(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Auxiliary Justice Hall)
7 February 2025
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT
TORTS - ABUSE OF LEGAL PROCESS - ABUSE OF PROCESS - RELATIONSHIP WITH MALICIOUS PROSECUTION
The appellant and the respondent were formerly married. The respondent made serious allegations of physical, emotional and sexual abuse, which the appellant denied. They were in dispute about the care arrangements for their child.
A domestic violence service recommended that the respondent make a report to SAPOL ‘so that the appropriate preventative orders could be made’ pursuant to s 20 of the Intervention Order (Prevention of Abuse) Act 2009 (SA). A support worker made an appointment for the respondent at the Port Adelaide Police Station for 19 March 2015, where an affidavit was prepared and, soon after, police obtained an interim intervention order naming the respondent and her son as protected persons, and preventing contact apart from contact permitted under the Family Law Act 1975 (Cth) or the Children’s Protection Act 1993 (SA).
A trial was listed for 7 January 2016 to determine whether final orders should be made in the intervention order proceedings. The trial did not proceed because the presiding magistrate took the view that any necessary protective arrangements could be made by the Federal Circuit Court in connection with pending parenting proceedings. The interim intervention order was revoked with the consent of the appellant.
On 4 April 2016, interim orders were made in the Federal Circuit Court for a mutual injunction, restraining the behaviour of both parties in relation to each other and their son. Those orders were finalised by consent in the Federal Circuit Court on 21 September 2016.
On 7 October 2021, the appellant filed a statement of claim in the District Court. The appellant alleged malicious prosecution and collateral abuse of process against the respondent. The appellant claimed a total of $207,033.55 from the respondent. This comprised $104,252.95 in general damages, $100,000 in aggravated, exemplary and special damages, and court fees. The appellant alleged that he lost the opportunity to take up paid employment as a teacher as the result of the intervention order proceedings.
The respondent applied for summary judgment against the appellant or, in the alternative, for all, or part, of his claim to be struck out. The respondent obtained summary judgment. The primary judge concluded that in relation to both causes of action there was a fundamental element, or elements, of the tort that could not be satisfied.
The appellant, who is unrepresented, appealed. The respondent filed a notice of contention.
Held, per the Court, allowing the appeal in part, setting aside summary judgment in respect of the claim of malicious prosecution and affirming summary judgment in respect of the collateral abuse of process claim,…
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.
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AGLC
MT v Se [2025] SASCA 8
Case
[2025] SASCA 8
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between MT (appellant) and SE (respondent) arising from the respondent's report to the police concerning the appellant's alleged abusive behaviour during their relationship and subsequent separation. The respondent provided a statement to SAPOL, which led to an application for an intervention order against the appellant. The appellant subsequently sued the respondent for malicious prosecution and collateral abuse of process. The respondent applied for summary judgment, seeking to dismiss these claims. The matter was heard by Livesey P, Bleby J, and Hall AJ.
The central legal issues before the court were whether the respondent had initiated the intervention order proceedings, thereby potentially founding a claim for malicious prosecution, and whether the appellant had adequately pleaded a claim for collateral abuse of process, particularly concerning damages. The court was required to determine if the respondent's actions in providing information to the police constituted the commencement of legal proceedings for the purposes of a malicious prosecution claim, and if the appellant's pleadings sufficiently particularised any special damages for the tort of collateral abuse of process.
The Full Court allowed the appeal in part. It found that the intervention order proceedings were initiated by SAPOL, not the respondent personally, and that providing information to the police, even if later found to be untrue, did not equate to instituting proceedings for the tort of malicious prosecution. The court reasoned that the decision to apply for the intervention order rested with the independent prosecuting authority. However, the court affirmed the summary judgment in relation to the collateral abuse of process claim, indicating that the appellant had not sufficiently particularised the special damages required for such a claim.
Consequently, the Full Court set aside the summary judgment in respect of the malicious prosecution claim, dismissing that part of the summary judgment application. The court affirmed the summary judgment concerning the collateral abuse of process claim.
Orders
Orders of the court
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Background
Background to the litigation
We would allow the appeal in part by setting aside summary judgment in respect of the claim of malicious prosecution and, in lieu thereof dismiss that part of the summary judgment application. We would affirm that part of the summary judgment application dealing with the collateral abuse of process claim.Factual Background The appellant and the respondent swore affidavits for the purposes of the summary judgment proceedings. Whilst noting that some matters are in dispute, the following factual background can be drawn from those affidavits. The appellant and the respondent were in a relationship between November 2009 to June 2014, with some periods of separation. They were married in July 2011 and remained so until October 2015. There is one child of the relationship, a son, born on 15 April 2011. After their separation and, later, divorce, the appellant and the respondent attempted to reach an agreement regarding the care and access arrangements for their son. No agreement could be reached.[4][4] Affidavit of SE, sworn 25 July 2022, 2; Affidavit of MT, sworn 12 August 2022, 2. The respondent claimed that the appellant was abusive and controlling during their relationship, and that this continued after their separation. She sought assistance from Relationships Australia and was referred to a domestic violence service. After the respondent provided a history of the alleged abusive behaviour, the domestic violence service recommended that she make a report to SAPOL ‘so that the appropriate preventative orders could be made’.[5] A support worker arranged an appointment for the respondent at the Port Adelaide Police Station for 19 March 2015.[6][5] Affidavit of SE, sworn 25 July 2022, 2.[6] Affidavit of SE, sworn 25 July 2022, 2. The respondent attended the appointment at the police station with a support worker. The respondent gave a statement to a police officer and was advised of SAPOL’s intention to file an application for an intervention order against the appellant, naming the respondent and her son as protected persons. SAPOL then prepared an affidavit based on the information that the respondent had provided (police affidavit).[7][7] Affidavit of SE, sworn 25 July 2022, 3. In her affidavit in the summary judgment proceedings, the respondent stated, in regard to her attendance at the Port Adelaide Police Station:[8]I was advised of SAPOL’s intention to file an application for an intervention order against [the appellant], naming myself and [my son] as protected persons to keep us safe from [the appellant’s] behaviour. SAPOL prepared an affidavit on my behalf setting out the information that I disclosed to them.[8] Affidavit of SE, sworn 25 July 2022, 3. The respondent went on to say:[9]My only further involvement was that I was advised by SAPOL that I was required to attend Port Adelaide Magistrates Court on 25 March when the order was put in place in case I needed to give evidence in support of their application for an intervention order.[9] Affidavit of SE, sworn 25 July 2022, 3.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
A revised defence prepared by the respondent’s solicitors was filed on 31 May 2022. The revised defence does not differ in substance from the first defence. In the revised defence, the respondent maintained that the application for an intervention order was made by the police and not herself. She stated that the interim intervention order was revoked by consent on 7 January 2016 and before any evidence was heard. She denied that her statements to SAPOL were untrue or made with malicious intent. She claimed that the tort of malicious prosecution does not lie in relation to civil proceedings and the intervention order proceedings were civil in nature. If she did institute the proceedings, the respondent denied doing so for any improper purpose.[35][35] Core Appeal Book 14-15.The summary judgment application The respondent applied for a summary judgment against the appellant or, in the alternative, for all, or part, of his claim to be struck out. The application was made on the following grounds:[36][36] Respondent’s Outline of Argument, dated 25 August 2022.1. There is no reasonable basis upon which to prosecute the claim in relation to either tort, as the respondent was not the person, or entity who initiated the IO proceedings. The application for an Interim Intervention Order was made by SAPOL pursuant to s 20(1)(a) of the Intervention Order (Protection of Abuse) Act 2009 (SA), (IO Act). It was not made personally by the respondent pursuant to s 20(1)(b) of the IO Act. It is not asserted that the person who applied for the Intervention Order (a police officer) was acting as an employee or agent of the respondent.2. A person who provides police with information, believing it to be true, is not to be held to have instituted police proceedings. The proceedings are, in such circumstances, initiated at the discretion of an independent prosecuting authority after assessing the information provided. Setting the law in motion is not enough.3. In any event, making false witness does not constitute malicious prosecution. In this matter:31.the Interim Intervention Order application was made by a police officer and not the respondent;3.2the respondent’s only involvement was to report to police and provide a statement;3.3the respondent never have oral evidence in the IO proceedings; and3.4the respondent was advised by SAPOL that the hearing for a final order would not proceed because of the Magistrate’s concerns regarding the FCC [Federal Circuit Court] proceedings involving the parties and especially [their son]. Those proceedings having priority at that date.4. In any event, general and compensatory damages cannot be awarded in the action for the tort of collateral abuse of process. The [appellant] has not pleaded detail of the special damage that he suffered as a result of ant misuse of legal process.5. The IO application was successful, and remained in place between 25 March 2015 and 7 January 2016, a period of over 10 months. The IO proceedings were not decided on the merits. There was no finding in the PAMC, or any other court, that the respondent had provided a false statement to police.6. The [appellant] has not amended his Claim, and if summary judgment is not granted, the respondent seeks an order that Part 4, and Orders 3, 4, 5, 6, 7 and 9 of the Statement of Claim be struck out, as being vague and lacking particularity, and on the basis that there is no basis pleaded for the granting of aggravated or exemplary damages, nor for the relief sought generally in Order 3.