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