In this subsection "stock" includes horses, cattle, sheep, goats, pigs and camels.
29 The charges were that the claimant on 26 October 1996 did remain on the inclosed lands of another person after being requested by a person apparently in charge of those lands to leave; and that the claimant on 31 October 1996, without lawful excuse, did enter into the inclosed lands of another person without the consent of the person apparently in charge of the same.
30 These charges were heard in the Local Court at Corowa in 1997 and 1998, and were dismissed.
31 The following additional facts were alleged by the claimant in the Statement of Claim, and (to a small extent) in other material before the primary judge.
1. On about 21 October 1996, the claimant spoke by telephone to Mr. Mitchell and requested permission to enter the farm to collect the s.57 notice. Mr. Mitchell did not answer that request, either by refusal of permission or otherwise.
2. When the claimant attended the property on 26 October 1996, he asked Ms. White for the notice; and although Ms. White knew the notice was there, she did not give it to him.
3. On 28 October 1996, the claimant spoke by telephone to Mr. Ariff and requested consent to enter the farm to collect the notice, and on 29 October 1996 he spoke by telephone to Mr. Star and requested consent to enter the farm to collect the notice. Neither of them informed him that he could not have access to collect the notice, and both implied he could do so.
4. Mr. Star and Mr. Ariff both falsely told Mr. Morton that the claimant could be dangerous and could have a gun; and Mr. Ariff told Mr. Morton that the claimant was not to take anything from the property. After the claimant attended the property and asked for the s.57 notice, and was told it was not there, Mr. Ariff told Mr. Morton to send the notice to the claimant, which Mr. Morton then did.
5. On 4 November 1996, Mr. Morton on the instructions of Mr. Star alleged to police that the claimant had disobeyed court orders, when this was untrue.
6. The 5 November 1996 letter sent by Mr. Mitchell was false in that Mr. Star and Mr. Ariff had given implied consent to the claimant entering on the farm; and Mr. Mitchell intentionally omitted from it all reference to his sending the s.57 notice to the farm under cover of a letter addressed to the claimant, the claimant's request for permission to enter to retrieve it, and Mr. Mitchell's lack of response to that request.
7. The claimant had made allegations of misconduct against the Bank, had contested the Bank's possession of the farm, and was pursuing claims of various kinds against the Bank.
32 Before the primary judge, Mr. Brereton submitted that it was fairly arguable that the opponents had instituted the proceedings against the claimant, that they did so without reasonable cause, and that they did so maliciously. On the question of lack of reasonable cause, Mr. Brereton conceded that the claimant did not have consent to enter the property, but submitted that he had a lawful excuse to do so in order to collect the notice, this being a lawful excuse analogous to, though not precisely within, recaption of chattels.
33 The primary judge held that no facts were pleaded or particulars given that could establish that either Mr. Star or Mr. Ariff was the agent of the Bank; and that no untrue or misleading information had been given by the Bank to the police.
34 He also held that the allegations made could not support a conclusion that any of the opponents were to be regarded as the prosecutor of the claimant, where there had been a clear and independent exercise of discretion by the police, who had information concerning the claimant's allegation that he had entered the land to obtain the s.57 notice.
35 The primary judge also held that the allegations made by the claimant could not support a conclusion that the prosecution was brought without reasonable and probable cause. After referring to a submission that the receiver and not the secretary was responsible for Hurworth (Re Geneva Finance Ltd; Quigley v. Cook (1992) 7 ACSR 415 at 426 and 432), and to the cases of Director of Public Prosecutions v. Wille (1999) 47 NSWLR 255, Darcey v. Pre-Term Foundation Clinic (1983) 2 NSWLR 497, Morris v. Darby (1936) 53 WN(NSW) 136, and Minkley v. Munro (1986) 8 PSR 3975, the primary judge said he was inclined to the view that the magistrate was in error in deciding that the claimant had a lawful excuse, but that it was not necessary for him to decide this: because there was an arguable case that the claimant did not have a lawful excuse, the claimant could not succeed in his malicious prosecution claim.
36 The primary judge also held that the allegations of malice were so flawed as to be liable to be struck out in their entirety.
37 The question on an appeal would be whether there was a material error in one or more of these findings which vitiated the primary judge's decision to dismiss the proceedings; and if so, whether the appropriate decision would be in effect to give the claimant yet another chance to produce a satisfactory Statement of Claim.
38 On the issue of whether any or all of the opponents were prosecutors, the most authoritative statements of the law in Australia appear to be those of Isaacs ACJ in Davis v. Gill (1924) 35 CLR 275 at 282-3 and Dixon J in Commonwealth Life Assurance Society Ltd. v. Brain (1935) 53 CLR 343 at 378-80.
39 The question on appeal would be whether the primary judge erred in holding that there had been a clear and independent exercise of discretion by the police to prosecute, and in treating this consideration as conclusive; and in not taking into account the alleged conduct of Mr. Mitchell in not responding to the claimant's request for permission to enter the farm to collect the s.57 notice that Mr. Mitchell had caused to be delivered, under cover of a letter addressed to the claimant, to the registered office of Hurworth on the farm; of Mr. Star and Mr. Ariff in responding to a similar request by not informing him that he could not have access to collect the notice and implying that he could do so; of Ms. White and Mr. Morton, apparently under instructions from Mr. Ariff, in denying to the claimant that the notice was at the farm (when Ms. White at least knew that it was) and in not giving it to him; of Mr. Ariff in then instructing Mr. Morton to send the notice to the claimant; and of Mr. Mitchell in omitting all reference to the s.57 notice and these circumstances in his letter to the police.
40 It could be argued that, if those facts were proved and not otherwise explained, a possible inference was that Mr. Mitchell (the Bank's solicitor), Mr. Star and/or Mr. Ariff intended that an opportunity be created for the claimant to be charged by the police and thereby deterred from doing what could be seen as disruptive to the realisation of the Bank's security. Further the omission by Mr. Mitchell of reference to the s.57 notice and to the claimant's unanswered requests for consent to go onto the property to get it, in his letter to the police, could be argued to be significant to the exercise of discretion to prosecute, in relation to which the police had only the claimant's unsupported assertions as to his reason for going onto the property.
41 It could be argued that the discretion to prosecute would have been exercised differently if the letter had advised the police that Mr. Mitchell had caused to be delivered to the registered office of Hurworth on the property an important notice, under cover of a letter addressed to the secretary of Hurworth, that is the claimant, that the claimant had spoken to Mr. Mitchell asking for permission to go on to the property to collect the letter, and that while not giving such permission Mr. Mitchell had not refused it. It could also be argued that, if the alleged facts were proved, the inference could be drawn (at least in the absence of evidence to the contrary) that the omission of these matters from the letter was a deliberate decision made with the intention of making prosecution more likely, so that the allegation that the omission was intentional could properly be made in the Statement of Claim.
42 This combination of circumstances could be argued to be sufficient to bring the case within the statements of principle in Davis and Brain.
43 On the issue of lack of reasonable and probable cause, the question would be whether the primary judge erred in treating the issue as being whether a belief that there were grounds to prosecute the claimant, if held, would have been reasonable; whereas the true issue was whether the prosecutor actually and bona fide held such a belief, on reasonable grounds: see Commonwealth Life Assurance Society Ltd. v. Brain (1935) 53 CLR 343. It could be argued that the primary judge did not consider whether it could be inferred that the opponents did not bona fide address the question of whether or not reasonable grounds existed for prosecution of the claimant, and in particular did not bona fide address the question whether or not the purpose of collection of a letter addressed to him sent by Mr. Mitchell to the farm, in circumstances where his requests for permission addressed to Mr. Mitchell, Mr. Star and Mr. Ariff had not been refused, constituted lawful excuse.
44 It was submitted for the opponents that, on the issue of reasonable and probable cause, it was not necessary for a prosecutor to consider possible defences; but it is arguable that lack of lawful excuse, albeit a matter on which a defendant bears the onus, is an element of the offences in question here that a prosecutor should consider.
45 On the issue of agency for the Bank, if an inference were drawn that Mr. Mitchell, Mr. Star and Mr. Ariff were co-operating with a view to having the claimant charged, the question would be whether an inference could be drawn that this was on the instructions of the Bank. On this question, the decision of Wickstead v. Browne (1992) 30 NSWLR 1 could be of relevance.
46 There has been some discussion in submissions of the question whether the claimant was in any event a proper recipient of the s.57 notice, where Mr. Star had been appointed receiver and manager of all Hurworth's assets and was Hurworth's agent in respect of them. There could be a question whether s.57 of the Real Property Act, apparently intended to protect an owner's equity of redemption, is satisfied by the giving of notice to a receiver appointed by the mortgagee. This question, however, might be academic in circumstances where the notice was sent to Hurworth's registered office, under cover of a letter addressed to the secretary of Hurworth, that is, to the claimant.
47 I have given consideration to the question of whether the only lawful excuse that the circumstances could possibly support is in substance consent, which was not relied on by Mr. Brereton. However, that position was indicated by Mr. Brereton during the final address of Mr. Leopold for Mr. Star and Mr. Ariff, and had the effect that Counsel for the opponents did not address orally on some parts of their written submissions. It would not seem to have otherwise affected how the case was conducted; so even if the only conceivable lawful excuse were consent or belief in consent, the claimant might not be precluded from relying on it on appeal.
48 On malice, it could be argued that the circumstances support an inference that the opponents were motivated by a wish to stop activity of the claimant that they considered to be a nuisance, rather than genuine belief that prosecution was justified; and that this was sufficient for malice.
49 On the whole, in my opinion there is sufficient doubt about the decision to justify the grant of leave to appeal, limited to the question whether the primary judge erred in determining that the pleading disclosed no reasonable cause of action and the defect was incapable of correction, with the issues to be argued limited to those identified in pars.[37] to [48] above. This limitation is appropriate, because the claimant has sought to advance other untenable grounds and should not be permitted to do so. Further, because the material provided by the claimant on the leave application has been so extensive and comprehensive, to minimise oppression I would direct that no additional documentation or submissions be filed by him on the appeal without leave, unless in response to additional submissions filed by the opponents.
50 I propose the following orders:
1. Leave to appeal granted, limited to the question of whether the primary judge erred in determining that the pleading disclosed no reasonable cause of action and the defect was incapable of correction, on condition that the issues to be argued are limited to those identified in pars.[37] to [48] of this judgment.
2. Direct that, apart from arranging material already filed in appropriate appeal books, the claimant file no additional documentation or submissions except by leave or in response to additional submissions filed by the opponents.
3. Costs of the leave application to be costs in the appeal.
51 IPP JA: I agree with Hodgson JA.