James v State of NSW [2005] NSWSC 844 | Case summary

JUDGMENT (Strike out paragraphs of further amended statement of claim - malicious prosecution) 1 HER HONOUR: By notice of motion filed 18 March 2005 the defendant sought that the plaintiff's amended statement of claim (ASC) or part thereof be struck out. The plaintiff is and was at all relevant times a solicitor and registered legal practitioner who carried on practice as a solicitor in northern New South Wales. The plaintiff in his practice as a solicitor conducted a significant amount of legal aid work, particularly for the Legal Aid Commission. He also regularly acted as solicitor for the members of "The Lone Wolf" motor cycle club who were suspected by police to be involved in criminal activities. 2 The plaintiff claims by way of these proceedings damages for malicious prosecution, wrongful arrest and unlawful imprisonment. The claim for malicious prosecution is brought in respect of five charges that were initiated against the plaintiff by police in 1996 to 1997. Particulars of the five charges are set out in paragraphs 6, 17, 28, 38A, and 50 of the proposed further amended statement of claim (FASC). Of these, the second charge was for conspiracy to cheat and defraud the Legal Aid Commission. The plaintiff was charged with this offence, along with the Tracey Lee Hodgson, a legal secretary then employed in the plaintiff's legal practice. The plaintiff was arrested twice in respect of these charges, namely on 2 April 1996 in respect of the first charges and on 21 May 1996 in respect of the third charge. The plaintiff's claim for wrongful arrest and false imprisonment is in respect of each of these two occasions. The charges that were brought against the plaintiff principally related to events associated with the conduct of the plaintiff's then legal practice. All of the charges against the plaintiff were initiated by Peter Gallagher, who was at that time, a police officer stationed at Lismore Police Station. 3 All of the charges were terminated in the plaintiff's favour. The plaintiff was discharged of the second charge pursuant to s 41(2) of the Justices Act 1902 (NSW) following a committal hearing on 2 July 1997. The first charges were withdrawn by the DPP on 2 July 1997. This was at committal and immediately following the dismissal of the second charge. The third charges were also withdrawn by the DPP on 2 July 1997. This was also at committal and following the dismissal of the second charge. The fourth charge was dismissed on 8 July 1997 upon the DPP offering no evidence; and the plaintiff was discharged of the fifth charge pursuant to s 41(2) of the Justices Act following a committal hearing. 4 On 16 June 2005 when this matter last came before me I ordered the plaintiff to serve on the defendant a draft proposed further amended statement of claim (FASC). By letter dated 10 August 2005 the defendant wrote to the solicitor for the plaintiff confining its objections to paragraphs 3, 7C, 7H, 8, 10, 11, 11D, 18C, 18H, 19, 22, 22D, 24, 29A, 29B, 29E, 30, 33, 33E, 35, 40F, 41, 43, 44, 46, 51L, 52, 55 and 57 of the FASC. All the paragraphs objected to involve a pleading that Gallagher the "prosecutor", "knew" or held a "belief". The defendant further submitted that the "theory" pleading such as that contained in paragraph 7G should not be permitted if it was based on the actual knowledge of Gallagher. In paragraph 7G (the theory pleading) the defendant referred to East-West Airlines (Operations) Ltd v Commonwealth of Australia & Ors (1983) 49 ALR 323 at 325 and 326. Further, the defendant submitted that paragraphs 51M(f) to (h) involves Gallagher having knowledge of another person's (Barnier's) knowledge and this pleading should not be permitted. 5 At this hearing, which took place on 17 August 2005, the FASC was filed. It is an extremely complex pleading. 6 The elements that the plaintiff must plead and prove are not in dispute. They are firstly, that the proceedings are actionable; secondly, that the proceedings complained of were instituted by the defendants; thirdly, that the defendants instituted the proceedings maliciously; fourthly, that the defendants acted without reasonable and probable cause; and fifthly that the proceedings were terminated in the plaintiff's favour - see Little v Law Institute of Victoria (No 3) [1990] VR 257 at 262 and 265; Mitchell v John Heine & Son Limited (1938) 38 SR (NSW) 466 at 469 per Sir Frederick Jordan CJ. It is the second and third elements that are relevant here. 7 If the paragraphs in the FASC in dispute were confined to plead "ought to have known" and the word "known" is deleted it is my understanding that the defendant raises no objection to the paragraphs remaining, (with the exception of paragraphs 51M(f) to (h) to which I will return to later in this judgment). This is because it is implicit in an allegation that a person "ought to have known" something that facts and circumstances had existed from which he ought to have acquired, either by observation or by inference, and these facts need to be pleaded - see Fox v Wood (Harrow) Ltd [1963] 2 QB 601. It also must be borne in mind that the object of a pleading is to appraise the opposite party of the case it has to meet. 8 Rule 15.4 of the Uniform Civil Procedure Rules 2005 (NSW) states: "Allegations as to condition of mind

(cf SCR Part 16, rule 3; DCR Part 9, rule 21)" 9 By way of example, if malice was pleaded the pleader must give particulars of the facts upon which it relies. According to subrule (2) "knowledge" does not have to be pleaded as a fact. But I do not take this to mean that "knowledge" or "to know" can never be pleaded. 10 In Sunraysia Natural Beverage Co Pty Ltd v NSW [2002] NSWSC 275, a claim for misfeasance in public office, it was pleaded that an "officer knew that he was acting beyond the scope of his power". In Sunraysia, I stated that the officer's state of mind could be more appropriately ascertained at trial [29] and see Wickstead v Browne (1992) 30 NSWLR 1 at 11. It can only be established at trial the actual knowledge the officer. It may be that the officer gives evidence of what he actually knew or that from the facts and circumstances an inference is made in relation to that officer's knowledge. It is my view that the pleading of actual knowledge to the word "knew" should remain in the FASC. 11 Paragraph 51M reads: "In the premises, at the time that the Fifth Charge was instituted Gallagher … (f) knew that Barnier was in Court and was aware of the order referred to in the preceding sub paragraph as well as the exchange between the Court and the legal representatives in relation to the Plaintiff's involvement in the Program; (g) knew that as a result of the exchanges and orders referred to in the preceding sub paragraph that Barnier knew that if he was to provide a statement to the Police which assisted in the prosecution of the Plaintiff that that would be a ground for leniency in the sentencing proceedings; (h) knew that as a result of the exchanges and orders referred to in the preceding sub paragraph that Barnier knew that without the provision of such a statement that he (Barnier) would be facing a sentence of periodic detention." 12 It is my view that paragraph 51M(g) and (h) cannot be considered material facts, how Gallagher knew what another person, Barnier, knew falls into the realm of conjecture and these paragraphs should be struck out. However, 51M(f) reads that Gallagher knew that Barnier was in court and [Gallagher] was aware of the order made in court. Gallagher also in court at the time, was in a position to know that the defendant was in court and the orders that were made. However, the plaintiff indicated he may wish to plead this whole paragraph in the alternative "ought to have known". 13 The orders I make are paragraph 51M (g) and (h) of the FASC are struck out. Costs of the motion are reserved.

James v State of NSW

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