In my view the appeal should be dismissed with costs.
JUDGE3
POWELL JA Such difficulties as have arisen in the determination of
the
present proceedings appear to me to have been caused by the interaction of a
number of differing factors, they being: -
1.
the apparent inability of those advising the Appellant, first, to
distinguish between the disparate torts of false imprisonment on
the one hand
and malicious prosecution - or as it seems now sometimes to be called,
wrongful process of law (Salmond and Heuston
on the Law or Torts 20 Ed (1992)
Ch 19) - which, although once limited to the institution of criminal
proceedings, appears now to have been extended to certain types of
civil
proceedings (Salmond and Heuston op cit pp. 405-407), second, the facts which
a plaintiff will be called upon to establish
if an action to recover damages
in respect of either false imprisonment or malicious prosecution is to be
successful; and) third,
the matters to which regard might be had, in either
case, in determining the amount of damages which might properly be awarded;
2. what appear to me to be deficiencies in the District Court Rules relating
to pleading and particulars;
3. the form of the
Statement of Claim filed in the District Court on behalf
of the Appellants; which form appears to have been consequential upon each
of
the two matters to which I have just referred;
4. what appears to me to have been the rather less than competent way in
which
the Appellant's advisers conducted these proceedings on her behalf both
before, and on, the hearing before the late McCredie DCJ,
and on the hearing
of this appeal.