Marino v Bello [2021] NSWDC 52

District Court New South Wales

Medium Neutral Citation: Marino v Bello [2021] NSWDC 52 Hearing dates: 26 February 2021; written submissions to 3 March 2021 Date of orders: 11 March 2021 Decision date: 11 March 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Orders: (1) The plaintiff's application for adjournment and/or a stay of these proceedings until December 2021 (or such other dates as the court may be prepared to entertain) is refused with costs. (2) The plaintiff's application for leave to further amend the statement of claim in these proceedings in the form of the pleading which is exhibit A is refused with costs. (3) The plaintiff's claims for malicious prosecution and abuse of process against the first and second defendants are dismissed and the plaintiff is to pay their costs both of this application and of the proceedings. (4) The plaintiff's applications to join the proposed third, fourth, fifth and sixth defendants and to bring the causes of action identified in exhibit A against them are dismissed with costs. (5) Liberty to apply in relation to costs. Catchwords: TORT – malicious prosecution and abuse of process – application for leave to amend – cross-application for summary dismissal – plaintiff seeks adjournment of applications – whether adjournment should be granted – criminal proceedings the subject of the claims not yet concluded – whether plaintiff should be permitted to bring proceedings for malicious prosecution where he has not yet had a successful outcome – whether leave to amend the abuse of process claim should be granted – whether a claim of abuse of process may be brought against a person who did not initiate the process – turns on own facts Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 25 – 28A Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rr 4.15(1)(a), 13.4, 14.28, 19.1 and 42.1 Civil Procedure Act 2005 (NSW) ss 56-58, 64 and 100 Cases Cited: Ainsworth v Hanrahan (1985) 1 NSWLR 370 Beckett v New South Wales (2013) 248 CLR 432 Burton v Babb [2020] NSWCA 331 Cumberland v Clarke (1996) 39 NSWLR 514 Dickens v State of New South Wales [2017] NSWSC 1173 Dickens v State of New South Wales (No 3) [2018] NSWSC 485 Duraisamy v Sydney Trains [2019] NSWCA 269 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 Leerdam v Noori [2009] NSWCA 90; 255 ALR 553 McDonough v Smith 139 S. Ct. 2149, 204 L. Ed. 2d 506 (2019) McGuirk v University of New South Wales [2009] NSWSC 1424 Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365 Shaw v State of New South Wales [2012] NSWCA 102 Category: Procedural rulings Parties: Plaintiff: A Marino Defendants: 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 Representation: Counsel: Defendants: First & Second Defendants: Mr P Macarounas Proposed third Defendant to fifth Defendant : Mr B McManus Proposed sixth Defendant: Mr R Coffey