RADE RAJKO MARICIC v IVANNE NATALIES JONES [1991] NSWCA 192

RADE RAJKO MARICIC v IVANNE NATALIES JONES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER JA and Hope AJA 10 April 1991, 10 April 1991

[1991] NSWCA 192

PRACTICE — abuse of process need for clear case tha no real issue to be tried — dismissal confirmed PRACTICE and PROCEDURE — abuse of process — Needham J dismisses summons to Probate Division as an abuse of process after prior warning of the need to recast it — on appeal held: (dismissing the appeal) (1) A claim should not be dismissed as an abuse of process or otherwise summarily dismissed except in the most plain and obvious case that there is no real issue to be tried; (2) The present case, when examined, was one in respect of which some claims in the summons were clearly an abuse of process (such as a claim for appointment of a Royal Commission); other claims were either an abuse of process or disclosed no cause of action or were otherwise obviously futile; (3) Accordingly, the proceedings had been properly dismissed by Needham J within his power and discretion to do so and no basis had been shown for disturbance of his orders by the Court of Appeal. Family Provision Act 1982, s6, s9(1), s16. Family Law Act 1975 (Cth), s3(2)(c). Supreme Court Rules, Pt15, R26.

Kirby P On 23 October 1987 Needham J, in the Probate Division of the Supreme Court, ordered that a summons brought to the Court by Rade Rajko Maricic (the appellant) be dismissed with costs. The summons was one titled to claim relief under the Family Provision Act 1982. It sought various other heads of relief.

Dismissal of summons as abuse of process

The appellant has appealed to this Court. The stated basis upon which Needham J dismissed the summons was the opinion which his Honour expressed, in short reasons, that it was "quite plain" that the summons was "an abuse of the process of the Court".