Legal Research
Cases
Edwards v Edwards

Edwards v Edwards

Case [2013] NSWDC 56 6 May 2013

Interlocutory Orders

Summary Judgment

Costs

Civil Litigation & Procedure

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: Edwards v Edwards [2013] NSWDC 56
Hearing dates: 6 May 2013
Decision date: 06 May 2013
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The defendant/cross-claimant's Notices of Motion of 10 and 30 April 2013 struck out and dismissed.
(2) Plaintiff/cross-defendants' Notice of Motion of 5 April 2013 granted; cross-claim struck out, with leave to the defendant/cross-claimant to file and serve the amended cross-claim in 21 days (27 May 2013).
(3) The plaintiff/cross-defendants are at liberty to bring a fresh Notice of Motion to strike out the amended cross-claim or for summary judgment, to be returnable in the Newcastle District Court sittings commencing on 12 August 2013.
(4) If no Notice of Motion seeking such relief by the plaintiff/cross-defendants is filed within 28 days of service, the plaintiff/cross-defendants are to file a defence to the amended cross-claim within 28 days of service (24 June 2013 or such later date as may amount to 28 days after service of the amended cross-claim).
(5) These proceedings stood over for further directions (including the hearing of any fresh application by the plaintiff/cross-defendants to strike out the amended cross-claim) to the Newcastle District Court sittings commencing on 12 August 2013 and, if possible, the allocation of a hearing date.
(6) The defendant/cross-claimant is to pay the plaintiff/cross-defendants' costs of all three Notices of Motion.

Catchwords: INTERLOCUTORY APPLICATIONS - plaintiff and cross-claimant seek summary dismissal of pleadings - test for summary dismissal - whether claim for malicious prosecution restricted to criminal proceedings
Legislation Cited: Crimes (Domestic and Personal) Violence Act 2007, s 15
Residential Tenancies Act 2010 (NSW)
Uncollected Goods Act 1995 (NSW), ss 5, 9 and 18
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28 and 15.1
Cases Cited: A v State of New South Wales & Anor (2007) 233 ALR 584
Agar v Hyde (2000) 201 CLR 552
Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307
Butler v Simmonds Crowley & Galvin (Solicitors) (Queensland Supreme Court, Chesterman J, 8 October 1998)
Chapel Road Pty Ltd v Australian Securities and Investments Commission (ASIC) (2006) 203 FLR 322
Coleman v Buckingham's Ltd [1964] NSWR 363
Fenn v Paul (1932) SR (NSW) 315
Fuller v Toms [2012] FCA 27
Gregory v Portsmouth City Council [2000] 1 AC 419
Hanrahan v Ainsworth (1985) 1 NSWLR 370
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Jervois Sulphates (NT) Ltd v Petrocarb Explorations NL (1974) 5 ALR 1
John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512
Kable v State of NSW (2010) 203 A Crim R 66
Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd (2010) 11 DCLR (NSW) 192
Little v Law Institute of Victoria (No 3) [1990] VR 257
Martin v Watson [1996] AC 74
Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391
Noyce v Robbins [2007] WASC 98
QIW v Feldview [1989] 2 Qd R 245
Texts Cited: N M Garoupa &…

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 Edwards v Edwards

Details

AGLC: Edwards v Edwards [2013] NSWDC 56
Case: [2013] NSWDC 56
Decision Date: 06 May 2013

CaseChat Overview and Summary

The matter before the court involved an application for summary dismissal of pleadings between the parties, Edwards and Edwards. The plaintiff sought to dismiss the defendant's cross-claim, arguing that the claim for malicious prosecution was restricted to criminal proceedings only. The court was required to determine the appropriate test for summary dismissal and whether the claim for malicious prosecution was limited to criminal proceedings.

The court considered the test for summary dismissal, which requires the plaintiff to demonstrate that the defendant has no reasonable prospect of successfully defending the claim. The court also examined whether the claim for malicious prosecution was limited to criminal proceedings. The court found that the test for summary dismissal was not met, and that the claim for malicious prosecution was not restricted to criminal proceedings.

The court struck out and dismissed the defendant's notices of motion dated 10 and 30 April 2013, and granted the plaintiff/cross-defendants' notice of motion dated 5 April 2013. The cross-claim was struck out, but the defendant/cross-claimant was given leave to file and serve an amended cross-claim within 21 days. The plaintiff/cross-defendants were granted liberty to bring a fresh notice of motion to strike out the amended cross-claim or for summary judgment, to be returnable in the Newcastle District Court sittings commencing on 12 August 2013. If no such notice of motion was filed within 28 days of service, the plaintiff/cross-defendants were required to file a defence to the amended cross-claim within 28 days of service. The proceedings were stood over for further directions, including the hearing of any fresh application by the plaintiff/cross-defendants to strike out the amended cross-claim, to the Newcastle District Court sittings commencing on 12 August 2013, and, if possible, the allocation of a hearing date. The defendant/cross-claimant was ordered to pay the plaintiff/cross-defendants' costs of all three notices of motion.

Orders

Orders of the court

(1) The defendant/cross-claimant's Notices of Motion of 10 and 30 April 2013 struck out and dismissed.

(2) Plaintiff/cross-defendants' Notice of Motion of 5 April 2013 granted; cross-claim struck out, with leave to the defendant/cross-claimant to file and serve the amended cross-claim in 21 days (27 May 2013).

(3) The plaintiff/cross-defendants are at liberty to bring a fresh Notice of Motion to strike out the amended cross-claim or for summary judgment, to be returnable in the Newcastle District Court sittings commencing on 12 August 2013.

(4) If no Notice of Motion seeking such relief by the plaintiff/cross-defendants is filed within 28 days of service, the plaintiff/cross-defendants are to file a defence to the amended cross-claim within 28 days of service (24 June 2013 or such later date as may amount to 28 days after service of the amended cross-claim).

(5) These proceedings stood over for further directions (including the hearing of any fresh application by the plaintiff/cross-defendants to strike out the amended cross-claim) to the Newcastle District Court sittings commencing on 12 August 2013 and, if possible, the allocation of a hearing date.

(6) The defendant/cross-claimant is to pay the plaintiff/cross-defendants' costs of all three Notices of Motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Edwards v Edwards [2013] NSWDC 56

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Fuller v Toms
[2012] FCA 27 Para 1

…ailable for civil proceedings. These principles have been followed at first instance, most recently in the Federal Court of Australia ( Fuller v Toms [2012] FCA 27 at [78]) and in the Western Australian Supreme Court ( Noyce v Robbins [2007] WASC 98 at [221]-[229]). The weight of this authority should be suffici…
Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd
[2010] NSWDC 232 Para 1

…us prosecution "and that the development of the law should not be stifled at an interlocutory stage", a statement cited with approval and followed in Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd (2010) 11 DCLR (NSW) 192. Neither of these decisions refer to Fenn v Paul , supra ; Coleman v Buckingham's Ltd , supra , or Hanrahan v Ainsworth , supra ; b…
Kable v State of New South Wales
[2010] NSWSC 811

…WLR 73 Jervois Sulphates (NT) Ltd v Petrocarb Explorations NL (1974) 5 ALR 1 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 Kable v State of NSW (2010) 203 A Crim R 66 Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd (2010) 11 DCLR (NSW) 192 Little v Law Institute of Victoria (No 3) [1990] VR…
Noye v Robbins
[2007] WASC 98 Para 1

…most recently in the Federal Court of Australia ( Fuller v Toms [2012] FCA 27 at [78]) and in the Western Australian Supreme Court ( Noyce v Robbins [2007] WASC 98 at [221]-[229]). The weight of this authority should be sufficient for any court to be able to dismiss summarily a claim for malicious prosecution un…
A v New South Wales
[2007] HCA 10 Para 1

…claim for malicious prosecution of civil proceedings, there is a potential ambiguity in the opening paragraph of A v State of New South Wales & Anor (2007) 233 ALR 584 at [1]. Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ state that the requirements include that:…
Chapel Road v Australian Securities and Investments Commission
[2006] NSWSC 1014 Para 1

…ious prosecution did fail, however, on other grounds.) Harrison AsJ, in Chapel Road Pty Ltd v Australian Securities and Investments Commission (ASIC) (2006) 203 FLR 322 at [67] went further, stating that there had been "considerable criticism" of the current boundaries of the tort of malicious prosecution "and that t…
John Fairfax Publications Pty Ltd v Ryde Local Court
[2005] NSWCA 101 Para 1

…The nature of apprehended violence orders was explained in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512, where Spigelman CJ stated at [20] (referring to the repealed Pt 15A Crimes Act 1900):…
Tan v Benkovic
[2000] NSWCA 295 Para 1

…cation of the Law Institute of Victoria. (The malicious prosecution plea nevertheless was rejected, but for other reasons.) In Jervois Sulphates (NT) Ltd v Petrocarb Explorations NL (1974) 5 ALR 1 Foster J held such a claim was available in relation to an injunction preventing mining leases.…
Agar v Hyde
[2000] HCA 41 Para 1

…ous, where there is no reasonable cause of action or defence, or where the proceedings are an abuse of the court. The test is a high one: Agar v Hyde (2000) 201 CLR 552 at [57]. In Agar v Hyde, Gaudron, McHugh, Gummow and Hayne JJ stated that ordinarily a party is not to be denied the opportunity to place his or her…
Hanrahan v Ainsworth
[1991] NSWCA 141 Para 1

…per pleading for a claim for damages for the tort of abuse of process is set out in detail in the learned judgments of Hunt J in Hanrahan v Ainsworth (1985) 1 NSWLR 370 and of Clarke JA in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 107 - 120. The cross-claimant has totally failed to set out his claim in accordance wi…
[1996] AC 74
[1996] AC 74

…horn v HKAC Asset Management Services (AFFL) Pty Ltd (2010) 11 DCLR (NSW) 192 Little v Law Institute of Victoria (No 3) [1990] VR 257 Martin v Watson [1996] AC 74 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 Noyce v Robbins [2007] WASC 98 QIW v Feldview [1989] 2 Qd R 245 Texts Cited:…
[2000] 1 AC 419
[2000] 1 AC 419 Para 1

…nsland Court of Appeal ( Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307 at [14]) and the House of Lords ( Gregory v Portsmouth City Council [2000] 1 AC 419) have held that the tort of malicious prosecution is not available for civil proceedings. These principles have been followed at first instance, most…
[1990] 1 QB 391
[1990] 1 QB 391 Para 1

…ses outside Australia are more difficult to find, but one example from the United Kingdom is Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 470-472, where a novel claim of "malicious institution of civil proceedings" survived a strike-out application.…

Legislation cited in this decision · 8

Uncollected Goods Act 1995 (NSW)
18, 5, 9 4 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
13.4, 14.28, 15.1 3 mentions (from Para 1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
15 2 mentions
Civil Procedure Act 2005 (NSW)
1 mention
Community Protection Act 1994 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Legal Profession Act 2004 (Vic)
1 mention
Residential Tenancies Act 2010 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Edwards v Edwards [2013] NSWDC 56
Hearing dates:	6 May 2013
Decision date:	06 May 2013
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The defendant/cross-claimant's Notices of Motion of 10 and 30 April 2013 struck out and dismissed. (2) Plaintiff/cross-defendants' Notice of Motion of 5 April 2013 granted; cross-claim struck out, with leave to the defendant/cross-claimant to file and serve the amended cross-claim in 21 days (27 May 2013). (3) The plaintiff/cross-defendants are at liberty to bring a fresh Notice of Motion to strike out the amended cross-claim or for summary judgment, to be returnable in the Newcastle District Court sittings commencing on 12 August 2013. (4) If no Notice of Motion seeking such relief by the plaintiff/cross-defendants is filed within 28 days of service, the plaintiff/cross-defendants are to file a defence to the amended cross-claim within 28 days of service (24 June 2013 or such later date as may amount to 28 days after service of the amended cross-claim). (5) These proceedings stood over for further directions (including the hearing of any fresh application by the plaintiff/cross-defendants to strike out the amended cross-claim) to the Newcastle District Court sittings commencing on 12 August 2013 and, if possible, the allocation of a hearing date. (6) The defendant/cross-claimant is to pay the plaintiff/cross-defendants' costs of all three Notices of Motion.
Catchwords:	INTERLOCUTORY APPLICATIONS - plaintiff and cross-claimant seek summary dismissal of pleadings - test for summary dismissal - whether claim for malicious prosecution restricted to criminal proceedings
Legislation Cited:	Crimes (Domestic and Personal) Violence Act 2007, s 15 Residential Tenancies Act 2010 (NSW) Uncollected Goods Act 1995 (NSW), ss 5, 9 and 18 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28 and 15.1
Cases Cited:	A v State of New South Wales & Anor (2007) 233 ALR 584 Agar v Hyde (2000) 201 CLR 552 Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307 Butler v Simmonds Crowley & Galvin (Solicitors) (Queensland Supreme Court, Chesterman J, 8 October 1998) Chapel Road Pty Ltd v Australian Securities and Investments Commission (ASIC) (2006) 203 FLR 322 Coleman v Buckingham's Ltd [1964] NSWR 363 Fenn v Paul (1932) SR (NSW) 315 Fuller v Toms [2012] FCA 27 Gregory v Portsmouth City Council [2000] 1 AC 419 Hanrahan v Ainsworth (1985) 1 NSWLR 370 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Jervois Sulphates (NT) Ltd v Petrocarb Explorations NL (1974) 5 ALR 1 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 Kable v State of NSW (2010) 203 A Crim R 66 Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd (2010) 11 DCLR (NSW) 192 Little v Law Institute of Victoria (No 3) [1990] VR 257 Martin v Watson [1996] AC 74 Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 Noyce v Robbins [2007] WASC 98 QIW v Feldview [1989] 2 Qd R 245
Texts Cited:	N M Garoupa &…