Moore v Moore (No 2)

[2021] NSWDC 73

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

11 February 2021

Date of orders:

11 February 2021

Decision date:

11 February 2021

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

See [11]

Catchwords:

TORTS – PRACTICE AND PROCEDURE

Second application under UCPR 13.4 to dismiss proceedings – Application to strike out parts of statement of claim alleging that making application for ADVOs can ground an action for damages for malicious prosecution - Held: arguable that making application for ADVO can ground an action for malicious prosecution – Defective statement of claim – Leave granted to replead - COSTS – Each party in default – No order as to costs.

Legislation Cited:

Legal Profession Uniform Law Application Act 2014

Uniform Civil Procedure Rules 2005

Cases Cited:

Clavel v Savage [2013] NSWSC 775

Clavel v Savage [2015] NSWCA 61

Coleman v Buckingham’s Limited (1963) 63 SR (NSW) 171

Moore v Moore [2020] NSWDC 402

Category:

Procedural rulings

Parties:

Applicant – Steven Moore
Respondent – Roderick Moore

Representation:

Counsel:
Applicant – P.R. Glissan
Respondent – M.K. Rollinson

Solicitors:
Applicant – E. Neumann (Eddy Neumann Lawyers)
Respondent – D.P. Khoury (Benjamin & Khoury Solicitors and Attorneys)

File Number(s):

2019/00354225

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: On 11 November 2019 the plaintiff filed a statement of claim. In essence the statement of claim brings an action for damages for the tort of malicious prosecution. The plaintiff relies upon the prosecution of him by New South Wales Police in the Local Court at Belmont which led to the plaintiff’s being committed for trial in this Court at Newcastle and led to a trial before North DCJ and a jury which jury returned a verdict of not guilty of the charges against the plaintiff on or about 5 May 2016. The plaintiff also relies upon three applications made by or on behalf of the defendant against the plaintiff for an ADVO seeking that an order be made in favour of the defendant.

2. The defendant filed a defence initially in the Local Court at Belmont which eventually made its way into this Court’s file on 9 January 2020. On 21 May 2020 the defendant filed a notice of motion seeking an order that the proceedings be dismissed pursuant to UCPR 13.4. That motion came on for 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 2020, the first prayer of which could be described as “more of the same”, another application under UCPR 13.4. In the alternative the plaintiff was claiming that pars 17, 18, 19 and 20 of the statement of claim referring to the ADVO applications be dismissed pursuant to that provision or pursuant to UCPR 14.28.

3. The…