THOMASON & ANOR v GIBB & ANOR [2026] SADC 69

First Applicant: CRAIG ELLIOT THOMASON In Person Second Applicant: DANIELLE SEXTON In Person First Respondent: JOHN CHARLES GIBB Counsel: MS V GILLILAND - Solicitor: MARK GUSTAVSSON & ASSOCIATES Second Respondent: DAVID JOHN GIBB Counsel: MS V GILLILAND - Solicitor: MARK GUSTAVSSON & ASSOCIATES Hearing Date/s: 27/05/2026, 28/05/2026 File No/s: CIV-24-000040 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. THOMASON & ANOR v GIBB & ANOR [2026] SADC 69 Judgment of his Honour Judge Soulio (ex tempore) 28 May 2026 APPLICATION BY RESPONDENT TO DISMISS ACTION Respondents' application for judgment and in the alternative that the Applicants' pleading be struck out. Held: Applicants' pleading struck out with leave to replead in accordance with the Rules as to pleadings. Uniform Civil Rules 2020 (SA) rr 65, 70, 143, 146, referred to. Williams & Ors v Spautz (1991-92) 174 CLR 509; Smits & Ors v Roach & Ors [2002] NSWSC 241, considered. -- 1 of 6 -- -- 2 of 6 -- THOMASON & ANOR v GIBB & ANOR [2026] SADC 69 The Claim 1 The applicants, who are self-represented, instituted proceedings on 4 January 2024 seeking damages in the sum of $950,000 on the basis as set out in the introduction to the Statement of Claim,1 and I quote: We wish to make a claim against the respondents John Charles Gibb and David John Gibb for Negligence on the part of a person professing to have a particular skill, Damages for Personal Injury, Damages for Mental Harm, Damages for loss of earning capacity, Travel and for Victims of Crime. 2 They pleaded a discursive narrative of facts from which it is difficult to ascertain a cause of action or the basis of the claim. That pleading was the subject of earlier interlocutory proceedings. The Application to Dismiss 3 A second Statement of Claim Revision 12 was filed on 12 January 2026. That pleading is now the subject of the respondents' interlocutory application3 updated to deal with the current Statement of Claim, seeking judgment against the applicants for failure to disclose a basis for action; or for abuse of process pursuant to rr 143.1 or 143.2. In the alternative, the respondents seek an order that the current pleading be struck out pursuant to r 70.3, with leave to replead. They seek consequential orders including an order that they be excused from filing a defence until further order pursuant to r 65.1. The application is now supported by an affidavit of Mr Mark Gustavsson sworn 2 March 2026.4 Foredoomed to Failure 4 The respondents contended that the claim for damages for assault, if that is what it be, must fail as it was the first applicant who was charged with assault arising out of an incident at the respondents’ premises. 5 I do not traverse the factual basis of that incident, other than to observe that the applicants’ current pleading makes, amongst other things, a claim against the respondents John Charles Gibb and David John Gibb “for negligence on the part of a person professing to have a particular skill, damages for personal injury both physical and psychological, damages to property e.g. caravan, damages for loss of earning capacity due to physical injury sustained in assault, travel and for victims of crime.” 6 The claim for damages for physical injury allegedly sustained by the first applicant appears to relate to that incident. The charge of assault against the first 1 Statement of Claim FDN1. 2 Amended Statement of Claim Revision 1 FDN26. 3 Interlocutory Application FDN7. 4 Affidavit of Facts FDN28. -- 3 of 6 -- [2026] SADC 69 2 applicant proceeded. The first applicant was convicted of that charge in the Magistrates Court on 27 March 2025, following a trial in which he was unrepresented and neither gave nor called evidence. 7 Counsel for the respondents made the submission that to enable the current proceeding to continue in effect risked bringing the law into disrepute in the event that there might be a finding contrary to the finding of the magistrate. 8 I take the view that there is neither res judicata nor issue estoppel. The parties were different. In the Magistrates Court the first applicant was prosecuted by the Commissioner of Police. He exercised his right not to give evidence. As I have said, he was convicted. It does not necessarily follow that the first applicant would not give evidence in the civil proceeding in which he alleges that he was assaulted. It may well be unlikely that the applicant would succeed in that aspect of his claim but it does not mean, on the face of it, that the claim is foredoomed to failure. Abuse of Process 9 The primary basis of the respondents' application for judgment is that the proceedings were instituted as an abuse of process, for a collateral purpose unrelated to the subject matter of the claim. The respondents’ submission is based in part on the fact that the proceedings were instituted shortly after the applicant was charged with assaulting the first respondent in the incident at the respondents’ premises. 10 That argument, it was put, is fortified by a reading of the email communications from the applicants to the respondents' solicitors. Those communications contain some requests for evidence, but in other respects contain intemperate statements; statements which have the appearance of being abusive communications; and at least from the respondents' solicitor's position, I accept, had the flavour of containing threats. 11 I bear in mind the nature of what constitutes at law, an abuse of process. In Williams & Ors v Spautz,5 albeit in the context of a claim for damages for abuse of process, the court set out the basis upon which a conclusion may be reached that an abuse of process has occurred. The court said that: An abuse of process occurs when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed, or some collateral advantage beyond what the law offers. In order to found such a claim, the proceedings must have been instituted for an improper purpose; that is, when the court processes are employed for ulterior purposes, or in such a way to cause improper vexation and oppression. The criterion for an abuse of process is whether the improper purpose is the predominant purpose. 5 Williams & Ors v Spautz (1991-92) 174 CLR 509. -- 4 of 6 -- [2026] SADC 69 3 12 As McClellan J said of proceedings instituted by a defendant against a plaintiff claiming damages for abuse of process in Smits & Ors v Roach & Ors:6 However, I am also satisfied that the multitude of proceedings were commenced with the genuine expectation of recovery of the monies claimed. Although they were in part motivated by the hatred which Leslie had formed of Roach, and the desire, which I am sure both Smits and Leslie felt, to inflict damage on Roach for the wrong which they believed had been done to them, I am satisfied the proceedings were brought for the genuine purpose of seeking to recover the monies claimed. The purpose was to prosecute them to a conclusion. No doubt in many cases where a litigant brings proceedings he or she is motivated by a desire for revenge and to inflict financial and emotional harm upon the opponent. It may sometimes be the case that but for these motivations, the proceedings would not have been brought. However, if the proceedings are otherwise legitimate and brought for the purpose of recovering an arguable claim, the tort will not be made out. 13 Against that background, bearing in mind the timing of the institution of proceedings, and the nature of the communications referred to, I am not persuaded that on the material before me the predominant purpose of the proceedings is a collateral purpose. That view does not preclude a subsequent application on that basis, in the event that further material emerges, or that the conduct of the applicants in the prosecution of these proceedings descends into a situation where it is apparent that the predominant purpose is other than the proper pursuit of a claim for damages. Repleading 14 Returning to the submission that the claim, or parts of it are foredoomed to failure, I take the view that, as presently pleaded, it is not possible to ascertain the precise basis of the applicants’ claim, let alone whether it is foredoomed to failure. The claim has been particularised to some greater degree in the second iteration. However again that was by way of a relatively discursive narrative of factual matters interspersed with what appears to be cut-and-paste recitations of certain aspects of the Australian Consumer Law. 15 Even with some detailed analysis it is difficult to ascertain the causes of action relied upon by the applicants, or the damages to which they are said to relate. Importantly, it is impractical for the respondents to plead to the present statement of claim. 16 I grant the respondents' application insofar as it seeks a striking out of the present pleading, and a requirement that the applicants replead their case. Indeed, during the course of submissions each of the applicants, who made submissions separately, in effect sought leave to replead their case. 17 After having heard further from the parties, the orders which follow are: 6 Smits & Ors v Roach & Ors [2002] NSWSC 241 at [323]. -- 5 of 6 -- [2026] SADC 69 4 1. The present pleading in Statement of Claim Revision 1 is struck out, with the applicants to have leave to replead their claim in accordance with the rules as to pleadings, by Friday 10 July 2026. 2. The respondents are to file a defence if so advised, or are to bring a further interlocutory application seeking to challenge the pleading in the Statement of Claim Revision 2, by Friday 7 August 2026. 3. The respondents are to have their costs of and incidental to the application, and the hearing thereof, to be taxed if not agreed. -- 6 of 6 --