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Marino (a pseudonym) v Bello (a pseudonym)

Marino (a pseudonym) v Bello (a pseudonym)

Case [2022] NSWCA 73 16 May 2022

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73
Hearing dates: 27 April 2022
Date of orders: 16 May 2022
Decision date: 16 May 2022
Before: Brereton JA at [1]
Kirk JA at [10]
Decision:
(1) Extend time for filing and service of the applicant’s notice of intention to appeal and summons seeking leave to appeal so as to permit the applicant to rely on those documents;
(2) Grant leave to appeal as regards claims against the first and second respondents on the following proposed grounds in the draft notice of appeal:
(a) ground 1; and
(b) ground 5, limited as follows: “Breach of procedural fairness – the Court in refusing to grant leave to replead as against the first and second respondents under the circumstances denoted above or otherwise acted contrary to ss 56-59 of the Civil Procedure Act 2005 (NSW)”;
(3) The application for leave to appeal is otherwise dismissed;
(4) Applicant to pay the costs of the third to fifth and the sixth respondents to the application.

Catchwords:
APPEALS — Leave to appeal — question of principle — whether person who has instigated, if not formally commenced, legal proceedings liable for tort of abuse of process

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 64(3), 164(1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 25-28A
Uniform Civil Procedure Rules rr 13.4, 14.28, 51.8, 51.9

Cases Cited:
A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17
Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30
Coshott v Commonwealth Bank of Australia [2020] NSWCA 279
Dickens v State of New South Wales (No 3) [2018] NSWSC 485
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Emanuele v Hedley (1998) 179 FCR 290
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773
Fuller-Wilson v State of New South Wales [2018] NSWCA 218
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Kable v New South Wales (2012) 293 ALR 719; [2012] NSWCA 243;
Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90
Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146
Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46
Wickstead v Browne (1992)…

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 Marino (a pseudonym) v Bello (a pseudonym)

Details

AGLC: Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73
Case: [2022] NSWCA 73
Decision Date: 16 May 2022

CaseChat Overview and Summary

The case of *Marino (a pseudonym) v Bello (a pseudonym)* concerned an appeal heard in the Court of Appeal of New South Wales. The dispute involved allegations of abuse of process, with the applicant seeking leave to appeal against decisions made by the primary court.

The central legal issues before the Court of Appeal were whether a person who had instigated, though not formally commenced, legal proceedings could be held liable for the tort of abuse of process, and whether the primary court had erred in refusing leave to replead certain claims against the first and second respondents, potentially in breach of sections 56-59 of the *Civil Procedure Act 2005* (NSW).

The Court of Appeal granted an extension of time for the applicant to file and serve documents related to their appeal. Leave to appeal was granted concerning claims against the first and second respondents on specific grounds relating to the alleged abuse of process and a breach of procedural fairness in the refusal to grant leave to replead. However, the application for leave to appeal was otherwise dismissed, and the applicant was ordered to pay the costs of the third to fifth and sixth respondents.

Orders

Orders of the court

(1) Extend time for filing and service of the applicant’s notice of intention to appeal and summons seeking leave to appeal so as to permit the applicant to rely on those documents;

(2) Grant leave to appeal as regards claims against the first and second respondents on the following proposed grounds in the draft notice of appeal:

(a) ground 1; and

(b) ground 5, limited as follows: “Breach of procedural fairness – the Court in refusing to grant leave to replead as against the first and second respondents under the circumstances denoted above or otherwise acted contrary to ss 56-59 of the Civil Procedure Act 2005 (NSW)”;

(3) The application for leave to appeal is otherwise dismissed;

(4) Applicant to pay the costs of the third to fifth and the sixth respondents to the application.

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

Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73

Most Recent Citation

MT v SE [2023] SADC 129

Cases citing this decision · 4 of 4 shown

MT v SE
[2023] SADC 129 Para 8

…ted, even though there were defects in the pleadings.[41] On the hearing of the Appeal, leave was granted to file further amended pleadings.[42] [40] [2022] NSWCA 73. [41] Ibid at [7] and [8]. [42] Marino v Bello (No 3) [2022] NSWCA 181. Determination of Respondent’s Application…
Riva NSW Pty Ltd v The Official Trustee in Bankruptcy
[2023] NSWSC 896

…proceedings for which prior leave was required; and (c) if so, for the reasons noted by Bell P in Kostov [v the Director of Public Prosecutions (NSW) [2022] NSWCA 73, and [2022] NSWCA 94], the notice of motion was initially stayed and then taken to be dismissed 28 days after it was filed, on or about 30 June 2023,…
Marino v Bello (No 3)
[2022] NSWCA 181 Para 3

…only, and the Bellos’ motion for summary dismissal of the District Court proceedings against them. 1. Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73. 2. [2022] NSWCA 73 at [77].…
Blissett v The State of New South Wales;; Blissett v The State of New South Wales;; Blissett v Fullagar; Blissett v The State of New South Wales; Blissett v The State of New South Wales; Blissett v The State of New..
[2022] NSWDC 226 Para 11

…cipitate in the dismissal of claims which are poorly pleaded, particularly if the pleader is a litigant in person, as was noted in Marino v Bello [2022] NSWCA 73.I have borne all these precepts carefully in mind.…

View all 4 citing cases →

Cases cited in this decision · 28 of 28 shown

Marino v Bello
[2021] NSWDC 52

…File Number(s): 2021/00175377 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWDC 52 Date of Decision: 26 February 2021 Before: Gibson DCJ File Number(s): 2020/156610…
Coshott v Commonwealth Bank of Australia
[2020] NSWCA 279 Para 13

…lic importance or a reasonably clear injustice going beyond something that is merely arguable: eg, recently, Coshott v Commonwealth Bank of Australia [2020] NSWCA 279 at [25] per Gleeson JA, and the authority there cited.…
Burton v Office of the Director of Public Prosecutions
[2019] NSWCA 245 Para 5

…(Barrett JA), Beazley P agreeing at [1], and McColl JA agreeing at [2]); Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 at [42] (Bell P). 4. Emanuele v Hedley (1998) 179 FCR 290 at [44]; Leerdam v Noori [2009] NSWCA 90 at [29]-[44] (Spigelman CJ; Allsop P and Macfarlan JA…
Fuller-Wilson v State of New South Wales
[2018] NSWCA 218 Para 42

…s (2019) 100 NSWLR 734, at [48]-[50] per White JA. The case might be argued to bear some similarity to Fuller-Wilson v State of New South Wales [2018] NSWCA 218, in which this Court upheld an appeal from a summary dismissal application on the basis that a claimed duty of care was sufficiently arguable on the curren…
Trkulja v Google LLC
[2018] HCA 25 Para 42

…ke place by reference to facts as found: note Wickstead v Browne (1992) 30 NSWLR 1 at 5–6 per Kirby P; Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25, at [55] per curiam; Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734, at [48]-[50] per White JA. The case might be argued to bear s…
Dickens v State of New South Wales (No 3)
[2018] NSWSC 485 Para 34

…that the proposed pleading against it was deficient (J [60]), and, relying on the remarks of Adamson J in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [36]-[43], held that there was no likelihood that the applicant “could produce a workmanlike statement of claim setting out a recognisable pleading…
Maxwell-Smith v S & E Hall Pty Ltd
[2014] NSWCA 146 Para 5

…09) 255 ALR 553; Kable v New South Wales; [2012] NSWCA 243, at [116]; (2012) 293 ALR 719; Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 at [59] (Barrett JA), Beazley P agreeing at [1], and McColl JA agreeing at [2]); Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734;…
New South Wales v Kable
[2013] HCA 26 Para 5

…7] HCA 10 at [34]-[36]. 3. Leerdam v Noori [2009] NSWCA 90 at [29]-[44]; (2009) 255 ALR 553; Kable v New South Wales; [2012] NSWCA 243, at [116]; (2012) 293 ALR 719; Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 at [59] (Barrett JA), Beazley P agreeing at [1], and McColl JA agreeing at [2])…
Beckett v New South Wales
[2013] HCA 17 Para 44

…claim for malicious prosecution that the prosecution has terminated favourably to the plaintiff, citing Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17. Her Honour noted that the application for an ADVO had not yet been determined finally, let alone favourably to the applicant, so that no cause of ac…
Kable v State of New South Wales
[2012] NSWCA 243 Para 5

…les (2007) 230 CLR 500; [2007] HCA 10 at [34]-[36]. 3. Leerdam v Noori [2009] NSWCA 90 at [29]-[44]; (2009) 255 ALR 553; Kable v New South Wales; [2012] NSWCA 243, at [116]; (2012) 293 ALR 719; Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 at [59] (Barrett JA), Beazley P agreeing at [1],…
Franks v Franks
[2012] NSWCA 209 Para 8

…er, provisional ADVOs are issued under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and in Franks v Franks [2012] NSWCA 209 at [8] Basten JA, with whom Barrett and Hoeben JJA agreed, stated ‘ it is by no means clear that they should not be understood to fall within the criminal jurisdiction of the co…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48 Para 67

…sion of bias, which in any event cannot arise from an adverse final judgment. In Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48, at [67]–[68], it was held that the reasons for judgment delivered in determining issues are not relevant to an assessment of whether a fair-minded lay o…
Preston v Commissioner for Fair Trading
[2011] NSWCA 40 Para 74

…the other side if they succeed (eg filing or witness fees): see, as to the latter point, Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40 at [183]-[185]. That being said, there is little doubt that there were significant problems with the proposed further amended statement of claim.…
Spencer v Commonwealth of Australia
[2010] HCA 28 Para 42

…ue was appropriately dealt with on a summary application. As French CJ and Gummow J stated in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24], “[s]ummary processes must not be used to stultify the development of the law”. If there is the possibility of such development, where issue…
Zappia v Grant Baines Transport Pty Limited
[2010] NSWSC 98 Para 51

…ADVO proceedings had ended could have been taken newly to assert the cause of action: cf Zappia v Grant Baines Transport Pty Ltd (2010) 77 ACSR 273; [2010] NSWSC 98 at [48]-[56]. It is not necessary to address that point further here. If the applicant succeeds on his appeal on the grounds for which leave is grant…
Leerdam v Noori
[2009] NSWCA 90

…s Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Kable v New South Wales (2012) 293 ALR 719; [2012] NSWCA 243; Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90 Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359;…
Zappia v Grant Baines Transport Pty Ltd
[2008] NSWSC 608 Para 51

…ments made after the ADVO proceedings had ended could have been taken newly to assert the cause of action: cf Zappia v Grant Baines Transport Pty Ltd (2010) 77 ACSR 273; [2010] NSWSC 98 at [48]-[56]. It is not necessary to address that point further here. If the applicant succeeds on his appeal on the grounds for whi…
A v New South Wales
[2007] HCA 10 Para 5

…t well conclude that the issue ought to have been permitted to go to trial. 2. See, for example, A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [34]-[36]. 3. Leerdam v Noori [2009] NSWCA 90 at [29]-[44]; (2009) 255 ALR 553; Kable v New South Wales; [2012] NSWCA 243, at [116]; (2012) 293 ALR 71…
Flower & Hart v White Industries (Qld) Pty Ltd
[2001] FCA 370

…s (No 3) [2018] NSWSC 485 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Emanuele v Hedley (1998) 179 FCR 290 Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773 Fuller-Wilson v State of New South Wales [2018] NSWCA 218 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 66

…bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, at [6]. Self-evidently, an assessment of bias always turns on the particular facts. It is possible that some particular mistake of fact, or set of m…
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd
[1999] FCA 773 Para 6

…equest for further and better particulars. 7. Draft Amended Statement of Claim, [44]. 8. Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134 at [64].…
Emanuele v Hedley
[1998] FCA 709 Para 5

…greeing at [2]); Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 at [42] (Bell P). 4. Emanuele v Hedley (1998) 179 FCR 290 at [44]; Leerdam v Noori [2009] NSWCA 90 at [29]-[44] (Spigelman CJ; Allsop P and Macfarlan JA agreeing); (2009) 255 ALR 553; Maxwell-Smith v S & E Hall…
Wickstead v Browne [No 2]
[1993] NSWCA 289 Para 42

…degree may arise, it is best that consideration of the development of the law take place by reference to facts as found: note Wickstead v Browne (1992) 30 NSWLR 1 at 5–6 per Kirby P; Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25, at [55] per curiam; Burton v Office of Director of Public Prosecutions (2019)…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 32

…eneral law principles relating to summary dismissal articulated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69: J [66] –[67].…
Commonwealth Life Assurance Society Ltd v Brain
[1935] HCA 30 Para 5

…NSWLR 481; [2014] NSWCA 146. 5. (1998) 179 FCR 290 at [44]. 6. See for example Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30.…
Varawa v Howard Smith Co Ltd
[1911] HCA 46 Para 4

…eral purpose), her Honour was right to refuse leave to join the State. 1. Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91 (Isaacs J); [1911] HCA 46.…
A v State of New South Wales
[2007] HCA 1021 Para 5

…f principle, it might well conclude that the issue ought to have been permitted to go to trial. 2. See, for example, A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [34]-[36]. 3. Leerdam v Noori [2009] NSWCA 90 at [29]-[44]; (2009) 255 ALR 553; Kable v New South Wales; [2012] NSWCA 243, at [116]; (2…
Kable v New South Wales
153 ER 416

…te of New South Wales [2018] NSWCA 218 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Kable v New South Wales (2012) 293 ALR 719; [2012] NSWCA 243; Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90 Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 Preston…

Legislation cited in this decision · 2

Civil Procedure Act 2005 (NSW)
164(1), 64(3) 3 mentions (from Para 7)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
25 2 mentions (from Para 17)

Medium Neutral Citation:	Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73
Hearing dates:	27 April 2022
Date of orders:	16 May 2022
Decision date:	16 May 2022
Before:	Brereton JA at [1] Kirk JA at [10]
Decision:	(1) Extend time for filing and service of the applicant’s notice of intention to appeal and summons seeking leave to appeal so as to permit the applicant to rely on those documents; (2) Grant leave to appeal as regards claims against the first and second respondents on the following proposed grounds in the draft notice of appeal: (a) ground 1; and (b) ground 5, limited as follows: “Breach of procedural fairness – the Court in refusing to grant leave to replead as against the first and second respondents under the circumstances denoted above or otherwise acted contrary to ss 56-59 of the Civil Procedure Act 2005 (NSW)”; (3) The application for leave to appeal is otherwise dismissed; (4) Applicant to pay the costs of the third to fifth and the sixth respondents to the application.
Catchwords:	APPEALS — Leave to appeal — question of principle — whether person who has instigated, if not formally commenced, legal proceedings liable for tort of abuse of process
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 64(3), 164(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 25-28A Uniform Civil Procedure Rules rr 13.4, 14.28, 51.8, 51.9
Cases Cited:	A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30 Coshott v Commonwealth Bank of Australia [2020] NSWCA 279 Dickens v State of New South Wales (No 3) [2018] NSWSC 485 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Emanuele v Hedley (1998) 179 FCR 290 Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773 Fuller-Wilson v State of New South Wales [2018] NSWCA 218 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Kable v New South Wales (2012) 293 ALR 719; [2012] NSWCA 243; Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90 Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46 Wickstead v Browne (1992)…