NOLAN v CURBY [1995] NSWCA 324

NOLAN v CURBY [1995] NSWCA 324

The Court held that although the appellant's evidence gave rise to a serious question as to potential abuse of process, this alone was not sufficient to justify an interlocutory stay in the absence of a demonstrated probability of success at final hearing or inadequacy of remedies in the criminal courts. The application did not present the extraordinary or exceptional circumstances required for civil court intervention. Consequently, leave to appeal was refused and the application dismissed with costs.

Parties
Appellant: Christopher John Nolan; Respondent: Paul Curby
Jurisdiction
Australia
Judgment Date
20 December 1995
Procedural Posture
Application for Leave to Appeal and Interlocutory Stay / Application for Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
Abuse of Process, Interlocutory Injunctions, Criminal Proceedings Stay, Jurisdiction of Civil Courts in Criminal Matters
Criminal Law Civil Procedure Abuse of Process Interlocutory Injunctions Criminal Proceedings Stay Jurisdiction of Civil Courts in Criminal Matters

Case Brief

Summary, issues, holding and outcome

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Parties

Christopher John Nolan

Appellant

Paul Curby

Respondent

Procedural Posture

Application for Leave to Appeal and Interlocutory Stay / Application for Leave to Appeal

Legal Issues

  1. 1 Whether a civil court should grant an interlocutory stay of criminal proceedings on the grounds of alleged abuse of process.
  2. 2 Whether there exists a serious question to be tried justifying interlocutory relief in exceptional circumstances.
  3. 3 Whether relief can or should be granted by civil courts instead of criminal courts in abuse of process claims.

Ratio Decidendi

The Court held that although the appellant's evidence gave rise to a serious question as to potential abuse of process, this alone was not sufficient to justify an interlocutory stay in the absence of a demonstrated probability of success at final hearing or inadequacy of remedies in the criminal courts. The application did not present the extraordinary or exceptional circumstances required for civil court intervention. Consequently, leave to appeal was refused and the application dismissed with costs.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.