Clavel v Savage & 4 Ors

Sarah Clavel (Second Plaintiff)

John Savage (First Defendant)

PARTIES : Kim Savage (Second Defendant)

State of New South Wales (Third Defendant)

Michael Hickenbotham (Fourth Defendant)

Andrew Hutchinson (Fifth Defendant) FILE NUMBER(S) : SC 20323/2002 Mr D E Baran (Plaintiffs)

COUNSEL : Mr C Burge (First & Second Defendants)

Mr D Cowan with Mr G Walsh (Third Defendant) Mr M Dorrough, Dorrough Smart (Plaintiffs)

SOLICITORS : Beston Macken McManis (First & Second Defendants)

Crown Solicitors (Third Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20323/2003 - JEAN LUC CLAVEL & ANOR v JOHN SAVAGE & 4 ORS

JUDGMENT (Summary judgment, malicious prosecution, abuse of process, assault, false imprisonment, emotional distress) 1 MASTER: There are two notices of motion before me. By notice of motion filed 16 October 2003 the first and second defendants seek orders that firstly, the proceedings against them be dismissed and secondly, the plaintiffs pay the first and second defendants' costs of the proceedings. By notice of motion filed 9 October 2003 the third defendant seeks orders firstly, that the proceedings against it be dismissed; or secondly, that the amended statement of claim (ASC) filed 21 August 2003 be struck out; thirdly, that paragraphs 1 to 59 inclusive and 76 to 97 inclusive of the ASC as pleaded against it be struck out; and fourthly, that the plaintiffs pay the third defendant's costs of the proceedings. 2 The first plaintiff is Jean Luc Clavel. The second plaintiff is Sarah Clavel. The first defendant is John Savage. The second defendant is Kim Savage. The third defendant is the State of New South Wales. The fourth defendant is Michael Hickenbotham. The fifth defendant is Andrew Hutchinson. The fourth and fifth defendants have not been served with the statement of claim. The plaintiffs and first and second defendants were all residents of Mackerel Beach.

The law in relation to summary judgment 3 Part 15 r 26 of the Supreme Court Rules 1970 (NSW) (SCR) provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 4 Similarly, in Air Services Australia v Zarb (Unreported, NSWCA, 26 August 1998) Rolfe AJA at 13 found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 5 In General Steel Barwick CJ, who heard the application alone, stated at 130: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 6 Barwick CJ also said at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'." 7 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried'."

The pleading - the amended statement of claim (ASC) 8 The ASC is a complex document comprising of 26 pages. Most of the pleading concerns actions against the third defendant, the State of New South Wales. The plaintiffs are husband and wife. Perhaps the best way of putting the pleading in context is by saying that the plaintiffs bring a number of actions against members of the NSW Police for whom the State of New South Wales is vicariously liable pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW). They also bring an action against their neighbours, the first and second defendants. It is alleged that the defendants' overall course of conduct was aimed at forcing them to leave their home on Mackerel Beach.

The third defendant - malicious prosecution 9 The plaintiffs plead five causes of action in malicious prosecution against the NSW Police. They are as follows: Paragraphs 3 to 10 plead a count of malicious prosecution in respect of an alleged assault on 18 November 1999 by the first plaintiff, Mr Clavel. Paragraphs 11 to 16 plead a count of malicious prosecution of the first plaintiff in respect of an alleged breach of an apprehended violence order on 7 February 2000. Paragraphs 17 to 40 plead a count of malicious prosecution of the first plaintiff for malicious damage, assault and entering enclosed lands on 12 February 2000. Paragraphs 43 to 49 plead a count of malicious prosecution in respect of an alleged breach of an apprehended violence order by the first plaintiff on 8 July 2000. Paragraphs 55 to 59 plead a count of malicious prosecution in respect of the charging of the first plaintiff with resisting arrest on or about and in respect of 8 July 2000. The plaintiff was vindicated in each of these instances. 10 In relation to what a pleading should contain, the parties referred to Frost v The Speaker of the Legislative Assembly of New South Wales [2001] NSWSC 639. The parties also referred to a recent decision of O'Keefe J in Nye v State of New South Wales & Ors (2004) Aust Tort Reports 81-725; [2003] NSWSC 1212. In that case, O'Keefe J summarised the elements of the tort of malicious prosecution. They are: 1. The institution, adoption or continuation of criminal proceedings by a defendant or defendants against the plaintiff.

2. The termination of such proceedings in favour of the plaintiff.

3. Absence of reasonable and probable cause in instituting, adopting or continuing the proceedings against the plaintiff.

4. Actual malice which may comprehend a primary purpose other than that of carrying the law into effect ( Commonwealth Life Assurance Society Ltd v Brain (1934-1935) 53 CLR 343 at 351). 11 The pleading of the first and second elements of the tort of malicious prosecution namely the institution of criminal proceedings and their termination are not in doubt for each count of malicious prosecution. The third defendant submitted that the pleading of the third and fourth elements of those tort of malicious prosecution in each count are defective and therefore the paragraphs of the ASC that refer to the malicious prosecution should be struck out. The plaintiffs' counsel conceded that both plaintiffs plead malicious prosecution but it can only be the plaintiff (who was actually prosecuted) who can bring the action for malicious prosecution. This amendment deleting the second defendant should be made to the pleading. 12 As previously stated, the third element of the tort of malicious prosecution is the absence of a reasonable and probable cause in instituting, adopting or continuing the proceedings against the plaintiff. In Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 at 469-470, Sir Frederick Jordan CJ outlined the requirements of what has to be proved by a plaintiff to show that the defendants lacked reasonable and probable cause. "In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist:

The prosecutor must believe that the accused is probably guilty of the offence.

This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise.

The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true.

This belief must be based upon reasonable grounds.

The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty." 13 It is the plaintiffs' contention that the NSW Police lacked the requisite reasonable cause to suspect the first plaintiff of having committed any offence. In respect of the initial prosecution of the first plaintiff regarding the alleged assault of 18 November 1999, the plaintiffs support their contention on the following bases as stated in the ASC: "4. At the time of the arrest Senior Constable Robert Menzies and Senior Constable Mark Francis did not have reasonable cause to suspect that the first plaintiff had committed any offence. Moreover, the said officers: a. Had two inconsistent statements from two 10 year old children.

b. Had two inconsistent versions of the assault. c. Had no adult witness to corroborate the version of the assault given by the child Andreas Serra as at the date of arrest. d. There were no adult witnesses who witnessed the event. e. There was no medical evidence that the child had been assaulted. f. There was no evidence of any doctor to whom the child had been presented for treatment.

g. There was no corroboration. h. The witnesses referred to a wheelbarrow in their statements where in fact the complaint made by the first plaintiff was that his shopping trolley had been taken.

5. Subsequent to arrest Oliver Robb made a statement to Senior Constable Robert Menzies and Senior Constable Mark Francis giving a different version to that of the alleged victim.

Despite gross inconsistencies between what the child had said to Mr Robb, as opposed to the child's first version and lack of any medical evidence or evidence corroborating the charge Senior Constable Robert Menzies and Senior Constable Mark Francis prepared a Police Brief and advanced a prosecution against the first plaintiff. This prosecution terminated in his favour by complete acquittal .

In the premises the first plaintiff pleads that the prosecution of him was malicious in that: a. The prosecutor did not have a reasonable honest belief that the plaintiff was probably guilty of the offence charged. b. There was no information of a reliable nature in the possession of the prosecutor pointing to the guilt of the first plaintiff. c. Senior Constable Robert Menzies and Senior Constable Mark Francis , if acting reasonably, could not have accepted the matters set out in the information that they possessed to prosecute the plaintiff was reliable or true or believed by the prosecutor to be true. d. There were no reasonable grounds to believe that the information presented to the police was true or reliable so as to ground a conviction.

The plaintiff further pleads that Senior Constable Robert Menzies and Senior Constable Mark Francis were aware of acrimony between the first plaintiff and other members of the close knit community of Mackerel Beach, including Adrian McBeth, the alleged victim's father.

Despite those matters pleaded in the preceding paragraphs Senior Constable Robert Menzies and Senior Constable Mark Francis and the police prosecutor whose name is unknown to the first plaintiff prosecuted the first plaintiff without reasonable or probable cause.

The prosecution was malicious in that: a. The statements obtained by Senior Constable Robert Menzies and Senior Constable Mark Francis contained numerous inconsistencies. b. There was no probable cause for Senior Constable Robert Menzies and Senior Constable Mark Francis to believe any guilt of the accused (the first plaintiff).

c. The evidence was from two 10 year old boys. d. The evidence was grossly inconsistent and unreliable. e. The police were aware of disharmony between the first and second plaintiffs and residents of Mackerel Beach, including persons involved in the prosecution. f. The said officers had developed friendships with the first defendant who disliked the first plaintiff and used the processes of the law to assist the first defendant to intimidate the plaintiffs into leaving Mackerel Beach ." 14 It is my view that the requirements outlined by Sir Frederick Jordan CJ in Mitchell at 469-470 as to what must be proved by a plaintiff to show that the defendants lacked reasonable and probable cause have been met. Likewise in respect of the first, third, fourth and fifth prosecutions, the 'absence of the reasonable or probable cause' element of the tort has been adequately pleaded. Malice 15 Having proven an absence of reasonable or probable cause for instituting proceedings, for the claim of malicious prosecution to succeed, the plaintiff needs to prove the presence of malice in instituting the proceedings. In Nye, O'Keefe J referred to Trobridge v Hardy (1955) 94 CLR 147 where Kitto J stated at 162: "The word 'malice' must … mean what has been variously called express malice, actual malice or malice in fact as contrasted with malice in law which is no more than the unlawful intent whenever an injurious act is done intentionally and without just cause or excuse. Malice in the latter sense is not a separate matter of proof. In the former sense, however it forms the subject of a separate issue of fact on which the party alleging it must establish that the conduct of which he complains was actuated solely or predominately by a wrong or indirect motive. This means, where that conduct could only be justified by reference to an authority possessed by the actor to perform functions for the enforcement of law, that he acted 'from an indirect and improper motive, not in furtherance of justice' (Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 455). That is to say, from some desire other than 'to discharge his duty to the public' (Cruise v Burke (1919) 2IR 182 at 186) … (p)roof of motive is always and necessarily a matter of inference, except where a party whose motive is to be ascertained makes a direct admission on the point after the event either in or out of court. Even proof of statements made by him before the event and showing a clear intention to do for an improper reason the acts which thereafter he did, would not be direct proof of malice, for they could provide no more than a ground, when considered with all other relevant circumstances, for drawing an inference that the improper reason persisted at the material time and provided that the defendant at that time with his actuating motive" 16 O'Keefe J then said: "Malice can be proved either by showing what the motive of the defendant was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor ( Brown v Hawkes (1891) 2 QB 718 at 722; approved by Kitto and Taylor JJ in Trobridge v Hardy above at 163, 174). In Brown v Hawkes (above) Cave J said:

'Of course, there may be such plain want of reasonable and probable cause that the jury may come to the conclusion that the prosecutor could not honestly have believed in the charge he made, and in that case want of reasonable and probable cause is evidence of malice. But I am not prepared to assent to the proposition that, where there is want of reasonable and probable cause the jury may always find malice no matter what the circumstances may be (at 723).'

The judgment of Cave J was upheld on appeal (1891) 2 QB 726 by Lord Esher MR and Bowen and Kay LJJ, with Bowen LJ saying: '…the few words I shall add do not in any degree go to modify anything in the declaration of the law which has been already given, more particularly in the admirable exposition of the law in Cave J's judgment" (at 727).'" 17 As in Nye, the plaintiff in the case before me seeks to prove malice by the second method described by Kitto J in Trobridge as the 'indirect route' - namely that "of proving that the defendant's conduct is not to be explained by the existence of a right motive". It is the contention of the plaintiffs that the motive of the NSW Police in seeking the AVOs against the first plaintiff was not to protect those, on whose behalf the AVOs were instituted, but to intimidate the first plaintiff, cause him distress and prompt him and his wife to leave Mackerel Beach. Thus the counts of malicious prosecution are adequately pleaded.

Collateral abuse of process 18 The plaintiffs plead abuse of process. At paragraphs 76 to 97 of the ASC they plead counts of abuse of process in respect of certain apprehended violence orders sought against the first plaintiff. Paragraph 76 pleads the period from 18 November 1999 to 9 September 2001. The period covered by paragraphs 77 to 97 extends from 13 January to 29 May 2000. Paragraphs 77 to 81 plead a count of abuse of process in respect of an apprehended violence order sought on 13 January 2000 against the first defendant. Paragraphs 82 to 85 plead a count of abuse of process in respect of an apprehended violence order sought on 20 January 2000 against the first plaintiff on behalf of Michelle Savage, the first defendant, Kerry Savage, and Ellie Savage. Paragraphs 86 to 88 plead a count of abuse of process in respect of an apprehended violence order sought on 24 February 2000 by Sergeant Figgis. Paragraphs 89 to 92 plead a count of abuse of process in respect of an apprehended violence order sought on 7 March 2000 on behalf of the fifth defendant. Paragraphs 93 to 95 plead a count of abuse of process in respect of an apprehended violence order sought on 29 May 2000 on behalf of Stephen Collis, Sarah Annabelle Von Reyswood and Saxa Windsor Collis. 19 In alleging abuse of process the plaintiffs must show that in seeking the apprehended violence orders, the predominant purpose of the NSW Police was some other purpose than that for which such orders were designed. It is a heavy onus, which the party alleging abuse of process must displace (see William v Spautz (1991-1992) 174 CLR 509, joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ at 529). 20 In Attorney General (NSW) v Spautz [2001] NSWSC 66, O'Keefe J [at 34] found that the proceedings in respect of which leave was sought by Dr Spautz constituted an abuse of process as they were "not for the genuine purpose of seeking redress on the causes of action advanced, but predominantly for collateral purposes". The collateral purpose for initiating the proceedings in Attorney General (NSW) v Spautz was on Dr Spautz's own admission, to force his former employer to settle or re-instate him to his previous position. 21 In Butler v Simmonds Crowley and Galvin [1999] QCA 475, McMurdo P, Pincus and Thomas JJA [at 24] relevantly summarised the elements required to succeed in an action for collateral abuse of process. They are: "[24] In order to succeed in an action for collateral abuse of process it is not necessary to allege or prove that the initial proceeding has terminated in favour of the plaintiff, or that there was no reasonable and probable cause for instituting the initial proceeding. It is however essential for a plaintiff to show that the defendant instituted proceedings for a purpose or to effect an object beyond that which the legal process offered. Such a purpose of the defendant in instituting the earlier proceedings is of crucial importance. It is not sufficient to assert that the proceedings were instituted with an improper motive. The ulterior objective needs to be identified, and it also needs to be able to be seen as the predominant purpose of those proceedings and as outweighing any legitimate purpose that they might otherwise have." 22 In discussing Williams v Spautz their Honours continued [at 32-33]: "[32] Brennan J, consistently with the view of the majority, observed: 'There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce'.

His Honour continued: 'I would formulate the test in this way: if there be a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in the proceeding, there is no abuse of process. If there be mixed purposes - some legitimate, some collateral - I would restate his Lordship's test that 'but for his ulterior purpose, [the plaintiff] would not have commenced proceedings at all'. So expressed, the test casts on the other party an onus of proving what the plaintiff would not have done if he had not formed the intention of obtaining a collateral advantage. That onus may be impossible to discharge. If that onus were discharged, the other party would establish that the plaintiff had not commenced or maintained the proceeding for any substantial legitimate purpose. The gravamen of the test, I apprehend, is that the plaintiff did not commence or maintain the proceeding for any substantial legitimate purpose'.

His Honour considered that an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage that is not reasonably related to an order that might be made in the proceeding.

[33] Brennan J did not find it necessary to consider the elements of the tort of abuse of process, but expressed his general concurrence with the observations of the majority on that subject. In any event, his Honour's view requires the moving party to prove that the only substantial intention of the plaintiff in bringing and maintaining the proceedings was the collateral purpose. Even more importantly, on this view a plaintiff must be able to show that but for that purpose the other party would not have brought the proceedings."

23 In the present case, the plaintiffs pleaded that the NSW Police engaged in an abuse of process in instigating numerous apprehended violence orders against the first plaintiff. It is the plaintiffs' contention that the NSW Police used the proceedings as a 'stalking horse' or instrument of coercion and intimidation in order to force the plaintiffs to leave Mackerel Beach. As a result of these proceedings (which were ultimately dismissed) the plaintiffs plead that they sustained serious injury, loss and damage. This pleading is adequate.

Assault and false imprisonment 24 In paragraph 41 of the ASC the plaintiffs plead a count of assault and battery of the first plaintiff on 12 February 2000. Paragraphs 50 to 54 plead a count of assault and battery of the first plaintiff by Senior Constable Molloy on 8 July 2000. Paragraph 42 pleads counts of false imprisonment and false arrest of the first plaintiff on either or both 12 and 13 February 2000. As a result of the assaults the plaintiffs contend that the first plaintiff sustained personal injuries. 25 As Connolly M stated in Mailau v Riordan [2001] ACTSC 13 [at 28]: "…in relation to the tort of false imprisonment, the onus is on the defendants to establish that the imprisonment of the plaintiff was justified or excused. The plaintiff need only prove that he was detained, and the burden of proving that the detention was not wrongful then falls to the defendant (Dumbell v Roberts [1944] 1 All ER 326 at 331, Myer Stores Ltd v Soo [1991] ATR 81-077)." 26 Connolly M went on to say [at 39]:

"…this tort involves, 'an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. To be actionable as a tort the process must have been without reasonable and probable cause, must have been instituted or carried on maliciously and must have terminated in the plaintiff's favour. The plaintiff must also prove damage.' (Halsbury's laws of England 4th ed v 45 para1340 cited with approval by Higgins J in Emanuele v Hedley, unreported ACT Supreme Court 7 March 1997)." 27 The first plaintiff pleaded that he was arrested at 10.00pm on the 12 February 2000 and held at Dee Why Police Station until 7.00am the next morning. The element of 'without reasonable and probable cause' is adequately pleaded.

Intentional infliction of emotional distress 28 Paragraphs 60 to 75 of the ASC plead a count of intentional infliction of "emotional distress" against the first and second defendants. It was submitted by the second defendant that this was not enough to establish this tort as there was only one incident where the second defendant allegedly yelled to the first plaintiff that he was "the fucking Corsican prick" with a sexual problem and should take some Valium. 29 The plaintiffs pleaded that as a result of the actions of the defendants, they suffered shock, nervous shock, acute stress, acute depression, acute anxiety, insomnia, are fearful for their lives and cannot undertake social, sporting, recreational, personal or other activities for fear that the first and second defendants will make further attempts to try and cause them harm or utilise the NSW Police to try to cause them harm. 30 The intentional infliction of emotional distress arises out of the decision of Wilkinson v Downton (1897) 2 QB 57 at 59 per Wright LJ, who held that the specific interest protected amounted to infringement of the plaintiff's legal right to personal safety. That is, the right to mental or emotional tranquillity and bodily dignity, a requirement which found acceptance in Bunyan v Jordan (1937) 57 CLR 1 at per Latham CJ at 10-11, Dulieu v White & Sons [1901] 2 KB 669 at 683 per Phillimore J, Purdy v Woznesensky [1937] 2 WWR 116 at 120 and has been expressly affirmed by the High Court in Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 347 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ recognising "Those torts which impose liability on private individuals for the intention infliction of harm." (See also Battista v Cooper (1976) 14 SASR 225 at 227 and Moran v Moran Nos 1, 2, 3, 6 and 9 (2000) ATR 81-554, 555, 556, 557 and 558). 31 In Bunyan v Jordan Latham CJ at page 10 held: "If a person deliberately does an act of a kind calculated to cause physical injury, for which there is no lawful justification or excuse and in fact causes physical injury to that other person he is liable in damages." 32 The plaintiff submitted that liability to a secondary victim is beyond doubt and referred to Wilkinson at 59, Johnson v The Commonwealth (1927) 27 SR (NSW) 133 at 137, Battista at 230 and 231, Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 at 674 per Mason and Wilson JJ at 680-681, Stevenson v Basham [1922] NZLR 225 at 230, Bielitski v Obadiak (1922) 65 DLR 627 at 631-632 per Lamont JA and Turgeon JA at 633-634 and Pham v Lawson (1997) 68 SASR 124 at 147-148 per Lander J (with whom Bollen J agreed). This claim is adequately pleaded. 33 Overall I cannot say the claim is hopeless. Perhaps the ASC is not a perfect pleading but they rarely occur. Nor can I say that the ASC is not properly pleaded. The causes of action are adequately pleaded. Therefore the ASC should be permitted to go to trial. 34 However, the plaintiffs made two concessions to the third defendant prior to this motion being heard, namely that the counts of malicious prosecution can only be maintained by the plaintiff who was charged, not both plaintiffs and secondly, only the first plaintiff has verified the ASC. The second plaintiff must also verify the ASC. The plaintiffs' counsel submitted that this is a "minor matter". I do not regard it as minor. These amendments should be made and I grant leave to file a further amended statement of claim within 21 days. The notices of motions should be dismissed. 35 Costs are discretionary. As previously stated, the plaintiffs conceded that two amendments needed to be made well prior to the hearing. Those amendments could have been dealt with by consent if the third defendant agreed without resorting to a court hearing. The defendants were largely unsuccessful with their motions and they should bear the costs of the motions. However, the plaintiff should pay the costs thrown away by the amendments to the ASC. Orders

(1) Leave be granted to the plaintiffs to file and serve a FASC within 21 days.

(2) The notice of motion filed by the first and second defendants dated 16 October 2003 and the notice of motion filed by the third defendant on 9 October 2003 are dismissed.

(3) The defendants are to pay the plaintiffs' costs of the motions except the plaintiffs are to pay the costs thrown away by the amendments to the ASC. **********

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