Marino v Bello (No 3)

The appeal concerned a dispute between Marino (the appellant) and Bello (the respondent), brought before the Court of Appeal of New South Wales. The core of the disagreement revolved around whether the appellant's claims were sufficiently arguable to warrant a full hearing, and specifically, whether a person who had instigated legal proceedings, even if not formally commenced, could be held liable for the tort of abuse of process.

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.