Clavel v Savage & 4 Ors [2004] NSWSC 292

Clavel v Savage & 4 Ors [2004] NSWSC 292

The amended statement of claim adequately pleads the elements of the causes of action for malicious prosecution, abuse of process, assault, false imprisonment, and intentional infliction of emotional distress. The motions to dismiss or strike out should be dismissed, and the plaintiffs are given leave to amend the statement of claim to address minor deficiencies, including restricting the malicious prosecution claim to the directly affected plaintiff and verifying the pleading by the second plaintiff.

Parties
First Plaintiff: Jean Luc Clavel; Second Plaintiff: Sarah Clavel; First Defendant: John Savage; Second Defendant: Kim Savage; Third Defendant: State of New South Wales; Fourth Defendant: Michael Hickenbotham; Fifth Defendant: Andrew Hutchinson
Jurisdiction
Australia
Judgment Date
15 April 2004
Procedural Posture
Civil Proceeding / Interlocutory (motions for Summary Judgment and Strike Out; Leave to Amend Statement of Claim)
Outcome
Plaintiffs granted leave to file and serve a further amended statement of claim within 21 days; defendants' motions dismissed; costs largely in plaintiffs' favour except for costs thrown away by amendments.
Legal Topics
Summary Judgment, Malicious Prosecution, Abuse of Process, Assault, False Imprisonment, Intentional Infliction of Emotional Distress, Pleading, Vicarious Liability
Tort Law Civil Procedure Summary Judgment Malicious Prosecution Abuse of Process Assault False Imprisonment Intentional Infliction of Emotional Distress +2 more

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Parties

Jean Luc Clavel

First Plaintiff

Sarah Clavel

Second Plaintiff

John Savage

First Defendant

Kim Savage

Second Defendant

State of New South Wales

Third Defendant

Michael Hickenbotham

Fourth Defendant

Andrew Hutchinson

Fifth Defendant

Procedural Posture

Civil Proceeding / Interlocutory (motions for Summary Judgment and Strike Out; Leave to Amend Statement of Claim)

Legal Issues

  1. 1 Whether the amended statement of claim discloses reasonable causes of action for malicious prosecution, abuse of process, assault, false imprisonment, and intentional infliction of emotional distress; whether summary judgment or strike out is appropriate; adequacy of pleading elements of the torts pleaded.

Ratio Decidendi

The amended statement of claim adequately pleads the elements of the causes of action for malicious prosecution, abuse of process, assault, false imprisonment, and intentional infliction of emotional distress. The motions to dismiss or strike out should be dismissed, and the plaintiffs are given leave to amend the statement of claim to address minor deficiencies, including restricting the malicious prosecution claim to the directly affected plaintiff and verifying the pleading by the second plaintiff.

Court Disposition

Plaintiffs granted leave to file and serve a further amended statement of claim within 21 days; defendants' motions dismissed; costs largely in plaintiffs' favour except for costs thrown away by amendments.

Orders

  • Leave be granted to the plaintiffs to file and serve a FASC within 21 days.
  • The notice of motion filed by the first and second defendants dated 16 October 2003 and the notice of motion filed by the third defendant on 9 October 2003 are dismissed.