Macculloch v TNT Ltd & Ors

Douglas Hamilton Hannon (Second Defendant)

Peter Keith Bailey (Third Defendant)

Murray James Reynolds (Fourth Defendant) PARTIES : Garry Phillip Bourke (Fifth Defendant)

State of New South Wales (Sixth Defendant)

Peter William George (Seventh Defendant)

Brian Murray (Eighth Defendant)

Steven Ward (Ninth Defendant) JUDGMENT OF : Master Harrison

Mr P S Hastings QC with Ms D Spears (Plaintiff)

COUNSEL : Mr A Leopold (1st to 5th Defendants)

Mr D A Buchanan SC (6th to 9th Defendants) Gary Stewart & Associates (Plaintiff)

Ebsworth & Ebsworth SOLICITORS : (1st to 6th Defendants)

Ms J M Graham Crown Solicitors Office (6th to 9th Defendants) CATCHWORDS : Stike out - malicious prosecution - false imprisonment Supreme Court Rules - Part 13 r 5; Part 40 r 8; Part 15 r 26 LEGISLATION CITED : Crimes Act Justices Act - s 81(4) Associates Securities Finance Ltd v Harrow Properties Pty Limited (NSWSC Lee J, 26 May 1977 unreported) Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62 General Stel Industries Inc v Commissioners for Railways (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 H 1976 Nominees Pty Ltd v Galli Ltd & Quarries Ltd (1979) ALR 181 Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178 Faulkner v Bluett (1981) 52 FLR 115 Mannigel v Hewlett Phelps (NSWCA, unreported 12 June 1991) Daemar v The Industrial Commissioner of New South Wales (No 1) (1988) 12 NSWLR 45 Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 Luyt v State of New South Wales (NSWSC, unreported 4 March 1999, Windeyer J) McDonald v Coles Myers Ltd (t/as K-mart Chatswood) (1995) Aust Tort Reports 81-361 CASES CITED : Cox v Journeaux (No 2) (1935) 52 CLR 713 Exparte Vine, Re Wilson (1878) 8 ChD 364 Howard v Crowther (1841) 8 M&W 601, 151 ER 1179 Clark v Calvert (1891) 8 Taunt 742, 129 ER 573 Rose v Bucket [1901] 2 KB 449 Bailey v Thurston & Co Ltd [1903] 1 KB 173 Drake v Beckham (1843) 11 M&W 315, 152 ER 823 Child v Lewis (1924) 40 TLR 870 Lowden v Goodrick (1791) PEAKE 64 Pettit v Addington (1791) PEAKE 87 Grimwade v State of Victoria 90 (1996-1997) Aust Crim Reports 541 Commonwealth Life Assurance Society Limited v Brian (1935) 53 CLR 343 Rapley v Rapley (1930) SR(NSW) 94 Sourian v State of NSW [1999] NSWSC 1173 R v Governor of Brockhill Prison exparte Evans (No 2) [1998] All ER 993 DECISION : see para 43

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20823/96 - DONALD KENNEDY MACCULLOCH v TNT LIMITED & 8 ORS

JUDGMENT (Strike out; malicious prosecution; false imprisonment) 1 MASTER: By notice of motion filed 4 August 2000 the first to fifth defendants, namely TNT Limited first defendant, Douglas Hamilton Hannon second defendant, Peter Keith Bailey third defendant, Murray James Reynolds fourth defendant and Garry Phillip Bourke fifth defendant, seek an order that the proceedings be dismissed or permanently stayed pursuant to Part 13 r 5 of the Supreme Court Rules (SCR), and pursuant to Part 40 r 8 SCR that any dismissal be on the condition that the plaintiff shall not bring fresh proceedings claiming the same or similar relief or pursuing the same or a similar cause of action as that pursued against the first to fifth defendant in the present proceedings. The first to fifth defendant rely on the affidavit of Christopher Gordon Smith sworn 4 August 2000 and paragraphs 1 and 3 of the affidavit of Christopher Gordon Smith dated 23 April 1998. 2 By notice of motion filed 22 March 2000, the sixth to ninth defendants, namely State of New South Wales sixth defendant, Peter William George seventh defendant, Brian Murray eighth defendant and Steven Ward ninth defendant, seek orders striking out the whole of the further further amended statement of claim filed 21 July 1999 against the sixth to ninth defendant. Alternatively, the sixth to ninth defendants, with the exception of the claim against the seventh defendant for wrongful arrest and/or false imprisonment, seek an order striking out the whole of the further further amended statement of claim filed 21 July 1999 as against the sixth to ninth defendant. The sixth to ninth defendants rely on the affidavit of Jane Marcia Graham sworn 22 March 2000. The plaintiff did not rely on any affidavit evidence.

The law in relation to summary judgment 3 Section 88 of the Supreme Court Act (SCA) states: "Proceedings on a common law claim in which there are issues of fact - (a) on a charge of fraud against a party; or (b) on a claim in respect of defamation, malicious prosecution, false imprisonment seduction or breach of promise of marriage, shall be tried with a jury. 4 In Associated Securities Finance Ltd v Harrow Properties Pty Limited (NSWSC Lee J, 26 May 1977, unreported) stated: "Applying the same reasoning to s 88 it follows that when Pt 13 r 1 excludes from the procedure for summary judgment "proceedings within the application of s 88 of the Act" this excludes not only the case when a cause of action in fraud is being asserted but also the case when an issue of fraud arises under a defence of fraud pleaded by a defendant. The English rule dealing with summary judgment, O 14 r 1(2)(b) only excludes from the remedy of summary judgment "an action which includes a claim by the plaintiff based on an allegation of fraud", but r 1 of Pt 13 cannot, in the way it is expressed, be given a similar restrictive meaning. It follows, therefore, that whilstever the statements of defence allege a defence of fraud it is not open to the plaintiff to move for summary judgment, and the plaintiff must look elsewhere in the Rules for a remedy if he claims that the defences filed by the defendant should not be allowed to stand. His remedy then, is to be found in Pt 15 r 26 which entitles the court to strike out pleadings in whole or in part." 5 Under s 88 SCA the authority of Harrow, summary judgment under Part 13 is not permitted. This part of the first to fifth defendants' claim fails. However, the first to fifth defendants submitted that these proceedings can be permanently stayed pursuant to Part 13. 6 I turn to the alternative, Part 15 r 26 which says: "(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 pleadings be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 7 In a Court of Appeal decision Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA 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 Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced the passages quoted in Zarb. 8 In General Steel Barwick CJ, who heard the application alone stated: "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." 9 Barwick CJ also said: "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." 10 The onus is on the plaintiff in the statement of claim to set out the facts upon which the defendants can become aware of the precise allegations made against them and hence what is it that they have to meet. If a fact is material, it must be pleaded and not merely referred to in particulars - see H 1976 Nominees Pty Ltd v Galli Ltd & Quarries Ltd (1979) ALR 181 at 186-187. 11 The plaintiff in his further further amended statement of claim (FFASC) pleads malicious prosecution as against all the defendants. Additionally, he pleads against the seventh to ninth defendant causes of action in wrongful arrest and false imprisonment. He pleads that the sixth defendant is vicariously liable for the malicious prosecution, wrongful arrest and false imprisonment by the seventh to ninth defendants. The defendants submitted that the FFASC discloses no reasonable cause of action as against them, or any of them, and that it causes prejudice and embarrassment in the proceedings and is an abuse of process of the court. They relied on essentially one legal issue which I will refer to as the bankruptcy issue. The sixth to ninth defendants have adopted the first to fifth defendants' argument on this issue. 12 For the purposes of this application I have taken the plaintiff's case at its highest. The allegations by the plaintiff are as follows:

(1) In December 1988 EMC Corporation Pty Limited (EMC) terminated an agreement with TNT for storage of computers and entered into an agreement with Patgood Pty Limited, a company for which the plaintiff was a director. This agreement came to an end in June 1989. (Para 19(d) FFASC).

(2) Until 30 October 1989 the plaintiff was an employee of TNT. After that the plaintiff became a director of a company called Nordan Shipping International Pty Limited (NSI). The plaintiff dependent upon NSI as the sole or principal source of his income (Paras 2 and 4 of the FFASC).

(3) Before December 1990 NSI and TNT were both negotiating with the Royal Australian Mint (RAM) for a contract to airfreight the RAM's currency. Thus, TNT and NSI were competitors in the market.

(4) In December 1990, RAM a customer of TNT, terminated a freighting contract with the TNT. RAM then entered into a freight agreement with NSI.

(5) On 12 March 1991, TNT provided the statements collected by the second defendant Douglas Hannon, the third defendant Peter Bailey, the fourth defendant Murray Reynolds and the fifth defendant Garry Bourke who were security officers and agents of the first defendant. They provided those statements to the seventh defendant and investigating police officer concerning events that occurred in 1989 involving Patgood. On 13 March 1991, the investigation unit of TNT interviewed Mr Oddy who provided them with an explanation of the EMC incident which was exculpatory of the plaintiff. Allegedly they refused to record or pass on to the seventh defendant, Peter George a police officer who was investigating the matter these exculpatory statements. The statements that were passed on are alleged to be forged as they bore NSW Police Service headings (para 20 FFASC). The investigation unit officers, by threat and intimidation, obtained a statement from Mr Oddy that they knew to be false and misleading. That statement was then provided to the seventh defendant.

(6) On 28 March 1991 the plaintiff was interviewed by the seventh defendant and gave a exculpatory version of events. The seventh defendant without any investigation of the veracity of the statements provided to him, or any investigation of the plaintiff's version of events arrested and charged the plaintiff with the first charge pursuant to s 185A of the Crimes Act 1900. That charge had been drafted by the eighth defendant Brian Murray prior to 28 March 1991.

(7) On 18 April 1991 the plaintiff pleaded not guilty to the first charge.

(8) In August 1991 TNT disclosed to RAM that the plaintiff has been charged under the Crimes Act and suggested that RAM should terminate its freight contract with NSI and indicated that it, the first defendant, was prepared to enter into an identical or similar agreement as RAM had with NSI.

(9) On or about 16 August 1991 RAM terminated its contract with NSI and entered into an agreement with TNT to provide the same services.

(10) On 3 September 1991 the eighth defendant appeared as police prosecutor in the hearing of the first charge against the plaintiff. The eighth defendant obtained a short adjournment and then withdrew as prosecutor. The ninth defendant, Steven Ward took over as prosecutor.

(11) On 8 March 1993 the ninth defendant withdrew the first charge and then preferred the second charge (pursuant to s 178A) against the plaintiff. The matter was then heard over 8, 9 and 10 March 1993 before Price LCM. On 14 December 1993 the plaintiff was acquitted of the second charge and was awarded costs against the prosecution pursuant to s 81(4) of the Justices Act .

Bankruptcy issue 13 The central issue is whether the cause of action in malicious prosecution is wholly vested in the Official Trustee during the plaintiff's period of bankruptcy. If that is so, the first to fifth defendants submitted that the plaintiff is not entitled to take these proceedings. It is common ground that the plaintiff went into bankruptcy on 25 September 1992 when the Official Trustee was appointed as Trustee. On 22 December 1995 the plaintiff was discharged from bankruptcy. The statement of claim was filed on 5 August 1996, ie., a period after the plaintiff had been discharged from bankruptcy. On 14 December 19983 the second charged was dismissed. The first charged had previously been withdrawn. It is common ground that the date at which the proceedings could be instituted was on 14 December 1993, during the period when the plaintiff was a bankrupt. That was the date that the rights and powers in relation to property would have been excisable by the bankrupt had he not become a bankrupt. (see s 5 Bankruptcy Act) 1966. It is also common ground that the cause of action does not reinvest in the plaintiff when the period of bankruptcy has expired. 14 The first to fifth defendants' counsel referred to Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178; Faulkner v Bluett (1981) 52 FLR 115; Mannigel v Hewlett Phelps (NSWCA, unreported 12 June 1991); Daemar v The Industrial Commission of New South Wales (No 1) (1988) 12 NSWLR 45; Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 and Luyt v State of New South Wales (NSWSC, unreported 4 March 1999, Windeyer J). The plaintiff referred to McDonald v Coles Myers Ltd (t/as K-mart Chatswood) (1995) Aust Tort Reports 81-361. 15 The damages claimed by the plaintiff are:

(a) Damage to his reputation and loss of his position as director of NSI (paras 47(a) to (c) and 83(a) of the FFASC and item 23 (c) of the particulars of 16 March 2000).

(b) The incurring of legal costs (Paras 47(d) and 83(a) of the FFASC).

(c) Mental anguish, including fear, distress and indignity as a result of the plaintiff being deprived of his liberty and psychiatric injury (paras 47(e) and 83(a) of the FFASC).

(d) Bankruptcy caused due to loss of income, being part of a claim for general damages. It is alleged that the bankruptcy was a direct consequence of the action of the defendants and caused the plaintiff loss and damage (item 38 of the particulars dated 16 March 2000).

(e) A claim for aggravated and exemplary damages (paras 83(c) of the FFASC and particulars dated 25 August 2000). 16 The first to fifth defendants submitted that the plaintiff's claim includes both property and personal claims and that the plaintiff's cause of action in malicious prosecution cannot be divided up. According to the first to fifth defendants it is a single, indivisible cause of action, referable in its substance or essence to property, ie., economic/income, rights and not personal rights. The first to fifth defendant argue that it is not a right to recover damages "for personal injury or wrong" within the meaning of s 116(2) of the Act. The submission that the cause of action is indivisible in this way, is based on a number of authorities including several of those cited in Bryant. 17 In Cox v Journeaux (No 2) (1935) 52 CLR 713 Dixon J said at 721: The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property." 18 In Bluett (1981) 52 FLR 115 at 119, Lockhart J said: "where the primary and substantial right of action id direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt." 19 In Mannigel, Handley JA (with whom Kirby P and Meagher JA agreed) said that the plaintiffs in that case sued on "indivisible causes of action in tort and contract" which "formed part of the property of the plaintiffs which vested in the Official Receiver on their bankruptcy". That case involved a claim for professional negligence by solicitors. The plaintiffs claimed damages for economic loss, but also damages for loss of credit and reputation, for inconvenience, mental distress and strain and for injury to their physical and mental health. However, the latter claims did not save the plaintiffs from the conclusion that the entire, indivisible causes of action in both tort and contract vested in the Official Receiver. 20 In Daemar (No 1), the Industrial Commission had declared a commercial contract void and ordered the claimant (who subsequently became bankrupt) and his company to pay a certain sum to the other party in the proceedings before the Commission. The bankrupt sought the issue of prerogative writs against the Commission and also complained that, in the course of the judgments of the Commission, he had suffered hurt and had been defamed. Looking at s 60(4)(a) of the Act (which is the equivalent of s 116(2)(g), but applicable when proceedings are brought during the bankruptcy), Kirby P said (at 56) that the exemption relating to personal injuries or wrongs was: "limited to those cases where it has been considered appropriate to sever the personal interest of the person subsequently made bankrupt from his property, and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors. In the present case the so-called 'wrong' of which the claimant complains is the very source of the financial problems which have led to his bankruptcy. It is therefore to be classified not as a 'wrong' which is exempted from the operation of s 60(2) and the statutory stay provided for, but as of the very essence of the subject matter to which s 60(2) is addressed." 21 In Bryant, Lockhart J at 550B said that it was necessary to "determine the essential character" of the action in order to determine whether or not it vested in the trustee in bankruptcy. The approach of the Full Federal Court was to proceed on an analysis of the pleadings. His Honour said at 554G that the claim for general damages appeared to be "consequential upon the loss or damage which Mr Bryant asserts was sustained by him, and which is referable to the proprietary claims which I have described earlier and which would plainly pass to the trustee upon Mr Bryant's bankruptcy". His Honour said at 554F that the court was "unable to be satisfied" that it was possible to sever the allegations and claims for damages made by Mr Bryant, so as to be able to identify claims for personal injury or wrong which had not vested in the trustee in bankruptcy. 22 In Bryant, O'Loughlin and Merkel JJ delivered a joint judgment in which they said at 563C-D that, as in Daemar (No 1), the wrong of which Mr Bryant complained in his pleadings "appeared to be the very source of the financial problems which led to his bankruptcy". Their Honours said that the remarks of Handley JA in Mannigel were apposite, in that the claims for general damages were merely "consequential" on damages to financial and property interests. Their Honours said that Mr Bryant's claims were "essentially" claims which were referable to his financial and property rights. If the injury that was suffered for the wrong done arose as a "direct result" of the alleged infringements of financial or property rights, then the primary and substantial right of action is pecuniary loss to the property or estate of thew bankrupt and the whole claim vests in the trustee in bankruptcy. The claims are not "without reference to rights of property" within the meaning of the dicta in Cox. 23 In Luyt Master McLaughlin had dismissed the plaintiff's claim under Part 13 r 5 SCR on the basis that it was doomed to fail as the cause of action sued upon had vested in the trustee in bankruptcy. The plaintiff appealed to Windeyer J, who dismissed the appeal. The plaintiff's claim was for estoppel, breach of contract and misleading conduct. A claim for economic loss relating to the loss of properties was made, but in addition there was a claim for "associated stress, infliction of mental and emotional distress". Windeyer J held at para 13 that the claims for general damages were "immediately associated with the claim for loss of property". His Honour said at para 15 that the claim for infliction of mental and emotional distress: "could only arise as a result of the claimed interference with the rights of the plaintiff to the property which she says should not have been taken from her and could not be thought to have arise independently of that." 24 Referring to Bryant (above), Windeyer J said at para 16 that the question is whether "the damages are consequential upon and immediately consequential or connected with the major claim for loss of property". His Honour said at para 17 that it was clear that the claims in relation to mental distress etc. were "immediately connected [with the major claim for loss of property] and this claim [for emotional distress etc] could not arise without reference to the claimed loss of the property". 25 The first to fifth defendants submitted that the nature of the plaintiff's claim is that it is one of financial interests and the damages are consequential upon the infringement of those financial rights. However, in none of the cases cited was there a claim for malicious prosecution nor false imprisonment. 26 There are exceptions to the proposition that rights of action generally pass to the trustee of a bankrupt's estate. These exceptions have been created by decisions of the courts. Lockhart J listed some of them in Faulkner. They included the followings, a right of action for slander, Ex parte Vine; Re Wilson (1878) 8 ChD 364; for seduction of a servant, Howard v Crowther (1841) 8 M & W 601; 151 ER 1179; for trespass to land or goods in the plaintiff's actual possession, at least where the only substantial damage if for the annoyance and persona inconvenience to him, Clark v Calvert (1891) 8 Taunt 742; 129 ER 573 and Rose v Buckett [1901] 2 KB 449; for breach after bankruptcy of a contract for personal service made before bankruptcy, Bailey v Thurston & Co Ltd [1903] 1 KB 173; for personal injuries arise out of certain breaches of contract such as a contract of marriage, Drake v Beckham (1843) 11 M & W 315; 152 ER 823. Malicious prosecution and false imprisonment were not specifically mentioned in Faulkner. 27 In McDonald, the Court of Appeal stated that: "The principal heads of damage to which regard have conventionally been had in relation to a claim for malicious prosecution are injury to the plaintiff's reputation, injury to his feelings, ie., for the indignity, humiliation and disgrace caused him by the fact of the charge being preferred against him, pecuniary loss - as, for example, as a result of his being dismissed from his employment - and the expenses incurred in defending himself against the prosecution or, where he has been awarded costs against the prosecutor, the amount by which the costs incurred exceeded the costs awarded. In addition, if the facts warrant it, an award of aggravated compensatory damages may be made." 28 The tort of false imprisonment is derived from trespass, a plaintiff need not prove actual damage, although any pecuniary loss which is not too remote is recoverable (see, for example, Childs v Lewis (1924) 40 TLR 870). The principle heads of damage to which, in the past, regard appears to have been paid are, the injury to liberty, the injury to the plaintiff's feelings, ie., the indignity , mental suffering, disgrace and humiliation, with any attended loss of social status, and, where it can be demonstrated that the imprisonment has had a deleterious effect on the plaintiff's health, any resultant physical injury, illness or discomfort (Lowden v Goodrick (1791) PEAKE 64, Pettit v Addington (1791) PEAKE 87). In addition to damages falling under one or other of the heads to which I have just referred, the manner in which the imprisonment is effected may lead to an award of aggravated compensatory damages, as also may the subsequent conduct of the defendant, if it tends to show that the defendant is persevering in the charge. 29 In my view it is arguable that the plaintiff's rights are personal rights which do not vest in the trustee in bankruptcy. It is arguable that the principle cited in Bluett, Daemar, Mannigel, Bryan and Luyt does not apply to the causes of action of malicious prosecution and false imprisonment. Damages for the loss of reputation and those claimed by the plaintiff are the legitimate heads of damage for the tort of malicious prosecution. It is my view that those damages arise independently from the plaintiff's property rights. Hence, the statement of claim should not be struck out on this basis of the bankruptcy argument. 30 The sixth to ninth defendants adopted the first to fifth defendants' argument in relation to the Bankruptcy Act. For the reasons given previously this argument fails. They also submitted that the plaintiff has failed to plead motive or improper purpose. According to the sixth to ninth defendants, the FFASC pleads the element of malicious prosecution "without reasonable and probable cause" as being to mere negligence and recklessness, and this in itself does not give rise to a claim for malicious prosecution - see Grimwade v State of Victoria 90 (1996-1997) Aust Crim. Reports 541. 31 In Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343 Dixon J said at 379: "The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on the ground of indefiniteness. It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority … But, if the discretion is mislead by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible…". "The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him". 32 The sixth to ninth defendants submitted that the plaintiff had not properly pleaded malice. Malice is defined by Street CJ in Rapley v Rapley (1930) SR(NSW) 94 at 99 as: "some wrong or sinister motive, some other motive or desire .. than to do what the moving party bona fide believed to be right in the interest of justice." 33 In relation to "without reasonable and probable cause", in para 34 of the FFASC the plaintiff alleges that prior to charging him the seventh defendant: "(a) did not investigate TNT's complaint; (b) did not make impartial and independent assessment of the IU and TNT actions and allegations towards and against the Plaintiff; (c) did not consider whether the statements provided to him as described in paragraph 19 above was evidence or sufficient to constitute evidence likely to establish the Plaintiff's guilt if charged under S. 185A of the Crimes Act 1900 . (d) determined to charge the Plaintiff before interviewing him;

(e) failed, after a lengthy interview with the Plaintiff on 28 March 1991, containing a full and exculpatory explanation by the Plaintiff, to conduct an enquiry as to the veracity or otherwise of the material provided by TNT through its servants and agents; (f) failed to consider those matters brought to his attention by the Plaintiff in the course of an interview conducted by the Seventh Defendant property or at all; (g) at the time of arresting and charging of the Plaintiff did not honestly suspect, and had no reasonable grounds to suspect, that the Plaintiff was guilty of the offence charged; (h) relied upon information supplied to him by TNT through its servants and agents, to the exclusion of other relevant matters; (i) failed to exercise his independent discretion and judgment in the conduct of the investigation and determination to charge the Plaintiff: (j) in all of the foregoing, acted unlawfully and maliciously and with the improper purpose of assisting the Second, Third, Fourth and Fifth Defendants in their efforts to damage the Plaintiff." 34 The allegations are similar in relation to the sixth, eight and ninth defendants. They are that the defendants (except the sixth defendant is only vicariously liable for the act of the seventh to ninth defendants). 35 In Sourian v State of NSW [1999] NSWSC 1173 James J stated that two elements of the tort of malicious prosecution, namely malice and without reasonable and probable cause, are of such a character that the plaintiff has no chance of establishing them at a pre-trial stage, and that the absence of reasonable and probable cause may of itself afford some evidence of malice (p 39, para 191). From the passage quoted from Bryant above, and the pleadings the first to fifth defendants are alleged to have persuaded the seventh to ninth defendant to institute proceedings. If this is proved, all defendants will be liable. It is my view that the plaintiff's claim in malicious prosecution cannot be said to be hopeless and should proceed to trial. 36 The sixth to ninth defendants submitted that the phrase "because they were involved" against the seventh to ninth defendants should be deleted. This phrase will suffice to read "set in motion, or actively instrumental in putting the law in force". There are other alternatives. The statement of claim should not be struck out on this basis. 37 In relation to wrongful arrest and false imprisonment the sixth to ninth defendants submitted that there was no particulars supplied of the wrongfulness of the arrest of the plaintiff alleged in paragraph 84 against the seventh defendant. By the defendant's solicitor's letter of 10 May 1999, the plaintiff's solicitor's attention was directed to s 352(2) of the Crimes Act 1900. This had the consequence that, in the FFASC, an allegation has been inserted (para 34(g)) that the statutory grounds for arrest by a constable - suspicion that the plaintiff had committed crime and reasonable grounds for the suspicion - were not present when the seventh defendant arrested the plaintiff. 38 The defendants submitted that in the plaintiff in the same pleading he refers to the existence of reasonable grounds for suspicion of the part of the seventh defendant that the plaintiff has committed crime, but also positively asserts that the first defendant concealed from the seventh defendant evidence exculpating the plaintiff. (paras 19, 20, 22, 23, 24, 27, 28 and 31). It is to be noted that the law does not require that the arresting officer's grounds for suspicion consist of admissible evidence. The plaintiff cannot plead two inconsistent statements, either the seventh defendant had reasonable grounds of suspicion to believe that the plaintiff had committed a crime or he did not. The plaintiff should clarify this otherwise the claim for wrongful arrest should be struck out. 39 If a person is imprisoned without authority the plaintiff is entitled to damages irrespective of any question of fault on the part of the person responsible for imprisonment - see R v Governor of Brockhill Prison exparte Evans (No 2) [1998] All ER 993 per Woolf MR. The facts necessary to establish this tort will be similar to those required to be established for the tort of malicious prosecution. 40 The sixth to ninth defendants submitted because it was pleaded that there was lack of reasonable grounds for suspicion to believe the plaintiff was guilty as charged by the seventh defendant three years after he commenced proceedings the claim is not genuinely made. The sixth to ninth defendants also submitted that the plaintiff has no evidence of these claims. Part 15 r 26 refers to the pleading. I am not prepared to make this assumption on an application for summary judgment. 41 It is my view that the plaintiff's case is one that should be permitted to go to trial. The FFASC should be further amended in light of my comments made above. 42 Costs are discretionary. The defendants were largely unsuccessful with their motion. The amendments to be made are minor. The FFASC is a long and complex document. It is my view that the defendants should pay the plaintiff's costs of the motion, but the plaintiff should pay the costs thrown away by the amendment. 43 The orders I make are:

(1) The first to fifth defendants' notice of motion filed 4 August 2000 is dismissed.

(2) The sixth to ninth defendants' notice of motion filed 22 March 2000 is dismissed.

(3) The plaintiff is to file a FFFASC by 29 January 2001.

(4) The defendants are to pay the plaintiff's costs of the motions.

(5) The plaintiff is to pay the defendants' costs thrown away by the amendments to the FFFASC. **********

Last Modified: 12/18/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.