Ford v Nagle

[2004] NSWCA 33

CITATION:	FORD v NAGLE & ORS [2004] NSWCA 33
HEARING DATE(S):	9 February 2004
JUDGMENT DATE:	26 February 2004
JUDGMENT OF:	Mason P at 1; Handley JA at 34; McColl JA at 35
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	SUMMARY DISMISSAL - evidentiary deficiency - whether commencement of proceedings an abuse of process or civil conspiracy - whether triable issue - whether evidentiary foundations required before allegations raised - relevance of position where fraud is alleged - one of several defendants seeking summary dismissal (ND)
PARTIES :	Christopher FORD v Peter Richard NAGLE & 2 Ors
FILE NUMBER(S):	CA 40110/03
COUNSEL:	Appellant: C E Adamson SC/ T Jowett 1st Respondent: D E Baran 2nd and 3rd Respondents: Submitting appearance
SOLICITORS:	Appellant: Phillips Fox 1st Respondent: Barclay Benson 2nd Respondent: Etheringtons 3rd Respondent: Bartier Perry

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6487/99
LOWER COURT JUDICIAL OFFICER :	Walmsley DCJ

CA 40110/03
DC 6487/99

MASON P
HANDLEY JA
McCOLL JA

Thursday 26 February 2003

Christopher FORD v Peter Richard NAGLE

BACKGROUND

The appellant is a solicitor who, together with the second and third respondents, has been sued in the District Court for damages for conspiracy to injure Mr Nagle (the first respondent), who was the member for Auburn in the Legislative Assembly of New South Wales.

The second respondent, Ms Frost, had worked for Mr Nagle as his electoral secretary between 1988 and 1998. In February 1999, Ms Frost commenced proceedings in the Industrial Relations Commission of New South Wales seeking retrospective variation of her employment contract on grounds that it was or had become harsh, unconscionable and contrary to the public interest. An affidavit was sworn by Ms Frost in support of her application to the Commission. Included among the various details about the commencement and termination of her employment was material which, if published, was very likely to cause embarrassment to Mr Nagle as a Member of Parliament. Such headings in the affidavit included “Mr Nagle’s drinking and personal problems” and “Corrupt and illegal activities by Mr Nagle”.

Mr Nagle brought proceedings in the District Court asserting that the commencement of the proceedings in the Commission were overt acts in a conspiracy between Ms Frost, the appellant and the third respondent (Ms Frost’s barrister), intended to injure Mr Nagle and his political ambitions.

The appellant brought an application for summary dismissal of the District Court proceedings.

The application was dismissed by Walmsley DCJ. The Judge held that, although Mr Nagle’s case was weak, the principle in Wickstead v Brown (1992) 30 NSWLR 1 required that his Honour assume that Mr Nagle might remedy his evidentiary deficiencies by reason that one or both of the first and second defendants might go into evidence at the hearing. The Judge rejected the appellant’s submission that Clyne v New South Wales Bar Association (1960) 104 CLR 186 created a relevant exception to the Wickstead principle.

The appellant appealed to this court.

HELD: per Mason P dismissing the appeal (Handley and McColl…