Marino v Bello

[2024] NSWDC 149

District Court

New South Wales

Medium Neutral Citation:

Marino v Bello [2024] NSWDC 149

Hearing dates:

16 November 2023

Date of orders:

8 May 2024

Decision date:

08 May 2024

Jurisdiction:

Civil

Before:

Waugh SC DCJ

Decision:

(1) Judgment for the plaintiff against the first defendant in the sum of $65,000

(2) First Defendant pay the cost of the plaintiff’s proceedings

Catchwords:

TORTS – Collateral abuse of process – malicious prosecution – assessment of damages

PROCEDURE – Default judgment for damages to be assessed

Legislation Cited:

s91 Evidence Act 2005

Uniform Civil Procedure Rules 2005

Cases Cited:

A v The State of New South Wales (2007) 230 CLR 500

Blair v Curran (1939) 62 CLR 464

Emerton v Clerk of the Supreme Court [1992] NSWCA 65

Hamer-Matthew v Gulabrai (No.2) (1995) Australian Torts Reports 81–334

Lamb v Cotongo (1987) 164 CLR 1

Lux Gulabrai v Carl Hamer-Mathew [1997] NSWCA 131

Matthew v Gulabrai (1994) 35 NSWLR 92

New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1

Rock v Henderson [2021] NSWCA 155

Sneddon v State of New South Wales [2012] NSWCA 351

State of New South Wales v Spedding [2023] NSWCA 180

State of New South Wales v Zreika [2012] NSWCA 37

Texts Cited:

Balkin & Davis Law of Torts (6thedition, 2021)

McGregor On Damages (21st edition)

Category:

Principal judgment

Parties:

A. Marino (Plaintiff)
B. Bello (Defendant)

Representation:

Litigant in Person (Plaintiff)

No Appearance (Defendant)

File Number(s):

2020/156610

Publication restriction:

Pursuant to s7 of the Court Suppression & Non-Publication Orders Act there is to be no publication of material that identifies or is likely to lead to the identification of the parties in these proceedings.

Judgment

A. Introduction

The parties

1. Mr Marino (the plaintiff) has obtained a default judgment against his brother-in-law Mr Bello (the first defendant) for damages to be assessed concerning his claims of malicious prosecution and collateral abuse of process.

2. Mr Bello’s wife, the plaintiff’s sister, was the second defendant. Mr Marino has discontinued the proceedings against his sister.

3. These names are pseudonyms, as a consequence of suppression orders having previously been made in the matter.

The assessment hearing before me

4. Mr Marino appeared via audiovisual link and represented himself at the assessment hearing before me.

5. There was no appearance by or for Mr Bello.

6. Mr Marino provided written submissions, which had been filed on 14 November 2023. They were quite brief, 3 pages long. When I asked him at the hearing what he thought I should order, he said he didn’t have any experience and would leave it for the court to decide. When asked, he said he could not refer me to any legal precedents to say how much the court should award.

7. The evidence before me consisted of an affidavit affirmed by Mr Marino on 20 October 2023 and the documents identified in paragraph 4 of his written submissions.

8. Most of those documents were the reasons for the decision of prior proceedings in this Court, in the Court of Appeal, in the Federal Circuit Court of Australia, in the Family Court of Australia Full Court, and in the Federal Circuit and Family Court of Australia.

9. Because Mr Bello was appearing for himself, I drew his attention to section 91 of the Evidence Act, 1995, which provides:

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

10. Mr Marino informed me that he understood this, and he was not seeking to use the judgments to prove the facts stated in them.

The relevant pleading on which Mr Marino obtained default judgment and the Court of Appeal proceedings

11. The relevant pleading on which Mr Marino obtained default judgment is his amended statement of claim filed on 18 October 2022.

12. It was filed as a consequence of orders made by the Court of Appeal in Marino v Bello (No.3) [2022] NSWCA 181.

13. In granting leave to Mr Marino to amend his pleading, the Court of Appeal confirmed that the claim as amended propounded two causes of action against the then first and second defendants, those being the tort of collateral abuse of process and the tort of malicious prosecution.

14. Both claims arose out of the same set of circumstances.

B. Procedural setting

15. The default judgment for damages to be assessed was given under either rule 16.3 or rule 16.7 of the Uniform Civil Procedure Rules 2005 pursuant to an application on Form 39, a “Notice of Motion Default Judgment For Unliquidated Damages”, filed on 3 May 2022.

16. The default judgment was given on 16 May 2023.

17. The assessment of damages proceeds by way of a trial: rule 30.1 UCPR. Damages are to be assessed in the ordinary way: Emerton v Clerk of the Supreme Court [1992] NSWCA 65.

18. Unless the court otherwise orders, evidence of facts must be given by affidavit: rule 31.1(4)(b).

19. It is necessary to consider what facts are otherwise established by the entry of the default judgment itself because in the present case, the evidence before the court about the underlying facts is what might be described as a little thin.

20. The effect of the entry of a default judgment for damages to be assessed was considered by the Court of Appeal in Sneddon v State of New South Wales [2012] NSWCA 351. The question arose in a context where the plaintiff alleged that one defendant was vicariously liable for another defendant against whom a default judgment had been entered for damages to be assessed. The plaintiff argued that the default judgment for damages to be assessed constituted a binding determination in her favour on the liability issues raised by her statement of claim, which included an allegation that the tortious conduct of the one defendant (for whom the other defendant was alleged to be vicariously liable) was intentional: Meagher JA at [181]; Macfarlan JA at [153]. In the result, the Court of Appeal rejected the argument.

21. All three members of the Court decided the question by reference to the principles of issue estoppel discussed by Dixon J in Blair v Curran (1939) 62 CLR 464: Basten JA at [98], Macfarlan JA at [153] and Meagher JA at [184]-[185].

22. In Blair v Curran (1939) 62 CLR 464, Dixon J said at 531-532:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. …

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.

23. Meagher JA summarised the principle at [185], saying:

‘A default judgment can only give rise to issue estoppels in respect of what must “necessarily and with complete precision” have been thereby determined’.

24. The phrase quoted by Meagher JA, also used by Basten JA, comes from the decision of the House of Lords in New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1 at 21 per Lord Maugham L.C.

25. Meagher JA also cited Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1012. There Viscount Radcliffe, speaking for the Privy Council, said:

In their Lordships' opinion the New Brunswick Railway Co. case can be taken as containing an authoritative reinterpretation of the principle of Howlett v. Tarte in simpler and less specialised terms. This reinterpretation amounts to saying that default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and, to use the words of Lord Maugham L.C., they can estop only for what must “necessarily and with complete precision” have been thereby determined.

26. Only Macfarlan JA also considered the effect of rule 14.26(1) of the Uniform Civil Procedure Rules 2005. That rule is about when an allegation of fact made by a party in a pleading may be taken to be admitted by another party. According to his Honour, rule 14.26 has no application where a defendant fails to file a defence, which was the case in Sneddon and is the position in the case before me.

C. What then was “necessarily and with complete precision” determined by the entry of the default judgment for damages to be assessed, or what was “legally indispensable” to the default judgment?

27. The starting point is that the default judgment can only have determined questions of liability.

28. Most of the critical components of the statement of claim in terms of liability have already been identified by the Court of Appeal.

29. Brereton JA set the scene in the opening paragraph of his reasons. His Honour said that Mr Marino was the applicant in proceedings in the Federal Circuit and Family Court of Australia (“Family Court proceedings”) for orders that children of his brother-in-law and sister Mr and Mrs Bello (“Bellos”) have contact with him. While the Family Court proceedings were pending, police – said to be acting on the complaint of the Bellos – made a provisional apprehended domestic violence order (“ADVO”) against Mr Marino and applied for an interim and permanent ADVO (“ADVO proceedings”), in respect of which the Bellos were the “persons in need of protection”. 

30. In addressing the abuse of process claim, Brereton JA said, at [7], adding his Honour’s footnoted reference to the pleading but omitting references to authority:

The essence of the tort of collateral abuse of process is the employment of the machinery of the law to achieve a purpose which could not lawfully be obtained, and which is “entirely outside the ambit of the legal claim upon which the court is asked to adjudicate”. Here, Mr Marino’s complaint is that the Bellos made a complaint to police “for a single or dominant collateral and/or wrongful purpose”, namely “to hurt, sabotage, and otherwise destroy [Mr Marino’s] family law proceedings and thereby bolster the [Bellos] case” (footnote 5: Draft Amended Statement of Claim, [44]). Those requirements will be satisfied if proceedings are instituted for the predominant purpose of delaying the enforcement of a claim made against the instigator. Subject to the question of whether the Bellos are sufficiently implicated to incur liability, a valid abuse of process claim against them is sufficiently discernible from the proposed pleading.

31. At [14] his Honour said, referring in a footnote to the Crimes (Domestic and Personal Violence) Act, 2007 ss 27, 28, 29, 49:

… the (alleged) acts of the Bellos in making a complaint to police set in motion the process that culminated in the provisional order and the ADVO proceedings.

32. In addressing the malicious prosecution claim, Brereton JA, at [22], accepted that the heading preceding paragraph 23 of the draft amended statement of claim formed part of the pleading and contained an allegation of want of reasonable and probable cause. The heading above paragraph 23 says:

The First and Second Defendants initiated and continued the Provisional Orders: number 22323775 and Civil Proceedings: 2020/109007 (hereinafter jointly labelled as “the Provisional Orders”) in the Local Court’s Criminal Jurisdiction (through the Sixth Defendant) against the plaintiff with Malice; for an Improper Purpose; and Without Reasonable and Probable Cause.

33. What other facts pleaded in the statement of claim might be said to be necessary or legally indispensable to the finding of liability?

34. Brereton JA referred to the essence of the tort of collateral abuse of process in paragraph [7], quoted above.

35. The elements of the cause of action for malicious prosecution were set out in A v The State of New South Wales (2007) 230 CLR 500 at [1]. The plaintiff must establish:

35.1 That the proceedings of the kind to which the tort applies (generally, criminal proceedings) were initiated against the plaintiff by the defendant.

35.2 That the proceedings terminated in favour of the plaintiff.

35.3 The defendant, in initiating or maintaining the proceedings acted maliciously.

35.4 That the defendant acted without reasonable and probable cause.

36. Having regard to the essential elements of both causes of action and to the remaining paragraphs of the amended statement of claim, the allegations of fact in the paragraphs 25 to 28, 30 and 45 appear to me to be necessary or legally indispensable to the finding of liability.

37. Paragraph 25 asserts that on 7 and 10 April 2020 Mr Bello maliciously and wrongfully invoked or initiated the coercive power of provisional orders through the (putative) 6^th defendant. I say putative because the 6^th defendant referred to in the amended statement of claim never in fact became a party to the proceedings. The reference to the 6^th defendant is a reference to the State of New South Wales.

38. Paragraph 26 asserts that on the same dates Mr Bello attended Gosford Police Station and initiated or caused to be initiated the provisional orders for a collateral purpose or ulterior motive to frustrate, hurt and impede the plaintiff’s Federal Circuit Court proceeding “by means of providing the false assertions pleaded in” paragraphs 28 (i)-(xx). Paragraph 28 alleges that on the same dates Mr and Mrs Bello made a number of “false assertions” which are then set out in the enumerated paragraphs. Only 12 of the 20 paragraphs refer to assertions made by the Bello. I do not propose to set those paragraphs out in these reasons, but I have had regard to them.

39. Paragraph 27 asserts that on the same dates and at the same time “through a multitude of false assertions including fear of life” Mr Bello initiated the provisional orders via wilful dishonest means through the 6^th defendant for protection of Mr and Mrs Bello and their children the subject of Mr Marino’s Federal Circuit Court proceedings.

40. Paragraph 30 asserts that on or about 18 April 2020 and afterwards, Mr Bello caused the provisional orders to be used in Mr Marino’s Federal Circuit Court proceedings known as PAC437/2020 repeatedly as a means to hurt, impede or frustrate the proceedings and “retain the benefit of the destruction it ultimately caused as it was used effectively in all but every affidavit and submissions at first instance and in the Full Court of the Family Court”.

41. Paragraph 45 asserts that the provisional orders terminated in Mr Marino’s favour on 11 May 2021.

42. I take the facts that I have identified in the preceding paragraphs either by reference to the judgment of the Court of Appeal or the paragraphs of the amended statement of claim to be necessary or legally indispensable to the finding of liability established by the entry of the default judgement, and so established for the purposes of the hearing before me.

D. What legal principles apply to the assessment of damages?

Damages for malicious prosecution

43. The damages available for malicious were considered by the Court of Appeal in Rock v Henderson [2021] NSWCA 155.

44. Brereton JA stated the relevant principles this way at paragraphs [13] – [14], omitting citations:

[13] Traditionally, damages for malicious prosecution have been regarded as confined to:

“1. … damage to a man’s fame, as if the matter whereof he is accused be scandalous … 2. … such [damages] as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty … 3. Damage to a man’s property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused.”

[14] However, once damage under any of those three heads is proved, the award of damages is at large, subject to the limitation that they must not be unreasonably disproportionate to the injury sustained. Consequential economic loss is recoverable if not too remote, as are damages for mental distress (as where occasioned by a serious criminal charge). Aggravated and exemplary damages may be awarded.

45. That statement of the relevant principles follows closely the summary given in “Balkin & Davis Law of Torts” (6^th edition, 2021) at paragraph [25.16] page 838 – 839.

46. Wright J put the matter in a similar terms in Rock at paragraph [109]. Bell P (as the Chief Justice then was) agreed with the both sets of reasons.

47. “McGregor On Damages” (21st edition, 2021 by Edelman and others) discusses damages for malicious prosecution in Chapter 44.

48. The discussion commences with the following, at 44-004:

The principal head of damage here is to the fair fame of the claimant, the damage to reputation. In addition it would seem that the claimant will recover for the injury to their feelings, i.e. for the indignity, humiliation and disgrace caused to them by the fact of the charge being preferred against them. No breakdown, however, appears in the cases. Holt CJ’s second head was the damage by being put in danger of losing one’s life, limb or liberty. It therefore seems that the claimant can recover in respect of the risk of conviction: this is basically injury to feelings. In addition, if there has been arrest and imprisonment up to the hearing of the cause, damages in respect thereof should also be included.

49. Mr Bello also seeks aggravated and exemplary damages.

50. A plaintiff who succeeds in an action for malicious prosecution will not necessarily receive either aggravated or exemplary damages: State of New South Wales v Zreika [2012] NSWCA 37 per Sackville AJA (Macfarlan and Whealy JJA agreeing) at [60]. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award: Zreika at [64].

51. The close relationship between an award of ordinary compensatory damages for injury to a plaintiff’s feelings and an award of aggravated damages can be seen in the way that aggravated damages are described in Balkin & Davis. They say at paragraph 27.11 p.927, omitting citations:

The notion of aggravated damages is often said to be unclear. But the concept is straightforward: aggravated damages are an enhanced form of mental distress damages, which take account of the defendant’s conduct in the commission of the tort and thereafter up to the hearing of the action. As such, aggravated damages are ‘compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like’. In other words, the defendant, by their disrespectful actions, which constitute an ‘affront’ to the plaintiff’s rights, exacerbates the distress suffered by the plaintiff; such aggravated harm can be, and often will be, inferred from the objective circumstances, and specifically from the ‘high-handed, malicious, insulting or oppressive manner’ in which the defendant committed the tort. Aggravated damages are available in respect of those torts which protect a plaintiff’s reputation, feelings or liberty, including defamation, intimidation, conspiracy, malicious prosecution, misfeasance in public office and trespass to the person, to land and to goods, but it is unlikely that aggravated damages in this sense are available in a negligence action.

52. Exemplary damages, on the other hand, go beyond compensation and are directed to punishment and deterrence: Lamb v Cotongo (1987) 164 CLR 1 at 8; State of New South Wales v Spedding [2023] NSWCA 180 at [314]; Balkin & Davis at paragraph 27.13 p.931.

Damages for collateral abuse of process

53. It is not so easy to find an authoritative statement of the principles applicable to the assessment of damages for the tort of collateral abuse of process.

54. Balkin & Davis says (at paragraph [25.27]): "Damages in this action will include all the non-remote consequences of the commission of the tort."

55. This is not a particularly informative description. Some context is provided by the way the learned authors describe the cause of action, at paragraph [25.22] p.842:

"The tort is committed whenever a legal process, applied in its proper form, is used as a means of carrying out a collateral and unrelated purpose which would otherwise not have been available, thereby causing damage to the plaintiff. It is seen in the putting of a proper process to an improper end that the abuse lies."

56. An example of an assessment of damages for collateral abuse of process is provided by Matthew v Gulabrai (1994) 35 NSWLR 92. Brownie J found that there had been an abuse of process and referred the matter to a Master for enquiry as to whether the plaintiff had suffered any damage in consequence, and if so what damage. That enquiry was undertaken by Master McLaughlin whose judgment is reported as Hamer-Matthew v Gulabrai (No.2) (1995) Australian Torts Reports 81–334. Master McLaughlin allowed two items of special damages in quite minor amounts. By way of general compensatory damages, the plaintiff submitted that he was entitled to damages to compensate him for both the loss of his professional reputation (which loss must inevitability, so it was submitted, be reflected in a loss of income in his art dealing business) and for the hurt to his feelings in consequence of that damage to his reputation. The plaintiff called a number of witnesses to make good the submission that his reputation had been detrimentally affected. Master MacLachlin assessed the general compensatory damages in the sum of $50,000. He then allowed a further sum for exemplary damages in the same amount. Both the decision of Brownie J and of Master McLaughlin were confirmed on appeal: Lux Gulabrai v Carl Hamer-Mathew [1997] NSWCA 131.

E. What damages does Mr Marino claim?

57. Mr Marino asserts the following under the heading “Damages and Loss suffered by the Plaintiff” in his amended statement of claim:

57.1 The provisional orders caused great embarrassment and distress to him and required him to explain and constantly relive the events (paragraph 132).

57.2 He has suffered damage to reputation, emotional distress, time, pecuniary loss and disruption in respect of PAC437/2020 and PAC 2535/2020 proceedings (paragraph 133).

57.3 He was forced to discontinue PAC437/2020 proceedings on 17 November 2020 due to the fraudulent provisional orders as the bias and prejudice it caused extended to Judge's associates, the head of Eastern appeals registry and two judges were disqualified for bias (paragraph 124).

57.4 He lived under the unwarranted and unjustified threat of a fraudulently and maliciously initiated provisional order (paragraph 136).

57.5 He suffered a substantial and considerable embarrassment and distress when the police attended his home to serve the provisional orders in front of his 16 year old nephew (paragraph 137).

57.6 He suffered severe stress, emotional distress pain and suffering, time and costs (paragraph 138).

57.7 He has suffered irrevocable damage to his family (paragraph 142).

57.8 He claims aggravated damages, exemplary damages and general compensatory damages (paragraph 143).

58. Mr Marino did not seek to quantify any of these claims.

59. The only evidence he provided in support of the claims was his own affidavit.

F. Mr Marino’s affidavit of 20 October 2002

60. Mr Marino gave this evidence in his affidavit of 20 October 2023:

60.1 [6] The fraudulent ADVO injected prejudice and bias into all my proceedings. Two judicial officers of the FCC were recused for bias in PACC437/2020. His Honour Judge Myers stepped down voluntarily upon my motion for recusal and transferred the matter whilst His Honour Judge Humphreys refused to recuse however the Full Court overturned his decision and confirmed the recusal order. The ADVO provisional orders played a significant role in instilling the bias on the court as it was used and re-used and uttered in affidavit and submission to the court.

60.2 [7] My matter was summarily dismissed on 15 September 2020 as a direct result of bias and prejudice instilled in large part by the false ADVO.

60.3 [9] I was forced to withdraw from PAC437/2020, given two recusals and what was readily apparent unfair hearings; denials of procedural fairness and natural justice.

60.4 [10] I filed a notice of discontinuance on 17 November 2020 given the prejudice.

60.5 [11] The first defendant capitalized on the fraudulent ADVO order using it in sworn contemptuous testimony.

60.6 [12] In parallel unrelated proceedings PAC2535/2020, other family members capitalised on the first defendant’s fraudulent ADVO and it exhaustively … It was later repeated in various affidavits and submissions.

60.7 [13] I have suffered psychological distress, pain and suffering, loss of time and costs with numerous court proceedings and court appearances attempting to throw out the fraudulent ADVO proceedings no.2020/109007 and seek restitution, which continue to the present day in the form of assessment of damages (and may continue with enforcement proceedings).

60.8 [14] The first defendant’s false ADVO proceedings gave rise to massive litigation. The following are a list of court proceedings of which the subject matter is the fraudulent ADVO proceedings of which would not exist but for the false ADVO:

1. Local Court Proceedings 2020/109007 (Fraudulent ADVO proceedings)

2. Application for summary dismissal before His Honour LCM Barnett 22 June 2020

3. Supreme Court Proceedings before Her Honour Schmidt J 2021/7958 (Appeal of LCM Barnett’s decision refusing to summarily dismiss)

4. District Court Proceedings before Her Honour Gibson J 2020/182135 (Action for malicious pros and abuse of process)

5. Supreme Court of Appeal Leave application before Kirk J 2021/175377 (Leave application to appeal Gibson J’s decision of DC Proc 2020/182135)

6. Supreme Court of Appeal Leave application before their Honours Kirk, Brereton and Macfarlan JJ 2021/175377 (Substantive appeal of Gibson J’s decision of DC proc 2020/182135)

7. Current District Court Proceedings 2020/156610 (Default Judgment granted)

60.9 [22] The first defendant’s fraudulent ADVO coupled with the wilful ignoring of court dates and sealed court documents has caused substantial loss and damage to the plaintiff including the loss of ever getting to know my nieces and nephews the subject of the PAC437/2020 and SYC7496/2021 proceedings.

60.10 [31] The first defendant’s wilful and flagrant misconduct in perpetrating a fraudulent ADVO with malicious false assertions, and court avoidance is ongoing and as such it is submitted exemplary damages are appropriate. I lived under threat of arrest for 13 months unjustifiably, from 18 April 2020-11 May 2021, given the misconduct. I was embarrassed and humiliated and the psychological distress was destructive on my mental health. I was robbed of fair proceedings for contact orders to know my nieces and nephew due to the misconduct. And impeded in care and protection orders for my 12-year-old sister …

60.11 [34] The court is asked to draw inferences of the significant and substantial damages as a result of the first defendant’s wilful, malicious and deceptive conduct in abusing the court process for his own means to bolster his position in family law proceedings. It is respectfully submitted the first defendant ought to be made an example of with exemplary damages as the first defendant’s malicious and deceptive prosecution and abuse of process exhausted substantial court process and resources in addition to the loss and damage suffered by the plaintiff.

61. Whilst I have read the balance of the affidavit, those paragraphs appear to me to be the most relevant to assessing Mr Marino’s damages for collateral abuse of process and malicious prosecution, albeit that a number of those paragraphs take the form of submissions.

G. Mr Marino’s submissions

62. In his written submissions, Mr Marino submitted that the court should consider:

62.1 The wilful and flagrant conduct of Mr Bello deceptively initiating the ADVO proceedings for a purpose other than that intended.

62.2 Mr Bello’s wilful, malicious, and unsubstantiated allegations about Mr Marino despite Mr Bello’s own admission that he had never met Mr Marino.

62.3 Mr Bello’s use of the ADVO proceeding in his family law affidavit of 13 May 2022.

62.4 Mr Bello’s non-participation in the ADVO proceedings, despite numerous notices that he was required for cross-examination.

62.5 The massive amount of litigation that flowed from the abusive ADVO provisional orders including extensive damage sustained to the family court proceedings and subsequent proceedings and to Mr Marino’s “person”. Mr Marino gave details of that “massive amount of litigation” in paragraphs 6 to 30 of his affidavit.

63. I have taken those submissions into account in assessing compensatory and aggravated damages.

64. Mr Marino submitted that Mr Bello’s conduct was nothing short of criminal in nature, amounting to perverting the course of justice, wilful perjury and contempt of court. I am unable to accept or even consider these submissions because each of them are very serious allegations and none of them have been pleaded. As I have mentioned, the causes of action sued upon are malicious prosecution and collateral abuse of process.

65. Mr Marino submitted that an award of exemplary damages is appropriate and refers to paragraphs [31] to [35] of his affidavit. I have already set out paragraphs [31] and [34] above. In paragraph [32] Mr Marino suggests that he will very likely never get to know his nieces and nephews now. This echoes paragraph [22] of his affidavit, which I have set out above. In paragraph [33] he gives evidence of Mr Bello’s failure to appear on various occasions in different courts. In paragraph [35] he gives evidence of Mr Bello’s real name and refers to a flight schedule. He refers to these matters in his written submissions, at paragraphs 11 to 15.

66. I do not accept that that evidence or those submissions provide good reasons for awarding exemplary damages, over and above compensatory and aggravated damages.

H. Assessment

67. Mr Marino has not presented evidence of any particular pecuniary, monetary or economic loss.

68. He is likely to have suffered some damage to his reputation or fame in the sense discussed in the cases I have referred to, and I find that he did.

69. I accept his evidence that he has suffered psychological distress. That distress included living under the threat of arrest for 13 months between the time the ADVO was first obtained on 10 April 2020 until those proceedings were terminated in his favour on 11 May 2021. The distress would have been heightened each time Mr Bello sought to deploy the existence of the ADVO orders and alleged basis for them in the family law proceedings to hurt, sabotage, impede, frustrate, and otherwise destroy Mr Marino’s family law proceedings and thereby bolster Mr Bello’s own case.

70. I accept Mr Marino’s evidence that this psychological distress was likely destructive of his mental health. How destructive and in what respects, however it is not possible for me to say. Mr Marino did not elaborate in his affidavit or provide any medical reports to shed further light on the matter.

71. I accept his evidence that he was embarrassed and humiliated. This constituted an injury to his feelings. I infer that the embarrassment and humiliation arose when the ADVO orders were first obtained and then exacerbated each time Mr Bello sought to deploy them against him in the family law proceedings and when they were made known to family, friends and other members of the community.

72. I accept that Mr Marino believes he was robbed of fair proceedings for contact orders in the family law proceedings, at least to the extent that the ADVO orders were deployed against him in those proceedings.

73. In all the circumstances I assess Mr Marino’s compensatory damages at $50,000.

74. In my opinion, the circumstances and manner of Mr Bello’s wrongdoing in obtaining the ADVO on a false basis in the first place, and thereafter repeatedly and deliberately deploying it in the family law proceedings warrant an award of aggravated damages.

75. I assess aggravated damages in the sum of $15,000.

76. I do no accept that the matters raised by Mr Bello make this is an appropriate case for exemplary damages.

I. Orders

77. I make the following orders:

1. Judgment for the plaintiff against the first defendant in the sum of $65,000.

2. First defendant to pay the plaintiff’s costs of the proceedings.

**********