, applied.
As to a reasonable cause of action for trespass to land:
The only objection to this claim is that the allegation that the children were distressed was irrelevant. However, this was relevant to both the applicant's own distress and exemplary damages, and in any event, if inapt, could not warrant striking out the entire claim: [35] (Brereton JA), [116]-[118] (Wright J).
As to an abuse of process:
Per Brereton JA: A claim for property adjustment in family law proceedings by one spouse may be offset by a claim for damages by the other. Doing so via separate proceedings in a different court is permissible and is not an abuse of process. While the quantum of the damages claimed by the applicant was no doubt not coincidental in view of the proceeds of sale of the Lilydale property, the applicant's claim did not circumvent the family law proceedings: [36]-[43].
In the Marriage of Kennon (1997) 22 Fam LR 1; [1997] FamCA 27; In the Marriage of Marsh (1993) 17 Fam LR 289; [1993] FamCA 57, applied; Cooper v Mulcahy [2012] NSWSC 373; Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236, considered.
Per Wright J: The correspondence between the Lilydale proceeds and the damages sought may not have been fortuitous, but there was insufficient evidence to establish a logical connection. In contrast, evidence from the applicant that he was aggrieved by the respondent's conduct and thus brought the proceedings for the genuine purpose of seeking damages was unchallenged. That was his immediate purpose, and the existence of any other ulterior motives outside of it is immaterial. The primary judge thus erred in finding that the proceedings were commenced for an improper purpose, and that such a purpose amounted to an abuse of process: [74]-[98].
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, applied.
Per Bell P: Abuse of process is a serious finding which is not necessarily established by an ulterior motive. Further, fairness dictates that the alleged motive must be put to the claimant, yet presently this did not occur: [1]-[2].
Gwe v Commissioner of the Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247, considered.
Per Brereton JA and Wright J: The submission that an abuse of process finding was supportable because damages would not be substantial and would be out of all proportion to the interests at stake, at least for the trespass claim, invokes a principle of 'disproportionality' about which there is some controversy. It is further questionable whether there was in fact 'disproportionality' in the present case, and even if there was, other procedures relating to costs and the transfer of proceedings may be more appropriate solutions. Ultimately, however, it is unnecessary to resolve this issue, as the principle was not raised below and a Notice of Contention was not filed: [44]-[47] (Brereton JA), [99]-[102] (Wright J).
Massarani v Kriz [2020] NSWCA 252; Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897; Grizonic v Suttor [2008] NSWSC 914, considered.
Judgment
BELL P: The facts are set out in the reasons of Brereton JA and Wright J. I agree with their Honours that the primary judge erred in striking out the applicant's proceedings which, as Brereton JA has pointed out, brought a practical end to the proceedings even though the applicant could have theoretically sought to bring fresh proceedings. The striking out of the applicant's claim and the concomitant holding that it amounted to an abuse of process was not justified.
In Williams v Spautz (1992) 174 CLR 509 at 534, Sir Gerard Brennan said that "the pursuit of a legitimate remedy is not converted to an abuse of process by an unworthy and ulterior motive." Even if it could be, such a finding should not be made unless that claim is squarely put to the person said to have engaged in an abuse of process and/or to be possessed of such an unworthy or ulterior motive. A finding of an abuse of process is a very serious matter, whether reached by inference (as appears to have occurred in the present case) or otherwise, and at the very least, before such a conclusion could be reached, fairness dictated that such a serious allegation needed to have been put to the applicant who had sworn an affidavit in the proceedings: Gwe v Commissioner of the Australian Federal Police [2020] NSWCA 247 at [72]-[74], [83]. This did not occur.
I agree with the separate reasons of Brereton JA and Wright J for granting leave to appeal and upholding the appeal.
BRERETON JA: In the District Court, the applicant Darren Rock sued the respondent Kim Henderson for damages for malicious prosecution and for trespass to land. Mr Rock and Ms Henderson had formerly been married; they separated on or about 6 August 2017, and there are pending, in the Family Court of Australia, proceedings between them concerning financial matters and concerning the welfare of the two children of the marriage. The malicious prosecution claim was in respect of Ms Henderson having procured the institution of proceedings against Mr Rock for an apprehended domestic violence order ("ADVO"), which proceedings were terminated in his favour when they were dismissed on 14 June 2019. The trespass claim was in respect of Ms Henderson having on 16 July 2019 entered Mr Rock's property, where the children - whom she was prohibited by a separate ADVO from approaching - resided with him.
On 22 September 2020, before filing any defence in the District Court proceedings, Ms Henderson filed a Notice of Motion, seeking, relevantly, that the claim "… be struck out, in full or in part, pursuant to UCPR 14.28 or otherwise." The motion was heard and determined on 10 December 2020, when the District Court Judge made an order, relevantly, that "[t]he Statement of Claim filed in these proceedings by the plaintiff on 10 August 2020 is struck out in full, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW)." Mr Rock applies to this Court for leave to appeal, and that application is before the Court for concurrent hearing of the appeal if leave is granted.
No actionable damage pleaded?
In the Statement of Claim, Mr Rock claimed, by way of damages for malicious prosecution, his legal costs of defending the ADVO proceedings ($28,345), lost earnings attributable to the time he was required to attend court, to instruct his lawyers, and to review documents ($10,500), damages for "hurt feelings, distress and mounting anger", and exemplary damages.
Traditionally, damages for malicious prosecution have been regarded as confined to: [3]
"1. … damage to a man's fame, as if the matter whereof he is accused be scandalous … 2. … such [damages] as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty … 3. Damage to a man's property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused."
However, once damage under any of those three heads is proved, the award of damages is at large, subject to the limitation that they must not be unreasonably disproportionate to the injury sustained. [4] Consequential economic loss is recoverable if not too remote, [5] as are damages for mental distress (as where occasioned by a serious criminal charge). [6] Aggravated and exemplary damages may be awarded.
In written submissions before the District Court Judge, it was submitted for Ms Henderson that the claim for costs should be struck out, on the basis that in circumstances where the (NSW) Crimes (Domestic and Personal Violence) Act 2007 ("CDPV Act ") made specific provision circumscribing the circumstances in which costs of proceedings under that Act were recoverable, those constraints could not be avoided by claiming the costs as damages. This submission invoked State of New South Wales v Cuthbertson ("Cuthbertson"). [7]
Although the primary judge records that the claim to legal costs was, as a result of those submissions, abandoned, I can find nothing in the written or oral submissions to that effect, and the oral submissions on behalf of Mr Rock, as I read them, were to the contrary. [8] The CDPV Act makes provision in respect of the costs of proceedings for an ADVO to the effect that costs, limited to professional expenses and disbursements (including witnesses' expenses), may be awarded to the applicant or the defendant, but not against:
1. an applicant who is a protected person, unless the application was frivolous or vexatious; or
2. an applicant who is a police officer, unless the applicant made the application knowing it contained matter that was false or misleading in a material particular, or has inexcusably deviated from the reasonable case management of the proceedings. [9]
In Cuthbertson - which was an appeal from a judgment in favour of Mr Cuthbertson, who had sued the State for wrongful arrest, false imprisonment, and assault/trespass to the person, but not for malicious prosecution - Beazley P (as her Excellency then was), with whom McColl JA, Basten JA, and Meagher and Payne JJA agreed, held that where the legislature has specifically turned its attention to the circumstances in which costs may be awarded and determined that no costs were to be awarded, it would be contrary to principle for those costs to be recovered "[as] a side wind" by way of damages in later and different proceedings, which would be the case if a party could pursue costs in civil proceedings that may or may not have been awarded, in whole or in part, in the criminal proceedings. [10] Her Honour said: [11]
"[59] In Anderson v Bowles (1951) 84 CLR 323; [1951] HCA 61, the High Court was concerned with the question whether costs incurred in seeking possession of premises were claimable as part of the damages to be awarded in an action to recover mesne profits. Pursuant to the relevant statute, there was no power to order costs in the possession proceedings. In dealing with the statutory provision which precluded the recovery of costs in possession proceedings, the plurality stated, at 323:
"This is a legislative declaration that the parties to proceedings for the recovery of possession or proceedings arising thereout shall not be liable to one another for the costs of those proceedings. In the face of this legislative declaration can costs be properly included in the damages or mesne profits? It is a general rule that where it is sought to include costs incurred in other proceedings in the damages arising upon a cause of action, costs shall not be included, if as a matter of judicial determination or by a positive rule of law they are treated as costs which should be borne by the party suing. Accordingly it is not possible to recover as part of such damages the difference between party and party costs awarded to the plaintiff in the original litigation and the costs as between solicitor and client which he has incurred: Barnett v Eccles Corporation [(1900) 2 QB 423, at 428]. Further, if costs are expressly withheld by the court in the original proceeding none can be recovered in the action for damages brought by the plaintiff from whom they were so withheld: Loton v Devereux [(1832) 3 B & Ad 343; 110 ER 129], where Lord Tenterden CJ said: 'In such a case the Court have jurisdiction to say definitely whether there shall or shall not be costs' … See, further, Pritchet v Boevey [(1833) 1 C & M 775; 149 ER 612]." (Footnotes supplied)
[60] It should be noted that Pritchet v Boevey and Loton v Devereux, referred to in this passage, form part of the line of authority to which reference was made above, namely, that costs incurred in criminal proceedings for resist arrest are not recoverable in a civil action for false arrest, unless the court is satisfied that they were associated with obtaining release, were refused by the court in that action and were reasonable.
[61] Importantly, in Anderson v Bowles, their Honours stated, at 323-324, that where the legislature had determined that costs shall not be recoverable in a particular type of case:
"… it would be contrary to the principles which these cases exemplify if they were included in the damages and thus were made recoverable by a side wind. The case is not like Nowell v Roake [(1827) 7 B & C 404; 108 ER 774] depending upon a rule of the common law which simply ignored costs of legal proceedings of the character in question. It is one where the legislature, having considered whether in such proceedings costs should or should not be awarded, has expressed its conclusion in a definite provision. This should stand on the same footing as a judicial pronouncement upon the same question and as the rule that the difference between party and party costs judicially awarded and costs as between solicitor and client are not recoverable." (Footnotes supplied)
[62] McTiernan J, in a separate judgment, was of the same view.
[63] In my opinion, the rationale for refusing costs in later civil proceedings in Anderson v Bowles is equally applicable to this case. This is so, notwithstanding that the earlier proceedings in the present case were criminal proceedings and, unlike in Anderson v Bowles where there was no power to award costs in the underlying possession proceedings, the District Court has power to award costs in the limited circumstances prescribed in the Crimes (Appeal and Review) Act, s 70.
[64] As the plurality in Anderson v Bowles pointed out, where the legislature has specifically turned its attention to the circumstances in which costs may be awarded and determined that no costs were to be awarded, it would be contrary to principle for those costs to be recovered "[as] a side wind" by way of damages in later and different proceedings.
[65] That would be the case here if a party could pursue costs in civil proceedings that may or may not have been awarded, in whole or in part, in the criminal proceedings. The circumstances in which costs may be awarded in criminal proceedings is significantly circumscribed. In summary, those circumstances are directed to impropriety or unreasonableness in investigating the charges, or in initiating or conducting the prosecution in the Local Court, including on the basis of bad faith. Those constraints evince a clear legislative purpose that costs may only be awarded in the circumstances for which the legislature has provided.
[66] In my opinion, a party cannot avoid those constraints by claiming damages for costs incurred in conducting a criminal appeal by claiming those costs in later civil proceedings. The clear legislative intention of s 70 is to limit the circumstances in which costs in favour of a party who successfully appeals a conviction may be ordered and for the appeal to be the forum in which that determination is made."
Disproportionality?
In this Court, the respondent submitted that the finding of abuse of process was supportable on the alternative basis that, at least in the trespass claim, the damages would not be substantial, and that where the resources of the Court and the parties to be engaged to determine a claim are out of all proportion to the interests at stake, such 'disproportionality can be properly regarded as a species of abuse of process', justifying the dismissal or staying of the proceedings. Reliance was placed on Bleyer v Google Inc ("Bleyer"), [31] and Grizonic v Suttor ("Grizonic"). [32]
There are of course costs consequences for bringing small claims in jurisdictions which they do not warrant. However, the proposition that a plaintiff may be denied a hearing merely because the claim is small and the costs of prosecuting (and more particularly, defending) it disproportionate, is a troubling one. The celebrated cause of Balmain New Ferry Co Ltd v Robertson [33] would never have got to trial, let alone to the Privy Council, if it were correct. Bleyer has not been without controversy, as its author McCallum JA herself has since noted in Massarani v Kriz: [34]
"The decision has met with some criticism [Smith v Lucht [2014] QDC 302, considered by me in Feldman v The Daily Beast Company LLC [2017] NSWSC 831 at [15]-[18]]. Where it has been considered by appellate courts, other Supreme Courts and the Federal Court, it has arisen in circumstances where it was unnecessary for the court to express a view as to its correctness [Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [44] (Macfarlan JA), [55] (Leeming JA), [56] (Adamson J); Lazarus v Azize [2015] ACTSC 344 at [23] (Mossop AsJ); Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639; [2016] NSWCA 296 at [130]-[143] (Ward JA, Meagher and Payne JJA agreeing at [1] and [145]); Watney v Kencian [2017] QCA 116 at [61] (Applegarth J, Morrison and McMurdo JJA agreeing at [1] and [2]); GG Australia Pty Ltd v Sphere Projects Pty Ltd (No 2) [2017] FCA 664 at [52] (Markovic J); Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612; [2017] NSWCA 246 at [40] (McCallum J), cf at [5] (Basten JA); Armstrong v McIntosh (No 2) [2019] WASC 379 at [115] (Le Miere J); Fox v Channel Seven Adelaide Pty Ltd (No 2) [2020] SASC 180 at [11]-[21] (Stanley J); and see the helpful review of the development of the principle in the decision of Gibson DCJ in Khalil v Nationwide News Pty Ltd (No 2) [2018] NSWDC 126 at [40]]. Accordingly, it may well warrant appellate consideration in an appropriate case. This is not that case. Here, the decision of the primary judge was an orthodox ruling striking out parts of a pleading that failed to articulate the elements of a reasonable cause of action coupled with an unassailable discretionary decision refusing leave to replead. To the extent that the primary judge had regard to the prospect of disproportion between the resources the claim would command and the interest at stake, her Honour did so permissibly. In my view, leave to appeal should be refused."
The judge at first instance's reasons then continued as follows, at pp 14 and 15 of the reasons for judgment:
"I come back to my earlier observation about the components of the claim totalling $265,000 and the submissions in that context. Stepping back and looking at all of this, I have come to these conclusions.
Firstly, the statement of claim frankly would be very difficult for a defendant to properly plead to. It is a series of discursive, evidentiary matters as set forth in the series of allegations made by the plaintiff to the defendant, albeit with a degree of emotional overtures, and particularly a personal nature. In respect of that I remind myself of Mr Davis' submissions about that.
There are the Family Law proceedings; whatever may arising from that I simply do not know. The statement of claim overall is bad in form; it lacks compliance with the rules when it comes to the need to state the facts, not conclusions or evidence, but the facts upon which a party relies. The statement of claim is somewhat discursive and a little disjointed here and there; that is on any fair reading of the document as I have carefully done in this particular case.
I have also drawn an irresistible inference in all of this that when it comes to any ulterior motive or a collateral purpose, the irresistible inference I have drawn here is that these proceedings have been brought for an improper purpose, a collateral purpose, and I again refer to those components totalling the amount of $265,000. I agree entirely with the submissions made by Mr Davis to that end.
The continuation of these proceedings would be tantamount to allowing an abuse of process to continue. The Court needs to be on guard to ensure that its processes are not subject to abuse. In my further view, this is a very strong case which has been brought by the defendant in the relief sought in the notice of motion and frankly, having carefully reflected on the evidence, the application for relief is irresistible."
The "submissions made by Mr Davis to that end", with which Robison DCJ said he agreed entirely, apparently included the paragraphs of the respondent's written submissions which were headed "Abuse of Process" and which were as follows:
"3. The relevant principles concerning abuse of process are contained in Williams v Spautz (1992) 174 CLR 509. It is noteworthy that the improper purpose which founds a finding of abuse of process need not be the sole purpose of a litigant. Further, proceedings may be an abuse of process, notwithstanding that a litigant appears to have a prima facie case.
4. The Defendant contends, for the reasons expressed in her supporting Affidavit, that the instant proceedings amount to an abuse of process, given their content and the parallel proceedings in the Family Law jurisdiction."
The respondent (the defendant in the District Court proceedings) referred in pars 20 to 25 of "her supporting Affidavit" to the family law proceedings and the letter from the applicant's solicitors to her solicitors in April 2020 concerning the Lilydale property and the June 2020 letter of demand and concluded at par 26:
"Therefore the total amount of damages claimed by Mr Rock was of $265,000 which is the total amount of the proceeds that I have received from the sale of the Lilydale Property and the amount that has been mentioned by [the applicant's solicitors] in relation to the Lilydale property. It seems to me that Mr Rock is trying to circumvent the Family Law Proceedings by seeking to recover the exact amount of the proceeds I received from the Lilydale Property in these proceedings."
Mr Davis's oral submissions also included the following:
"That [the fact that the amounts of the proceeds of sale mentioned in the April 2020 letter was the same as the solicitors' assessment of damages in the June 2020 letter of demand], in my submission, is the smoking gun in the sense of the true motivation behind the proceedings. What, in my submission, those letters demonstrate is that there is an identical or there is a correlation between the amount claim [sic] and the letter of demand issued prior to the commencement of these proceedings. The amount of these surplus sale proceeds of a property the subject of the Family Law proceedings, that, in my submission, would give the Court a degree of disquiet." [36]
He also submitted that the references to the children in the statement of claim were relevant to the question of whether there was a collateral purpose because they involved "a substantial degree a reference to what I might loosely describe as relationship type matters". [37]
For those reasons, Robison DCJ then made the orders set out above striking out the statement of claim.
In addition, it was also submitted on the respondent's behalf that, while the evidence of the applicant's purpose in commencing the proceedings was admissible, it was not conclusive. Further in this regard, the respondent contended that if the applicant had a mixed purpose in bringing the proceedings the test was as stated in Williams v Spautz at 537 (citing Goldsmith v Sperrings Ltd (1977) 1 WLR 478 at 503), namely: "but for his ulterior purpose, [the applicant] would not have commenced proceedings at all".
Next, the respondent drew attention to the "curious correlation" between the amount of the proceeds of sale of the Lilydale property and the amount claimed in the letter of demand of June 2020. Finally, it was submitted that the amount claimed in the letter of demand was "perversely disproportionate to the likely result to be obtained" and the judge at first instance was entitled to take that disproportionate claim into account and to draw the inferences that:
1. the applicant "wished to seek to recover the proceeds of sale of the [Lilydale] Property" and "thereafter went about justifying that claim by devising a claim for damages in that amount"; and
2. "a claim for damages of that magnitude would inform or impact any negotiations with respect to resolution of the Family Court Proceedings and that was the true purpose of the Claim, which purpose would be collateral to the proceeding."
The onus of satisfying the court that there is an abuse of process, however, lies on the party alleging it and the onus has been described as involving "a heavy threshold": Williams v Spautz at 529; Attila Boros at [25].
In the present case, the improper or collateral purpose was not clearly identified by the judge at first instance but it appeared to be that the applicant's purpose was to circumvent, or derive some advantage in, the family law proceedings by bringing the District Court proceedings. The evidence for this was apparently accepted by the judge at first instance as including the "curious correspondence" between the amount of the proceeds of sale of the Lilydale property and the amount claimed in the letter of demand, as well as the reference to the children's distress in the pleading relating to damages for trespass.
The correspondence between the amount of the proceeds of sale of the Lilydale property and the total amount said to be the solicitor's assessment of damages for the claims in the letter of demand may not have been fortuitous. Nonetheless, there was no evidence of what was in the mind of the solicitor who "assessed" the damages in sums totalling $265,000 for the purposes of the letter of demand. The letter of demand is not, however, a document which has any role to play in the pleading or determination of the applicant's District Court proceedings. Quite appropriately, the statement of claim did not include a claim for $265,000 or any other specific sum by way of damages. The amount of damages, if any, which the applicant might recover in the District Court proceedings has no logical connection with the amount of the proceeds of sale of the Lilydale property.
Further, in so far as the applicant might be successful in recovering damages in the District Court proceedings, that award of damages might constitute property in relation to which the Family Court could make an order altering the interests of the parties to the marriage, under s 79 of the Family Law Act 1975 (Cth).
There was, in addition, evidence from the applicant as to why he commenced the District Court proceedings, namely, that he was aggrieved by the respondent's conduct, in bringing the ADVO proceedings which he claimed had no basis and in entering his house, which caused him trouble, distress and expense, and he sought an award of damages by way of remedy. This was not challenged in cross examination. Such a purpose can properly be described as bringing proceedings to obtain a result for which the law provides.
In these circumstances, there is no sufficient basis for inferring from the "curious correspondence" that the applicant commenced the District Court proceedings for some improper or collateral purpose of circumventing the family law proceedings or obtaining some improper advantage involving the proceeds of sale of the Lilydale property and any orders that might be made in the family law proceedings. In this latter regard, it can be noted that there was no evidence as to the precise nature of the relief sought in the family law proceedings or the issues likely to arise in those proceedings.
As to whether the references to the children in par 25 of the statement of claim as part of the pleading of the claim for damages for trespass indicate an ulterior purpose, those references are to be understood in their context. In par 24, it is alleged that the respondent knew that her entering the property was "against the wishes of the [applicant] and would cause him distress." The particulars to that paragraph indicate in substance that: (a) the applicant's distress was, at least in part, the result of the distress caused to his children by contact with the respondent; and (b) the respondent had been informed of this. Thus, the allegations concerning the children's distress in par 25 (and the particulars provided) were part of the basis for the applicant's claim for damages for the distress suffered by him, as a result of the respondent's trespass involving contact with the children, and were also part of the basis for the claim for exemplary damages as a result of the contumelious disregard of his rights. Understood in this light, referring to the children and their distress in the pleadings does not suggest any impropriety of purpose on the part of the applicant. Nor does it support the conclusion that this aspect of the pleading was irrelevant or would cause any undue embarrassment or delay.
In short, the evidence before Robison DCJ did not rise sufficiently high to cross the high threshold of establishing that the District Court proceedings were instituted for an improper or collateral purpose. This is particularly so since the seriousness of such a conclusion required the matter to be established by more than "inexact proofs, indefinite testimony, or indirect inferences", in accordance with the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
For these reasons, in my view his Honour erred in finding that the applicant commenced the District Court proceedings for an improper purpose and that to allow them to continue would be an abuse of process.
Accordingly, I would uphold the appeal based on ground 1.1.
In these circumstances, it may not be strictly necessary to consider ground 1.2. Consequently, that ground can be dealt with briefly. The contention advanced under ground 1.2 was that the purpose for which his Honour found that the applicant had commenced the proceedings was not an improper or collateral purpose as a matter of law. As has already been noted, it was far from clear what the judge at first instance held the applicant's improper or collateral purpose to be. If the applicant's purpose in commencing the District Court proceedings was, as the respondent submitted, to recover an amount equal to the proceeds of sale of the Lilydale property or an amount of damages of such magnitude as to impact on any negotiations with respect to resolution of the family law proceedings, it does not follow that the District Court proceedings were instituted for an improper or collateral purpose. Such purposes depend on a judgment for damages being obtained in the District Court proceedings and funds being paid in satisfaction of that judgment.
Thus, those purposes could only be the applicant's ultimate purposes, dependent upon the applicant's immediate purpose of prosecuting the District Court proceedings to bring about a result for which the law provides, namely an award of damages and payment of the amount. In such a case, since the immediate purpose is not improper, the existence of ultimate purposes outside the scope of the proceedings does not constitute an abuse of process, as explained in Williams v Spautz at 526 and 537.
Accordingly, the appeal should also be upheld on the basis in ground 1.2.
For completeness, it can be observed that, in the respondent's submissions in this Court, she sought to rely on the proposition, derived from the judgment of McCallum J (as her Honour then was) in Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897 (Bleyer v Google Inc) at [62], that where the resources of the court and the parties that will have to be expended to determine a claim are out of all proportion to the interest at stake, such disproportionality can properly be regarded as a species of abuse of process. [38] As the respondent's counsel acknowledged, in Massarani v Kriz [2020] NSWCA 252, McCallum JA observed, at [5], that the decision in Bleyer v Google Inc had met with some criticism and, where it had been considered by appellate courts or superior courts at first instance, the circumstances rendered it unnecessary for the court to express a view as to its correctness.
This basis for submitting that the applicant's District Court proceedings were an abuse of process was not argued before the judge at first instance. Consequently, Robison DCJ was not asked to, and did not make, any findings as to whether there was a disproportionality between the interests at stake and the resources to be expended in the present matter, and his Honour did not consider whether, if there was a disproportionality, it was sufficient to attract the operation of the principle in Bleyer v Google Inc.
Further, there does not appear to me to be any proper basis to conclude, at this stage of the proceedings in the District Court, that the interests at stake, including but not limited to the amount of damages which might be awarded to the applicant if he were successful, are out of proportion to the resources to be expended in determining the proceedings. Thus, Bleyer v Google Inc would have no application in the present case, even if that the principle should be accepted as correct.
In all the circumstances, this is not a suitable case in which to consider the correctness of Bleyer v Google Inc. Nonetheless, it is worthwhile emphasising, as McCallum J did in that case at [63], that the primary function of a court is to determine causes properly brought before it according to law and the merits of the case. Lack of proportionality between the interest at stake in proceedings and the expense of determining the proceedings is usually addressed practically by:
1. proceedings being determined in the most appropriate court, having regard to the provisions of, and relevant considerations under, Pt 9, Divs 1 and 2, of the Civil Procedure Act, which relate to transferring proceedings between higher and lower courts; and
2. the limitations on costs orders in cases where the amount of the judgment recovered is less than the amount specified in rr 42.34 and 42.35 of the UCPR, depending on whether the proceedings are in the Supreme Court or District Court.
In addition, since malicious prosecution developed from the action on the case, actual damage is an essential element of the tort: State of New South Wales v Landini [2010] NSWCA 157 at [20]; Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552 (Smith) at 557. In Smith, Jordan CJ noted that the types of damages that might be recovered in malicious prosecution proceedings were damage occasioned by injury to reputation, damage to the person and damage to his property by being put to the expense of defending himself. This can be understood as including consequential economic and property loss that is not too remote. [40]
Paragraph 3 alleges that the respondent procured the institution of ADVO proceedings against the plaintiff. It was conceded by counsel for the respondent that it was sufficiently arguable that such proceedings fell within the kind of proceedings to which the tort applies so that this would not be ground for striking out this part of the statement of claim for failing to disclose a reasonable cause of action. [41] In light of decisions such as Li v Deng (No. 2) [2012] NSWSC 1245, the concession that the point was arguable was appropriate.
In pars 2 and 4 to 12, facts are alleged so as to plead that:
1. the respondent was so involved in the procuring the institution of the proceedings by the police officer, as a result of making false statements to the officer, that she would be liable as a defendant in a claim based on malicious prosecution;
2. the respondent acted without reasonable and probable cause in that she did not actually believe that the applicant had acted as she stated and that she did not hold the fear that she said she did;
3. the respondent acted maliciously in that the sole or dominant purpose of the defendant was a purpose other than the proper invocation of relief by way of ADVO under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
In pars 8 and 12, there appear to be minor errors as to the actual paragraph numbers intended to be referred to. It does not appear to me that these errors, by themselves, are such as to justify a conclusion that the statement of claim is defective and liable to be struck out.
Paragraph 13 contains an allegation that the proceedings were terminated in favour of the applicant in that the application for a final ADVO was dismissed.
Finally, in pars 14 to 20, there are allegation of facts supporting claims for damages for consequential economic loss, as well as aggravated and exemplary damages. While it was conceded at first instance that damages for the costs of defending the proceeding would not be available, it does not follow that economic loss by way of loss of earnings would not be recoverable. It was conceded by the respondent that such a claim would at least be arguable so that it could not be said that no reasonable cause of action was disclosed in this regard. [42]
In my view, the statement of claim in pars 2 to 20 pleads material facts as to each of the elements of the tort of malicious prosecution. The allegations are sufficiently clear that the pleading discloses the basis of the applicant's claim and the respondent is able to plead to it. Such minor defects as there are in the pleading are not such as to justify the statement of claim being struck out.
In relation to the pleading of the cause of action in trespass, the respondent accepted that all the requisite elements of a cause of action in trespass to land were pleaded in pars 21 to 23 of the statement of claim. [43]
The criticism that the pleading in par 25 concerning the distress caused to the children was irrelevant to the applicant's claim has been addressed above at [92]. In summary, the distress to the applicant referred to in par 24 was, at least in part, the result of distress caused to the children as pleaded in par 25 and contact after notification of the likely effect of such contact was relied on to establish the contumeliousness of the trespass. Consequently, the allegation in par 25 was relevant to the applicant's claims for damages as a result of the trespass. Thus, par 25 is not liable to be struck out as having a tendency to cause prejudice, delay or embarrassment.
The pleading of the cause of action in trespass in pars 21 to 25 of the statement of claim was not defective so as to warrant being struck out.
In these circumstances, the appropriate approach is to set aside Robison DCJ's orders and to order in lieu that the respondent's notice of motion be dismissed with costs.
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) (this case concerned Apprehended Violence Orders, not ADVOs, but the distinction is not material for present purposes); Li v Deng (No 2) [2012] NSWSC 1245 at [169] (Ball J).
Williams v Spautz (1992) 174 CLR 509 at 520-521, 526-527, 530 (Mason CJ, Dawson, Toohey and McHugh JJ), 535-537 (Brennan J); [1992] HCA 34 ("Spautz").
Carson v Legal Services Commissioner [2000] NSWCA 308 at [104]-[110] (Sheller JA; Giles JA agreeing), applying Spautz at 522, 524-527 (Mason CJ, Dawson, Toohey and McHugh JJ), 535-536 (Brennan J), and citing Re Majory, A Debtor; Ex parte The Debtor v F A Dumont Ltd [1955] Ch 600 at 623-624 (Lord Evershed MR for Lord Evershed MR, Jenkins and Romer LJJ); 2 WLR 1035, and further citing Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 503, 537 (Bridge LJ; Scarman LJ agreeing); 2 All ER 566.
In the Marriage of Hickey (2003) 30 Fam LR 355 at 370 [40] (Nicholson CJ, Ellis and O'Ryan JJ); [2003] FamCA 395.
(1997) 22 Fam LR 1 at 37 (Fogarty and Lindenmayer JJ); 139 FLR 118; FLC ¶92-757; [1997] FamCA 27.
(2008) 24 VR 1 at 67-68 [292]-[295] (Neave JA; Maxwell P agreeing); (2008) 40 Fam LR 378; [2008] VSCA 236.
[2012] NSWSC 373 at [164] (Macready AsJ). Although this judgment was overturned on appeal, it was on grounds unrelated to this issue, on which the appeal did not cast doubt: Cooper v Mulcahy [2013] NSWCA 160.
Kennon at 9-10 (Fogarty and Lindenmayer JJ).
See Valceski v Valceski (2007) 70 NSWLR 36 at 48 [37] (Brereton J); 36 Fam LR 620; 210 FLR 387; FLC ¶93-312; [2007] NSWSC 440.
[2008] NSWSC 914 at [63]-[64] (Brereton J), cited with approval in Bleyer at 677 [37]-[39] (McCallum J).
(1906) 4 CLR 379; [1906] HCA 83; Robinson v Balmain New Ferry Co Ltd [1910] AC 295.
[2020] NSWCA 252 at [5] (McCallum JA; Basten JA and Leeming JA agreeing).
Grizonic at [64] (Brereton J).
Tcpt, 10 December 2020, p 7 (18-24).
Tcpt, 10 December 2020, p 8 (28-31).
This proposition echoes the comment of Gaudron J in her Honour's dissenting judgment in Williams v Spautz at 555: "there is no basis for characterising a purpose as improper unless it involves a demand made without right or claim of right, or unless it entails some consequence which is unrelated to or is not proportionate with the right, interest or wrong asserted in the proceedings or by the process which is said to have been abused". (underlining added)
See for example: Tcpt, 12 July 2021, p 3(15) to p 7(46); Respondent's written submissions of 9 July 2021 pars 3.10-3.16.
R P Balkin and J L R Davis, Law of Torts (5th ed, 2013, LexisNexis Butterworths) at 714-715.
Tcpt, 12 July 2021, p 9 (39-49).
Tcpt, 12 July 2021, p 5 (28-32).
Tcpt, 12 July 2021, p 1 (28-32).
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Decision last updated: 29 July 2021
(NSW) Uniform Civil Procedure Rules 2005 ("UCPR"), r 14.28, provides:
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Although primarily directed to defective pleadings, sub-rule (1)(c) makes clear that it is also enlivened by an abuse of process, and in that respect the rule overlaps the provisions for summary dismissal in UCPR, r 13.4.
The primary judge's dispositive reasoning appears to have invoked both aspects of r 14.28 (the form of the pleading, and abuse of process), and was to the following effect:
1. the Statement of Claim was defective as a pleading. It was "bad in form" for noncompliance with the requirement of the rules of court "to state the facts, not conclusions or evidence", is "somewhat discursive and a little disjointed here and there", containing "a series of discursive, evidentiary matters as set forth in the series of allegations made by the plaintiff to the defendant, albeit with a degree of emotional overtures, and particularly of a personal nature", and "frankly would be very difficult for a defendant to properly plead to"; [1] and
2. there was "an irresistible inference" that the proceedings had been brought for the improper collateral purpose of circumventing the family law proceedings, particularly given that the claim for damages had originally been quantified, in a pre-action letter of demand, in sums totalling $265,000, an amount which was identical to the proceeds of sale of a property in Lilydale, Tasmania, which Ms Henderson had received and which was a subject of the family law proceedings. The claim was therefore an abuse of process, which the Court should be astute to prevent. [2]
It is not easy to discern from his Honour's judgment the specific defects in the pleadings which concerned him, nor the improper collateral purpose, beyond that it was to "circumvent" the family law proceedings. Mr AW Smith of counsel, who appeared for the respondent before us (but did not appear at first instance), realistically and responsibly adopted the approach of identifying for this Court the defects which he sought to sustain. At least so far as concerns the pleading points, it is convenient to proceed by addressing the suggested defects which he pressed.
In my opinion that does not apply, and was not intended to apply, in a suit for malicious prosecution. That is for a number of reasons.
First, in principle, it would seem extraordinary and counter-intuitive that a successful plaintiff in a malicious prosecution suit could not recover as damages the costs of defending the original proceedings, the incurring of which is the direct, natural, and probable consequence of the malicious bringing of those proceedings, and which is conventionally one of the heads of actionable damage required to found a claim for malicious prosecution.
Secondly, authority of this court holds that in a malicious prosecution suit such costs are recoverable as damages, even where the court in which the original proceedings were brought has no power to award costs. [12]
Thirdly, Beazley P expressly distinguished the position of a malicious prosecution suit: [13]
"[47] In this regard, proceedings for damages for the tort of wrongful arrest are to be distinguished from the damages that may be claimed for the tort of malicious prosecution where damages for the costs of defending the malicious prosecution are recognised as being recoverable: see Berry v British Transport Commission [1962] 1 QB 306. In that case, the only damage claimed in the plaintiff's suit for malicious prosecution was the difference between the costs awarded to the plaintiff in the criminal proceedings and what she had in fact incurred. The court, as a preliminary issue, dealt with the question whether the statement of claim disclosed any actionable damage. It was held the statement of claim was not demurrable.
[48] In reaching that conclusion, Devlin LJ, at 322-323, explained the rationale for the award of the costs of a malicious prosecution in a later civil suit for damages. His Lordship stated that "those costs form a legitimate item of damage in a separate cause of action flowing from a different and additional wrong", that different and additional wrong being the malicious prosecution, in which the defendant "ex hypothesi is abusing the legal process for his own malicious ends". In a case of wrongful arrest, no additional wrong is committed. The costs are incurred in a prosecution which failed. However, there is no additional wrong in the bringing and maintenance of the prosecution as occurs in the case of a malicious prosecution. This of course is another way of saying that in the former, the necessary causal connection has been satisfied, whereas it has not been satisfied where the intentional tort sued upon is wrongful arrest.
[49] Berry v British Transport Commission was considered by the New South Wales Court of Appeal in Avenhouse v Hornsby Shire Council (1988) 44 NSWLR 1, where the costs of proceedings incurred in Land and Environment Court proceedings were claimed in a subsequent negligence claim against the Council. The Court referred to the observations of Devlin LJ, which I have referred to above, and added, at 35:
"The case might be seen to be different if the now plaintiff claimed that a separate tort was involved in instigating, assisting or causing the previous proceedings and sued for damages for that tort. Such torts could be malicious prosecution, false imprisonment or conspiracy …" (Emphasis added)
However, this observation was obiter and there was no consideration of the principle discussed above."
Fourthly, Ms Henderson was not a party to the ADVO proceedings and was not amenable to a costs order, which could only have been sought against the police officer who prosecuted them. The circumstance that the conditions for obtaining a costs order against the police were not satisfied is no reason for not including defence costs in the damages which might be recoverable from Ms Henderson should she be found liable for their malicious prosecution.
As to the claim for lost earnings, it was submitted for Ms Henderson that they were not recoverable, as they did not fall within the traditional three categories, and were within the notion of "professional costs" which were irrecoverable pursuant to CDVP Act, ss 99 and 99A. I do not consider either of those propositions to be correct.
As to the first, the third traditional category is "[d]amage to a man's property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused". The phrase "as where he is forced to expend his money in necessary charges" is an example, not an exclusive description, of the damage to property that is recoverable. That it should not be read too strictly is illustrated by the judgment of Powell JA in McDonald v Coles Myer Ltd (t/as K-Mart Chatswood), describing the types of damage for which the plaintiff may be compensated in a malicious prosecution claim as follows (emphasis added): [14]
"The principal heads of damage to which regard have conventionally been had in relation to a claim for malicious prosecution are injury to the plaintiff's reputation, injury to his feelings that is for the indignity, humiliation and disgrace caused him by the fact of the charge being referred against him, pecuniary loss - as, for example, as a result of his being dismissed from his employment - and the expenses incurred in defending himself against the prosecution, or, where he has been awarded costs against the prosecutor, the amount by which the costs incurred exceeded the costs awarded. In addition, if the facts warrant it, an award of aggravated compensatory damages may be made."
The reference to loss as a result of being dismissed is likely to be sourced in Childs v Lewis, [15] which was an action for false imprisonment, but in which it was admitted that, had the action been one for malicious prosecution, the loss of the plaintiff's director's fees by reason of his forced resignation would have been recoverable. There is no difference in principle between the expenditure of funds on costs of a defence, and the loss of income which would otherwise have been earned, by reason of having to expend time on the defence. Indeed, lost income by reason of having to expend time in preparing and conducting a defence to a malicious prosecution is a more direct and proximate loss than lost income as a result of being forced to resign one's employment.
As to the second, time expended by a party personally in research and giving instructions and attending court, other than to give evidence as a witness, is not recoverable as costs. [16]
It follows that the Statement of Claim did not unarguably fail to plead a claim for damages of a kind that are actionable in a malicious prosecution suit.
Grizonic was decided in the special context of the taking of accounts, and involved not mere disproportionality, but an accumulation of factors: [35]
"This is a case in which the complexity and cost - not only to the parties but to the court - of the litigation, the difficulties which beset it, the prima facie state of the accounts established by Mr Hogden's affidavit, the apparent inutility of the proceedings, and the repeated failure of Mr Grizonic to pursue them in a manner which could facilitate their resolution, combine to make it one which ought not be permitted to proceed any further [cf Schellenberg v British Broadcasting Corporation [2000] EMLR 296; Wallis v Valentine [2002] EWCA Civ 1034 ; [2003] EMLR 8; Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 ; [2005] QB 946, [67]-[76]]."
In any event, the point was not raised at first instance, was not one on which the primary judge relied, and without a Notice of Contention can provide no basis for upholding the primary's finding of abuse of process.