Pierno v Rixon [2016] NSWSC 297

Pierno v Rixon [2016] NSWSC 297

The deceit claim was dismissed because the alleged representations arose in a marital context unsuitable for the imposition of deceit liability. The assault claim was dismissed because the alleged phone call could not establish apprehension of imminent harm. The abuse of process claim as pleaded was unsatisfactory: complaints to the Legal Services Commission were not abuse of process, the substituted service application caused no relevant injustice, and only a possible claim against Raffaele Pierno concerning Brisbane Magistrates Court proceedings might be arguable if properly pleaded. The negligence/nervous shock and psychiatric injury claims were defective for failure to plead duty and...

Jurisdiction
Australia
Judgment Date
17 March 2016
Procedural Posture
Common Law Proceedings by Statement of Claim Alleging Negligence/nervous Shock, Assault, Infliction of Psychiatric Injury, Abuse of Process and Deceit / Defendants' Motion for Summary Dismissal and Plaintiff's Motion for Filing of Defences/default Liberty
Outcome
Claims against Leonie Rixon and Cheralyn Rixon dismissed; deceit and assault claims against Raffaele Pierno dismissed; nervous shock, infliction of psychiatric injury and abuse of process claims against Raffaele Pierno struck out with leave to re-plead within 28 days.
Legal Topics
['summary Dismissal' 'strike Out of Statement of Claim' 'deceit in Marital Context' 'assault' 'abuse of Process' 'nervous Shock' 'infliction of Psychiatric Injury']
['practice and Procedure' 'tort' 'family Law Context'] ['summary Dismissal' 'strike Out of Statement of Claim' 'deceit in Marital Context' 'assault' 'abuse of Process' 'nervous Shock' 'infliction of Psychiatric Injury']

Case Brief

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Procedural Posture

Common Law Proceedings by Statement of Claim Alleging Negligence/nervous Shock, Assault, Infliction of Psychiatric Injury, Abuse of Process and Deceit / Defendants' Motion for Summary Dismissal and Plaintiff's Motion for Filing of Defences/default Liberty

Legal Issues

  1. 1 ['Whether the statement of claim, containing several causes of action, should be summarily dismissed as untenable or struck out with leave to re-plead.' 'Whether the deceit claim against Raffaele Pierno could arise from alleged representations made in the marital relationship.' 'Whether the alleged telephone threat was capable of constituting assault by creating apprehension of imminent harm.' 'Whether the abuse of process claim was viable against the defendants in relation to Magistrates Court proceedings, Federal Magistrates Court substituted service and Legal Services Commission complaints.' 'Whether the plaintiff had an arguable claim for nervous shock or infliction of psychiatric injury against each defendant.']

Ratio Decidendi

The deceit claim was dismissed because the alleged representations arose in a marital context unsuitable for the imposition of deceit liability. The assault claim was dismissed because the alleged phone call could not establish apprehension of imminent harm. The abuse of process claim as pleaded was unsatisfactory: complaints to the Legal Services Commission were not abuse of process, the substituted service application caused no relevant injustice, and only a possible claim against Raffaele Pierno concerning Brisbane Magistrates Court proceedings might be arguable if properly pleaded. The negligence/nervous shock and psychiatric injury claims were defective for failure to plead duty and...

Court Disposition

Claims against Leonie Rixon and Cheralyn Rixon dismissed; deceit and assault claims against Raffaele Pierno dismissed; nervous shock, infliction of psychiatric injury and abuse of process claims against Raffaele Pierno struck out with leave to re-plead within 28 days.

Orders

  • ['As against Leonie Rixon and Cheralyn Rixon, the statement of claim is dismissed.' 'As against Raffaele Pierno, the claims in deceit and assault are dismissed.' 'The claims in nervous shock, infliction of psychiatric injury and abuse of process are struck out.' 'The plaintiff has leave to re-plead those claims...