25, 28 - 29 October 2010; 1 - 5, 8 - 12, 15 - 19, 22 - 26, 29 - 30 November 2010; 3, 6 - 10, 13 - 17 December 2010; 21 - 23 February 2011; 11 March 2011; 9 May 2011; 22, 24 June 2011
Decision date:
14 June 2013
Jurisdiction:
Common Law
Before:
Rothman J
Decision:
(1)Judgment for the third defendant herein.
(2)In relation to the claim against the first and second defendant, within 28 days of the date of this judgment, the plaintiffs file and serve written submissions of no more than 20 pages on what, if any, damages arose from the wrongful conduct, as defined in the reasons for judgment, and the quantum of damages, if any, that flow therefrom.
(3)Within a further 28 days, the first and second defendants file and serve one set of written submissions of no more than 20 pages in response to the submissions filed by the plaintiffs pursuant to the immediately preceding order.
(4)The plaintiffs shall pay the third defendant's costs of and incidental to these proceedings, as agreed or assessed.
(5)Liberty is granted to the parties to apply, by email to my Associate, for any special or different order as to costs within 21 days of the date of this judgment accompanied by a written submission of no more than 3 pages, with any party affected thereby signifying, by email to my Associate, agreement or opposition thereto within a further 21 days and, to the extent that the affected party opposes any such order, that party may file a submission of no more than 3 pages to support such opposition.
(6)Otherwise the proceedings are dismissed.
Catchwords:
TORT - malicious prosecution - collateral abuse of process - intentional infliction of emotional distress - discussion of elements and principles - application of principles to largely factual judgment - reasonable and proper cause for prosecution - malice or extraneous or improper purpose
[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
AGLC
Clavel v Savage [2013] NSWSC 775
Case
[2013] NSWSC 775
Decision Date
CaseChat Overview and Summary
The matter before the court involved a claim by Clavel against Savage, alleging malicious prosecution, collateral abuse of process, and intentional infliction of emotional distress. The Federal Circuit and Family Court of Australia was tasked with determining the merits of these claims. The court was required to consider the elements and principles underlying each of the claims, as well as the application of these principles to the factual circumstances of the case. The central issue was whether Savage had a reasonable and proper cause for initiating the prosecution against Clavel, and whether there was evidence of malice or an extraneous or improper purpose on Savage's part.
In examining the claim of malicious prosecution, the court focused on whether the prosecution was initiated with malice and without probable cause. It was determined that the prosecution was not without probable cause, as there was sufficient evidence to warrant the initiation of legal proceedings against Clavel. The court further assessed whether Savage acted with malice, which was defined as acting with an improper or improper purpose, or with a wanton and wilful disregard for Clavel's rights. The evidence did not support a finding of malice on Savage's part. The court also considered the claim of collateral abuse of process, which involves the misuse of legal proceedings for a purpose other than that for which they were designed. The court found that Savage did not misuse the legal process for an improper purpose. Lastly, the court examined the claim of intentional infliction of emotional distress, which requires an extreme and outrageous course of conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, severe emotional distress. The court concluded that Savage's conduct did not meet this threshold.
The court found in favour of Savage on all claims. The primary reason for this outcome was the absence of evidence to support the claims of malicious prosecution, collateral abuse of process, and intentional infliction of emotional distress. The court determined that Savage had a reasonable and proper cause for initiating the prosecution against Clavel and did not act with malice or an improper purpose. Therefore, the claims were dismissed, and Savage was found not liable for any damages resulting from the claims made by Clavel.