(1) The claims against the first to third defendants for the “First Cause of Action” (malicious prosecution) and, as to the first defendant, the “Third Cause of Action” (defamation) are struck out and dismissed. (2) The claims against the first to third defendants for the “Second Cause of Action” (abuse of process) are struck out but with leave to replead, such leave to be exercised by 3 February 2020. (3) The costs of the plaintiff’s claim against the first to third defendants are reserved, with liberty to apply. (4) The plaintiff’s claims against the fourth defendant in the “Third Cause of Action” (defamation) are struck out and dismissed. (5) The plaintiff’s claims against the fifth defendant in the “Fourth Cause of Action” (defamation) are struck out and dismissed. (6) The plaintiff is to pay the fourth and fifth defendants’ costs of this application and of the proceedings, with liberty to the parties to apply. (7) The remaining proceedings for abuse of process as between the plaintiff and the first to third defendants are stood over for further directions, including a timetable for further argument, to the Defamation List on Thursday 6 February 2020.
Catchwords:
TORT – convictions of the plaintiff in 2012 for offences under the Cruelty to Animals Act 1979 (NSW) set aside in 2016 under s 32 Mental Health (Forensic Provisions) Act 1990 (NSW) – plaintiff brings proceedings for malicious prosecution, abuse of process and defamation against parties asserted to be prosecutors, a broadcaster and Google Inc – defendants bring applications for summary dismissal of all claims
MALICIOUS PROSECUTION – whether s 32 orders amount to a termination in the plaintiff’s favour – whether rulings to this effect in Quirk v The State of New South Wales [2011] NSWSC 341; [2012] NSWCA 216 may be distinguished or are plainly wrong – whether pleadings so hopeless they should be struck out at the first opportunity
ABUSE OF PROCESS – when the cause of action accrued – whether a claim for abuse of process may be brought against a non-party – whether pleadings so hopeless they should be struck out at the first opportunity – whether generalised complaint about pleadings sufficient to warrant such an order
DEFAMATION – whether plaintiff could establish publication by any defendant within the limitation period - whether broadcaster’s fair report defence capable of summary determination – whether plaintiff’s defamation claims should be struck out on the principles of proportionality (Bleyer v Google Inc (2014) 88 NSWLR 670) – plaintiff granted leave to replead abuse of process claim but all other claims struck out and dismissed
[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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Details
AGLC
Young v RSPCA NSW (No. 2) [2019] NSWDC 754
Case
[2019] NSWDC 754
Decision Date
CaseChat Overview and Summary
In the matter of Young v RSPCA NSW (No. 2), the plaintiff sought to bring claims of malicious prosecution, abuse of process and defamation against various parties, including those who were alleged to have prosecuted the plaintiff for offences under the Cruelty to Animals Act 1979 (NSW) in 2012, and against a broadcaster and Google Inc. The defendants applied for summary dismissal of all claims. The primary issues for the court to determine were whether the plaintiff's claims could proceed in light of the 2016 setting aside of the convictions under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), and if the pleadings were sufficient to warrant striking out some or all of the claims.
The court found that the plaintiff's malicious prosecution claim could not proceed because the setting aside of the convictions did not constitute a termination in the plaintiff's favour, and thus did not meet the requirements for such a claim. The court also determined that the abuse of process claim could not proceed at that time because it was not clear when the cause of action accrued, but the plaintiff was granted leave to replead the claim. As for the defamation claims, the court held that the plaintiff could not establish publication by any defendant within the limitation period, and thus these claims were also struck out. The court further found that the broadcaster's fair report defence could not be determined at that stage, and that the plaintiff's defamation claims against Google Inc. were struck out on the principle of proportionality.
The court ordered that the claims against the first to third defendants for malicious prosecution and defamation were struck out and dismissed, while the abuse of process claim was struck out but with leave to replead by 3 February 2020. The plaintiff's defamation claims against the fourth and fifth defendants were also struck out and dismissed. The plaintiff was ordered to pay the costs of the application and proceedings for the fourth and fifth defendants, with liberty to apply. The remaining proceedings for abuse of process as between the plaintiff and the first to third defendants were stood over for further directions.
Orders
Orders of the court
(1) The claims against the first to third defendants for the “First Cause of Action” (malicious prosecution) and, as to the first defendant, the “Third Cause of Action” (defamation) are struck out and dismissed.
(2) The claims against the first to third defendants for the “Second Cause of Action” (abuse of process) are struck out but with leave to replead, such leave to be exercised by 3 February 2020.
(3) The costs of the plaintiff’s claim against the first to third defendants are reserved, with liberty to apply.
(4) The plaintiff’s claims against the fourth defendant in the “Third Cause of Action” (defamation) are struck out and dismissed.
(5) The plaintiff’s claims against the fifth defendant in the “Fourth Cause of Action” (defamation) are struck out and dismissed.
(6) The plaintiff is to pay the fourth and fifth defendants’ costs of this application and of the proceedings, with liberty to the parties to apply.
(7) The remaining proceedings for abuse of process as between the plaintiff and the first to third defendants are stood over for further directions, including a timetable for further argument, to the Defamation List on Thursday 6 February 2020.