Marino v Bello (No 3)

1. [1]

   MACFARLAN JA: I agree with Brereton JA.

2. [2]

   BRERETON JA: The appellant Mr Marino was the applicant in proceedings in the Federal Circuit and Family Court of Australia (“Family Court proceedings”) for orders that children of the first and second respondents – his brother-in-law and sister Mr and Mrs Bello (“Bellos”) – have contact with him. While the Family Court proceedings were pending, police – said to be acting on the complaint of the Bellos – made a provisional apprehended domestic violence order (“ADVO”) against Mr Marino, and applied for an interim and permanent ADVO (“ADVO proceedings”), in respect of which the Bellos were the “persons in need of protection”. In the present proceedings, Mr Marino sued the Bellos in the District Court on a number of causes of action. After several iterations of his pleading, he sought leave to file an amended Statement of Claim propounding causes of action against the Bellos for malicious prosecution and collateral abuse of process (both in respect of the ADVO proceedings), and joining as third, fourth and fifth defendants the solicitors who had acted for the Bellos in the Family Court proceedings (“Solicitors”), and as sixth defendant the State of New South Wales (“State”), as being responsible for the prosecutor of the ADVO proceedings. Against the Solicitors, Mr Marino ultimately alleged only malicious prosecution (in respect of the ADVO proceedings), while against the State he pleaded both malicious prosecution and abuse of process.

3. [3]

   On 11 March 2021, Gibson DCJ refused leave to Mr Marino to file his proposed Further Amended Statement of Claim, and on the application of the defendants summarily dismissed the proceedings. On 16 May 2022, this Court granted Mr Marino leave to appeal as regards his claims against the Bellos, but not as against the Solicitors or the State. [1] The Court contemplated that upon hearing the appeal it would also consider the question of leave to replead. [2] Accordingly, before this Court is an appeal by way of rehearing of Mr Marino’s application for leave to file the Further Amended Statement of Claim as against the Bellos only, and the Bellos’ motion for summary dismissal of the District Court proceedings against them.

4. [4]

   On 8 August 2022, the Court pursuant to UCPR r 7.36 referred the appellant to the Registrar for referral to a barrister on the pro bono panel for representation. [3] The Court is most grateful for the considerable assistance afforded by Ms B Tronson and Mr A H Edwards of counsel who pursuant to that referral appeared on the hearing, and to the solicitors of Allens Linklaters who instructed them.

5. [5]

   As on the application for leave to appeal, so on the appeal, the Bellos did not appear when they were called outside the Court. According to an affidavit sworn by Mr Marino on 31 March 2022, he on 18 June 2021 transmitted to the second respondent’s personal email address electronic copies of the sealed Summons seeking leave to appeal, the draft Notice of Appeal and his Summary of Argument. On 11 February 2022, the Registrar made orders confirming service of the Summons by email on 18 June 2021 to that email address, and deeming service to have been effected once the applicant had provided a copy of that decision to the first and second respondents at that same email address. On the same day, according to Mr Marino’s affidavit of 31 March 2022, he transmitted a copy of the Registrar’s judgment of 11 February 2022 confirming service to the same email address. Following the grant of leave to appeal, according to Mr Marino’s affidavit of 27 May 2022, he forwarded to the respondents at the same email address the Amended Notice of Appeal filed on 19 May 2022. The Bellos have never filed an appearance in this Court.

6. [6]

   The primary judge’s summary dismissal of the proceedings was founded in part on formal and technical deficiencies in the proposed Further Amended Statement of Claim but in substance, so far as the claim for abuse of process against the Bellos was concerned, on the basis that the Bellos – not being the nominal prosecutor – could not be liable for that tort, and so far as the claim for malicious prosecution was concerned, on the basis that it was inchoate, the ADVO proceedings not (yet) having terminated in favour of Mr Marino.

Abuse of Process

1. [7]

   The essence of the tort of collateral abuse of process is the employment of the machinery of the law to achieve a purpose which could not lawfully be obtained, and which is “entirely outside the ambit of the legal claim upon which the court is asked to adjudicate”. [4] Here, Mr Marino’s complaint is that the Bellos made a complaint to police “for a single or dominant collateral and/or wrongful purpose”, namely “to hurt, sabotage, and otherwise destroy [Mr Marino’s] family law proceedings and thereby bolster the [Bellos] case”. [5] Those requirements will be satisfied if proceedings are instituted for the predominant purpose of delaying the enforcement of a claim made against the instigator. [6] Subject to the question of whether the Bellos are sufficiently implicated to incur liability, a valid abuse of process claim against them is sufficiently discernible from the proposed pleading.

2. [8]

   There is at first sight not insignificant authority, however, for the view on which the primary judge understandably acted, that such a claim is maintainable only against the person who actually brings the relevant proceedings. In Emanuele v Hedley, [7] the appellant sued the respondent, a Commonwealth public servant, for (inter alia) abuse of process, consequent upon the appellant’s conviction on a charge of bribery of a public official being quashed on the basis that it arose out of the improper conduct of the respondent in circumstances that amounted to entrapment. The Full Federal Court upheld the summary dismissal of the appellant’s claim, relevantly on the basis that an action for abuse of process is available only against the party who actually instituted the proceedings that are alleged to constitute an abuse. The Court (Wilcox, Miles and RD Nicholson JJ) said: [8]

3. [9]

   In Leerdam v Noori, [9] Spigelman CJ concluded that Emanuele v Hedley was not “clearly wrong” and that this Court would follow it. [10] Allsop P and Macfarlan JA agreed. [11] That was in a context where it was sought to make a solicitor who acted for the Minister for Immigration and Multicultural and Indigenous Affairs responsible for the Minister’s defence of proceedings in the Administrative Appeals Tribunal, in which it was ultimately held that Mr Noori had been denied procedural fairness. In declining to apply United States authority indicating that an attorney could commit the tort of collateral abuse of process, Spigelman CJ observed that there were significant differences between the Australian and United States systems with respect to tort proceedings, in particular that the contingent fee system in the United States was such that in many cases the attorney could be seen to be the true moving party in litigation, which was not the case here. [12]

4. [10]

   In Kable v New South Wales, [13] in which a five-judge bench was constituted to reconsider Leerdam v Noori, the point ultimately did not arise for determination, although Basten JA appears to have expressed some doubt as to whether the principle stated in Emanuele v Hedley could properly be derived from the passages in Williams v Spautz [14] upon which it was said to be founded. [15]

5. [11]

   In Maxwell-Smith v S & E Hall Pty Ltd, [16] Barrett JA, with whom Beazley P and McColl JA agreed, said [17] :

6. [12]

   Despite these authorities, for the reasons that follow, I am of the opinion that the proposition that in the circumstances of this case the Bellos, though not in name a party to the ADVO proceedings, could be liable for collateral abuse of process, is sufficiently arguable that it ought not have been summarily dismissed.

7. [13]

   First, in distinction to Leerdam and Maxwell-Smith, this is not a case in which it is sought to visit liability upon a person who merely acts in a professional capacity for a party to proceedings.

8. [14]

   Secondly, even if one sets aside the doubts expressed by Basten JA as to whether Emanuele v Hedley is supported by the authority on which it claims to rely, it allows that where a person acts by a servant or agent in instituting a proceeding, it is the purpose of the principal that will be relevant. Moreover, Emanuele v Hedley is explicable on the basis that the real instigator of the proceedings was the nominal prosecutor, and not Mr Hedley, who was but part of an extensive police operation ultimately found to involve an entrapment of Mr Emanuele. None of the cases deals with a situation in which it can be said that a person other than the nominal party was the real instigator of the proceedings. By way of contrast, in the present case, the (alleged) acts of the Bellos in making a complaint to police set in motion the process that culminated in the provisional order and the ADVO proceedings. [18]

9. [15]

   Thirdly, recognition that an instigator could be liable for the tort of abuse of process would be consistent with the law of malicious prosecution, in which it is well established that an instigator may be liable. [19] Further, it would be consistent with more general principles of tort law which hold that where persons take “concerted action to a common end” and in the course of that action any one of them commits a tort, all are liable as joint tortfeasors. [20] A particular application of this is that a director who procures his or her company to commit a tort may be jointly liable with the company. [21] While this principle has developed in the context of the liability of directors for torts of their corporations, there is no reason why it should be so limited.

10. [16]

    Fourthly, as Spigelman CJ observed in Leerdam v Noori, there is significant authority in courts of the United States of America which are entitled to respect which support the view that liability extends to the true instigator, or “the primary catalyst or the determining factor in the decision to” commence proceedings. [22] Thus, liability has been held to extend to a person who makes a criminal complaint triggering a chain of events leading to a prosecution, notwithstanding that he was not the prosecutor. [23]

11. [17]

    Although, as I have said, the claim against the Bellos for collateral abuse of process is imperfectly formulated in the pleading, the cause of action is sufficiently discernible, and arguable, and any lack of particularity can be remedied by a request for further and better particulars. So far as concerns the technical defects, it is worth repeating the observation of Kirby P as he then was in Wentworth v Rogers (No 5): [24]

12. [18]

    In my opinion, therefore, the claim against the Bellos for collateral abuse of process ought not have been summarily dismissed. Leave to file the Further Amended Statement of Claim to that extent ought therefore have been granted.

Malicious Prosecution

1. [19]

   Although it is unresolved whether ADVO proceedings are capable of founding a claim for malicious prosecution, it is plainly arguable that they are. [25] In dismissing Mr Marino’s claim for malicious prosecution, the primary judge relied primarily on the circumstance that the claim was inchoate as the principal proceedings had not yet been terminated in his favour, [26] but also on the circumstance that the Bellos were not the prosecutors, [27] and the formal and technical defects in the pleadings. [28] As I have already indicated, the second basis was incorrect, as liability for malicious prosecution extends to an instigator who is not formally a party to the proceedings; so long as he or she is “actively instrumental” in having the proceedings commenced. [29] However, when the proceedings below were heard and determined, the primary judge was entirely correct to hold that the malicious prosecution claim was inchoate, and did not err in dismissing it on that basis.

2. [20]

   However, this is an appeal by way of rehearing, and one that does not follow a hearing on the merits. The Court may receive further evidence, and is not constrained by any requirement that special circumstances be shown. [30] On the hearing of the appeal, the Court received evidence that the ADVO proceedings were ultimately dismissed on 11 May 2021.

3. [21]

   Under Civil Procedure Act 2005 (NSW), s 64(3), a pleading may be amended to add a cause of action that has arisen after the commencement of the proceedings, the date of commencement of the proceedings in relation to such cause of action being taken to be the date on which the amendment is made. Accordingly, now that the malicious prosecution cause of action is no longer inchoate, an amendment to add it may be permitted.

4. [22]

   If the abuse of process claim is to remain on foot, it is plainly preferrable that any renewed malicious prosecution claim be included in the same proceeding. Again, although imperfectly pleaded, the cause of action is sufficiently discernible and – notwithstanding the suggestion to the contrary in my judgment on the leave application [31] – contains an allegation of want of reasonable and probable cause. [32] Although at the time the proceedings were before the primary judge it was right that this claim be struck out and dismissed, in light of the subsequent dismissal of the ADVO proceedings, leave to file the Further Amended Statement of Claim to the extent that it pleads a claim of malicious prosecution against the Bellos ought now be granted.

Conclusion

1. [23]

   I propose that the appeal be allowed, and that the following orders be made:

   1. (1)

      Set aside orders (2) and (3) made in the District Court on 11 March 2021.

   2. (2)

      In lieu thereof, 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:

   3. (3)

      Order that the respondents pay the appellant’s costs of the appeal.

   4. (4)

      Order that the plaintiff’s costs of the motions in the District Court be costs in the proceedings in the District Court.

2. [24]

   KIRK JA: The reasons of Brereton JA with respect to the abuse of process claim, with which I agree, illustrate that the claim is sufficiently open that it should not have been the subject of summary dismissal. His Honour’s reasons are consistent with those I gave in determining that there should be a limited grant of leave to appeal: Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 73 (“Marino No 1”) at [35]-[43]. In particular, the points made at [13]-[16] above indicate that the issue of the potential liability of an “instigator” is arguable. That does not mean that those arguments are necessarily likely to be accepted. The key issue for present purposes is that such arguments as to the possible development of the law are best determined by reference to found facts: see Marino No 1 at [42], and authority there cited.

3. [25]

   I also agree with the reasons expressed by Brereton JA in relation to the claim in malicious prosecution, and I agree with the orders proposed by his Honour.