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

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.
Mr Bello’s wife, the plaintiff’s sister, was the second defendant. Mr Marino has discontinued the proceedings against his sister.
These names are pseudonyms, as a consequence of suppression orders having previously been made in the matter.

The assessment hearing before me

Mr Marino appeared via audiovisual link and represented himself at the assessment hearing before me.
There was no appearance by or for Mr Bello.
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.
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.
Most of those documents were the reasons for the decision of prior proceedings in this Court, in the Court of…

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 v Bello

Details

AGLC: Marino v Bello [2024] NSWDC 149
Case: [2024] NSWDC 149
Decision Date: 08 May 2024

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Marino v Bello was heard, where the plaintiff, Marino, sought damages against the first defendant, Bello, for malicious prosecution. The dispute arose from a series of events where Bello instigated legal proceedings against Marino, which were subsequently dismissed. Marino claimed that Bello acted without probable cause and with malice, thereby abusing the legal process. The first defendant defaulted, leading to a default judgment in favour of the plaintiff for damages to be assessed.

The legal issues before the court involved determining the appropriate measure of damages for the tort of malicious prosecution. Specifically, the court had to assess whether the damages awarded to Marino were commensurate with the harm caused by the malicious prosecution. The plaintiff argued that the damages should reflect the significant distress, reputational harm, and legal costs incurred due to the wrongful initiation of proceedings.

The court considered the nature and extent of the harm caused by the malicious prosecution, taking into account the evidence of the plaintiff's distress and legal expenses. It found that the award of $65,000 in damages was appropriate, reflecting the substantial impact on Marino. The court also addressed the issue of costs, ordering the first defendant to pay the plaintiff's legal costs associated with the proceedings. The reasoning provided by the court emphasised the need to deter similar abuses of legal process while ensuring that the damages were fair and reflective of the harm suffered.

Orders

Orders of the court

(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

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

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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.