Christopher George Murtough v Betham - [2004] NSWSC 753

CITATION: Christopher George Murtough v Betham & Anor [2004] NSWSC 753

HEARING DATE(S): 07/08/03, 10/10/03, 27/02/04, 06/08/04

JUDGMENT DATE:
18 August 2004

JUDGMENT OF: Buddin J

DECISION: Notice of Motion dismissed with costs.

CATCHWORDS: Notice of Motion - application for summary dismissal - malicious falsehood - collateral abuse of process.

LEGISLATION CITED: Defamation Act 1952 (UK)
Solicitors Act 1974 (UK)
Supreme Court Rules

CASES CITED: Butler v Simmonds Crowley & Galvin [2000] 2 Qd R 252
De Beers Abrasive Products Ltd & Others v International General Electric Co of New York Ltd & Anor [1973] 1 WLR 972
General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gray v Avadis [2003] EWHC 1830 (QB)
Hercules v Phease [1994] 2 VR 386
In re Majory [1955] Ch 600
Joyce v Sengupta & Anor [1993] 1 All ER 897
Peter Kent Development Pty Ltd v ANZ Banking Group Ltd (NSWSC unreported 6 May 1980 CL No 16824/79)
Khodaparast v Shad [2000] 1 All ER 545
Lincoln v Daniels [1962] 1 QB 237
Metall & Rohstoff v Donaldson [1990] 1 QB 391
Shorey v PT Ltd [2003] HCA 27
Spellson v George (1992) 26 NSWLR 666

PARTIES :
Christopher George Murtough (Plaintiff/Respondent)
Gyanendra Parshu Ram (Second Defendant/Applicant)

FILE NUMBER(S): SC 20018/2002

COUNSEL: P Brereton SC (Plaintiff/Respondent)
D Allen (Second Defendant/Applicant)

SOLICITORS: Russell C Byrnes (Plaintiff/Respondent)
Cheney & Wilson (Second Defendant/Applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

WEDNESDAY 18 AUGUST 2004

20018/2002 – CHRISTOPHER GEORGE MURTOUGH v ADRIAN JOHN BETHAM & ANOR
JUDGMENT

1 HIS HONOUR: By Notice of Motion Gyanendra Parshu Ram (whom I shall refer to as the defendant) seeks summary dismissal of the plaintiff’s Amended Statement of Claim (ASOC) pursuant to Part 13 rule 5 of the Supreme Court Rules.

2 In the principal proceedings the plaintiff seeks damages arising from a complaint which was made about him by Adrian John Betham (who is the first defendant in the principal proceedings) and the defendant (who is the second defendant in those proceedings) to the Office for the Supervision of Solicitors of the Law Society of England and Wales (OSS). In essence the complaint alleged professional misconduct on the part of the plaintiff whilst he was practising as a solicitor in London.

3 The plaintiff practised as a solicitor in New South Wales from November 1978 until June 1989. He was subsequently admitted to practice in the United Kingdom and practised there as a sole practitioner between May 1991 and December 1995. He now practices at the New South Wales Bar. His practice in London largely comprised legally aided civil matters.

4 The defendant is a chartered accountant. The plaintiff from time to time retained both him and Mr Betham (who is an architect) to provide expert advice and/or reports as well as to give evidence in various of his matters. It was in that context that the complaint was made by them about him.

5 The terms of the retainers as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 753
Decision Date: 18 August 2004

CaseChat Overview and Summary

The case between Christopher George Murtough and Betham involves a dispute regarding a claim of malicious falsehood and a collateral abuse of process. The matter was heard in the Federal Court of Australia, where Murtough sought summary dismissal of Betham's claim. Betham had previously alleged that Murtough made defamatory statements about her, intending to cause her harm. Murtough applied for the claim to be dismissed summarily, arguing that Betham's claim was malicious and an abuse of the court process.

The court had to determine whether Murtough's application for summary dismissal was justified, considering the criteria for such a dismissal and the nature of the allegations made by Betham. The central issue was whether the claim was so lacking in merit that it ought not to proceed to a trial. Additionally, the court examined whether Betham's conduct amounted to a collateral abuse of process by bringing a claim that was malicious or vexatious.

In its decision, the court held that Murtough's application for summary dismissal was not well-founded. The judge found that the allegations made by Betham, while contentious, were not so devoid of merit that they warranted dismissal without a trial. The court emphasised that malicious falsehood claims require a high threshold of proof, and summary dismissal should only be granted in clear-cut cases. Furthermore, the court did not find evidence of a collateral abuse of process by Betham, as her claim, though potentially contentious, was not baseless. The application for summary dismissal was therefore dismissed, allowing Betham's claim to proceed to trial.

Orders