MT v SE - [2023] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MT v SE
[2023] SADC 129
Judgment of her Honour Judge Deuter
28 September 2023
TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
DAMAGES - GENERALLY - GENERAL AND SPECIAL DAMAGES - PARTICULAR CASES
The applicant seeks damages from his former wife alleged to have resulted from an order for an Interim Intervention Order made in the Port Adelaide Magistrates Court on 25 March 2015. He claims losses flowing from his inability to gain registration in South Australia as a teacher as a result of the Intervention Order.
The applicant’s action is brought in tort based upon Malicious Prosecution and Collateral Abuse of Process.
The Intervention Order was made by a Magistrate upon an application brought by a Police Officer (SAPOL), pursuant to s20(1)(a) of the Intervention Orders (Prevention of Abuse Act) 2009 (SA). Proceedings were commenced by SAPOL based upon the contents of a statement provided to them by the respondent. The statement contained allegations of physical and other abuse regarding the respondent and the child of the marriage.
An Interim Intervention Order was made in the applicant’s absence and without the respondent giving evidence. It was revoked just over nine months later, and when the application was listed for trial on final intervention orders. The revocation related to parenting orders being made in the Federal Circuit Court pursuant to the Family Law Act 1975 (Cth).
The respondent denies that the applicant has any basis upon which to claim damages, and has made application for Summary Judgment and/or Strike Out. It is claimed that there is no reasonable basis upon which the applicant can prosecute either claim as the respondent was not the person or entity who initiated the Intervention Order proceedings. She was not the Prosecutor nor the instigator of the proceedings.
Consideration of the elements of the torts of Malicious Prosecution and Collateral Abuse of Process.
HELD:
(1) The Intervention Order proceedings were commenced by SAPOL and were not prosecuted or instigated by the respondent.
(2) There is no reasonable basis upon which the applicant can prove the constituent element of the tort of Malicious Prosecution, that the Intervention Order proceedings were initiated by the respondent.
(3) There is no reasonable basis upon which the applicant can establish that the respondent's sole purpose for seeking an Intervention Order was an improper or collateral one; nor that she instituted the Intervention Order proceedings. As a result there is no reasonable basis upon which the applicant can establish all the fundamental elements of the tort of Collateral Abuse of Process.
ORDERS:
1. That there be summary judgment for the respondent pursuant to UCR 144.2(2) whereby the applicant's proceedings in this action are dismissed.
2. That the respondent is awarded costs of the proceedings on a party/party basis.
Family Law Act 1975 (Cth); Children’s Protection Act 1993 (SA); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 20(1)(a), 20(1)(b); Magistrates Court Act 1991 s 42(1a)(c), referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Spencer v Commonwealth (2010) 241 CLR 118; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Davies v Minister for Urban Development and Planning (2011) 109 SASR 518; Collins v Djunaedi [2016] SASCFC 48; Carey v Balfour [2001] SASC 79; JT Nominees Pty Ltd v Macks (2007) 97 SASR 471; Proude v Visic (No 4) (2013) 117 SASR 560; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937; Tavitian v Commissioner of Highways (2015) 123 SASR 306; Jennings v Police (2019) 133 SASR 520; Marino v Bello [2022] NSWCA 73; Marino v Bello (No 3) [2022] NSWCA 181; Clavel v Savage [2013] NSWSC 775; Mosley v Associated Newspapers Ltd [2020] EWHC 3545 (QB); Beckett v New South Wales (2013) 248 CLR 432; Stanizzo v Fregnan [2021] NSWCA 195; Groom v State of SA [2017] SASCFC 35; Mullett v Nixon [2016] VSC 512; A v State of New South Wales (2007) 230 CLR 500; The Law of Torts Fleming, 9th Ed (1988) ; Martin v Watson [1996] AC 74; Skrijel v Mengler [2003] VSC 270; Salmond, Law of Torts 6th ed (1924); Williams v Spautz (1991-92) 174 CLR 509; Butler and Butler v Simmonds Crowley & Galvin [1999] QCA 475; Paradise Grove Pty Ltd v Stubberfield [2001] QCA 117; Maxwell-Smith v S & E Hall [2014] NSWCA 146; Hanrahan v Ainsworth (1990) 22 NSWLR 73; Leerdam v Noori (2009) 255 ALR 553; Kable v New South Wales (2012) 293 ALR 719; Emanuele v Hedley (1998) 179 FCR 290; Burton v Office of Director of Public Prosecutions (2019) 100 NSWLR; Paff v Speed (1961) 105 CLR 549; Hanrahan v Ainsworth [1985] NSWLR 370; Cressy v Johnston No 1. [2009] VSC 35; Assessment of Damages for Personal Injury and Death Luntz, 5th Ed 2021, considered.

MT v SE
[2023] SADC 129
Introduction

The applicant seeks damages from his former wife (the respondent). He claims that these result from an Interim Intervention Order issued against him on 25 March 2015 (the Intervention Order).
The applicant claims losses alleged to have been suffered when he was unable to gain employment as a teacher, after being denied registration, as a result of the Intervention Order. He also claims aggravated and exemplary damages. The applicant’s action is brought in tort, alleging two causes of action. These are Malicious Prosecution, and Collateral Abuse of Process. Both are regarded as intentional torts, whereby it is alleged that the respondent, in seeking the Intervention Order, intended harm to be caused to the applicant.
It is pleaded that the respondent had previously threatened the applicant’s ability to work as a teacher, and that she acted without reasonable cause when she instituted Intervention Order proceedings (the IO proceedings) by making false statements in a complaint to police (SAPOL). The applicant’s case is that the respondent acted maliciously in initiating and maintaining the IO proceedings. The respondent instituted the IO proceedings for the sole purpose of preventing the applicant from seeing their son, and harming his ability to work as a teacher.
It is pleaded that the respondent was a party to the IO proceedings, in that they were only commenced after her complaint to SAPOL on 19 March 2015. It is alleged that the complaint was made after the applicant sought more time with their son, despite the respondent threatening his teaching career if he did so. The applicant claims that the respondent therefore misused the IO proceedings to gain a collateral advantage. He alleges that the IO proceedings supported the respondent’s response in the Federal Circuit Court (FCC) to the applicant’s application for their son to have more time with him.
The respondent denies that the applicant has any basis upon which to claim damages. Although she made a statement to police, the application for an Interim Intervention Order was made by SAPOL and not by her. The Intervention Order was subsequently revoked on the application of SAPOL, and before any evidence was given in court. She pleads that in all the circumstances, neither cause of action pleaded by the applicant can succeed as a matter of fact and/or at law.
Factual Background
The applicant and respondent were in a relationship between 1 November 2009 and June 2014, with some periods of separation. They were formally married between July 2011 and October 2015. There is one child of the relationship, a son born on 15 April 2011, described in these reasons as JT. After their separation and later divorce, the parties attempted to reach an agreement regarding care and visitation arrangements for JT. No such agreement was reached.
The respondent asserts that the applicant was abusive and controlling during their relationship, and that this has continued since their separation. There were acts of abuse against her and JT. She sought assistance from a counsellor and was referred to the Central Domestic Violence Service. After providing a history of the applicant’s abusive behaviour it was recommended that she report the issues to SAPOL. A support worker arranged an appointment at the Port Adelaide Police Station on 19 March 2015.[1] The respondent attended that appointment with her support worker. A statement was provided to SAPOL regarding the applicant’s abusive behaviour during the relationship and after separation.[2] The respondent requested an Intervention Order to keep her safe from the applicant.[3]
[1] FDN12 at [4], [6], [8]-[10].
[2] Exhibit SKAE1 to FDN12.
[3] Ibid at [22].
The respondent was subsequently advised that SAPOL intended to file an Application for an Interim Intervention Order against the applicant. SAPOL prepared an affidavit in support of such application, setting out the information the respondent had provided to them in her statement.[4] The applicant denies any abuse, physical or otherwise, during the relationship. He denies any controlling behaviour, and denies the allegations made by the respondent in her statement to SAPOL.[5]
[4] FDN12 at [11] and [12].
[5] FDN14 at [11]-[14].
SAPOL applied for an Interim Intervention Order in the Port Adelaide Magistrates Court (PAMC). This application was first listed for hearing on 25 March 2015. The Intervention Order was made on that date. The order was made with the respondent being present, but without the applicant attending court.[6] The Intervention Order prohibited any contact, physical or otherwise, between the applicant and the respondent and/or JT, apart from contact allowed under the Family Law Act 1975 (Cth) (FLA) or the Children’sProtection Act 1993 (SA).
[6] Exhibit SKAE2 to FDN12.
The applicant contested the IO proceedings, and sought a trial in the PAMC. On 28 May 2015 the FCC made interim orders, including that JT live with the respondent and have supervised contact with the applicant.
The Intervention Order was revoked, with the consent of the applicant, on 7 January 2016. This occurred on the morning of a trial listed in the PAMC to determine final orders in the IO proceedings. The respondent never gave evidence in court.
Revocation of the Intervention Order was ordered by the sitting Magistrate. This was after the FCC proceedings had been commenced and orders made. The impact of the FCC now having jurisdiction over any proceedings between the parties and JT was raised. The Magistrate’s view was that the necessary protective orders were now in the jurisdiction of the FCC.[7] The fact that parenting orders were also required in relation to JT pursuant to the FLA, meant that FCC orders took precedence.
[7] FDN9 at [6].
On 4 April 2016 orders were made by Judge Kelly in the FCC for a mutual injunction restraining the behaviour of both parties in relation to each other and JT. These orders were finalised by consent in the FCC on 21 September 2016.
Factual basis of the applicant’s claim
The applicant and the respondent regularly moved around Australia for work during their relationship. By January 2015 both were back living in South Australia (SA). The applicant is a school teacher and upon his return to SA was required to register with the Teacher’s Registration Board of SA (the Board). Registration was initially denied by the Board on 25 September 2015, as a result of the Intervention Order.[8] Registration was ultimately granted to the applicant on 5 June 2016, after the Intervention Order had been revoked.[9]
[8] FDN1 at [13].
[9] FDN1 at [16].
The applicant claims that:
1.On 5 March 2015, the respondent informed him that he could no longer see JT. As a result, on 13 March 2015, he filed parenting proceedings in the FCC. He told the respondent that he had filed these proceedings on 17 March 2015. Two days later the respondent provided her statement to SAPOL.[10]
2.The IO proceedings were instituted and/or initiated by the respondent when she gave the statement to SAPOL on 19 March 2015. As a result, she is to be considered as the Prosecutor as she was the ‘originating complainant’.
3.The IO proceedings terminated in his favour when the Intervention Order was revoked.
4.The respondent acted without ‘reasonable and probable cause’ by ‘instituting’ the IO proceedings and the use of false statements to SAPOL. There was no probable cause to prosecute the IO proceedings.
5.The respondent acted maliciously when she initiated, and maintained the IO proceedings, and/or instituted the IO proceedings for an ‘improper purpose’.
6.If the respondent is not regarded as the Prosecutor, she is a party to the IO proceedings by instituting them, as a result of her complaint to police on 19 March 2015; and her purpose was to harm the applicant’s ability to teach and spend more time with JT;
7.The respondent misused the IO proceedings to gain a collateral advantage, namely her position in the FCC regarding reduction of the applicant’s time with JT; and to cause him to lose income.
[10] FDN1 at [7]-[10].
The applicant claims that, prior to the IO proceedings being instituted, the respondent made an overt threat via a Facebook message on 25 July 2014. This threat was to damage his ability to teach in SA, and to limit his time with JT if he pursued any further contact with JT via court proceedings. He alleges that the respondent blackmailed him into thinking that she would report him to the Education Department (in addition to other threats) if he pursued contact with JT.[11]
[11] FDN1 at [6].
The applicant claims damages totalling $205,653.35. These are made up of a claim for past loss of wages as a teacher, and loss of increments in future wages; loss of superannuation payments on lost wages; aggravated damages ($50,000); damages for loss of reputation and damage to character ($25,000); exemplary damages ($25,000); other special damages ($25,000); costs and disbursements. The special damages are not specified but claimed as a lump sum.
Respondent’s defence
The respondent has filed two defences. The first when she was self‑represented,[12] and a second prepared by her lawyers.[13] In both, she admits sending a Facebook message to the applicant as alleged by him, whilst noting it was sent almost a full year before the application for the Intervention Order was made.
[12] FDN4.
[13] FDN9.
The respondent denies that the statements she made to police were made with malicious intent and pleads that they were truthful and factual. She confirms the Intervention Order was revoked by the Magistrate with no evidence being given. This was with her consent, after it had been explained by police that parenting orders in the FFC would take precedence, as JT was named in the Intervention Order.
The respondent’s application for Summary Judgment / Strike Out
The respondent has made an application for summary judgment against the applicant; or in the alternative, for all or part of his claim to be struck out.[14] This application is made on the following grounds:[15]
[14] FDN11.
[15] See respondent’s Outline of Argument: dated 25 August 2022 (FDN15).
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 Orders (Prevention 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 the 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:
3.1    the Interim Intervention Order application was made by a police officer, and not the respondent;
3.2    the respondent’s only involvement was to report to police and provide a statement;
3.3    the respondent never gave oral evidence in the IO proceedings; and
3.4    the respondent was advised by SAPOL that the hearing for a final order would not proceed because of the Magistrate’s concerns regarding the FCC proceedings involving the parties and especially JT. 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 applicant has not pleaded detail of the special damage that he suffered as a result of any misuse of the 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 in any other court, that the respondent had provided a false statement to police.
6.The applicant 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 stuck 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.
The applicant’s Response
The applicant contends that a police prosecutor in IO proceedings can be considered as acting as the agent of the protected person, relying upon s 20 of the IO Act. In relation to both causes of action, he argues that the facts support a finding that the respondent procured, instigated and/or actually prosecuted the Intervention Order. She set the proceedings in motion.[16]
[16] See the applicant’s written submissions (FDN17).
The applicant also argues that the matter is one that should not be decided summarily. It is a factual scenario where his case is sufficiently arguable, and raises questions of law, that should be allowed to go to trial. He submits that the Intervention Order was sought by SAPOL on a false basis. The respondent’s statement to them[17] contained incorrect information which is strongly denied by him.[18] He denies that he was ever the perpetrator of family violence.
[17] Set out as SKAE1 to FDN12.
[18] FDN14.
Applicable Provisions of Uniform Civil Rules (UCR)
The respondent’s application for summary judgment is made pursuant to UCR 144.2(2). This provides three grounds for a summary judgment.
144.2—Summary judgment
(1) …
(2)The Court may, on application by a party, give summary judgment against an applicant—
(a) on a claim if there is no reasonable basis for prosecuting the claim;
(b)on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c)on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.
(3)An application for summary judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1.

In relation to the respondent’s application for a strike out of the claim, or parts thereof, UCR 85.1 applies:
85.1—Strike out
(1)The Court may strike out all or part of an Originating Application, supporting affidavit, response or responding affidavit if—
(a) it does not comply with these Rules;
(b) it is frivolous, vexatious or an abuse of the process of the Court; or
(c)it does not disclose a reasonable basis for the application or basis to contest the application (as applicable).
(2)If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.
Legal Principles
The principles to be applied in determining a claim summarily were set out by Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (Adelaide Brighton Cement):[19]
By way of summary of the approach articulated in Spencer v Commonwealth,[20] it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.
Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a “mini trial” of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.
[19] (2020) 137 SASR 117 at [59]-[60].
[20] (2010) 241 CLR 118.
As to the differences between the exercise of the Court’s power to summarily dismiss a claim, and the exercise undertaken by the Court on an application for summary judgment, his Honour said:[21]
While the difference is difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.
[21] Ibid at [68].
In determining what is required for summary judgment pursuant to UCR 144.2(2)(a), Doyle J set out the following:[22]
[22] Ibid at [53]-[57].
Summary judgment : general principles
Focussing upon the situation where, as here, a respondent seeks summary judgment on the applicant’s claim, under UCR 144.2(2)(a) the respondent must establish that there is no reasonable basis for prosecuting the claim. This may be contrasted with the test under SCR 232 of the 2006 Rules (no reasonable basis for the claim), and the test under s 31A of the Federal Court of Australia Act 1976 (Cth) (no reasonable prospect of successfully prosecuting the proceeding).
I do not think that there is any material difference between the test under UCR 144.2(2)(a) and the test that applied under SCR 232. The focus remains upon the existence of a “reasonable basis” for the claim, and the addition of the words “for prosecuting” does not add anything (other than, perhaps, to achieve some symmetry with the reference to for defending which appeared in SCR 232(2)(a), and remains in UCR 144.2(1)).
Assuming equivalence between these tests, I note that there has been some discussion in the authorities by way of comparison between the test under SCR 232 and the test under its predecessor in the 1987 Rules. While it has been accepted that SCR 232 was intended to “lower the bar”, there has been some disagreement as to the extent to which this is so. In Ceneavenue Pty Ltd v Martin,[23] Debelle J (with whom Duggan and Anderson JJ agreed) accepted that there had been a lowering of the bar, but also suggested that it did not involve any “material difference” or “substantial relaxation” in the approach to be taken to summary judgment.[24] Subsequently, in Davies v Minister for Urban Development and Planning,[25] Bleby J doubted whether the Full Court in Ceneavenue Pty Ltd v Martin had given proper effect to the words used in SCR 232. But perhaps more significantly, his Honour also expressed the view that the Full Court’s decision had in any event been overtaken by the decision of the High Court in Spencer v Commonwealth.[26]
The decision of the High Court in Spencer v Commonwealth was a decision in relation to s 31A of the Federal Court of Australia Act. Although there is some basis for thinking that the intended scope of this section may be broader than SCR 232 and UCR 144.2,[27] the focus of the High Court’s analysis was upon the words “reasonable prospect of success”. In my view, there is no material difference between this test, and the test under UCR 144.2. Both require a focus upon whether the claim has a “reasonable” basis or prospect.
It is accurate to observe that, at least from a linguistic standpoint, “reasonable basis” is directed to the present, whereas “reasonable prospect” is directed to the future.[28] However, as Kourakis CJ explained in Collins v Djunaedi,[29] it is doubtful whether any difference between the two will ever lead to different results.[30] It is difficult to see how there could be a reasonable prospect of future success in prosecuting a claim unless there is a presently existing reasonable basis upon which to prosecute it. And it is difficult to conceive of a claim which has a reasonable basis but which does not have a reasonable prospect of success. It seems to me that both tests require consideration of the existing basis for the claim, whilst at the same time allowing for the possibility that further or different evidence may emerge during the prosecution of the claim, or be presented during any trial of the claim.
(Emphasis added)
[23] Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1.
[24] Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1 at [93]; cf JT Nominees Pty Ltd v Macks (2007) 97 SASR 471 at [81], [86].
[25] Davies v Minister for Urban Development and Planning (2011) 109 SASR 518 at [43].
[26] (2010) 241 CLR 118. at [43].
[27] Jennings v Police (2019) 133 SASR 520 at [40], where Kourakis CJ suggested it may encompass what would in this jurisdiction be treated as summary dismissal.
[28] Proude v Visic (No 4) (2013) 117 SASR 560 at [16].
[29] Collins v Djunaedi [2016] SASCFC 48.
[30] Ibid at [16]; see also Debelle J’s reference to “reasonable prospects of success” when describing the content of “reasonable basis” in Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1 at [81].
Justice Hughes in Carey v Balfour[31] adopted the principles set out by Doyle J in Adelaide Brighton Cement regarding summary judgment, stating:
…the Magistrate need not be appraised of all of the facts and to have received all of the evidence concerning the facts before granting summary judgment. … to successfully defend against a summary judgment application a party need only demonstrate that there is a “reasonable basis” for their action or defence. They are not required to show that the action or defence pursued will ultimately be successful on the balance of probabilities.[32]
[31] [2001] SASC 79.
[32] Ibid at [94].
In summarising the judgments of both Doyle and Hughes JJ, it is clear that in determining a ‘reasonable basis’ for an action, the court must determine whether the applicant has a real prospect of success as opposed to a fanciful one. I have taken these principles into account in determining this matter. This includes what Doyle J said in Adelaide Brighton Cement:[33]
…power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail,[34] nevertheless it must be cautious not to do injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed.
[33] [2020] SASC 161 at [59].
[34] Strictly this proposition comes from the proviso to s 31A of the Federal Court of Australia Act, but it seems an inherent corollary of the “no reasonable prospect” test that would thus be applicable even without being made express, and hence also applicable in the present context.
In relation to the striking out of an originating application, he observed the following in relation to UCR 70.3, which is similar to UCR 85.1 but relates to the strike out of any pleading:[35]
[35] Ibid at [61]-[63]; [67]-[70].
The grounds upon which the Court may strike out a pleading under UCR 70.3, or summarily dismiss an action under UCR 143 are expressed in similar terms. The grounds for each encompass both (a) a claim, pleading or action that is frivolous, vexatious or an abuse of process and (b) the failure or inability to disclose a reasonable cause of action.[36]
The courts have generally eschewed any attempt to define frivolous and vexatious. While the concepts overlap to some extent, and are sometimes treated as a single compendious concept, the former invites a focus upon whether the claim or issue is worthy of serious attention, whereas the latter invites a focus upon whether the claim or issue is being pursued for the purposes of harassing or vexing the other party.
Abuse of process is a broad concept. It may take a number of different forms, but is usually associated with some improper or collateral purpose. Relevantly in the present context, it will be informed by the overarching obligations of the parties and their lawyers under UCR 3.1, and extend to the pursuit of a claim which does not have a proper basis in light of that rule. The claim might lack a proper basis because it is based upon an assertion for which there is no basis in the material available to the party, which misstates the material upon which it is based, or which extends beyond any assertion for which that material might provide a basis.
…
In the case of a strike out application, the Court’s consideration of the nature and adequacy of the claim, as disclosed in the pleading itself, may require recourse to a document or documents referred to in the pleading (such as a contract) in order to make sense of the pleading. It may also require consideration of some evidence so as to enable the Court to understand the pleaded allegations in their proper context, and hence expose their inadequacy or their frivolous, vexatious or abusive character. However, it will not ordinarily require any consideration of evidence going to the underlying merits of the applicant’s claim, let alone making findings on that evidence.[37]
In the case of a dismissal application, on the other hand, there will often be greater scope for reliance upon evidence so as to make good the proposition that the applicant’s case itself is deficient in some respect, or is otherwise frivolous, vexatious or an abuse of process.[38] That said, the nature of the exercise will nevertheless differ from that which is undertaken on a summary judgment application. While the difference is difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.
The difference between strike out and dismissal applications also relates to, and explains, the difference in the consequences to which they lead. The former leads to an order that the relevant pleading (or part thereof) be struck out. However, as the conclusion justifying this order is one based upon a deficiency in the pleading, and not necessarily the case itself, the applicant is usually given an opportunity to replead. The latter, on the other hand, because it is predicated upon a defect in the applicant’s case (rather than merely the pleaded articulation of it), leads to an order that the action or proceeding itself be dismissed. Whilst such an order brings the relevant action or proceeding to an end, it does not ordinarily give rise to res judicata or otherwise prevent a fresh claim being brought in appropriate circumstances.[39]
While I have attempted to summarise what I see as the key features of, and differences between, summary judgment, summary dismissal and strike out applications, I accept that in practice the distinctions are often difficult to draw and observe, and there is, quite appropriately, scope for overlap and flexibility in their operation.
(Emphasis added)
[36] A pleading may also be struck out on a third basis, namely that it does not comply with the Uniform Civil Rules.
[37] Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 941.
[38] Ibid at 944.
[39] Tavitian v Commissioner of Highways (2015) 123 SASR 306 at [20]; although in Jennings v Police (2019) 133 SASR 520 at [31], Kourakis CJ suggested it may do so in some circumstances.
In the recent NSW Court of Appeal decision of Marino v Bello[40] it was noted that the court should not be too ready to dismiss claims that are poorly pleaded, particularly where the party is unrepresented, as is the case with the applicant in these proceedings. In a case very similar to the one before this court, leave to appeal dismissal of a collateral abuse of process claim was granted, even though there were defects in the pleadings.[41] On the hearing of the Appeal, leave was granted to file further amended pleadings.[42]
[40] [2022] NSWCA 73.
[41] Ibid at [7] and [8].
[42] Marino v Bello (No 3) [2022] NSWCA 181.
Determination of Respondent’s Application
Determination of the respondent’s application first involves a review of the two intentional torts that form the basis of the applicant’s claim. The facts upon which each tort is brought are not in dispute. The respondent provided a statement to SAPOL on 19 March 2015, upon which they relied to commence the IO proceedings, and obtain the Intervention Order. The applicant pleads that this statement contained false information, which led SAPOL to commence the IO proceedings.
The IO proceedings in this matter are not a criminal prosecution. The applicant has never been charged with a criminal offence. However the proceedings were brought in the criminal jurisdiction of the Magistrates Court. IO proceedings, in most cases, are commenced by SAPOL. This is what occurred in the matter before the Court. The Commissioner of Police is to be notified of any Interim IO or have it served upon them.[43]
[43] Section 21(10) of the IO Act.
It has been accepted that a malicious prosecution claim can be commenced in relation to civil or quasi‑criminal proceedings. This includes proceedings related to Intervention Orders or AVOs. This was acknowledged by Rothman J in Clavel v Savage (Clavel) in the NSW Supreme Court.[44] In Mosley v Associated Newspapers Ltd (Mosley)[45] Nicklin J of The Queens Bench in England was of the view that the tort of malicious prosecution now extended to civil proceedings noting that:[46]
The word "prosecution" in the eponymous tort is perhaps apt to mislead; it extends beyond "prosecution" as that word is usually understood. More accurately, perhaps, it is the malicious abuse of the process of the court.
[44] [2013] NSWSC 775 at [45].
[45] [2020] EWHC 3545 (QB).
[46] Ibid at [53].
Justice Nicklin confirmed that for there to be a malicious prosecution, some abuse of a court process is required. This is alleged by the applicant in relation to the IO proceedings.
The respondent in her defence, argues that there is no reasonable basis upon which the applicant can satisfy all constituent elements, of either tort, upon the factual basis relied upon by him. Although there are several elements that must be satisfied for each tort, there are also some differences.
Tort of Malicious Prosecution
The tort of malicious prosecution is committed when a person, or entity, wrongfully and with malice, institutes or maintains legal proceedings against another. In order to constitute malice, the dominant purpose of the prosecutor/instigator in commencing the proceedings, must be a purpose other than the proper use of the law. That is, they must have an ulterior or improper motive.[47] That improper purpose must be the sole or dominant purpose for the prosecutor/instigator instituting the proceedings.[48]
[47] Beckett v New South Wales (2013) 248 CLR 432 (Beckett).
[48] A v New South Wales (2007) 230 CLR 500 at [91].
In Beckett[49] the High Court set out the required elements of malicious prosecution as follows:
…the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause
[49] Ibid at [4].
The four elements are cumulative and all must be satisfied before a claim in malicious prosecution will be successful.[50] This has been confirmed in several decisions in South Australia.[51] In addition, the applicant must have suffered damage, and the malicious prosecution must be causally linked to any damage that is alleged.[52]
[50] Stanizzo v Fregnan [2021] NSWCA 195.
[51] See Groom v State of SA [2017] SASCFC 35 at [45]
[52] Mullett v Nixon [2016] VSC 512 at [17].
The respondent submits that two of the elements of the tort of malicious prosecution cannot be proved by the applicant. They are that the IO proceedings were initiated by the respondent, and that the proceedings terminated in favour of the applicant. The argument therefore proceeded upon a consideration of these two elements. The respondent argues that there is no reasonable basis for either element being proved.
There was no argument on the third and fourth elements of the tort of malicious prosecution and I will not address those. In this regard, I agree that in the factual circumstances of this matter, these two elements should not be determined on an interlocutory application. Consideration of whether the respondent acted with malice, and without cause would require her to give evidence and be cross‑examined.
1. IO proceedings initiated by the respondent
The first matter to be determined is whether the respondent, by making a statement to SAPOL, initiated the IO proceedings. This has been said to mean, that the respondent played an active role in the conduct of the proceedings.[53] However, significantly more is required than providing a statement corroborating events, or simply providing a witness statement.[54]
[53] Stanizzo v Fregnan [2021] NSWCA 195 at [170].
[54] Ibid at [224].
The applicant pleads that the IO proceedings were instituted by the respondent against him ‘when she made a complaint to police on 19 March 2015 which was approved on 25 March 2015.’[55] This plea makes little sense, but in submissions in court, it was clear that the applicant meant that the complaint to police led to the Intervention Order being made at the PAMC on 25 March 2015.
[55] FDN1 at Part 3, paragraph [1.1].
The respondent confirms making a statement to SAPOL on 19 March 2015, and that it included allegations of acts of abuse committed by the applicant against her and JT. However, she pleads that the IO proceedings were commenced by a police officer pursuant to s 20(1)(a) of the IO Act, and that as a matter of law and/or fact she did not counsel, procure or continue the prosecution.[56] The respondent’s involvement in the IO proceedings is further detailed in her affidavit of 25 July 2022, as set out above.[57]
[56] FDN9 at paragraph [4]and Part 2, paragraph [1].
[57] FDN12.

The role of a complainant as the instigator of proceedings was considered by the High Court in A v State of New South Wales[58] in relation to an unsuccessful criminal prosecution. The court adopted the statement from The Law of Torts[59] that ‘to incur liability, the defendant must play an active role in the conduct of the proceedings, as by ‘instigating’ or ‘setting them in motion’.[60]
[58] (2007) 230 CLR 500.
[59] Fleming, 9^th Ed (1988) at 676.
[60] (2007) 230 CLR 500 at paragraph [34].
The court went on to provide an example of such circumstances involving an unsuccessful prosecution commenced by police after a complaint by a woman that a neighbour had indecently exposed himself. When no evidence was led at a Magistrates Court hearing, the charge was dismissed. The neighbour sued the complainant for malicious prosecution. The House of Lords upheld an award of damages against her.[61] They found:
That since the facts relating to the alleged matter were solely in the complainant’s knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution. … The complainant had in substance procured the prosecution. The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation.[62]
[61] Martin v Watson [1996] AC 74.
[62] As summarised by the High Court in A v State of NSW (2007) 230 CLR 500 at paragraph [55].
The High Court noted that the decision was an example, as was the one before them, of circumstances ‘where the capacity of a police officer to verify information, and form an opinion about where the truth appears to lie, in a practical sense is very limited.’[63] As I will come to later, there are differences however between criminal proceedings and an Act of Parliament, where it is specifically stated to have the object of protecting a complainant.
[63] Ibid at paragraph [35].
In Stanizzo v Fregnan[64] the principles in A v New South Wales were confirmed, namely that liability in malicious prosecution ‘will or may be’ incurred where the defendant plays an active role in the conduct of proceedings by instigating them or setting them in motion.[65] However, providing a witness statement of itself could not be said to be playing an active role in proceedings. Rather, ‘significantly more is required’.[66] Later the court indicated that evidence proving that a person had given knowingly false evidence may be enough.[67]
[64] (2021) NSWCA 195.
[65] Ibid at paragraph [223].
[66] Ibid at paragraph [224] and [232].
[67] Ibid at paragraph [237].
In the recent NSW Court of Appeal decision of Marino v Bello (No 3)[68] the court accepted that it was ‘well established’ that the instigator of the proceedings may be liable in malicious prosecution.[69] The court did not set out what was required to be considered an instigator. It did not step back from the High Court’s position that for the complainant to be regarded as an instigator they must play an ‘active role’ in the proceedings.
[68] [2022] NSWCA 181.
[69] Ibid at paragraph [15].
The Intervention Order Act
In my view, caution must be had in determining who is the instigator in proceedings such as those before the court. This is where complaints of abuse are made, pursuant to a legislative scheme that has as its objects the prevention of abuse, and the exposure of children to abuse.[70]
[70] Section 5 of the IO Act.
5—Objects of Act
The objects of this Act are—
(a)to assist in preventing domestic and non-domestic abuse, and the exposure of children to the effects of domestic and non-domestic abuse, by providing for—
(i) the issuing of intervention orders; and
…
(b)to provide special police powers of arrest, detention and search in connection with issuing, serving and enforcing intervention orders; and
(c)to further protect persons suffering or witnessing domestic or non-domestic abuse by—
(i)providing for special arrangements for witnesses in proceedings under this Act; and
(ii))imposing limitations on publishing reports about proceedings or orders under this Act.
Section 10 of the IO Act sets out the principles that are to be taken into account when determining whether an Intervention Order should be issued. It is clearly set out that the primary purpose is to prevent abuse and to protect children from being exposed to abuse.[71]
[71] Section 10 of the IO Act.
10 —Principles for intervention against abuse
(1)The following must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
(a)abuse occurs in all areas of society, regardless of socio-economic status, health, age, culture, gender, sexuality, ability, ethnicity and religion;
(b)abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour;
(c)it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse;
(d)     as far as is practicable, intervention should be designed—
(i)to encourage defendants who it is suspected will, without intervention, commit abuse to accept responsibility and take steps to avoid committing abuse; and
(ii)to minimise disruption to protected persons and any child living with a protected person and to maintain social connections and support for protected persons; and
(iii)to ensure continuity and stability in the care of any child living with a protected person; and
(iv)to allow education, training and employment of a protected person and any child living with a protected person, and arrangements for the care of such a child, to continue without interruption; and
(v)     if the defendant is a child—
(A)to ensure the child has appropriate accommodation, care and supervision; and
(B)to ensure the child has access to appropriate educational and health services; and
(C)to allow the education, training and employment of the child to continue without interruption.
(2)The following must also be taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
(a)any relevant Family Law Act order or State child protection order of which the issuing authority has been informed;
(b)how the intervention order would be likely to affect contact (in accordance with a relevant Family Law Act order or State child protection order or otherwise) between—
(i)    the protected person or the defendant; and
(ii)     any child of, or in the care of, either of those persons;
(c)any relevant agreement or order for the division of property under the Family Law Act 1975 of the Commonwealth, or the Domestic Partners Property Act 1996 or a corresponding law of another jurisdiction, of which the issuing authority has been informed;
(d)if considering whether to prohibit the defendant from taking possession of property or to require the defendant to return property to a protected person or to allow a protected person to recover or have access to or make use of property—the income, assets and liabilities of the defendant and the protected person (to the extent that the issuing authority has been informed of those matters);
(e)any other legal proceedings between the defendant and protected person of which the issuing authority has been informed.
(3)Before issuing an intervention order the issuing authority must consider whether, if the whereabouts of a person proposed to be protected by the order are not known to the defendant, the issuing of the order would be counterproductive.
(4)An issuing authority may take into account any other factor the authority considers relevant in the circumstances.
In his second reading speech of the Bill for the IO Act on 10 September 2009, the then Attorney‑General, Mr Michael Atkinson noted that the Act was intended to reform the laws for the restraint of domestic and personal violence. He noted that the Government was concerned about the prevalence of domestic violence and its potential lethal consequences. The draft Act intentionally had a strong emphasis on domestic abuse. It was said:[72]
The grounds for issuing an Intervention Order against a person, whether interim or final, are simple. Grounds exist if it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person, and if the issuing of the order is appropriate in the circumstances.
These grounds are anticipatory. There is no need for proof of the commission of an act of abuse before an intervention order is issued.
[72] Hansard, Thursday 10 September 2009 at p3937 – 3940.
The Attorney‑General also stated that the principles for intervention against abuse set out in section 10 of the IO Act, were to guide police and magistrates in the issuing of Intervention Orders. The primary aim was prevention of abuse. The high level of pervasiveness of abuse in society is emphasised in section 10 to guard against prejudices and uninformed views about abuse.
As a result of the nature of proceedings under the IO Act, they are often fraught with emotion. Serious allegations of a very personal nature are made. It is important that victims of abuse, and those who live in fear, are not further abused by a legal system allowing those against whom abuse is alleged, to seek personal liability from them. This would be contrary to the objects of the IO Act, and could stop victims applying for Intervention Orders. Such an outcome would nullify the principles for intervention against abuse, as set out in section 10.
It is also equally important to ensure the integrity of IO proceedings, and not allow them to be used for an improper purpose, by providing a statement to police that is untrue. However, based upon the principles set out in sections 5 and 10 of the IO Act, I am of the view that this is a secondary consideration.
In this matter it is not disputed that the IO proceedings were commenced by SAPOL pursuant to s20(1)(a) of the IO Act. They were not brought personally by the respondent, as they could have been, pursuant to s20 (1)(b) of the Act. The respondent’s role was confined to giving a statement to police. This is the only way police can commence IO proceedings in the absence of criminal charges.
In these circumstances, it is generally found that, the person providing the statement has not instituted the proceedings, rather they were initiated at the discretion of an independent authority. This is particularly so given s20(1) of the IO Act provides:
20 – Application to Court for intervention order
(1)The following persons may make an application to the Court for an intervention order:
(a) a police officer;
(b)a person against whom it is alleged the defendant may commit an act of abuse or a suitable representative of such a person given permission to apply by the Court;
Section 20 clearly sets out that police officers are in a different category to other representatives of the person alleging abuse and seeking an Intervention Order. Courts should act with caution in such circumstances in finding that the complainant initiated or instigated IO proceedings. In Skrijel v Mengler Nettle J said:[73]
The defendant must have been ‘actively instrumental’ in setting the law in motion. Merely supplying information, however incriminating, to the police on which they eventually decide to prosecute is not the equivalent of launching a prosecution; the critical decision not being his, (the stone set rolling) is simply a matter of suspicion. These days one should hesitate to credit an informant with having overcome the scepticism of a police trained to test the reliability of complaints.[74]
He went on to say:
On the other hand, an informant may be regarded as a prosecutor if his information virtually compels the police to prosecute, even more when he deliberately deceives the police by supplying false information without which they would not have proceeded.[75]
[73] [2003] VSC 270.
[74] Ibid at paragraph [199].
[75] Ibid.
The evidence in this matter is that SAPOL was in control of the IO proceedings at all times. The respondent’s only involvement was to provide a statement to them. Upon SAPOL’S assessment of the information provided in that statement they initiated the IO proceedings. The Intervention Order was made on 25 March 2015 without the respondent giving evidence.
The applicant never sought to appeal the Intervention Order to the Supreme Court on the basis that it was then an interlocutory order. He did not seek leave to do so.[76] The IO proceedings were finalised when the Magistrate determined that parenting orders related to JT would take precedence, applying s16(1) of the IO Act. Again, this occurred without the respondent giving evidence. Subsequent mutual restraining orders were made by Judge Kelly in the FCC only three months later on 4 April 2016. Final orders were made on 21 September 2016.
[76] Pursuant to s42(1a)(c) of the Magistrates Court Act 1991.
The Intervention Order process that occurred was thus as the IO Act intended where a police officer makes application to the court:
·Section 20(1)(a) provides that a police officer can apply for an Interim Intervention Order with no restrictions;
·Section 21(1) provides that at a preliminary Intervention Order hearing the defendant need not be summonsed;
·Section 21(3) provides that it is for the court to determine if there are grounds for issuing an Intervention Order;
·Section 21(5) provides that when an application is made by a police officer, the court can issue an Interim Intervention Order based upon affidavit evidence unless the defendant requires the complainant (as deponent) to give evidence.
I find that there was nothing that occurred in relation to the IO proceedings that was not intended by the IO Act. Powers are given to police to assess complaints and apply to courts for Interim Intervention Orders. They have control of the process. The applicant opposed the order, and consent arrangements were later reached.
In all the circumstances I find that the respondent was not the prosecutor or instigator of the Intervention Order proceedings.
Although this finding leads to a conclusion that the applicant’s claim in malicious prosecution has no reasonable basis of succeeding, I will briefly turn to consider the other element of the tort of malicious prosecution that was argued.
2. Prosecution terminated in favour of the applicant
This is not a matter where there was a criminal prosecution and the applicant was found not guilty, or a nolle prosequi was entered by police. There was no determination of whether the alleged abusive behaviour had taken place. The IO proceedings were terminated by consent of all parties without a trial and upon the basis that the same issues were before a superior court. Although not clear, this appears to be a result of the Magistrate’s interpretation of sections 16 and 17 of the IO Act. These provide:
16—Inconsistent Family Law Act or State child protection orders
(1)An intervention order is invalid to the extent of any inconsistency with a Family Law Act order of a kind referred to in section 68R of the Family Law Act 1975 of the Commonwealth (but the Court may resolve the inconsistency by exercising its power to revive, vary, discharge or suspend the Family Law Act order under that section).
….
17—Explanation for defendant and protected persons
An issuing authority must endeavour to ensure that the defendant and protected persons understand—
(a)the terms and effect of an intervention order and any associated order, including, in the case of an interim intervention order, that the order acts as a summons; and
(b)if relevant, the effect of section 16;
There is no independent evidence of what was said by the Magistrate at the hearing on 7 January 2016, and which led to the Intervention Order being revoked. There is no transcript of the proceedings. However, it is agreed that there was no judicial determination of the issues in dispute.
In matters involving criminal prosecution, the plurality of the High Court in Beckett said:[77]
The requirement that the prosecution has terminated avoids the possibility of conflict in the decisions of the court trying the criminal charge and the court trying the civil action. Any termination that does not result in conviction is favourable to the plaintiff for the purposes of the civil action. Prosecutions may terminate in a number of ways without verdict: the magistrate may not commit for trial; the Director may not find a bill of indictment; the Director may direct that no further proceedings be taken after a bill has been found; or the Attorney-General may enter a nolle prosequi. The plaintiff has no control over the termination of the proceedings in any of these ways and in those circumstances it would be unjust to deprive him or her of the ability to recover for the tort. As Professor Salmond explained it[78]: “What the plaintiff requires for his action is not a judicial determination of his innocence, but merely the absence of any judicial determination of his guilt.
(emphasis added)
[77] [2013] 248 CLR 432 at [6].
[78] Salmond, Law of Torts, 6^th ed (1924), p595.
The court noted that a prosecution can be terminated for any number of reasons including:
…a technical reason that is unconnected to the strength of the prosecution case. The termination is nonetheless one favourable to the plaintiff such as to maintain the civil action. … Proof of favourable termination does not involve an inquiry into the underlying merits of the prosecution.[79]
[79] Beckett at [50].
The respondent argued that for a number of reasons, including that the IO proceedings were not decided on the merits after hearing legal and factual arguments, the proceedings did not terminate favourably for the applicant. I disagree.
The IO proceedings were brought before the PAMC, and the Intervention Order made, based upon the allegations of abuse, contained in the respondent’s statement given to SAPOL. At the second hearing, without the applicant giving evidence, the IO proceedings were finalised. This was with the IO being revoked. As noted by the High Court, the applicant had no control over the termination of the proceedings.
In my view, it does not matter that later parenting orders, and mutual restraining orders, were made by consent in the FCC. These were different orders than those sought by the IO proceedings.
In Clavel v Savage[80] (Clavel) Justice Rothman in the NSW Supreme Court considered the tort of malicious prosecution in the context of AVO[81] proceedings. The applicant had allegedly breached an AVO, however, the proceedings related to that breach were terminated by the District Court. It was found that this had been appropriately conceded as being termination of proceedings in favour of the plaintiff.[82]
[80] [2013] NSWSC 775.
[81] Apprehended Violence Order.
[82] Clavell at [51].
The fact scenario in Clavel is not dissimilar to the one before the court. The IO proceedings were terminated (by revocation of the Intervention Order) without any evidence being given. This was the result that the applicant was seeking. He intended to contest the IO order, but did not have to do so as, by agreement between the respondent and SAPOL, the Intervention Order was revoked. I find that upon this factual scenario there is a reasonable basis upon which to argue that the IO proceedings terminated in favour of the applicant.
Tort of Collateral Abuse of Process
In Williams v Spautz[83] the High Court said that an abuse of process occurs when the purpose of bringing legal proceedings is to use them as a means of obtaining some advantage for which they are not designed, or for some collateral advantage beyond what the law offers.[84] The proceedings must therefore be instituted for an improper purpose. This was described as using the court processes for ulterior motive, or in such a way as to cause improper vexation and oppression.[85] An important criterion for abuse of process is that the improper purpose is the predominant purpose for the proceedings being brought.[86] This is particularly so where the applicant is seeking damages.
[83] Williams v Spautz (1991-92) 174 CLR 509.
[84] Ibid at p526.
[85] Ibid at p523.
[86] Ibid at p529.

In the context of proceedings to stay an abuse of process, the Court found that the existence of a collateral improper purpose in bringing proceedings is not sufficient. It was stated that:[87]
The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor’s favour.
It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.
[87] Ibid at 526-527.
Justice Brennan in his reasons considered that an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage that is not reasonably related to an order that might be made in the proceedings.[88]
[88] Ibid at 537.
In his statement of claim the applicant pleads that:[89]
The Respondent misused the legal process to gain a collateral advantage by improperly supporting her response in the FCC for the child (JT) to live with her and spend supervised time with the Applicant. There was also collateral damage caused to the Applicant which included lost wages and time spent with the child due to her collateral advantage.
[89] FDN1 at Part 3, [2.12]
The applicant pleaded further that the respondent had previously threatened his ability to teach and to spend time with his son. As a result of her collateral abuse of process, the applicant pleads that he lost wages between 25 September 2015 and 5 June 2016, and that he should also be awarded general damages for the time lost with his son.[90]
[90] FDN1 at Part 3, [2.1.3]-[2.1.4].
The tort of collateral abuse of process is generally regarded as a difficult one to establish. The plurality in Williams v Spautz noted that:
It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is “a heavy one”, ….[91]
[91] (1991-1992) 174 CLR 509 at p529.
Justice Gaudron in her judgment noted that there was rarity of cases where the cause of action in collateral abuse of process had been successful. She highlighted the fact that these cases all involved a demand, or overt coercion, associated with the legal process complained of.[92]
[92] Ibid at p553-555.
Whether an overt act, such as a demand or threat in furtherance of the alleged improper purpose is also required as an essential element of the tort of collateral abuse of process, was considered by the Queensland Court of Appeal in Butler and Butler v Simmonds Crowley & Galvin[93] After noting that such an act was considered to be an essential element in the courts of the United States and Canada, the Court found that their primary view was that:
… an improper act in the prosecution of the process is a necessary element in establishing a right to damages for the tort of collateral abuse of process. … Such an act will usually be found, as Gaudron J's analysis suggests, in the form of an overt act such as a demand which identifies the true collateral purpose.[94]
[93] [1999] QCA 475.
[94] Ibid at [35]-[38].
This was confirmed by the Court again in Paradise Grove Pty Ltd v Stubberfield.[95]
[95] [2001] QCA 117.
The New South Wales Court of Appeal in Maxwell-Smith v S & E Hall (Maxwell-Smith)[96] after reviewing previous Australian, Canadian and English authorities found (per Barrett JA) that:
… this Court must, I think, proceed on the footing that a plaintiff in a tort action for collateral abuse of process is required to prove, in addition to improper purpose of the defendant, deployment of the relevant process, in furtherance of that purpose, by way of an overt act or threat distinct from pursuit of the proceeding itself according to its ordinary course.
[96] [2014] NSWCA 146.
In this matter, the respondent admits that in July 2014 she sent Facebook messages whereby she told the applicant that if he pursued more time with JT she would talk to the Education Department and the Courts.[97] She does not admit that this contained a threat, nor was it an attempt to blackmail the applicant. The message was sent nearly 10 months before the applicant provided her statement to SAPOL outlining alleged abuse, and upon which the Intervention Order was sought. The respondent submits that there is no basis for finding that the IO proceedings were commenced solely for an improper basis; or that the Facebook message was an overt threat or act distinct from pursuit of the proceedings. That is to gain protection from an Intervention Order.
[97] FDN4 at [9] and FDN9 at [3].
In Hanrahan v Ainsworth,[98] it was found by Clarke JA that instituting proceedings (i.e. for an Intervention Order) with an ulterior motive, if one is proved, is not sufficient to establish the tort of collateral abuse of process. There must be proof of misuse or attempted misuse of the legal process.
[98] (1990) 22 NSWLR 73.
Whilst taking account of these general concepts, there are two constituent elements of the tort of collateral abuse of process that are particularly in dispute on the respondent’s application. These are whether the applicant can pursue the tort against the respondent as she did not actually institute the proceedings (SAPOL did); and whether the applicant has sustained ‘special damage’. On the respondent’s application for strike out and/or summary judgment, it is only those two elements that were argued. The respondent submits that the applicant cannot establish either.
1. Did the respondent initiate the IO proceedings?
Collateral abuse of process was recently considered by the New South Wales Court of Appeal in Marino v Bello[99] (Marino) and Marino v Bello (No 3)[100] (Marino 3). This matter involved a claim by Mr Marino that the Bellos had used an apprehended domestic violence order (ADVO) to disadvantage him in proceedings in the FFC for orders that he have contact with the Bellos’ children. The ADVO in question had been granted by a police officer and not a court. The Bellos sought summary dismissal, although not on the same basis as is relied upon in these proceedings. This was granted, but overturned on appeal.
[99] [2022] NSWCA 73.
[100] [2022] NSWCA 181.
In the leave to appeal decision (Marino) it was noted that the case law supported a conclusion that one of the elements of the tort of collateral abuse of process was that the claim could only be brought against the entity who commenced the proceedings (in that case the police).[101]
[101] Referring to Leerdam v Noori (2009) 255 ALR 553; Kable v New South Wales (2012) 293 ALR 719; and Maxwell-Smith.
In determining the appeal in Marino 3, Brereton JA (who wrote the leading judgment) confirmed that:
The essence of the tort of collateral abuse of process is the employment of the machinery of the law to achieve a purpose which could not lawfully be obtained, and which is entirely outside the ambit of the legal claim upon which the court is asked to adjudicate.[102]
[102] [2022] NSWCA 181 at [7].
The Marino case concerned allegations that the complaint to police by the Bellos was made for the wrongful and collateral purpose of sabotaging, hurting or destroying Mr Marino’s family law proceedings, and to bolster the Bellos’ case. On the narrow issue of whether Mr Marino could bring a collateral abuse of process claim against the Bellos, Brereton JA agreed that ‘there is at first sight not insignificant authority’ that the claim is only maintainable ‘against the person who actually brings the relevant proceedings.’[103]
[103] Ibid at [8].
One of those authorities is a decision relied upon by the respondent in these proceedings, being, the Full Federal Court decision of Emanuele v Hedley.[104] This case involved a quashed conviction of a charge of bribery that had been commenced against Mr Emanuele by the Commonwealth Government. Mr Emanuele sued the public servant (Mr Hedley) whose actions had led to the prosecution. He had been involved in improper conduct, including bribery and entrapment. It was the discovery of this conduct that had ultimately led to the conviction being quashed. In determining Mr Emanuele’s claim for damages the Court stated:[105]
…whatever be the position of informants in malicious prosecution cases, an action for abuse of process is available only against the party who actually instituted the proceedings: see Williams v Spautz … This is logical because the essence of the tort is that the proceeding was instituted for an improper purpose. If the person who actually instituted the proceeding had a proper purpose, the claim of abuse of process must fail irrespective of the motives and conduct of people who influenced the decision to institute the proceeding. No doubt a person may act through a servant or agent in instituting a proceeding, in which case the purpose of the principal will be the relevant purpose. But there is no suggestion that Commander Dau, a senior member of the Australian Federal Police, acted as Mr Hedley’s servant or agent in laying an information against Mr Emanuele.
(Emphasis added)
[104] (1998) 179 FCR 290.
[105] Ibid at [44].
Brereton JA in Marino 3, also considered the authorities of Leerdam v Noori,[106] Kable v New South Wales[107] and Maxwell‑Smith, all New South Wales Court of Appeal decisions where the Court followed Emanuele v Hedley as correctly stating the law that, an abuse of process claim is only maintainable against the person who actually commenced the legal process complained of.
[106] (2009) 255 ALR 533.
[107] [2012] NSWCA 243.
Despite this, the appeal in Marino was allowed, and the abuse of process claim re‑instated as being reasonably arguable. The previous decisions were distinguished on the basis that none of them dealt ‘…with a situation where it can be said that a person other than a nominal prosecutor was the real instigator of the proceedings.’ In relation to Emanuele v Hedley the decision could be explained, on the basis that the instigator of the proceedings was in fact the nominal prosecutor and not Mr Hedley.[108] It was also seen as important that in the law of malicious prosecution an instigator may be liable, and as they are generally in tort law, if persons act jointly for a common purpose, as a joint tortfeasor (i.e. with the actual prosecutor).[109]
[108] Ibid at [14].
[109] Ibid at [15].
The decision in Marino 3 is not a final judgment on the facts. It is a decision on an appeal of a strike out application. However, it is a decision at Appeal Court level that calls into question the element in abuse of process claims that the claim can only be brought against the person or entity that commences the proceedings. There is no certainty however that the decision will be confirmed at trial or on any subsequent appeal. The previous authorities were confirmed as the law regarding the tort of collateral abuse of process.
The respondent submits that the decision and principles set out in Emanuele v Hedley, a Full Federal Court decision, must be followed as the current law in South Australia. I agree. I have already set out the seminal statement made by the court in that decision. In making that statement the court adopted the words of the High Court in Williams v Spautz that:[110]
Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers.
[110] (1992) 174 CLR 509 at 523.
In the earlier NSW Court of Appeal decision of Maxwell‑Smith, Barrett JA on behalf of the Court said:[111]
The fact that Mr White acted in a professional capacity for S & E Hall simply cannot make him responsible for any relevant tortious conduct engaged in by S & E Hall. The tort of collateral abuse of process can only be committed by a person who is a party to the proceedings said to constitute the abuse or in which the abuse is said to have occurred.
[111] [2014] NSWCA 146 at [59].
I find in the action before the court that the respondent was not the party who instituted the IO proceedings. The proceedings were clearly instituted by SAPOL pursuant to s20(1)(a) of the IO Act. The only step the respondent took was to make a statement to police. SAPOL then commenced and took control of the IO proceedings. The applicant’s claim in collateral abuse of process cannot reasonably succeed in such circumstances.
In coming to this conclusion, I rely upon the factual basis for my finding that the respondent was not the instigator of the IO proceedings for the purpose of the tort of malicious prosecution. The IO Act clearly sets out a process for the manner in which Intervention Orders are sought. The respondent did no more than make a statement to police. Thereafter, SAPOL was in control of, and instituted, the IO proceedings.
2. Has the applicant sustained special damage?
The applicant agrees, adopting what was set out in Burton v Office of Director of Public Prosecutions[112] that an essential element of the tort of collateral abuse of process is that the applicant must prove that he suffered special damage as a result of the improper legal process.[113] Once special damage is proved, then damages for aggravated and other heads of damage can be awarded.
[112] (2019) 100 NSWLR at [41]-[42] and [94].
[113] Also see Hanrahan v Ainsworth [1985] NSWLR 370 at p375 and Cressy v Johnston No 1 [2009] VSC 35 at [33].
In his claim, the applicant sets out the damages sought as: [114]
[114] FDN1.
Part 4
Orders sought
1. …
2. …
3. …
4. The Respondent pay general/compensatory/special damages in the approximate amount of $104,252.95:
a. Approximately $54,360.50 in lost wages.
b.Approximately $10,000 in lost future earnings for advancing in incremental teaching steps.
c.Approximately $10,000 in lost future earnings for annual increases based on indexation, etc.
d.Approximately $4,892.45 in lost superannuation.
e.An inter alia award of $25,000 in loss of reputation and damages to character.
5. The Respondent pay aggravated damages in the amount of $50,000, or as this honourable court sees fit.
6. The Respondent pay exemplary damages in the amount of $25,000, or as this honourable court sees fit.
7. The Respondent pay other special damages in the amount of $25,000, or as this hon. court sees fit.
…
On the face of this plea, there is no precise claim for special damage. It is a claim for general damages for the court to assess. The only special damage actually claimed, is a lump sum amount, with no detail of what that sum encompasses.
In Paff v Speed,[115] Fullagar J set out the difference between special damages and general damages in a judicial statement that still applies:[116]
Special damages are awarded in such cases in respect of monetary loss actually suffered and expenditure actually incurred. Their two characteristics are (1) that they are assessed only up to the date of verdict, and (2) that they are capable of precise arithmetical calculation or at least of being estimated with a close approximation to accuracy. The familiar examples are medical and surgical fees paid or payable, ambulance and hospital expenses, and loss of income. Where the plaintiff has been employed at a fixed wage or salary, his loss of income can commonly be calculated with exactness. Where the plaintiff has not been employed, but is, for example, a professional man, his monetary loss can be estimated without difficulty by reference to his past earnings. In a high proportion of cases the amount of the “special damages” is agreed between counsel for the plaintiff and counsel for the defendant.
“General damages” on the other hand, are, of their very nature, incapable of mathematical calculation, and (although the expression is apt to be misleading) commonly very much “at large”. They are at large in the sense that a jury has, in serious cases, a wide discretion in assessing them. Also general damages may be assessed not with reference to any limited period, but with reference to an indefinite future. Damages may be awarded for “pain and suffering”, and such damages are assessable for past, present and future pain and suffering. But here calculation is obviously impossible, and damages for pain and suffering should clearly be regarded as “general” and not “special” damages. In fact, the question of general damages is generally, I think, put to a jury under three heads—(1) “economic loss”, (2) loss of “amenities” or “enjoyment of life”, and (3) pain and suffering.
(Emphasis added)
[115] (1961) 105 CLR 549.
[116] Ibid at pp558-559.
The respondent argues that the applicant has not identified any precise monetary loss suffered by him as a result of the IO proceedings. The applicant has pleaded some economic loss as a result of not being able to work as a teacher but this is simply claimed as a lump sum. These are not monies ‘in respect of monetary loss actually suffered and expenditure actually incurred’.
The applicant argues that the words of Fullagar J in Paff v Speed apply to him. He is a professional man (teacher), and as a result his past economic loss from not being able to obtain his teacher’s registration, can be estimated by reference to his past earnings. The applicant submits that his past loss of wages can be calculated with precision as special damages, whilst accepting that future possible lost wages are more in the nature of general damages. In making this submission the applicant acknowledges that his statement of claim requires amendment, arguing that this is not reason to strike out his claim.
In Assessment of Damages for Personal Injury and Death[117] it is noted that there is no consistent position in Australia regarding what is special damage as opposed to general damages when assessing loss. However, generally special damages are regarded as out of pocket expenses incurred to trial caused by the tortious action of the respondent.[118] It appears accepted that this can include loss of income. The authors of Luntz concluded that:
There is no theoretical justification for treating loss of earning capacity any differently from medical expenses; the latter are almost invariably divided at the date of trial because those already incurred are usually capable of precise quantification (and so are part of ‘special damages’) while those to be incurred cannot be conclusively assessed (and so are part of ‘general damages’).
[117] Luntz, 5^th Ed 2021 (Luntz).
[118] See discussion in Luntz at [1.8.1]-[1.8.3].
In the circumstances of this matter there is a reasonable basis for arguing that the applicant has suffered precise loss of income that could be regarded as special damage. However, there is no plea as to how those damages are calculated given that the applicant was not employed as a teacher in South Australia at the time the Intervention Order was made. Significantly more detail would be required to meet the test in Paff v Speed. This would include what was needed for him to be registered as a teacher in South Australia; what work was available for which he was qualified; and what salary would apply to him. These are matters that must be pleaded to establish special damage in the context of past loss of wages.
Despite this, I conclude that in relation to the need to prove a loss by way of special damage, that in the applicant’s circumstances of him being a teacher, that he meets the criteria in Paff v Speed of being a professional person whose past loss of income could be estimated to trial ‘without difficulty’. This would require a pleading regarding his capacity to obtain registration and employment in South Australia.
In the circumstances, I find that the applicant’s failure to set out the basis of his precise loss of income in his statement of claim, is not reason for his claim in collateral abuse of process to be struck out. Rather this is a matter where leave could be provided to the applicant to amend his pleadings to set out more precisely his past loss of income to date.
Conclusion – Summary Judgment

In relation to both causes of action relied upon by the applicant in bringing his claim against the respondent, I have found that there is a fundamental element of the tort that cannot be satisfied. Both torts require that the respondent was the person who instituted or initiated the proceedings. I have found that she was not. SAPOL was the prosecutor/instigator of the IO proceedings.
I also find, in relation to the tort of collateral abuse of process, that I cannot be satisfied that the applicant has established that the respondent only commenced the IO proceedings for an improper purpose, and that the proceedings involved a demand, threat or overt coercion. The only alleged threat, if it was such, was made nearly 10 months before the proceedings were commenced, and cannot be said to be part of, or connected to them. There is no evidence before the court that the respondent has misused the legal process by reporting to police and seeking an Intervention Order.
In all the circumstances, I find that the respondent has established that there is no reasonable basis for the applicant’s claim to be prosecuted pursuant to either tort. I therefore order:
(1)There be summary judgment for the respondent pursuant to UCR144.2(2).
(2)That the respondent be awarded costs of the proceedings on a party/party basis.