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New South Wales |
Case Name: | Marino v Bello |
Medium Neutral Citation: | [2021] NSWDC 52 |
Hearing Date(s): | 26 February 2021; written submissions to 3 March 2021 |
Date of Orders: | 11 March 2021 |
Decision Date: | 11 March 2021 |
Jurisdiction: | Civil |
Before: | Gibson DCJ |
Decision: | Orders: |
Catchwords: | TORT – malicious prosecution and abuse of process – application for leave to amend – cross-application for summary dismissal – plaintiff seeks adjournment of applications – whether adjournment should be granted – criminal proceedings the subject of the claims not yet concluded – whether plaintiff should be permitted to bring proceedings for malicious prosecution where he has not yet had a successful outcome – whether leave to amend the abuse of process claim should be granted – whether a claim of abuse of process may be brought against a person who did not initiate the process – turns on own facts |
Legislation Cited: | Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 25 – 28A |
Cases Cited: | Ainsworth v Hanrahan (1985) 1 NSWLR 370 |
Category: | Procedural rulings |
Parties: | Plaintiff: |
Representation: | Counsel: |
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- AGLC
- Marino v Bello [2021] NSWDC 52
- Case
- [2021] NSWDC 52
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court's consideration were whether the plaintiff should be granted an adjournment of the proceedings until the criminal proceedings concluded, whether leave to amend the statement of claim should be granted, and whether the plaintiff's claims for malicious prosecution and abuse of process should proceed. The court examined whether the plaintiff could bring proceedings for malicious prosecution before a successful outcome in the criminal proceedings, and whether abuse of process could be claimed against someone who did not initiate the process. The court also considered the plaintiff's application to add additional defendants to the proceedings.
The court found that the plaintiff's application for an adjournment and/or a stay of these proceedings until the conclusion of the criminal proceedings should be refused, as should the plaintiff's application for leave to amend the statement of claim. The court held that the plaintiff could not bring proceedings for malicious prosecution before a successful outcome in the criminal proceedings, and that a claim for abuse of process could not be brought against someone who did not initiate the process. The court also dismissed the plaintiff's application to add additional defendants to the proceedings, finding that there was no basis for doing so. The court ordered that the plaintiff pay the defendants' costs both of this application and of the proceedings.
Orders
Orders of the court
Orders:
(1) The plaintiff’s application for adjournment and/or a stay of these proceedings until December 2021 (or such other dates as the court may be prepared to entertain) is refused with costs.
(2) The plaintiff’s application for leave to further amend the statement of claim in these proceedings in the form of the pleading which is exhibit A is refused with costs.
(3) The plaintiff’s claims for malicious prosecution and abuse of process against the first and second defendants are dismissed and the plaintiff is to pay their costs both of this application and of the proceedings.
(4) The plaintiff’s applications to join the proposed third, fourth, fifth and sixth defendants and to bring the causes of action identified in exhibit A against them are dismissed with costs.
(5) Liberty to apply in relation to costs.
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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