List of cases: A v. The State of New South Wales [2007] CLR 10

Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45

List of Texts: Sappideen and Vines, Fleming's The Law of Torts, 10th ed.

Tribunal: Mr C.G Chenoweth, Acting Presidential Member

TRIBUNAL: Mr C.G Chenoweth, Acting Presidential Member

The decision of the Tribunal dated 14 September 2011 is confirmed.

1. This is an appeal from a decision of Senior Member Anforth made on

14 September 2011, in civil dispute matter number XD 165 of 2011.

2. The civil claims by the appellant in the matters giving rise to the claim for damages originally arose in a series of proceedings concerning the lease of an apartment by the respondent to the appellant. These proceedings were extensive, and are set out in full in the decision of the Senior Member under appeal. I do not propose to repeat those facts or the arguments from those matters in this decision, noting that the outline of the previous proceedings between the parties and the detailed submissions by both parties constitute 33 pages of the Senior Member's decision. They are comprehensively covered.

3. As noted in paragraph 36 of the Senior Member's reasons, these proceedings were instituted as a claim for damages for the tort of malicious prosecution. This was the only basis upon which the appellant's damages claim was based. It was pointed out to the appellant during the course of the appeal that if damages were recoverable, she not only needed to prove that she had suffered damages but that those damages flowed from a legally recognised breach of duty by the respondent to the appellant.

4. The notice of appeal filed by the appellant in this matter on 11 October 2011 set out the following grounds:

2. Failure to consider whether there were special circumstances.

4. Failure to consider application in the alternative - damages for

derogation of grant - no quiet enjoyment - time and effort, for

successfully defending lessors unlawful actions under RTA.

5. In all of the circumstances - failure to consider - an unjust result given

that the applicant was drawn into litigation on account of lessors

wrongful notice to quit - and succeeded in defence.

1. On 8 November 2011, the appellant was directed by the tribunal to file and serve submissions relating to her grounds of appeal. On 18 November, the appellant filed a 13 page document containing points of argument to be relied upon in the appeal. These submissions canvassed matters relating to the original actions between the parties, arising out of the purported termination of the lease and the subsequent claim for damages. They also set out the basis upon which she claimed damages as if she was a senior lawyer in private practice providing services to a client.

2. The only point relevant to the appellant's original claim that her alleged damages arose out of the tort of malicious prosecution by the respondent was in point 28 where she stated:

...the decision-maker has given no weight to the tenant's submission for damages in the alternative, arising out of breach of the agreement, should the malicious prosecution fail. (Matters in bold by the appellant.)

The only agreement to which the appellant could have been referring was the original tenancy agreement between the parties.

1. A further submission dated 1 March 2012 was handed up at the hearing of the appeal. The only matter referring to the question of malicious prosecution was as follows:

"Question 4. How was that damage pleaded by the lessee?

The use of the word "breach" refers back to an earlier question and answer, referring to "breach of the terms of that tenancy by the lessor."

In accordance with section 82 of the ACT Civil and Administrative Tribunal Act 2008 ("ACAT Act"), I determined that this appeal should be dealt with as a review of part of the original decision on the application, being that part of the decision which dismissed the application because the tort of malicious prosecution did not apply.

The original application in this matter was for damages for malicious prosecution. No alternative basis for damages was proposed in the application, although in the document referred to in paragraph 6, it appeared that the appellant was now seeking damages on an alternative basis, arising out of the breach of the original tenancy agreement.

In his decision, the Senior Member referred to the definition of the tort of malicious prosecution in Fleming's Law of Torts 10th edition ("Fleming"). He noted that the tort was limited to malicious prosecutions under the criminal law, and that "the extension of the tort to civil actions is very limited and pertains to matters of a defamatory kind." He was satisfied that the present action did not come within this category.

In paragraph 48 of the reasons for decision, the Senior Member also referred to the High Court case of A v. The State of New South Wales [2007] CLR 10, where the High Court defined the circumstances under which the tort of malicious prosecution is available.

The fundamental difficulty that the appellant has in seeking to recover damages for malicious prosecution is that the tort has, with very limited exceptions, been confined to cases where there has been damage as a result of the institution of criminal proceedings by the defendant. (See Fleming, paragraph 27.10). The authors note that the exceptions to the requirement that criminal proceedings have been instituted, include courts martial, and the malicious presentation of a bankruptcy petition or a winding up petition. As the commentary in the text notes, these are cases where the institution of proceedings itself, without the opportunity to have the issues argued before a court, can cause substantial harm.

The appellant urged me to allow the extension of the very clear boundaries of the tort of malicious prosecution laid out in Fleming to a civil action such as this, where there has been claim and counter claim for damages arising out of the lease of premises. The appellant was unable to refer to any authority that would support this extension of the basis upon which the tort could be relied.

The authors of Fleming, in discussing the issue of the extension of the tort to cases beyond criminal prosecutions and the traditional, but very narrow, exceptions noted above, said as follows at page 695:

"Extending the action to wrongful civil proceedings has encountered anything but an enthusiastic response in England. Admittedly there is nothing in the history of the action or any pronouncement of binding authority to suggest that the action is confined to civil proceedings. Yet in practice this came close to being the case in consequence of so interpreting the conventional requirements of legally recognised damage."

It is not for this tribunal, even in its appeal division, to so extend the common law as to open the opportunity for unsuccessful parties in civil cases where they have not exercised the right of appeal nor sought to counter claim for damages, to then at a later date institute proceedings for recovery of money for damages alleged to be flowing out of those legal actions, on the basis of malicious prosecution.

One of the grounds of the notice of appeal was an alleged failure to consider the application in the alternative as a claim for damages for derogation of grant or loss of quiet enjoyment of the premises, and for time and effort for successfully defending (at least in part) the respondent's claims in the litigation concerning the lease of the property. This ground as well as the others referred to in the notice of appeal did not form part of the original application in this matter, and it would be unfair to the respondent to allow them to be introduced on the appeal itself. But even if they had been part of the original application, there was still no alternative legal ground asserted upon which such a claim for damages could be based. A successful claim for damages must be based on the assertion of a recognised legal right, or breach of a legal right or obligation.

I note the reference by the Senior Member to the decision in Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45. The reasoning in that case would constitute a complete answer to the claim of the appellant for damages arising out of or related to the leasing transactions. The damages claimed arose wholly out of the leasing transaction and the subsequent proceedings, and any such claim should have been instituted in those proceedings, or as an appeal from them.

The reasoning above is sufficient to dispose of the appeal in favour of the respondent. However, I am also of the view that there is nothing in the proceedings or the submissions of the appellant which could constitute the "malicious" elements, required for success on the basis of the tort of malicious prosecution. To categorise the institutions of proceedings by a party, even if that party is found to be wholly or partly incorrect in their allegations, does not of itself constitute evidence of malice. Nor would that element be satisfied in my view by the failure of a party to negotiate or concede on a basis which the other party thought they should. There is nothing in the evidence or argument in the tenancy proceedings which would support a claim that they were being instituted by the respondent for such improper purposes so as to fall within the concept of "malicious."

In her grounds of appeal the respondent referred to the case, which in her argument justified damages calculated at a rate charged by a senior solicitor or partner in private practice. No evidence of her losses was given. It was not necessary to consider the point as the appellant has not succeeded on the threshold point of establishing liability in the respondent.

These reasons have been provided by the Tribunal in response to a request by the appellant, who has indicated that she proposes to appeal this matter to the Supreme Court. She is quite entitled to do so. I draw the appellant's attention to the provisions of section 86 (2) of the ACAT Act, which states that an appeal to the Supreme Court on a question of fact or law may only be brought with the Court's leave. The granting of leave is of course a matter for the Supreme Court itself and I express no view as to whether the Court would grant leave, simply referring to the section for the assistance of the parties.

The appeal in this matter is unsuccessful. The Tribunal confirms the original decision.

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