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7 Cards in this Set
- Front
- Back
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Abuse of Process - Introduction
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Dorene v. Suedes (1981): Costello J. set out a comprehensive definition of this tort: “a claim for damages at common law will lie for the institution or maintenance of a civil action if it can be shown that the action was instituted or maintained
(a) without reasonable or probable cause; (b) maliciously; and (c) that the claimant has suffered actual [or presumed] damage.” |
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Dorene v. Suedes (1981)
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Costello J. set out a comprehensive definition of this tort: “a claim for damages at common law will lie for the institution or maintenance of a civil action if it can be shown that the action was instituted or maintained
Dorene had persisted in its proceedings against Suedes for specific performance of a lease contract, despite advice from a leading senior counsel that the action would fail. Dorene’s directors had persisted with proceedings to heighten their bargaining power over the lease, despite not intending to proceed to full hearing. Decision – the ulterior motive constituted malice; all four criteria were present, so Costello J. upheld the counter-claim. |
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Failed Case
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Murphy v. Kirwan (1993): the Pl must prove that the claim instituted by the Def failed in its entirety or was bound to do so.
“Bound to do so” means that either: (a) the case was unsupportable by law because no wrong had been committed, or (b) a particular defence clearly applied, or (c) the evidence against the Pl was minimal or nil. If, however, the case proceeds to full hearing and resolves central conflict of evidence, then case was not “wrongfully” instutited – it was clearly arguable. |
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Murphy v. Kirwan (1993)
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The Pl must prove that the claim instituted by the Def failed in its entirety or was bound to do so.
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No Reasonable or Probable Cause
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The Def must have had reasonable or probable cause to believe he may succeed.
This is not a requirement of absolute belief in the success of the original suit, only reasonable belief. The onus is on the new Pl to show lack of reasonable or probable cause. |
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Malice
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Malice may be shown by proof of abuse of the legal system for the procurement of an ulterior motive.
Legal advice received by the new Def prior to the original proceedings may also inform the court as to this criterion. |
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Damage
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The Pl must have suffered injury or damage as a result of the impugned action.
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