Jamieson v The Queen

Jamieson v The Queen - [1993] HCA 48 - HCA 1993 case summary — Zoe

[5]

The sole question in each appeal, therefore, can be formulated in abstract terms. It is whether the mere service upon a defendant, by (or with the authority of) the plaintiff, of an unverified statement of claim filed in an action for damages for personal injury can of itself constitute the actus reus of the criminal offence of attempting to obtain money by deception if, to the knowledge of the plaintiff, the statement of claim contains a false material assertion. Objection may, perhaps, be taken to that abstract formulation of the legal issue on the ground that an assertion that a plaintiff was a passenger in the motor vehicle involved in the accident when she was in fact the driver might well be regarded as more than merely "material". However, regardless of whether the intentionally false assertion is described as "material", "critically important" or "fundamental", the answer to the question is the same. It is that, in the absence of contrary provision in some applicable statutory instrument or rule of court (and none has been relied upon in these appeals), the mere service upon a defendant of an unverified statement of claim does not, at least in so far as criminal liability is concerned, of itself constitute an express or implied positive representation by the plaintiff that the individual allegations of fact or of law which the statement of claim contains are objectively true or correct. Indeed, to characterize the factual assertions in a plaintiff's unverified pleading as positive representations of the truth of their content would be to misunderstand or ignore the traditional nature and function of a declaration, statement of claim or bill. The traditional nature of such an unverified pleading was not that of a representation or warranty of the objective accuracy of the assertions of fact which it contained. It was that of a written identification and communication of the extent of the plaintiff's claim [1] . Its traditional function was not an evidentiary one. It was to identify the issues of fact which would, in the absence of admissions, arise for determination at the trial by defining the outer limits within which the plaintiff's case would be confined [2] . As Parke B. observed in Boileau v Rutlin [3] , in comments which were quoted with approval by Mason C.J. and Brennan J. in Laws v Australian Broadcasting Tribunal [4] :

[8]

In that regard, one need do no more than disinter the skeletons of the unexaminable brothers-in-law Doe and Roe, or that of their distant cousin Goodtitle, to demonstrate that the development of both the common law and the jurisdiction of common law courts was, to a significant extent, dependent upon practices and fictions which were completely inconsistent with the proposition that the plaintiff in a common law action personally warranted, under pain of liability for fraud or misrepresentation, the accuracy of the various assertions of fact contained in her initiating process or pleading [5] . 1. See, e.g., Philipps v Philipps (1878), 4 Q.B.D. 127, at p. 139; Gould v Mount Oxide Mines Ltd. (In liq.) (1916), 22 C.L.R. 490, at p. 517; Dare v Pulham (1982), 148 C.L.R. 658, at p. 664; Banque Commerciale S.A. en Liquidation v Akhil Holdings Ltd. (1990), 169 C.L.R. 279, at pp. 286, 293; Laws v Australian Broadcasting Tribunal (1990), 170 C.L.R. 70, at pp. 85-86. 2. See, e.g., Thorp v Holdsworth (1876), 3 Ch. D. 637, at p. 639; Esso Petroleum Co. Ltd. v Southport Corporation , [1956] A.C. 218, at p. 241; Farrell v Secretary for Defence , [1980] 1 W.L.R. 172, at p. 180; [1980] 1 All E.R. 166, at p. 173; Dare v Pulham (1982), 148 C.L.R., at p. 664; Banque Commerciale S.A. en Liquidation v Akhil Holdings Ltd. (1990), 169 C.L.R., at pp. 286, 287-288, 302-303; Laws v Australian Broadcasting Tribunal (1990), 170 C.L.R., at pp. 85-86. 3. (1848) 2 Ex. 665, at pp. 680-681 [154 E.R. 657, at p. 663]; see also, Buckmaster v Meiklejohn (1853), 8 Ex. 634, at p. 637 [155 E.R. 1506, at p. 1507], per Parke B. 4. (1990) 170 C.L.R. 70, at p. 85. 5. Thus, the plaintiff in quo minus in the Court of Exchequer made an incontestable but quite incorrect assertion of a debt owing to the Sovereign while the plaintiff in debt before the King's Bench based the action on the assertion of a trespass which had never occurred (see Blackstone, Commentaries on the Laws of England (1768), bk 3, pp. 45, 122-123). And note the commonly accepted practice of including alternative claims or assertions of fact in a declaration or other unverified pleading such as a statement of claim: see, e.g., Doonan v Beacham (1953), 87 C.L.R. 346, at pp. 351-352; Mummery v Irvings Pty. Ltd. (1956), 96 C.L.R. 99, at pp. 110-111; Davy v Garrett (1878), 7 Ch. D. 473, at p. 489; Bullen and Leake's Pleading, 3rd ed. (1868), p. 11; Jacob and Goldrein, Pleadings: Principles and Practice (1990), pp. 73, 112; but cf. Stephen, A Treatise on the Principles of Pleading in Civil Actions, 7th ed. (1866), pp. 343-345.

[9]

It follows that the mere service upon the G.I.O. as defendant of an unverified statement of claim containing an intentionally false assertion about the identity of the driver did not, of itself, constitute the making of a fraudulent representation sufficient to constitute the actus reus of the offence with which each appellant is charged. That is not to deny that there could be circumstances in which a statement of claim containing an incorrect assertion of fact constituted part of a course of conduct by a plaintiff or a third party involving the making of an intentionally false representation to the defendant or some other person. If, for example, the statement of claim was served or delivered in the context of a particular extraneous circumstance which gave rise to a collateral representation that the assertions, or a particular assertion, of fact contained in the document as delivered were, or was, objectively true, the delivery of the document could complete the making of a false positive representation of the truth of an incorrect assertion of fact contained in it which, subject to any question of immunity from criminal liability in respect of statements made in the ordinary course of judicial proceedings [6] , could be capable of constituting the actus reus of an offence of attempting dishonestly to obtain money by deception. Again, and subject to any question of such immunity from criminal liability, the service or delivery of such a statement of claim could constitute either part of the actus reus or an overt act in the commission of a variety of other criminal offences such as extortion or (depending on the circumstances) conspiracy to pervert the course of justice. In the present cases, however, the Crown's case against each appellant was and is confined to, and dependent upon, the proposition that "the causing of the statement of claim to be served upon the Government Insurance Office" of itself "amounted to the attempt" to commit the offence of obtaining money by deception.

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Judgment (75 paragraphs)

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