Marino v Bello (No 3) [2022] NSWCA 181

Marino v Bello (No 3) [2022] NSWCA 181

The appellant's claims of collateral abuse of process and malicious prosecution against respondents as instigators (though not nominal parties) were sufficiently arguable on the pleaded facts that they ought not have been summarily dismissed. Formal pleading deficiencies could be remedied by amendment. The malicious prosecution claim, initially inchoate since underlying proceedings had not concluded in his favour, could now be pursued as those proceedings ended favourably to the appellant. The Court allowed amendment of the Statement of Claim and set aside the summary dismissal.

Jurisdiction
Australia
Judgment Date
20 September 2022
Procedural Posture
Civil Appeal / Appeal From Summary Dismissal; Interlocutory Appeal
Outcome
appeal allowed
Legal Topics
['abuse of Process' 'malicious Prosecution' 'summary Dismissal' 'pleadings' 'apprehended Domestic Violence Orders']
['torts' 'civil Procedure'] ['abuse of Process' 'malicious Prosecution' 'summary Dismissal' 'pleadings' 'apprehended Domestic Violence Orders']

Case Brief

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Procedural Posture

Civil Appeal / Appeal From Summary Dismissal; Interlocutory Appeal

Legal Issues

  1. 1 ['Whether claim of collateral abuse of process can be maintained against instigators not nominally parties to prior proceedings' 'Whether claim for malicious prosecution can be maintained against instigators' 'Whether, after the ADVO proceedings were dismissed in favour of the applicant, pleading for malicious prosecution could be amended in current proceedings' 'Whether formal deficiencies in the pleadings warranted summary dismissal']

Ratio Decidendi

The appellant's claims of collateral abuse of process and malicious prosecution against respondents as instigators (though not nominal parties) were sufficiently arguable on the pleaded facts that they ought not have been summarily dismissed. Formal pleading deficiencies could be remedied by amendment. The malicious prosecution claim, initially inchoate since underlying proceedings had not concluded in his favour, could now be pursued as those proceedings ended favourably to the appellant. The Court allowed amendment of the Statement of Claim and set aside the summary dismissal.

Court Disposition

appeal allowed

Orders

  • ['Set aside orders (2) and (3) made in the District Court on 11 March 2021.' 'In lieu, grant leave to the plaintiff to further amend the Statement of Claim in the form of the Draft Amended Statement of Claim dated 18 January 2021, subject to specified amendments.' "Order that the respondents pay the appellant's...