Moore v Moore [2020] NSWDC 402

Moore v Moore [2020] NSWDC 402

The defendant did not establish that the plaintiff's malicious prosecution claim was a clear case that was hopeless or doomed to fail. The pleading alleged that the defendant made deliberately false allegations to police intending to cause the plaintiff's arrest, charge and prosecution, and the plaintiff's affidavit advanced an alternative version of the altercation inconsistent with a deliberate biting off of the defendant's ear. Although the plaintiff faced difficulty and would need inferences to be drawn from established facts, the factual dispute and the criminal trial materials did not make the claim untenable or beyond doubt. Summary dismissal under Part 13.4 was therefore not...

Jurisdiction
Australia
Judgment Date
13 August 2020
Procedural Posture
Civil Proceedings Alleging Malicious Prosecution / Notice of Motion by the Defendant Seeking Summary Dismissal Under Part 13 R 4 of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
The defendant's Notice of Motion was dismissed.
Legal Topics
['summary Dismissal' 'frivolous and Vexatious Proceedings' 'no Reasonable Cause of Action' 'abuse of Process' 'malicious Prosecution' 'initiation or Instigation of Prosecution' 'factual Dispute']
['practice and Procedure' 'torts'] ['summary Dismissal' 'frivolous and Vexatious Proceedings' 'no Reasonable Cause of Action' 'abuse of Process' 'malicious Prosecution' 'initiation or Instigation of Prosecution' 'factual Dispute']

Case Brief

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Procedural Posture

Civil Proceedings Alleging Malicious Prosecution / Notice of Motion by the Defendant Seeking Summary Dismissal Under Part 13 R 4 of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ["Whether the plaintiff's malicious prosecution claim disclosed a reasonable cause of action or was otherwise frivolous, vexatious or an abuse of process under Part 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW)." "Whether the defendant's alleged false report to police could amount to initiating or instigating the criminal prosecution for the purposes of malicious prosecution." "Whether the plaintiff's case was so clear, hopeless or doomed to fail that it should be dismissed summarily despite factual disputes."]

Ratio Decidendi

The defendant did not establish that the plaintiff's malicious prosecution claim was a clear case that was hopeless or doomed to fail. The pleading alleged that the defendant made deliberately false allegations to police intending to cause the plaintiff's arrest, charge and prosecution, and the plaintiff's affidavit advanced an alternative version of the altercation inconsistent with a deliberate biting off of the defendant's ear. Although the plaintiff faced difficulty and would need inferences to be drawn from established facts, the factual dispute and the criminal trial materials did not make the claim untenable or beyond doubt. Summary dismissal under Part 13.4 was therefore not...

Court Disposition

The defendant's Notice of Motion was dismissed.

Orders

  • ['The Notice of Motion filed 21 May 2020 is dismissed.']