Marino v Bello [2021] NSWDC 52

Marino v Bello [2021] NSWDC 52

The statement of claim was incurably deficient, claims for malicious prosecution could not be maintained as the proceedings had not terminated in plaintiff’s favour, and abuse of process claims could not be brought against defendants who were not parties to the impugned proceedings; thus, leave to amend was refused and all claims and applications were dismissed with costs.

Parties
Plaintiff: A Marino; First Defendant: B Bello; Second Defendant: C Bello; Proposed Third Defendant: Mark Rowlandson; Proposed Fourth Defendant: Victoria Rowlandson; Proposed Fifth Defendant: Colin Rowlandson; Proposed Sixth Defendant: The State of New South Wales
Jurisdiction
Australia
Judgment Date
11 March 2021
Procedural Posture
Civil / Ruling on Applications for Adjournment, Leave to Amend, and Summary Dismissal
Outcome
all applications refused, statement of claim dismissed, costs ordered against plaintiff
Legal Topics
Malicious Prosecution, Abuse of Process, Pleadings, Summary Dismissal, Adjournment
Tort Civil Procedure Malicious Prosecution Abuse of Process Pleadings Summary Dismissal Adjournment

Case Brief

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Parties

A Marino

Plaintiff

B Bello

First Defendant

C Bello

Second Defendant

Mark Rowlandson

Proposed Third Defendant

Victoria Rowlandson

Proposed Fourth Defendant

Colin Rowlandson

Proposed Fifth Defendant

The State of New South Wales

Proposed Sixth Defendant

Procedural Posture

Civil / Ruling on Applications for Adjournment, Leave to Amend, and Summary Dismissal

Legal Issues

  1. 1 Whether the plaintiff should be granted an adjournment or stay pending finalisation of related criminal proceedings
  2. 2 Whether leave to amend the statement of claim should be granted
  3. 3 Whether the statement of claim sufficiently pleads malicious prosecution and abuse of process

Ratio Decidendi

The statement of claim was incurably deficient, claims for malicious prosecution could not be maintained as the proceedings had not terminated in plaintiff’s favour, and abuse of process claims could not be brought against defendants who were not parties to the impugned proceedings; thus, leave to amend was refused and all claims and applications were dismissed with costs.

Court Disposition

all applications refused, statement of claim dismissed, costs ordered against plaintiff

Orders

  • The plaintiff's application for adjournment and/or a stay of these proceedings until December 2021 is refused with costs
  • The plaintiff's application for leave to further amend the statement of claim is refused with costs