Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Marino v Bello (No 3) [2022] NSWCA 181 Hearing dates: 18 August 2022 Date of orders: 20 September 2022 Decision date: 20 September 2022 Before: Macfarlan JA at [1];
Brereton JA at [2];
Kirk JA at [24].Decision: (1) Set aside orders (2) and (3) made in the District Court on 11 March 2021.
(2) In lieu thereof, grant leave to the plaintiff to further amend the Statement of Claim in the form of the Draft Amended Statement of Claim dated 18 January 2021, subject to:
(a) omitting paragraphs 3 and 4 of the relief claimed;
(b) omitting paragraphs 48 to 131;
(c) inserting the date “11 May 2021” in paragraph 45;
(d) omitting from paragraph 144 the words “and a formal letter of apology in proper form and letterhead from the Third and Sixth Defendants”; and
(e) omitting paragraphs 145 and 146.
(3) Order that the respondents pay the appellant’s costs of the appeal.
(4) Order that the plaintiff’s costs of the motions in the District Court be costs in the proceedings in the District Court.
Catchwords: APPEALS – Proceedings summarily dismissed – Question of principle – Whether claims sufficiently arguable to be determined at hearing – 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), s 64(3)
Crimes (Domestic and Personal Violence) Act, ss 27, 28, 29, 49
Supreme Court Act 1970 (NSW), s 75A(8)
Uniform Civil Procedure Rules, r 7.36
Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245
Clavel v Savage [2013] NSWSC 775
Danby v Beardsley (1880) 43 LT 603
Emanuele v Hedley (1998) 179 FCR 290
Flower & Hart v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134
HD v State of New South Wales [2016] NSWCA 85
JR Consulting and Drafting Pty Ltd v Cummings [2016] FCAFC 20; (2016) 329 ALR 625
Kable v New South Wales [2012] NSWCA 243; (2012) 268 FLR 1
Keller v LED Technologies Pty Ltd [2010] FCAFC 55; (2010) 185 FCR 449
Laferla v Birdon Sands Pty Ltd [2005] NTSC 12; (2005) Aust Torts Reports 81-786
Lee v Deng (No 2) [2012] NSWSC 1245
Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553
Marino v Bello [2021] NSWDC 52
Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73
Marino (a pseudonym) v Bello (a pseudonym) (No 2) [2022] NSWCA 143
Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146
Myers Stores Ltd v Soo [1991] 2 VR 597
Performing Rights Society Limited v Ciryl Theatrical Syndicate Limited [1924] 1 KB 1
Rainham Chemical Works Ltd (in liq) v Belvedere Fish Guano…
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- AGLC
- Marino v Bello (No 3) [2022] NSWCA 181
- Case
- [2022] NSWCA 181
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine two primary legal issues. Firstly, it had to consider whether the District Court had erred in summarily dismissing the appellant's claims. Secondly, the Court had to address the question of principle as to whether the tort of abuse of process could be established against a party who had initiated legal proceedings, but not yet formally commenced them, and whether the appellant's alleged conduct met the threshold for such a claim.
The Court reasoned that the District Court had incorrectly applied the test for summary dismissal, failing to give the appellant the benefit of the doubt regarding the arguable nature of her claims. The Court of Appeal found that the appellant's amended statement of claim, with certain modifications, did disclose a cause of action that ought to have been permitted to proceed to a hearing. The principles applied focused on the threshold for summary dismissal and the elements required to establish the tort of abuse of process, particularly in circumstances where proceedings had been instigated but not formally commenced.
Consequently, the Court of Appeal set aside the District Court's orders, granted the appellant leave to further amend her Statement of Claim subject to specific omissions and insertions, and ordered that the respondents pay the appellant’s costs of the appeal. The costs of the motions in the District Court were to be costs in the proceedings in that court.
Orders
Orders of the court
(1) Set aside orders (2) and (3) made in the District Court on 11 March 2021.
(2) In lieu thereof, grant leave to the plaintiff to further amend the Statement of Claim in the form of the Draft Amended Statement of Claim dated 18 January 2021, subject to:
(a) omitting paragraphs 3 and 4 of the relief claimed;
(b) omitting paragraphs 48 to 131;
(c) inserting the date “11 May 2021” in paragraph 45;
(d) omitting from paragraph 144 the words “and a formal letter of apology in proper form and letterhead from the Third and Sixth Defendants”; and
(e) omitting paragraphs 145 and 146.
(3) Order that the respondents pay the appellant’s costs of the appeal.
(4) Order that the plaintiff’s costs of the motions in the District Court be costs in the proceedings in the District Court.
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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