Marino (a pseudonym) v Bello (a pseudonym)

Case [2022] NSWCA 73


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)…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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