Moore v Moore (No 2) [2021] NSWDC 73

District Court New South Wales

Medium Neutral Citation: Moore v Moore (No 2) [2021] NSWDC 73 Hearing dates: 11 February 2021 Date of orders: 11 February 2021 Decision date: 11 February 2021 Jurisdiction: Civil Before: Neilson DCJ Decision: See [11] Catchwords: TORTS – PRACTICE AND PROCEDURE Second application under UCPR 13.4 to dismiss proceedings – Application to strike out parts of statement of claim alleging that making application for ADVOs can ground an action for damages for malicious prosecution - Held: arguable that making application for ADVO can ground an action for malicious prosecution – Defective statement of claim – Leave granted to replead - COSTS – Each party in default – No order as to costs. Legislation Cited: Legal Profession Uniform Law Application Act 2014 Uniform Civil Procedure Rules 2005 Cases Cited: Clavel v Savage [2013] NSWSC 775 Clavel v Savage [2015] NSWCA 61 Coleman v Buckingham's Limited (1963) 63 SR (NSW) 171 Moore v Moore [2020] NSWDC 402 Category: Procedural rulings Parties: Applicant – Steven Moore Respondent – Roderick Moore Representation: Counsel: Applicant – P.R. Glissan Respondent – M.K. Rollinson

Solicitors: Applicant – E. Neumann (Eddy Neumann Lawyers) Respondent – D.P. Khoury (Benjamin & Khoury Solicitors and Attorneys) File Number(s): 2019/00354225 Publication restriction: Nil.

Judgment 1. HIS HONOUR: On 11 November 2019 the plaintiff filed a statement of claim. In essence the statement of claim brings an action for damages for the tort of malicious prosecution. The plaintiff relies upon the prosecution of him by New South Wales Police in the Local Court at Belmont which led to the plaintiff's being committed for trial in this Court at Newcastle and led to a trial before North DCJ and a jury which jury returned a verdict of not guilty of the charges against the plaintiff on or about 5 May 2016. The plaintiff also relies upon three applications made by or on behalf of the defendant against the plaintiff for an ADVO seeking that an order be made in favour of the defendant. 2. The defendant filed a defence initially in the Local Court at Belmont which eventually made its way into this Court's file on 9 January 2020. On 21 May 2020 the defendant filed a notice of motion seeking an order that the proceedings be dismissed pursuant to UCPR 13.4. That motion came on for hearing before Dicker DCJ on 13 August 2020 and his Honour dismissed that notice of motion. His Honour's reasons can be found at Moore v Moore [2020] NSWDC 402. His Honour went on to order the defendant to pay the plaintiff's costs of that notice of motion. Before me is a notice of motion filed on 11 November 2020, the first prayer of which could be described as "more of the same", another application under UCPR 13.4. In the alternative the plaintiff was claiming that pars 17, 18, 19 and 20 of the statement of claim referring to the ADVO applications be dismissed pursuant to that provision or pursuant to UCPR 14.28. 3. The submissions that were made by the plaintiff concerning the dismissal of the entire proceedings or the striking out of the paragraphs concerning the ADVO were based to a large extent on form, the problem being the inadequacy of the statement of claim as far as the pleadings are concerned. Another problem with the statement of claim is that there is an ambiguous certificate supporting it under Legal Profession Uniform Law Application Act 2014 Sch 2 cl 4. Of the two alternatives both are included in the statement of claim. 4. It is appropriate that I record in brief terms my views about the matter. There is no substance to the plaintiff's complaints as distinct from the plaintiff's complaints about the form of the pleading. The substance can be gleaned from two sources. There is no dispute that the plaintiff Roderick Moore and the defendant Steven Moore are brothers and that they were involved in an altercation on 31 May 2014. However, their versions of what occurred are completely different. In a statement which he gave to the police on 22 June 2014, Mr Steven Moore said this: "4. About 10.35am [on 31 May 2014], I heard a car pull up in the driveway at my mother's [house]. A short time later my brother Roderick Moore was standing at the door entry into the house and lounge room. He was wearing black boots, shorts, and a grey singlet and wearing a ring on each hand. I would describe the rings as big, silver skull rings. 5. Upon seeing Roderick he walked straight over to where I was sitting on the lounge and stood in front of me. I looked straight up to Roderick and said, 'G'day'. Roderick replied, 'Steven, if you ever fucking get in my face again…' I then heard mum say, 'Roderick, no'. Roderick continued to say, 'if you ever get in my face again I don't care who is there. I will fuck you up. I will fuck your kids up. I will fuck your wife up and I will fuck every part of your private property. By the way I want my fucking money.' I said, 'if you do that, you won't get your money.' 6. The next thing I remember, Roderick has punched me to the right side of my face. He punched me by swinging his left arm back and then forward with a closed fist. He made contact to my right side of my head and I felt a bit dazed and I feared for my life." The statement goes on to give further details about the altercation at some length and at [12] the statement the defendant said this: "Once Roderick bit through my left ear he let go of my testicle and pulled his finger out of my left eye. I managed to grab hold of Roderick by wrapping my arms around his torso and we were in a wrestle. Mum grabbed hold of a broom at this time and was saying [to] Roderick, 'Stop, Roderick, stop.' While saying this mum was hitting Roderick on the back with the broom. I do not know how many times she hit him but the broom broke over his back." 1. The plaintiff did not give an interview to the police. He exercised his right to silence and accordingly there was no ERISP. However, he did give evidence at the trial. He said that after entering the TV room of his mother's house, this is what happened: "I seen [sic] Steven sitting there and my mum sitting there and I said, 'Steven, don't ever threaten to kill me or hurt my family again. I will defend myself.' I said, 'As far as the money goes, give it to that woman there.' Meaning mum. I turned to leave and he said, 'Well I can tell you now you're never going to get the money.' I stopped, turned around and took one step to ask 'What do you mean?' and before I got that out, I got kicked in the chest and it was on.'" In other words the plaintiff was saying that the altercation between the two brothers was initiated not by him but by his brother Steven, the current defendant. A little bit later in his evidence after describing various other aspects of their interaction Roderick said this: "He threw me a few more times. I tried to defend myself as best I could. He wouldn't let me stand up. He knows if I am standing up I am a man. If I'm not standing up he can jump all over me. So he did that a couple more times and then we got in against the fridge and I knew I could not let him throw me anymore so I grabbed onto anything I could grab onto, to hang onto him. I couldn't let him throw me again into anything. You can only have your head slammed into so many things so many times before you don't get back up. I was totally overpowered, outmatched, outgunned." A little later he said that in order to try and stop what was happening he grabbed his brother by his testicles. However, that was made difficult by his brother pushing his legs together. In a further attempt to stop his brother assaulting him Roderick eye gouged Steven. However, that did not stop him. He then said this happened next: "We were close in and I bit his ear. I had hold of his ear so he couldn't get rid of me unless he wanted to stop. I can run away. I've got no option." 1. It is clear that Roderick's defence was that of self-defence. In his affidavit of 24 May 2020, he also makes it clear that after the criminal proceedings were dismissed following upon his acquittal, that there were attempts made by the defendant to obtain an ADVO against the plaintiff but without any success. 2. The parties well know the background to the cause of action alleged albeit at the pleading of it is inadequate. The dismissal of the parts of the statement of claim regarding the ADVOs also cannot be permitted. There is an obiter dictum by Rothman J in Clavel v Savage [2013] NSWSC 775 between [41] and [45] that an application for an AVO would give rise to an action for malicious prosecution. However, the appeal in that case Clavel v Savage [2015] NSWCA 61 makes it clear at [42] and between [68] and [71] that the AVOs were not the subject of an action for malicious prosecution but rather were elements of a tort of collateral abuse of process. However, the fact that civil litigation may give rise to an action for malicious prosecution is well established for principles outlined by Rothman J in Clavel v Savage but also can be found in the judgment of a Full Court of the Supreme Court of this state in Coleman v Buckingham's Limited (1963) 63 SR (NSW) 171. It is arguable that an ADVO application can ground the tort of malicious prosecution. 3. But for the question of form it appears to me that the notice of motion ought to have been dismissed essentially for the same reasons given by Dicker DCJ earlier in these proceedings. However, it is clear that the pleading is inadequate and I suggested to Mr Rollinson for the respondent/plaintiff that there ought be an amended statement of claim and he agreed with that suggestion. When it became clear that I would grant the plaintiff leave to file and serve an amended statement of claim Mr Glissan for the applicant/defendant very properly conceded that in those circumstances the appropriate course of action was to dismiss the notice of motion. 4. However, the remaining question concerns costs. This is the 27th year in which I have had cause to observe that nothing excites the zeal, the ardour, and the passion of the legal profession more than an argument about costs. True it is that in my view the notice of motion filed lacked merit in substance although it was not lacking merit in form. That caused me to suggest to the plaintiff/respondent that an amended statement of claim ought be filed and served and Mr Rollinson for the respondent/plaintiff very properly acknowledged that that ought be done. 5. The motion has been on foot since 11 November 2020 and that is for three months. It was open to the plaintiff to prepare and serve upon the defendant an amended statement of claim and was open to the plaintiff to advise the defendant that if the filing of the amended statement of claim was not consented to by the defendant that the plaintiff would himself file a notice of motion seeking the Court's leave to file and serve the amended statement of claim. In the circumstances it appears to me the fault lies on both side in this debacle and therefore it appears to me that the appropriate order is that each party should pay his own costs of the notice of motion. 6. For those reasons I make the following orders: 1. I grant leave to the plaintiff to file and serve an amended statement of claim within 21 days. 2. I order the defendant to file a defence to the amended statement of claim within 28 days of service of the amended statement of claim. 3. Noted that the defendant agreed that should those orders be made the notice of motion should be dismissed. 4. By consent the notice of motion filed 11 November 2020 is dismissed. 5. I order that each party pay his own costs on that notice of motion.