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Ea v Diaconu

Ea v Diaconu

Case [2019] NSWSC 795 3 July 2019

Summary Judgment

Dismissal of Proceedings

Limitation Periods

Misfeasance in Public Office

Malicious Prosecution

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ea v Diaconu [2019] NSWSC 795
Hearing dates: 7 June 2019
Decision date: 03 July 2019
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
1. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are summarily dismissed.
2. The Plaintiff is to pay the Defendants’ costs of this application and of the proceedings.

Catchwords: CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed – fundamentally flawed case – defects and deficiencies in pleadings – allegation of misfeasance in public office – absence of allegations that establish elements of the tort – failure to identify any public power or duty, or to plead any casually linked actual temporal loss – allegation of malicious prosecution – failure to plead relevant facts to show that first defendant instigated or maintained proceedings, to identify any person to whom elements of tort can be imputed, or plead facts to establish factual basis for absence of reasonable and probable case – discretion to re-plead refused – plaintiff’s failure to re-plead case despite opportunity indicative of appreciation of lack of viability of claim
Legislation Cited: Australian Citizenship Act 2007 (Cth), s 25
Australian Federal Police Act 1979 (Cth), ss 4(1), 8(1)(b)(i)
Criminal Code (Cth), ss 270.6(2), 271.2(1B)
Migration Act 1958 (Cth), ss 245AC(1), 245AC(2)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(a), 13.4(1)(b), 14.28(1)(a), 14.28(1)(b), 15.4
Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Bailey v Director General, Department of Natural Resources [2014] NSWSC 1012
Clark v State of New South Wales [2016] NSWSC 808
Clarke v State of New South Wales (No 4) [2015] NSWSC 1054
Edward Moses Obeid Snr v David Andrew Ipp [2016] NSWSC 1376; (2016) 338 ALR 234
Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32
Golden v Littleproud [2019] NSWSC 120
Grass v Slattery [2018] FCA 1719
Kazal v Independent Commission Against Corruption [2019] NSWSC 556
Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90
Leinenga v Logan City Council [2006] QSC 294
Lock v Australian Securities and Investments Commission (2016) 248 FCR 547; [2016] FCA 31
McGuirk v The University of NSW [2009] NSWSC 1424
Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59
Obeid v Lockley [2018] NSWCA 71; (2018) 355 ALR 615
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Sahade v Bischoff [2015] NSWCA 418
Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64
Shaw v New South Wales [2012] NSWCA 102
Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
State of New South Wales…

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.

Continue reading Ea v Diaconu

Details

AGLC: Ea v Diaconu [2019] NSWSC 795
Case: [2019] NSWSC 795
Decision Date: 03 July 2019

CaseChat Overview and Summary

In the Federal Court of Australia, Ea brought an action against Diaconu, the Chief Commissioner of Police of New South Wales. Ea sought damages for misfeasance in public office and malicious prosecution. The court was tasked with determining whether the plaintiff's claims disclosed a reasonable cause of action, and if not, whether the plaintiff should be granted leave to amend the pleadings.

The court considered the legal sufficiency of Ea's claims, particularly whether the allegations were sufficient to establish the elements of the torts of misfeasance in public office and malicious prosecution. The court found that the plaintiff's pleadings were fundamentally flawed and did not disclose any reasonable cause of action. The plaintiff failed to identify any public power or duty, or to plead any causally linked actual temporal loss in the misfeasance claim. Similarly, in the malicious prosecution claim, Ea did not allege facts to show that the first defendant instigated or maintained the proceedings, failed to identify any person to whom the elements of the tort could be imputed, and did not plead facts to establish a factual basis for the absence of a reasonable and probable case.

After considering the plaintiff's failure to re-plead the case despite being given an opportunity to do so, the court concluded that the plaintiff appreciated the lack of viability of the claim. The court dismissed the proceedings without leave to amend the pleadings. The Federal Court found that the plaintiff's claims were fundamentally flawed and did not disclose a reasonable cause of action. The court's decision emphasised the importance of pleadings being legally sufficient and the plaintiff's responsibility to ensure that their claims are viable before proceeding with litigation.

Orders