Sourian v State of NSW [1999] NSWSC 1173

Sourian v State of NSW [1999] NSWSC 1173

In the Magarditch proceedings, there was no error in dismissing the proceedings under Pt33 r6, and in any event, the claims were incapable of success because Mr and Mrs Magarditch were not prosecuted nor entitled to sue on claims belonging to Magic, and the pleadings disclosed no reasonable cause of action. In the Sourian proceedings, the Master's discretion miscarried as a material fact was not taken into account; thus, the general dismissal was set aside. However, all claims except for (1) Mr Sourian's claims for malicious prosecution against the State (first defendant), and (2) claims for malicious prosecution against the loss assessor (second defendant) for prosecution for the claim...

Jurisdiction
Australia
Judgment Date
09 December 1999
Procedural Posture
Appeal / Appeal From Decision of Supreme Court Master to Single Judge
Outcome
020124/95 (Sourian): Appeal allowed in part; 020125/95 (Magarditch): Appeal dismissed
Legal Topics
['malicious Prosecution' 'conspiracy' 'pleading' 'summary Dismissal' 'striking Out' 'party Joinder']
['torts' 'civil Procedure'] ['malicious Prosecution' 'conspiracy' 'pleading' 'summary Dismissal' 'striking Out' 'party Joinder']

Case Brief

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Procedural Posture

Appeal / Appeal From Decision of Supreme Court Master to Single Judge

Legal Issues

  1. 1 ['Whether proceedings should be dismissed for default in complying with court orders (Pt33 r6) or for disclosing no reasonable cause of action (Pt13 r5)' 'Whether statements of claim in both the Sourian and Magarditch proceedings disclosed any sustainable cause of action, particularly in malicious prosecution and conspiracy' 'Whether proper parties were named or could be joined (including Magic Australia Pty Limited and ANZ)' 'Whether further leave to amend should be granted and on what scope']

Ratio Decidendi

In the Magarditch proceedings, there was no error in dismissing the proceedings under Pt33 r6, and in any event, the claims were incapable of success because Mr and Mrs Magarditch were not prosecuted nor entitled to sue on claims belonging to Magic, and the pleadings disclosed no reasonable cause of action. In the Sourian proceedings, the Master's discretion miscarried as a material fact was not taken into account; thus, the general dismissal was set aside. However, all claims except for (1) Mr Sourian's claims for malicious prosecution against the State (first defendant), and (2) claims for malicious prosecution against the loss assessor (second defendant) for prosecution for the claim...

Court Disposition

020124/95 (Sourian): Appeal allowed in part; 020125/95 (Magarditch): Appeal dismissed

Orders

  • ['020124/95 (Sourian): Appeal against dismissal of the proceedings allowed; proceedings summarily dismissed except for claims for malicious prosecution against the State (first defendant) and two claims against the loss assessor (second defendant); statement of claim to be struck out and further leave to amend...