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Moore v Moore

Moore v Moore

Case [2020] NSWDC 402 13 August 2020

Summary Judgment

Malicious Prosecution

Factual Dispute

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Moore v Moore [2020] NSWDC 402
Hearing dates: 13 August 2020
Date of orders: 13 August 2020
Decision date: 13 August 2020
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
The Notice of Motion is dismissed

Catchwords:
Practice and procedure – summary dismissal application
Torts – malicious prosecution – who initiates or instigates a prosecution – whether case would be doomed to fail – factual dispute

Legislation Cited:
Evidence Act 1995 (NSW)
UniformCivil Procedure Rules 2005 (NSW)

Cases Cited:
AvState of New South Wales [2007] HCA 10; (2007) 230 CLR 500
ADvCommissioner of the Australian Federal Police [2018] NSWCA 89
Agar v Hyde (2000) 201 CLR 552
BeckettvNew South Wales [2013] HCA 17; (2013) 248 CLR 432
BriginshawvBriginshaw (1938) 60 CLR 336
BurtonvOffice of the Director of Public Prosecutions [2019] NSWCA 245
Commonwealth Life Assurance Society LimitedvBrain (1935) 53 CLR 343
ComninosvBuckley [2019] NSWSC 968
Fanv South Eastern Sydney Local Health District [2020] NSWSC 1038
JackamarravKrakouer (1998) 195 CLR 516
JohnstonvAustralia and New Zealand Banking Group Limited [2006] NSWCA 218
MahonvRahn(No 2) [2000] 1 WLR 2150
PereravGenworth Financial Mortgage Insurance Pty Ltd [2017] 94 NSWLR 83
SahadevBischoff [2015] NSWCA 418
Spencerv The Commonwealth of Australia (2010) 241 CLR 118
WoodvNew South Wales [2019] NSWCA 313

Category: Procedural and other rulings
Parties: Roderick Moore (Plaintiff)
Steven Moore (Defendant)
Representation:
Counsel:
M K Rollinson (Plaintiff)
P R Glissan (Defendant)
Solicitors:
Benjamin & Khoury (Plaintiff)
Eddy Neumann Lawyers (Defendant)

File Number(s): 2019/00354225

Judgment

EX TEMPORE

HIS HONOUR: Before the Court is a Notice of Motion filed on 21 May 2020 by the defendant in the proceedings seeking an order that the proceedings be dismissed generally pursuant to Part 13 r 4 of the Uniform Civil Procedure Rules 2005 (NSW) and related relief. Part 13.4 of the Uniform Civil Procedure Rules provides as follows:

“13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

In support of the application, the defendant/applicant read the affidavits of Mr Neumann, affirmed 21 May 2020, and of the plaintiff himself, sworn 24 May 2020. The plaintiff/respondent on the motion did not read any affidavit evidence or tender any evidence.
The defendant relied on each subparagraph of Part 13.4(1), although the argument was directed towards subparagraph (b): “no reasonable cause of action is…

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 Moore v Moore

Details

AGLC: Moore v Moore [2020] NSWDC 402
Case: [2020] NSWDC 402
Decision Date: 13 August 2020

CaseChat Overview and Summary

In the case of Moore v Moore, the respondent applied for summary dismissal of the appellant's claim for malicious prosecution. The appellant alleged that the respondent had maliciously instigated criminal proceedings against them. The application was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the respondent could be considered to have instigated or initiated the criminal proceedings against the appellant. The court had to determine if there was a factual dispute that would prevent the case from being dismissed summarily. The appellant argued that the respondent had no reasonable grounds to instigate the proceedings, while the respondent maintained that they had acted in good faith.

The court found that there was a genuine issue of fact as to whether the respondent had instigated or initiated the proceedings. The court held that the respondent's actions did not amount to an initiation of the proceedings, and there was a reasonable basis for their actions. The court further found that the case was not doomed to fail as the appellant had not established that the respondent had acted maliciously. As a result, the court dismissed the application for summary dismissal.

Consequently, the court ordered that the Notice of Motion be dismissed, allowing the appellant's claim for malicious prosecution to proceed to trial.

Orders

Orders of the court

The Notice of Motion is dismissed

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

Full text does not contain this section.

Citations

AGLC Citation

Moore v Moore [2020] NSWDC 402

Most Recent Citation

Moore v Moore (No 2) [2021] NSWDC 73

Cases citing this decision · 1 of 1 shown

Moore v Moore (No 2)
[2021] NSWDC 73 Para 2

…or hearing before Dicker DCJ on 13 August 2020 and his Honour dismissed that notice of motion. His Honour’s reasons can be found at Moore v Moore [2020] NSWDC 402. His Honour went on to order the defendant to pay the plaintiff’s costs of that notice of motion. Before me is a notice of motion filed on 11 November 20…

View all 1 citing cases →

Cases cited in this decision · 19 of 19 shown

Fan v South Eastern Sydney Local Health District
[2020] NSWSC 1038 Para 22

…More recently, Walton J in Fan v South Eastern Sydney Local Health District [2020] NSWSC 1038, a decision dated 10 August 2020, set out a similar statement of principles at paragraphs 43 to 44, referring to his Honour's judgments in earlier cases. It is helpful also to refer to a couple of recent Court of Appeal cas…
Wood v State of New South Wales
[2019] NSWCA 313 Para 15

…of the Statement of Claim. It is clear that these principles stated by the High Court are followed in this State: see Wood v New South Wales [2019] NSWCA 313 at [45] per Gleeson JA, Payne JA and Simpson AJA.…
Burton v Office of the Director of Public Prosecutions
[2019] NSWCA 245 Para 26

…In Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245, White JA, in his judgment, set out the principles applicable. In paragraphs 48 and following, his Honour referred to the “high hurdles” that an applicant must overcome. There was specific reference to Spencer v The Commonwealth of Australia…
Comninos v Buckley
[2019] NSWSC 968 Para 21

…an of counsel referred me to a number of authorities. It is unnecessary to set out those principles in detail. However, I refer to Comninos v Buckley [2019] NSWSC 968 at paragraphs 77 and following, where Hallen J helpfully sets out the principles.…
Ad v Commissioner of the Australian Federal Police
[2018] NSWCA 89 Para 22

…ents in earlier cases. It is helpful also to refer to a couple of recent Court of Appeal cases. In AD v Commissioner of the Australian Federal Police [2018] NSWCA 89, President Beazley, with whom Meagher and Gleeson JJA agreed, stated the principles in paragraph 10, although in the context of an appeal. Her Honour…
Sahade v Bischoff
[2015] NSWCA 418 Para 20

…The principles in Johnston were expressly followed by the Court of Appeal in Sahade v Bischoff [2015] NSWCA 418. The facts in that case involved an alleged assault, somewhat similar to here, of two persons living in valuable premises at Wolseley Road in Point Piper. The statement of principles was given by Gleeson…
Beckett v New South Wales
[2013] HCA 17 Para 15

…y were initiated against the plaintiff by the defendant. A v State of New South Wales has been followed in later cases: see Beckett v New South Wales [2013] HCA 17 at [4]; (2013) 248 CLR 432. It should be noted in paragraph 4 of Beckett that the High Court specifically uses the phrase “malicious instigation or m…
Spencer v Commonwealth of Australia
[2010] HCA 28

…Rahn (No 2) [2000] 1 WLR 2150 Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] 94 NSWLR 83 Sahade v Bischoff [2015] NSWCA 418 Spencer v The Commonwealth of Australia (2010) 241 CLR 118 Wood v New South Wales [2019] NSWCA 313 Category: Procedural and other rulings Parties: Roderick Moore (Plaintiff) Steven Moore (Defendant) Represe…
A v New South Wales
[2007] HCA 10 Para 14

…he requirements for a plaintiff to establish the tort of malicious prosecution have been stated in a number of cases. In A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [1], six judges of the High Court stated as follows:…
Johnston v Australia & New Zealand Banking Group Ltd
[2006] NSWCA 218 Para 17

…The most convenient statement of the principles is in Johnston v Australia and New Zealand Banking Group Limited [2006] NSWCA 218. There, Basten JA (with whom Giles JA and Santow JA agreed) stated as follows in paragraphs 36 to 40:…
Agar v Hyde
[2000] HCA 41

…es Cited: A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 AD v Commissioner of the Australian Federal Police [2018] NSWCA 89 Agar v Hyde (2000) 201 CLR 552 Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432 Briginshaw v Briginshaw (1938) 60 CLR 336 Burton v Office of the Director of Public Pro…
Jackamarra v Krakouer
[1998] HCA 27

…ty Limited v Brain (1935) 53 CLR 343 Comninos v Buckley [2019] NSWSC 968 Fan v South Eastern Sydney Local Health District [2020] NSWSC 1038 Jackamarra v Krakouer (1998) 195 CLR 516 Johnston v Australia and New Zealand Banking Group Limited [2006] NSWCA 218 Mahon v Rahn (No 2) [2000] 1 WLR 2150 Perera v Genworth Financial Mortg…
Briginshaw v Briginshaw
[1938] HCA 36 Para 36

…clear, in my view, that the plaintiff faces a difficult road to establish the tort. Although it is on the balance of probabilities, the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, and in s 140 of the Evidence Act 1995 (NSW), must be taken into account in any hearing. It seems that the plaintiff is relying on inferen…
Briginshaw v Briginshaw
[1938] HCA 34 Para 36

…the plaintiff faces a difficult road to establish the tort. Although it is on the balance of probabilities, the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, and in s 140 of the Evidence Act 1995 (NSW), must be taken into account in any hearing. It seems that the plaintiff is relying on inferences, which…
Commonwealth Life Assurance Society Ltd v Brain
[1935] HCA 30

…es liable to suit, have not been clearly defined. This point was made by Dixon J in Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343 at 379: “The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on t…
Davis v Gell
[1924] HCA 56

…“36 That a person who is not legally a party to a prosecution may nevertheless be sued is beyond doubt. In Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 282, Isaacs ACJ stated: “For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the a…
A v State of New South Wales
[2007] HCA 1021 Para 14

…for a plaintiff to establish the tort of malicious prosecution have been stated in a number of cases. In A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [1], six judges of the High Court stated as follows:…
[2000] 1 WLR 2150
[2000] 1 WLR 2150 Para 20

…JA and Beech‑Jones J agreed: see at paragraphs 108 to 121, where Johnston and Brain were followed. His Honour also referred to Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [255], where Brooke LJ, with whom Mantell and Laws LJJ agreed, stated:…
[1981] 1 WLR 184
[1981] 1 WLR 184

…utor for the purposes of the tort is a person “actively instrumental in putting the law in force”. In Evans v London Hospital Medical College [1981] 1 WLR 184, the plaintiff was the mother of a five month old son who had died from “sudden infant death syndrome”. A post mortem analysis carried out on the infant, by…

Legislation cited in this decision · 2

Evidence Act 1995 (Cth)
1 mention (from Para 36)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Moore v Moore [2020] NSWDC 402
Hearing dates:	13 August 2020
Date of orders:	13 August 2020
Decision date:	13 August 2020
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	The Notice of Motion is dismissed
Catchwords:	Practice and procedure – summary dismissal application Torts – malicious prosecution – who initiates or instigates a prosecution – whether case would be doomed to fail – factual dispute
Legislation Cited:	Evidence Act 1995 (NSW) UniformCivil Procedure Rules 2005 (NSW)
Cases Cited:	AvState of New South Wales [2007] HCA 10; (2007) 230 CLR 500 ADvCommissioner of the Australian Federal Police [2018] NSWCA 89 Agar v Hyde (2000) 201 CLR 552 BeckettvNew South Wales [2013] HCA 17; (2013) 248 CLR 432 BriginshawvBriginshaw (1938) 60 CLR 336 BurtonvOffice of the Director of Public Prosecutions [2019] NSWCA 245 Commonwealth Life Assurance Society LimitedvBrain (1935) 53 CLR 343 ComninosvBuckley [2019] NSWSC 968 Fanv South Eastern Sydney Local Health District [2020] NSWSC 1038 JackamarravKrakouer (1998) 195 CLR 516 JohnstonvAustralia and New Zealand Banking Group Limited [2006] NSWCA 218 MahonvRahn(No 2) [2000] 1 WLR 2150 PereravGenworth Financial Mortgage Insurance Pty Ltd [2017] 94 NSWLR 83 SahadevBischoff [2015] NSWCA 418 Spencerv The Commonwealth of Australia (2010) 241 CLR 118 WoodvNew South Wales [2019] NSWCA 313
Category:	Procedural and other rulings
Parties:	Roderick Moore (Plaintiff) Steven Moore (Defendant)
Representation:	Counsel: M K Rollinson (Plaintiff) P R Glissan (Defendant) Solicitors: Benjamin & Khoury (Plaintiff) Eddy Neumann Lawyers (Defendant)
File Number(s):	2019/00354225