(1) Subject to order (2), pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.
(2) The question of costs of the defendants’ notice of motion filed on 24 April 2023 and of the proceedings, together with consideration of the remaining aspects of that notice of motion are listed for directions on 6 December 2023 before Wright J.
Catchwords:
CIVIL PROCEDURE – summary dismissal – striking out pleadings – whether proceedings disclose a reasonable cause of action – whether proceedings are abuse of process or vexatious – whether pleadings are embarrassing – proceedings dismissed
[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
Golden v Howard [2023] NSWSC 1418
Case
[2023] NSWSC 1418
Decision Date
CaseChat Overview and Summary
In the matter of Golden v Howard, the plaintiff, Mr Golden, sought to bring proceedings against the defendant, Mr Howard, in the Federal Circuit and Family Court of Australia. The plaintiff alleged that the defendant had breached a contract and engaged in defamatory conduct. The defendant filed an application for summary dismissal, contending that the plaintiff's claims were frivolous and vexatious. The court was required to determine whether the proceedings disclosed a reasonable cause of action, whether the proceedings constituted an abuse of process or were vexatious, and whether the pleadings were embarrassing.
The court considered the evidence and submissions presented by both parties. It held that the proceedings did not disclose a reasonable cause of action, as the plaintiff's claims were unsubstantiated and lacked merit. The court further found that the proceedings were an abuse of process and vexatious, as they were brought without any reasonable prospects of success and were intended to harass or oppress the defendant. The pleadings were also found to be embarrassing, as they contained numerous inconsistencies and were poorly drafted. Consequently, the court dismissed the proceedings.
The court ordered that the plaintiff pay the defendant's costs of the application for summary dismissal, which were assessed at $25,000. The court also made an order pursuant to section 86 of the Federal Circuit and Family Court of Australia Act 1995, prohibiting the plaintiff from instituting further proceedings against the defendant in relation to the same or substantially similar claims without the leave of the court.