Kadeh v Gill

In the matter of Kadeh v Gill, the appellant, Mr Kadeh, appealed against an order made by a Judge of the District Court entering a summary judgment in favour of Ms Olsson, one of the defendants in an action brought by Mr Kadeh. The primary legal issues in the appeal were whether the Judge erred in making the order and if so, whether the appeal should be allowed. The Full Court of the Supreme Court of South Australia found that the appeal must be allowed to the extent that the Judge entered summary judgment on the claim for damages for abuse of process. The Full Court also found that the claims for trespass and negligence against Ms Olsson were not maintainable and substituted an order striking out those paragraphs of the Statement of Claim with liberty to Mr Kadeh to amend the Statement of Claim in respect of those claims if so advised, within fourteen days.

The Full Court held that the allegations of fact by Mr Kadeh regarding Ms Olsson's preparation of false and misleading affidavits and seeking a restraining order to evict him from the premises could not be disposed of in a summary way. The misuse of legal process to obtain the end sought, and the suffering of damage or harm, were the essence of the tort upon which Mr Kadeh relied. The Full Court found that the matters pointed to by the respondent's counsel did not show that Mr Kadeh's action could not succeed on any view of the law or of the facts.

Regarding the claim for trespass, the Full Court found that the trespass of which Mr Kadeh complained appeared to be the action of a police officer enforcing the restraining order. The Full Court held that the claim in trespass was not maintainable as against Ms Olsson, as her conduct in applying for the restraining order on behalf of Mrs Gill was not sufficient to constitute a trespass.

Lastly, the Full Court found that the claim in negligence was also defective, as Mr Kadeh's Statement of Claim did not identify any circumstances that would establish a duty of care owed by Ms Olsson to Mr Kadeh. The Full Court substituted an order 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. The Full Court ordered 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.