Kadeh v Gill

KADEH v GILL & ORS
[2000] SASC 367

Full Court: Doyle CJ, Williams & Wicks JJ

1................ DOYLE CJ....... The appellant, Mr Kadeh, appeals against an order made by a Judge of the District Court entering a summary judgment in favour of Ms Olsson, the defendant in an action brought by Mr Kadeh against Ms Olsson. Ms Olsson was one of five defendants in the action. I assume that the action against the other defendants is proceeding.

For the purposes of the appeal it suffices to focus on Mr Kadeh’s claims and allegations against Ms Olsson. However, along the way I will identify the other defendants in the action.

Facts

The facts relevant to the appeal are largely uncontroversial. There are some matters which, if Mr Kadeh’s claim proceeds to trial, will be disputed, and the inferences to be drawn from some of the matters not in dispute will also be disputed. However, for present purposes it is not necessary to deal with those disputed matters. The appeal can be disposed of on the basis of matters which are, I consider, uncontroversial. The outline of the facts that follows is drawn from Mr Kadeh’s Statement of Claim in the District Court, and at times from affidavits that were before the Judge. I will indicate when I am drawing on affidavits, as distinct from Mr Kadeh’s Statement of Claim.
Mr Kadeh is the registered lessee of premises at Semaphore, at which premises he sells fish and chips. Mr and Mrs Gill (“the Gills”) became the registered proprietors of the property. The term of the lease was to expire on 29 October 1997, but Mr Kadeh had two rights of renewal.
On 24 May 1997, after earlier written notice of their intention to do so, the Gills purported to terminate the lease on the grounds that certain provisions of the lease were rendered void by virtue of s 22(3) of the Retail and Commercial Leases Act 1995 (SA), and that the Gills were entitled to terminate the lease having given one month’s notice in writing of their intention to do so. An affidavit sworn by Ms Olsson states that the firm of Mellor Olsson, in which firm she is a partner, was advising the Gills from April 1997 in relation to Mr Kadeh. Ms Olsson was involved in advising them.
Mr Kadeh resisted the claim by the Gills to take possession of the premises from him. He instituted proceedings in the Civil Division of the Magistrates Court at Port Adelaide on 23 May 1997. These proceedings were issued on his behalf by a solicitor, Mr Patsouris. In the proceedings he claimed an order under s 68 of the Retail and Commercial Leases Act 1995 (SA).
On 6 June 1997 the Gills gave notice to Mr Kadeh that they had re‑entered the premises at Semaphore, relying upon their earlier purported termination of the lease.
Mr Kadeh’s civil action against the Gills came on for hearing in the Magistrates Court at Port Adelaide on 24 July 1997. Mr Kadeh was represented by Mr Patsouris, a solicitor. Mr Kadeh pleads that acting on his solicitor’s advice, he signed “a document purporting to be an agreement between the Gills and the plaintiff ... in reference to the matters in dispute.” The terms or effect of the agreement are not pleaded, although one can infer that it disposed of Mr Kadeh’s claim against the Gills. An affidavit before the Judge in the District Court proceedings established that by the agreement he agreed to deliver up vacant possession of the whole of the land at Semaphore on 1 August 1997; he agreed to accept the sum of $38,000 in full settlement of all claims against the Gills; he agreed to submit to a mandatory injunction to deliver up vacant possession of the premises at Semaphore in the event that he failed to perform certain specified obligations under the agreement; and he consented unconditionally to an injunction restraining him, broadly, from approaching the Gills, from disturbing them in any way, and from approaching or entering their property. The injunction to which he agreed to submit is expressed much more widely than that, but for present purposes I consider that this summary suffices.
The affidavits before the District Court Judge also establish that on 24 July 1997 the Magistrate, by consent, made orders in terms of the agreement, which agreement was placed in a sealed envelope signed by the Magistrate.
It was also established by affidavits that by letter dated 29 July 1997, written by Carabelas & Co, that same firm of solicitors informed Mellor Olsson that they were then acting for Mr Kadeh. The letter denied that Mr Kadeh was bound by the agreement that he had signed. The letter gave notice of Mr Kadeh’s intention to renew the lease. It also stated:
“The central part of our client’s instructions presently are that the document was signed under extreme mental, psychological and circumstantial pressure to the extent that the same should not be allowed to stand and if necessary will be sought to be set aside by reference to the appropriate Court unless the matter is resolved.”
On the same day Mellor Olsson had written to Patsouris & Associates alleging that Mr Kadeh had broken the agreement of 24 July 1997 by “interfering with the peace, order and good comfort of the Gills and their employees” and “by entering the surgery occupied by the Gills and their employees”. (The surgery referred to is apparently occupied by Mr Gill.) Referring, presumably, to the agreement of 24 July 1997, it called upon Mr Kadeh to deliver up vacant possession on 1 August 1997. A copy of that letter was sent to Carabelas & Co on 30 July 1997. The covering letter denied that Mr Kadeh had any right to set aside the agreement of 24 July 1997. The claim in the letter of 29 July 1997, that Mr Kadeh was in breach of the agreement, does not appear to have been denied in correspondence.
By letter dated 1 August 1997, sent to Mellor Olsson, Carabelas & Co said that Mr Kadeh would issue proceedings asserting a continued right to occupy the premises, raising the validity of the agreement and seeking related orders. This letter confirmed that a cheque in payment of rent for the premises for the month of August had been forwarded.
On 1 August 1997 Mellor Olsson, through Ms Olsson, issued proceedings out of the Magistrates Court at Port Adelaide against Mr Kadeh. The complainant in the proceedings was Mrs Gill. She claimed a restraining order relying upon s 99 of the Summary Procedure Act 1921 (SA). Section 99(1) provides as follows:
“99(1) On a complaint under this Division, the Court may make a restraining order against the defendant if -
(a).... there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and
(b)the Court is satisfied that the making of the order is appropriate in the circumstances.”
The application to the Court was supported by affidavits sworn by Mrs Gill and Ms Olsson. The affidavits alleged facts that, on their face, provided a basis for the making of a restraining order. The affidavit sworn by Ms Olsson contains statements to the effect that Mr Kadeh made threats either against her or against Mrs Gill.
That same day, proceeding without notice to Mr Kadeh and in his absence, as the section permitted, Mrs Gill obtained a restraining order against Mr Kadeh that was expressed in very wide terms. It seems to me, with all respect to the Magistrate, that the terms of the order are unreasonably wide. In a number of respects it would have been difficult for Mr Kadeh to know whether he was at risk of breaching the order. However, nothing turns on that and I will let it pass. The order restrained him from (very broadly) harassing Mrs Gill, damaging her property and interfering with her “peace and comfort”. It restrained Mr Kadeh from being within 200 metres of any premises owned or occupied by Mrs Gill or her husband. It restrained Mr Kadeh from entering the premises of the firm of Mellor Olsson. It restrained him from approaching or communicating with Mrs Gill. Finally, it ordered that within 30 minutes of the service of the order upon Mr Kadeh, he leave the property at Semaphore and not return to the property or be within 200 metres of it at any time while the order remained in effect. This is no more than a rough summary of the terms of the order.
An affidavit establishes that on that same day, apparently in the civil action instituted by Mr Kadeh which gave rise to the settlement agreement, the Gills obtained an ex parte injunction restraining Mr Kadeh from, broadly, interfering with their “peace, order and good comfort” and from approaching or entering any property owned or occupied by them. It appears that this order was never served on Mr Kadeh.
Mr Kadeh pleads that on 1 August 1997, a member of the police force, apparently acting pursuant to the restraining order, went to the premises at Semaphore occupied by Mr Kadeh and removed him from the premises. The effect of this was to force Mr Kadeh to shut down his business. He has not subsequently resumed occupation of the premises.
On 3 November 1998 Mr Kadeh issued proceedings in the District Court. He sued the Gills, his original solicitor Mr Patsouris, Ms Olsson and the firm of Mellor Olsson. He sues Mr Patsouris for negligence in advising him to enter into the agreement of 24 July 1997 with the Gills. He sues both Ms Olsson and Mrs Gill for “collateral abuse of process - malicious prosecution”. He sues them for damages for trespass, on the ground that their actions were intended to procure his eviction from the premises. He sues Ms Olsson and Mrs Gill for negligence. He sues Mellor Olsson for failing to account to him for the settlement moneys paid into their trust account by the Gills.

The claims against Ms Olsson

With that background I now turn to the claims made against Ms Olsson.
Mr Kadeh alleges in the Statement of Claim that the affidavits used to obtain the restraining order were drawn by Ms Olsson. He alleges that her own affidavit, and the other affidavits “were false or misleading in a material respect”. The effect of the pleading seems to be that the affidavits created a false impression that Mrs Gill or Ms Olsson were in fear for their safety, presumably in fear of Mr Kadeh, and that the affidavits created a (presumably false) impression that Mr Kadeh had done things giving rise to an entitlement for relief by way of a restraining order.
This and other related matters are pleaded in the Statement of Claim under the heading “Collateral Abuse Of Process - Malicious Prosecution”. Under this heading Mr Kadeh pleads as follows:
“29.5.... The Complaint and the affidavits referred to in paragraph 23 hereabove and the restraining order submitted for issue by a Magistrate amounted to a collateral abuse of process and generally have abused the process of the law to the effect that the object of the proceeding involved had an object not within the scope of the process contemplated by the provisions of the said Summary Procedure Act but has as an object the eviction of the plaintiff from the premises and the destruction of the plaintiff’s business.”
A little later, Mr Kadeh pleads that neither Ms Olsson nor Mrs Gill had any ground for alleging “a concern for harm which Kadeh may seek to inflict”.
Later again, Mr Kadeh repeats the same factual matters, by reference to the relevant paragraphs, and then under the heading “Trespass” pleads:
“that the actions of Ms Olsson and Mrs Gill referred to therein were intended and calculated to have as their natural consequence the effect of procuring the eviction of the plaintiff from the premises and the termination of the plaintiff’s right to use and occupation and peaceful enjoyment of the leasehold tenancy under the Lease. In the premises the plaintiff claims damages for trespass.”
Then Mr Kadeh pleads a claim against Ms Olsson for negligence. He refers to the facts already outlined by me. He pleads that Ms Olsson knew or ought to have known that the restraining order would have the effect of causing the eviction of Mr Kadeh from the premises. He pleads that Ms Olsson owed him a duty of care, in connection with the obtaining of the restraining order, pleads a breach of that duty, and that Ms Olsson “negligently or recklessly or without regard for the consequences that were foreseeable caused the institution of” the proceedings that led to a restraining order. Apart from the facts outlined, Mr Kadeh pleads nothing to substantiate or to identify the basis for the asserted duty of care.

The Judge’s decision

The Judge made his decision, at the conclusion of the submission to him, on 31 May 2000. The appeal was not instituted until 22 June 2000 and filed on 23 June 2000. On 12 July 2000 an order was made extending the time within which the appeal might be instituted to 23 June 2000. The Judge did not give reasons for his decision when he made the order. He said that if asked by either party, he would give reasons. At the hearing of the appeal we were informed by counsel that on 24 July 1997 the solicitors for Mr Kadeh wrote to His Honour asking that reasons be provided. A day or two later His Honour replied by letter, to the effect that at that “late stage” he would not supply reasons as the reasons were clear from the transcript of argument and from the order that he had made.
It is unfortunate that His Honour took that view. It may have been inconvenient to prepare reasons some two months after making the order. But, an appeal having been instituted, it is desirable that this Court should have the benefit of His Honour’s reasons. It is rarely satisfactory to try to deduce reasons from the transcript of argument. Moreover, an order for summary judgment is a significant order. The result of His Honour’s attitude is that it has been necessary to engage in an element of speculation as to the reasons for the order.

Summary judgment

In South Australia a defendant as well as a plaintiff can apply for summary judgment: see R 25.04 of the District Court Rules 1992 (SA). But whether the application for summary judgment is made by a plaintiff or by a defendant, the power to enter summary judgment “should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”: Fancourt & Anor v Mercantile Credits Ltd (1983-1984) 154 CLR 87 at 99. Whether the questions to be decided are questions of law or questions of fact, the applicant must demonstrate that the “action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail”: Webster & Anor v Lampard (1992-1993) 177 CLR 598 at 602 Mason CJ, Deane & Dawson JJ.
It is one thing to determine that a pleading discloses no reasonable cause of action or defence, and another to order that it be struck out. When that is done, the Court assumes in favour of the relevant party that everything asserted in the pleading is or will be proved.
An application for a summary judgment invites the Court to do more than determine the adequacy of a Statement of Claim or Defence. It usually invites the Court to try and to determine facts by a summary process, usually by affidavit. If the proceedings are disposed of on affidavit, it deprives the relevant party of the usual right to a trial on oral evidence. Unless there are circumstances of urgency, the only basis for making an order can be that the case is, as a matter of law and as a matter of fact, bound to fail. There has to be some good reason to deal with a claim or defence in this summary fashion.
In this case, Mr Kadeh’s pleadings are not clear. But in my opinion they sufficiently allege that Ms Olsson prepared affidavits for others, and swore an affidavit herself, that were false and misleading, and sought a restraining order not on the basis of a genuinely held reasonable apprehension of the type identified by s 99(1)(a) of the Summary Procedure Act 1921 (SA) as the basis for an order, but on the basis of a falsely asserted apprehension, this being done as a means of getting Mr Kadeh evicted from the premises at Semaphore. Putting it a little differently, his claim is that Mrs Gill had no reasonable apprehension of the type identified by s 99(1)(a), that Ms Olsson knew that, but that the order was sought nevertheless because Ms Olsson knew that this was likely to bring about Mr Kadeh’s eviction from the premises. It is to be borne in mind that there are other procedures available, in particular under the Real Property Act 1886 (SA), for obtaining possession in a summary way in a case like this. It is also to be borne in mind that when Mr Kadeh was removed from the premises, he was still the registered lessee.
It seems to me that these allegations of fact by Mr Kadeh could not be disposed of in a summary way. Nor, as I understood his submissions, did Mr Slattery, counsel for the respondent to the appeal, so contend.
I should add that in my opinion the Statement of Claim adequately pleads a cause of action based on the tort of abuse of process, although the pleading could certainly be improved. This tort occurs when the predominant purpose in using legal process is to accomplish an ulterior and improper end which is outside the ambit of the legal claim, and when damage is thereby caused to the plaintiff: see Halsbury’s Laws of Australia, Vol 26 para [415-1820], Hanrahan v Ainsworth & Anor (1985) 1 NSWLR 370 and Gibbs & Ors v Rea [1998] AC 786 at 797.
I think that the District Court Judge must have accepted a submission put to him, and put on appeal, that it was a complete answer to the cause of action that the Gills were entitled to possession of the premises at Semaphore by virtue of the agreement that they had made with Mr Kadeh, and by virtue of the orders to which Mr Kadeh had submitted in his civil action in the Magistrates Court. If that is the basis upon which the Judge made the order, then in my respectful opinion he erred. The essence of the tort upon which Mr Kadeh relies is the misuse of legal process to secure his removal from the premises at Semaphore. In my opinion it is not an answer to that claim to say that the Gills were in any event entitled to possession of the premises, and had obtained or were entitled by other means to obtain an order that Mr Kadeh quit the premises. His claim is that the process of a restraining order was used to seek a collateral advantage beyond that properly available. As I understand the law on the point, which may be in a state of development, the plaintiff in such a case does not have to prove that the defendant could not have obtained the end sought by some other means. The gist of the claim is the misuse of legal process to obtain the end sought, and the suffering of damage or harm.
I readily accept the submission by Mr Slattery that the matters to which he referred would be relevant to the question of damages. But, it has to be borne in mind that damages may be recoverable for the effect of the action of the Gills upon Mr Kadeh’s reputation or health. I put to one side the issue of the effect upon his business, because the fact that they were entitled to possession in any event, if it is the fact, may mean that no loss can be proved under that head.
It is understandable that Ms Olsson should wish to dispose of the allegations made by Mr Kadeh. Mr Slattery rightly pointed to a substantial number of difficulties that Mr Kadeh’s action faces, and to the difficulties to which I have already adverted in relation to damages.
But in my opinion the matters pointed to by Mr Slattery do not show that Mr Kadeh’s action cannot succeed on any view of the law or of the facts. At the least, the law in this area is still open to development. In my opinion this was not a case in which factual findings could be made in a summary way which disposed of the plaintiff’s cause of action. It is a case which as a matter of law is tenable, if Mr Kadeh can secure appropriate findings of fact.
For those reasons, in my opinion, the appeal must be allowed to the extent that the Judge entered summary judgment on the claim for damages for abuse of process.

The claim in trespass stands differently. The trespass of which Mr Kadeh complains appears to be the action of a police officer, enforcing the restraining order made on 1 August 1997. There is no suggestion that that order was not a valid order. Whether it was liable to be set aside is another issue. As against Ms Olsson, Mr Kadeh pleads that her conduct in applying for the restraining order on behalf of Mrs Gill was intended to and calculated to have the effect of procuring Mr Kadeh’s eviction from the premises. However, as I understand the law relating to trespass, that is not sufficient to constitute a trespass. While there may be a limited range of situations in which a person may be liable in trespass, even though that person has not made physical entry upon the plaintiff’s land, it seems to me that as pleaded the claim in trespass is not maintainable.
Similar observations apply to the claim in negligence. Ordinarily, the solicitor for a party involved in litigation will not owe a duty of care to the opposing party. The reasons for this conclusion are so obvious as not to require a statement. There may be exceptional cases in which a duty of care will be owed. But Mr Kadeh’s Statement of Claim does not identify any such circumstances. In effect, he merely pleads that Ms Olsson acted in the manner alleged, in obtaining the restraining order, that she ought to have known that the effect of this would be that Mr Kadeh would be evicted, and that she was in breach of a duty of care owed to him because she negligently or recklessly or without regard for the consequences obtained the restraining order. I consider there is nothing pleaded here on the basis of which one could say that Ms Olsson owed a duty of care to Mr Kadeh in her conduct of the application for a restraining order. If this is a sufficient basis for the existence of a duty of care, then as I see it, every solicitor instructed to obtain an order of this sort against another party would likewise owe a duty of care to that other party. In essence, Mr Kadeh pleads nothing more than that Ms Olsson acted as solicitor for Mrs Gill, knowing that the likely consequence of the application that she made was that Mr Kadeh would be evicted from the premises. I consider that this pleading also is defective.
It does not follow that it was appropriate to enter summary judgment on these pleas. Ordinarily, the appropriate order would be an order striking out the Statement of Claim, with liberty to Mr Kadeh to amend his pleading, if so advised. However, if there is no basis upon which the cause of action can adequately be pleaded, it is appropriate to enter judgment.
I must say my impression is that in this case Mr Kadeh will not be able to identify a reasonable cause of action in negligence or in trespass. However, on the hearing of the appeal submissions were directed primarily to the claim for abuse of process. As a matter of caution, I consider that it is appropriate to substitute an order, in exercise of the power given by R 46.18, striking out the paragraphs of the Statement of Claim in which a claim is made against Ms Olsson for trespass and for negligence, with liberty to Mr Kadeh to amend the Statement of Claim in that respect if so advised, within fourteen days. I consider that justice will be achieved by such an order, because it protects Ms Olsson from the presently defective pleading, while leaving it open to Mr Kadeh to attempt to reformulate the claim in this respect.

Conclusions

Accordingly, I would allow the appeal; set aside the order of the District Court Judge entering summary judgment for the defendant Olsson; and substitute for that an order striking out as not disclosing a reasonable cause of action those paragraphs of the Statement of Claim in which Mr Kadeh claims against the defendant Olsson damages for trespass and for negligence. I would order that Mr Kadeh be at liberty to amend the Statement of Claim to plead a claim in trespass and negligence against the defendant Olsson, within a period of fourteen days, if so advised.

43.............. WILLIAMS J... I agree.

44.............. WICKS J......................... I agree with the orders proposed by the Chief Justice for the reasons he gives.

[2000] SASC 367

1 November 2000