Court of Appeal (Vic)|2014-03-19|Before: Mr J, Santamaria JA, Whelan JA

Mutton v Baker & Anor [2014] VSCA 43 (19 March 2014)

C.C.D. SERVICES PTY LTD (ACN 078 963 738) (TRADING AS MELBOURNE OCCUPATIONAL MEDICAL PRACTICE)

PRACTICE AND PROCEDURE - Statement of Claim - Whether pleading discloses a cause of action - Whether claim has no real prospect of success - Claim for malicious prosecution and injurious falsehood - Malicious prosecution - Elements of the tort - Necessary to allege instigation of judicial process - Whether statement of claim alleges that a prosecution had been instigated - Plaintiff alleges arrest by police - Arrest without warrant or other judicial involvement - Dismissal of cause of action - Civil Procedure Act 2010 (Vic) ss 62-64 - County Court Civil Procedure Rules 2008 (Vic) Order 23.

1 I will ask Santamaria JA to deliver the first judgment.

2 Dr Philip Mutton and Dr Chris Baker are medical practitioners. In July 2013, Mutton commenced proceedings in the County Court against Baker and C.C.D. Services Pty Ltd, a service company providing facilities to Baker. The following version of the facts surrounding the dispute between Mutton and Baker is taken from the statement of claim. The statement of claim comprises a series of allegations by Mutton. None of these has yet been tested in court. On 13 August 2013, the defendants filed and served their defence.

3 Baker and C.C.D. Services Pty Ltd ('the defendants') occupied medical suites in Collins Street Melbourne ('premises'). In 2000, Baker and Mutton entered into an agreement pursuant to which, in consideration of the payment by Mutton of part of the fees earned by him, Baker permitted Mutton to use the premises for professional purposes. In 2010, the parties fell into dispute about the agreement. Part of the dispute concerned the payment by Mutton of the amounts owing by him under the agreement.

4 In 2005, Mutton authorised the Victorian WorkCover Authority ('VWA') in writing to pay amounts owed to him directly to Baker and C.C.D. Services ('the authority'). It is alleged that there was an arrangement whereby the defendants 'would make certain payments to (Mutton) in advance of receiving payments from (VWA)'.

5 At the time of the dispute, Mutton revoked the authority to VWA and directed that, henceforth, all payments to which he was entitled from VWA be paid directly to himself. From what is alleged in the statement of claim, it appears that, at the time that Mutton revoked the VWA authority, payments had been made to him

by the defendants which were premised on the authority continuing to operate; upon the revocation of the authority, it seems that the payments anticipated by the defendants were not forthcoming. At any rate, it seems that Baker made a complaint to the police who investigated the matter. Mutton responded to a request that he attend a police station where, he alleges, he was arrested before being released without any charges being laid.

6 It was in these circumstances that, by writ dated 9 July 2013, Mutton claims damages from the defendants in the County Court for the torts of malicious prosecution and injurious falsehood.

7 By summons dated 13 August 2013, the defendants sought orders that the proceeding be dismissed pursuant to rule 23.01 and, alternatively, rule 23.02 of the County Court Civil Procedure Rules 2008 (Vic). The summons was returned before a judge in the County Court on several occasions between September and November 2013. On 6 December 2013, the judge ruled on the summons.[1] He struck out the claim in malicious prosecution and, it seems, dismissed that part of the claim.[2] The judge said there was not 'any criminal process or procedure set in train as a result of the complaint by Dr (Baker), nor am I satisfied that even if that was the case, that the prosecution was instigated, undertaken or compelled by Dr Baker'.[3] He said later:

'there was no prosecution launched, and the only action by Dr Baker was to report the alleged theft to the police who then determined not to prosecute. In my view, no action lies, nor could be said to lie in those circumstances. I am satisfied that there is no basis upon which the tort of malicious prosecution could be founded'.[4]

8 The judge refused to dismiss the claim based on injurious falsehood but held that it required 'further pleading'. The statement of claim was, he said, 'rambling and in a narrative form'.[5] He continued: 'It is imprecise as to a number of elements of the tort which must be pleaded, and to enable the defendants to properly respond'.[6]

9 By summons dated 20 December 2013 Mutton has applied for leave to appeal to be granted from the ruling delivered on 6 December 2013.

10 When the summons was called on for hearing, senior counsel for Mutton said that the application would only proceed in respect of the order dismissing the claim for malicious prosecution. She said that the claim for injurious falsehood would be re-pleaded in accordance with the leave granted by the primary judge.

11 Whether leave to appeal should be granted is governed by the test set out in Niemann v Electronic Industries Ltd:[7] the applicant must show that the decision below was wrong, or at least attended with sufficient doubt to justify granting leave; and that substantial injustice would be done by leaving the decision unreversed.

12 By summons dated 13 August 2013, the defendants sought orders that the proceeding be dismissed pursuant to rule 23.01, alternatively rule 23.02 of the County Court Civil Procedure Rules 2008 (Vic). The basis of the summons is that the statement of claim:

does not disclose a cause of action;
may prejudice, embarrass or delay the fair trial of the proceeding; or
is otherwise an abuse of process of the Court.

13 Rule 23.01 provides:

Stay or judgment in proceeding

(1) Where a proceeding generally or any claim in a proceeding -

(a) does not disclose a cause of action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the Court -

the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

(2) Where the defence to any claim in a proceeding -

(a) does not disclose an answer; or

(b) is scandalous, frivolous or vexatious -

the Court may give judgment in the proceeding generally or in relation to any claim.

(3) In this Rule -

(a) a claim in a proceeding includes a claim by counterclaim and a claim by third party notice; and

(b) a defence includes a defence to a counterclaim and a defence to a claim by third party notice.

14 Rule 23.02 provides:

Striking out pleading

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading -

(a) does not disclose a cause of action or defence;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court -

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

15 Courts have traditionally refused to erect barriers that would deter citizens from bringing their disputes into court. In Burton v Shire of Bairnsdale,[8] O'Connor J said:

Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.[9]

Similarly, in Dey v Victorian Railways Commissioners,[10] Dixon J said:

A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.[11]

16 The rules that the courts have developed to determine whether a matter, or part of a matter, should be summarily dismissed are familiar. In General Steel Industries Inc v Commissioner for Railways (NSW),[12] Barwick CJ accepted that the phrase 'so obviously untenable that it cannot possibly succeed'[13] correctly expressed the test.

17 The matter has become more complicated since the enactment of the Civil Procedure Act 2010 (Vic).[14] Sections 62 and 63 of that Act provide:

Defendant may apply for summary judgment in proceeding

A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.

Summary judgment if no real prospect of success

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2) A court may give summary judgment in any civil proceeding under subsection (1) -

(a) on the application of a plaintiff in a civil proceeding;

(b) on the application of a defendant in a civil proceeding;

(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

18 In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[15] Warren CJ and Nettle JA said:

the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;

it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action **(**and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[16]

19 The operation of the provisions of the Civil Procedure Act 2010 (Vic) have yet to be worked through. No doubt, courts will more readily hold that its provisions are satisfied where the resolution of a dispute depends upon a question of law rather than upon disputed questions of fact. Although the rules of pleading are designed to ensure that the factual issues underlying a dispute are clearly articulated before trial, trial judges know from experience that, sometimes, the reality of a dispute has defied the best efforts to define it. Not infrequently, it is not until witnesses give their evidence that the true nature of the dispute is revealed. For that reason, among others, courts have power to dispense with compliance with the rules.[17] Section 64 of the Civil Procedure Act 2010 (Vic) provides:

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

20 The present case seems to have followed the course that is frequently observed where a pleading is criticized: accepting that there are or may be deficiencies in the pleading, a party whose pleading has been impeached, offers a proposed amended pleading. Mutton offered a proposed amended statement of claim. Baker considered it also to be deficient as a pleading. It seems that the argument before the primary judge proceeded by reference to Mutton's 'proposed amended statement of claim'.[18]

21 The relevant paragraphs of the proposed amended statement of claim are as follows:

Unknown to the Plaintiff at the time, payments that were outstanding from work done prior to the execution of the new EFT authority were paid in accordance with the new EFT authority, and not in accordance with the old EFT authority. As a result, the Plaintiff received payments for previous work, a percentage of which would be owing to the First and/or Second Defendant/s.
On or about 28 June 2010 the Plaintiff received a letter from the First and/or Second Defendant/s terminating the arrangement between the parties.
The Plaintiff became aware of the need to reconcile additional payments made to him by the First and/or Second Defendant/s, and the First and/or Second Defendant/s were, or ought to have been aware of outstanding payments owed to the Plaintiff, and that there was a commercial dispute on foot between the Plaintiff and the First and/or Second Defendant/s.
The Plaintiff exchanged e mails with Practice Manager and authorised representative of the Second Defendant, Gail Meyer, seeking information to enable him to reconcile accounts, including:

(a) On 7 July 2010 and 8 July 2010, reminding Ms Meyer that he had already stated the accounts were being checked and reconciled, and reminding Ms Meyer that Dr Baker had also held back some $10,000 that was owed to him; and

(b) On 2 August 2010, again stating that in order to finalise outstanding matters in relation to accounts, remittances and invoicing, the Plaintiff required from the First and/or Second Defendant/s all invoices provided by the Plaintiff and remittance advices in relation to those services from 31/12/2009.

Further, on 2 August 2010, the Plaintiff provided the First Defendant with a letter in which he reiterated his request for information to allow reconciliation of accounts, and stated that he also claimed $120,000 as compensation for the First and/or Second Defendant's breach of the agreement, and drawing Dr Baker's attention to outstanding payments due by the First Defendant to the Plaintiff.
Despite the First and/or Second Defendant/s having knowledge of the matters set out in paragraphs 2 to 5 and 7 to 18 inclusive above, Gail Meyer notified the Plaintiff by e mail on 2 August 2010 that all outstanding invoices had been handed to the Victoria Police.

On or around 2 August 2010 the First and/or Second Defendant/s made a complaint of theft or deception to Victoria Police alleging that the Plaintiff had improperly obtained approximately $40,000 from the First Defendant and/or Second Defendant/s ('the complaint'). In a formal police interview recorded on 9 August 2010 (and see paragraph 25 below) Detective Senior Constable Damien Wigfield of Victoria Police ('Detective Wigfield') stated to the Plaintiff in a recorded interview that the First and/or Second Defendant had made this complaint and provided documentation to him in relation to this amount of moneys said to have been unlawfully obtained by the Plaintiff from the First and/or Second Defendant.
The First and/or Second Defendant/s made this complaint before they had equipped the Plaintiff with sufficient information to enable him to reconcile the accounts and repay any moneys due.
The First and/or Second Defendant/s made this complaint in circumstances where they knew, or ought to have known, that:

(a) the Plaintiff intended to reconcile the accounts;

(b) the First and/or Second Defendant/s also owed moneys to the Plaintiff; and

(c) the Plaintiff had requested specific information in order to be able to reconcile any moneys outstanding (and the Plaintiff relies on the particulars set out in paragraphs 17 - 18 inclusive above).

22A In these circumstances, the prosecution was instigated, initiated or continued by the First and/or Second Defendant/s for malicious reason and without just cause or excuse.

On or about 9 August 2010, Detective Wigfield Detective Senior Constable Damien Wigfield of Victoria Police ('Detective Wigfield') told the Plaintiff over the phone that he wished to speak with him. Prior to this telephone call Detective Wigfield had visited at the Plaintiff's office while the Plaintiff was absent and the Plaintiff's secretary had informed him of Detective Wigfield's visit. It was the Plaintiff who called Detective Wigfield, who told the Plaintiff that he wished to talk about some matters involving a complaint. The Plaintiff told Detective Wigfield he had some things to complain about also. Detective Wigfield did not tell the Plaintiff in any particularity what the matters were about and he was not told he would be placed under arrest.

24 During that conversation the Plaintiff volunteered to attend Melbourne West Police Station ('Station') later that day.

Upon arrival at the Station, the Plaintiff signed in and was then met by the Detective Wigfield First Defendant. Detective Wigfield who led the Plaintiff upstairs and then escorted him into an interview room. At this point, the Plaintiff said to Detective Wigfield words to the effect 'I do not wish to have a recorded interview', to which Detective Wigfield replied words to the effect 'you're not going anywhere'. The Plaintiff then said words to the effect 'had I known that I would have gotten legal advice prior to attending'. Detective Wigfield then formally arrested the Plaintiff and conducted a recorded interview, in which he cautioned the Plaintiff and asked him questions in relation to allegations that he had stolen or obtained monies by deception from the First and/or Second Defendant.
Following the recorded interview, the Plaintiff was released without charge and no further action has been taken against the Plaintiff by Detective Wigfield or Victoria Police.
Prior to arresting the Plaintiff, Detective Wigfield had been provided by the First and/or Second Defendant/s with a copy of the letter dated 2 August 2010 (referred to in paragraph 18 above), as well as outstanding invoices (and the Plaintiff relies on the particulars set out in paragraphs 19 and 20 above).

Malicious Prosecution on the part of the First and/or Second Defendant/s

In making the complaint and providing documentation in support of the complaint to Victoria Police, which complaint led to the initiation of a prosecution against the Plaintiff, the First and/or Second Defendant/s engaged in malicious prosecution in relation to the Plaintiff.

In making the complaint and providing documents to the Police, the First and/or Second Defendant/s instigated, initiated or continued proceedings against the Plaintiff (and the Plaintiff relies on the particulars in paragraphs 20 - 22A above).
The First and/or Second Defendant/s knew the content of the complaint to be untrue (and the Plaintiff relies on the particulars in paragraphs 16 - 19 above).

The complaint was made maliciously, in that it was without just cause or excuse (and the Plaintiff relies on the particulars in paragraphs 16 - 22A19 above).

In making the complaint and providing documents the First and/or Second Defendant/s knew that it was likely to cause Detective Wigfield or Victoria Police to instigate a prosecution proceed against the Plaintiff, and made the complaint and provide documents in the hope that they would so do (and the Plaintiff relies on the particulars in paragraphs 16 - 22A above).
The arrest of the Plaintiff by Detective Wigfield was based on information and documents provided to Detective Wigfield or Victoria Police by the First and/or Second Defendant/s (and the Plaintiff relies on the particulars in paragraphs 19 - 22A, and 27 above).
The proceedings terminated in the Plaintiff's favour, in that following his arrest and interview the Plaintiff was released and no further action was taken by Detective Wigfield or Victoria Police.
The First and/or Second Defendant/s complaint against the Plaintiff was made without reasonable or probable cause (and the Plaintiff relies on the particulars in paragraphs 16 - 19 above).
At the time of making the complaint, the First and/or Second Defendant/s acted with malice (and the Plaintiff relies on the particulars in paragraphs 16 - 22A above).
The First and/or Second Defendant/s actions caused significant damage to the Plaintiff's reputation as well as financial damage.

PARTICULARS

(i) Loss of liberty and/or restriction of freedom of movement.

(ii) Questioning of Plaintiff's integrity.

(iii) Threat to Plaintiff's livelihood.

(iv) Reduced motivation to work resulting in financial loss, including not working for two afternoons per week from the occurrence of these events and continuing.

(v) Assault on Plaintiff's self-esteem and sense of self, caused by his arrest and treatment.

(vi) The Plaintiff experiencing anguish related to the injustice of the arrest and public slander.

(vii) Possible loss by Plaintiff of status in the medical profession.

(viii) Sullying of Plaintiff's reputation, inside and outside the profession, including by the First Defendant visiting the Plaintiff's new practice in or around July 2010 and making allegations to the receptionist Carolyn Thomson and/or Dr Kedall Francis that the Plaintiff had stolen money from him, and in the Plaintiff ceasing at the time to receive work he had been receiving from Victoria Police.

(ix) Effect on ability of Plaintiff to travel to other countries such as the USA.

(x) Plaintiff experiencing sense of disillusionment with his profession.

(xi) Plaintiff losing trust in other colleagues.

Further and in the alternative, the First and/or Second Defendant/s unlawfully interfered with the Plaintiff's trade or commerce, specifically by engaging in injurious falsehood in relation to the Plaintiff, causing significant damage to the Plaintiff's reputation and/or as well as financial damage income and/or earning capacity.

In making the complaint, the First and/or Second Defendant made a false statement about the Plaintiff's business and/or commercial standing, in that the Defendant/s provided documentation to Detective Wigfield and/or Victoria Police and complained that the Plaintiff had in his business dealings with the Defendant/s unlawfully obtained financial advantage (and the Plaintiff relies on the particulars in paragraphs 20 - 22 above).
The First and/or Second Defendant knew that the statement was false or was recklessly indifferent as to whether it was false, because they were aware (or ought to have been aware) that the Plaintiff was seeking information so as to reconcile accounts and, at any rate, had a complaint for moneys against the Defendant (and the Plaintiff relies on the particulars in paragraphs 16 - 19 above).

The First and/or Second Defendant published the false statement to third party(s), being Detective Wigfield and/or Victoria Police, and/or employees of the Plaintiff's new practice (and the Plaintiff relies on the particulars in paragraphs 19 - 22, and 28 I (viii) above).

The complaint was made maliciously, in that it was without just cause or excuse and with knowledge of its falsity (and the Plaintiff relies on the particulars in paragraphs 16 - 22A above).
The Plaintiff suffered actual loss and/or special damage as a natural and probable result of the false statement.

General loss of business, including in the Plaintiff ceasing to receive work he had been receiving from Victoria Police.
Financial loss resulting from reduced motivation to work, including not working for two afternoons per week from the occurrence of these events and continuing.
Sullying of Plaintiff's reputation, inside and outside the profession, including by the First Defendant visiting the Plaintiff's new practice in or around July 2010 and making allegations to the receptionist Carolyn Thomson and/or Dr Kedall Francis that the Plaintiff had stolen money from him, and in the Plaintiff ceasing at the time to receive work he had been receiving from Victoria Police.

The Plaintiff relies on the particulars set out at paragraph 28.I. above.

In the premises, the Plaintiff is entitled to exemplary damages by reason of the said conduct of the Defendants and each of them. The Plaintiff relies on the facts and circumstances alleged in paragraphs 16 - 27 above and the particulars therein.

Malicious Prosecution: has the plaintiff alleged that he was prosecuted?

22 In Salmond & Heuston on the Law of Torts,[19] the authors say of malicious prosecution:

It is an actionable wrong to institute certain kinds of legal proceedings against another person maliciously and without reasonable and probable cause ... The tort is commonly called malicious prosecution, but the word 'prosecution' has a wider meaning than in the criminal law and, conversely, not all proceedings which are technically prosecutions are capable of founding an action for malicious prosecution.[20]

23 The rule which the authors identify is one that refers to the institution of 'certain kinds of legal proceedings'. They describe as the 'chief classes of proceedings to which this rule applies':

(1) malicious criminal prosecutions;

(2) malicious bankruptcy and liquidation proceedings;

(3) malicious arrest;[21]

(4) malicious execution against property;

(5) malicious civil proceedings; and

(6) abuse of the process of the court.

24 In Victoria, powers of arrest may be analysed as those that may be exercised without the involvement of a court and those that require the act of a judicial officer.

25 Section 458 of the Crimes Act 1958 (Vic), for instance, confers a power on all persons 'whether a member of the police force or not' to arrest 'without warrant' any person found 'committing any offence' where the arresting person 'believes on reasonable grounds' that the arrest is necessary for the purposes specified in s 458(a)(i)-(iv). The Crimes Act itself and many other enactments confer powers of arrest expressly on police officers. The expression 'without warrant' is a reference to a form of documentation issued by a judicial officer.

26 Courts have various powers to order the arrest of persons. For example, where a court, by subpoena or otherwise, orders the attendance of a person and, after service of the order, the person defaults in attendance in accordance with the order, a court may make an order for the issue of a warrant for the arrest of the person.[22] Similarly, in cases of contempt of court, a court has power to direct by oral order that the respondent be arrested and brought before the court[23] or to issue a warrant for the arrest of the respondent.[24] Various provisions of the Criminal Procedure Act 2009 (Vic) provide for the arrest of persons as part of the criminal process. See, e.g., ss 6, 12, 25, 81 and 174.

27 Varawa v Howard Smith & Co. Ltd[25] involved proceedings under the Arrest on Mesne Process Act 1902 (NSW). Division 6 of Part 6 of the Supreme Court Act 1986 (Vic) is entitled 'Arrest in pending proceedings'. Section 86 of the Supreme Court Act 1986 (Vic) (which is part of Div. 6) provides: 'Subject to this Division, a person must not be arrested on mesne process in any proceeding'. Section 87 confers power on the Court in certain (and narrow) circumstances to order the arrest and imprisonment of a defendant.[26]

28 In Martin v Watson,[27] Lord Keith said 'the essential feature of malicious prosecution is an abuse of the process of the court.'[28] In Amin v Bannerjee,[29] the Privy Council said:

The action for damages for malicious prosecution is part of the common law of England ... The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose.[30]

29 In Gibbs v Rea,[31] the Privy Council held that 'it is an actionable wrong to procure the issue of a search warrant without reasonable cause and with malice.'[32] Gault J (who delivered the judgment of the majority) said of the tort that it 'is akin to malicious prosecution which is a well-established tort and to the less common tort of maliciously procuring an arrest ... The true foundation of each is intentional abuse of the processes of the court'.[33]

30 In Davis v Gell,[34] Isaacs ACJ used the term action of 'malicious prosecution' 'to include the setting the law in motion in matters sufficiently analogous to a criminal prosecution'.[35]

31 In Beckett v New South Wales,[36] the High Court said:

The wrong for which the tort provides redress is the malicious instigation or maintenance of the prosecution of the plaintiff without reasonable and probable cause. The elements of the tort are set out in A v New South Wales. In summary, the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause.[37]

32 The present case involves an exploration of the element that the prosecution was initiated by the defendant. That element can be seen to comprise two sub-elements: (a) that a prosecution has been initiated and (b) that it was initiated by the defendant.

33 When, then, can it be said that a prosecution has been 'initiated'? In Amin v Bannerjee,[38] the plaintiff and the defendant had been involved in a dispute of a civil character. In the event, the defendant caused a petition of complaint to be filed against the plaintiff in a Police Magistrates' Court. That petition was registered as a charge of cheating under a provision of the Indian Penal Code. Eventually, the magistrate dismissed the complaint. The plaintiff commenced an action for malicious prosecution. The defendants said that the stage of prosecution had not been reached. They said that there was no prosecution until the magistrate said he was satisfied that there was a prima facie case and that a summons would issue requiring the attendance of the plaintiff. In doing so, the defendants relied upon Yates v The Queen.[39] The Privy Council held that a prosecution had been initiated. It said:

From this consideration of the nature of an action for damages for malicious prosecution emerges the answer to the problem before the Board. To found an action for damages for malicious prosecution based on criminal proceedings the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per se found an action for damages for malicious prosecution. If the magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion, and no damage to the plaintiff results.[40]

34 The Privy Council pointed to the fact that the magistrate had not dismissed the complaint until he had taken cognizance of the case and held an inquiry in open court, pursuant to s 202 of the Code of Criminal Procedure. Notice of the inquiry was given to the plaintiff who attended, represented by counsel. It was only after the completion of the inquiry that the magistrate dismissed the complaint.

35 In Casey v Automobiles Renault Canada Ltd,[41] the defendant had laid an information charging the plaintiff with theft. The information had remained in the office of the magistrate for a few weeks. Nothing further was done about it until a letter was received from the informant asking that the information be withdrawn. In the letter it was said that 'at the present time there is insufficient evidence available to proceed with the complaint against (the plaintiff)'.[42] The magistrate then wrote, on the face of the information, 'Withdrawn Dec. 13/60 at request of informant'.[43] The plaintiff brought a claim for malicious prosecution. The claim succeeded at trial. The Supreme Court of Nova Scotia allowed an appeal on the basis that, in law, the prosecution upon which the action was based had never been instituted or commenced. It was held that the information was received by the magistrate in a 'purely ministerial capacity' and nothing was done concerning it in his judicial capacity. The Supreme Court of Canada allowed an appeal and restored the judgment at trial. The judgment of the majority was delivered by Martland J.[44] Referring to Amin v Bannerjee, he rejected the distinction based on the ministerial and judicial functions of a magistrate. He said:

I do not interpret the Mohamed Amin case as authority for the proposition that a case of malicious prosecution can never be founded on the laying of an information, but rather as establishing that the information must be one which discloses an offense with which the magistrate can deal. The essence of the matter, in that case, was not that the magistrate acted 'judicially' by conducting an inquiry, but that, on the evidence, the magistrate had taken cognizance of the complaint. The proceedings in the present case had progressed just as far, so far as the accused was concerned, as they had in the case of Mohamed Amin.[45]

36 Referring to the publicity which had attended the laying of the information, he said:

I am therefore of the opinion ... that, as the respondent had caused everything to be done which could be done wrongfully to set the law in motion against the appellant on a criminal charge, an action for malicious prosecution lay against the respondent, the other required elements of that tort being established.[46]

37 In the present case, there is simply no allegation in the statement of claim that the defendant has invoked or commenced the processes of any court. The statement of claim alleges nothing more than that a complaint was made to the police and that the police arrested the plaintiff. That conduct is insufficient by itself to ground an action in malicious prosecution. That part of the claim has no real prospect of success. In my opinion, the judge was right to dismiss it.[47]

Malicious Prosecution: has the plaintiff alleged that the defendant instigated the prosecution?

38 In his reasons, the judge also dealt with the question whether, if 'any criminal process or procedure' had been set in train, and if that prosecution 'was instigated, undertaken or compelled by Dr Baker'.[48] In doing so, he discussed Dunshea v Ryan,[49] Commonwealth Life Assurance Society Ltd v Brain,[50] Commercial Union Assurance Co of New Zealand Ltd v Lamont[51] and Martin v Watson.[52]

39 The present question must proceed on the assumption that a prosecution has been instigated. The question is whether Baker instigated that prosecution. In dealing with the present question, it seems to me that the judge may have been diverted by his earlier conclusion that there was no prosecution. However, assuming for present purposes that what befell Mutton was a prosecution, it is necessary to determine whether he has alleged sufficient material facts to make good his claim that Baker instigated the prosecution. In Davis v Gell,[53] Isaacs ACJ said that the law 'looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor.'[54] Similarly, in Commonwealth Life Assurance Society Ltd v Brain,[55] Dixon J said that the fact that a prosecutor had an independent discretion was not decisive. He said '(b)ut, if the discretion is misled 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'.[56] Similarly, in Martin v Watson,[57] Lord Keith said '(w)here the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant'.[58]

40 In my opinion, Mutton has made allegations to the effect that Baker initiated the prosecution for the purposes of an action for malicious prosecution.[59]

41 Had the issue of the sufficiency of the allegation of 'instigation' been the only issue in dispute, it is not clear that it could be said that the claim 'has no real prospect of success' within s 63(1) of the Civil Procedure Act 2010 (Vic). However, the matter could not be permitted to proceed without a pleading in proper form.

42 Pleadings clarify and narrow the issues. A defendant accused of any tortious conduct is entitled to have a pleading that makes it plain how it is alleged that each of the elements of the tort is said to have occurred.[60] Similarly, the court is entitled to know which of the allegations pleaded by a plaintiff is disputed by the defendant. Rule 13.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) provides:

(1) Every pleading shall -

(a) contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved;

(b) where any claim, defence or answer of the party arises by or under any Act, identify the specific provision relied on;

(c) state specifically any relief or remedy claimed.

43 The rule expressly distinguishes 'material facts' from ' evidence'. Implicitly, it also distinguishes 'material facts' from all other facts.

44 The statement of claim has the following structure. Paragraphs 14 to 27 are largely in the form of evidence. They are preliminary to paragraph 28 which makes the allegation that the defendants have engaged in malicious prosecution. Annexed to that paragraph are nine paragraphs of particulars. Eight of these paragraphs has cross-references back to what has been said in paragraphs 16 to 27. The ninth such paragraph relates to loss and damage.

45 Paragraphs 14 to 27 are suffused with multiple assertions of fact. Largely, the content of each of those paragraphs expresses the evidence which will be relied upon at trial by Mutton to say that Baker reported his conduct to the police and that, in doing so, Baker not only acted without justification, but did so knowing that he was acting without justification. The paragraphs do not contain the material questions of fact contemplated by r 13.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

46 Apart from what is contained in paragraph 28, no attempt seems to have been made by the pleader to identify the elements of the fact of malicious prosecution and to make precise allegations in respect of each of them. It is true that paragraph 28 does refer to the elements of the tort. But, none of those elements is the subject of a 'material allegation' as contemplated by rule 13.02. On the contrary, each has been raised under the heading of 'Particulars'.

47 It is true that the particulars refer (in their own way) to the essential elements of the cause of action and contain a cross-reference back to earlier paragraphs in the pleading. But, in so far as they have been pleaded as particulars, Mutton has not provided the defendants with any proper opportunity to respond to them: one does not plead to particulars.[61] Because the pleader has placed them in particulars, the defendants are unable to plead to the allegations of loss and damage because it has not been pleaded as part of the material allegations that together comprise the action for malicious prosecution.

48 The defendants have filed a defence dated 13 August 2013. However, apart from making the occasional admission, the defence simply impeaches each of these paragraphs as embarrassing and likely to prejudice the fair trial of the proceeding. The object of the pleading rules has been defeated; one cannot know what matters are in issue.

(3) Without limiting paragraph (1), every pleading shall contain particulars of any -

(a) misrepresentation, fraud, breach of trust, wilful default or undue influence; or

(b) disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice -

which is alleged.

As is self-evident, 'malice' is an essential element of the action for malicious prosecution. It is not clear where one is to find the particulars mandated by rule 13.10(3).

50 As the proposed amended pleading stands, the allegation of malice is contained in paragraph 22A. That paragraph affects to be a conclusion arising '(i)n these circumstances'. Had the matter been permitted to proceed, it would be necessary for Mutton to have given clear particulars of the circumstances that he proposed to prove at trial which, if proven, would have made a finding of malice open on the evidence.

51 The applicant has abandoned his application for leave to appeal the direction that he file and serve a new pleading with respect to injurious falsehood. No doubt, when that new pleading is prepared, close attention will be given to the analysis of the elements of the tort found in the judgment of Gummow J in Palmer Bruyn & Parker Pty Limited v Parsons,[62] and that of Kirby J in the same case.[63]

(a) it was proper for the judge to dismiss the claim for malicious prosecution. Mutton did not allege (because he could not allege) that the processes of a court had been used to arrest or prosecute him;

(b) had it not been proper to dismiss the claim, the pleading of the claim for malicious prosecution should have been struck out (with leave to replead) on the grounds that it was embarrassing and likely to prejudice the fair trial of the proceeding.

53 For the reasons given above, I would dismiss the application for leave.

54 I agree with Santamaria JA that the application for leave should be dismissed for the reasons he gives. I would emphasise the following matters:

1. The foundation of the tort of malicious prosecution is 'intentional abuse of the processes of the court'.[64]

2. There are cases which have extended the tort to circumstances where there was court involvement in what might be seen as the administrative or investigative stage of a matter,[65] but no case has been cited where the tort has been extended to a circumstance where there has been no court involvement whatsoever.

3. Extension of the tort to a circumstance where there has been no court

proceeding or step of any kind, is inconsistent, in my view, with the elements of the tort[66] and with the cases analysing those elements, in particular with the analysis concerning the identification of who is the prosecutor,[67] concerning the required state of mind of the prosecutor at the time of institution of the prosecution,[68] and concerning what constitutes termination of the prosecution.[69]

4. Observations in Amin v Bannerjee and Casey v Automobiles Renault Canada Ltd which are relied upon by counsel for Mutton, cannot be divorced from their context. In both those cases steps involving a court had been taken. Further, in Amin v Bannerjee, the review of the authorities,[70] the statement as to the 'foundation' of the action,[71] and the observations as to how far some courts in India had gone,[72] all confirm rather than contradict the necessity of there being some court process or step. Likewise, in Casey v Automobiles Renault Canada Ltd the 'essence' of the matter was said to have been the filing of an information which was within a magistrate's jurisdiction.[73]

55 The Court must be cautious in striking out claims under r 23.01. Even if it is said that an issue is purely a question of law, the Court should not strike out a claim on this basis if it is conceivable that some factual matter could emerge at trial which might alter the analysis.[74] But I think this is a case where, notwithstanding the need for argument,[75] it has been demonstrated that the malicious prosecution claim has no real prospect of success.

[1] Mutton v Baker & Anor (Ruling) [2013] VCC 1871 ('Reasons').

[2] At the time that reasons were delivered, no order seems to have been authenticated. On 18 February 2014, the primary judge made formal orders. He vacated earlier orders made on 6 December 2013 and 22 January 2014. He also made the following orders:

2. The plaintiff's statement of claim insofar as it relates to the claim for malicious prosecution, is dismissed.

3. The plaintiff file and serve a further amended statement of claim as to the claim for injurious falsehood, in accordance with the ruling of the 6 December 2014.

[3] Reasons [23]. In the reasons, the reference in this paragraph is to 'the complaint by Dr Mutton'. The reference is an error. Before the Court of Appeal, the parties were agreed that the judge intended to say 'the complaint by Dr Baker '.

[13] Ibid 129. See also Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91 (Dixon J).

[14] Following the recommendations of Sir Harry Woolf in Access to justice: final report to the Lord Chancellor on the civil justice system in England and Wales (London: HMSO, July 1996), similar amendments to summary procedure have been made elsewhere in the common law world. The various statutes use different formulae. (Below, the respective criteria have been emphasized.) Thus, in England and Wales, r 24.2 of the Civil Procedure Rules UK deploys the criterion of 'no real prospect of success'. It provides: 'The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if - (a) it considers that - (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.' See Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 260 [94]-[95] (Lord Hope of Craighead). Section 31A of the Federal Court of Australia Act 1976 (Cth) provides: (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. See also: Federal Court Rules 2011 (Cth), r 26.01. See Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118, 132 (French CJ and Gummow J), 141 (Hayne, Crennan, Kiefel and Bell JJ).

[18] See, for example, footnote 18 of the Reasons, which refers to 'a Proposed Amended Statement of Claim provided to the Court at the time of hearing'. For that reason, the matter probably proceeded as an application to file an amended statement of claim in the form proposed, and that application was opposed on the grounds of futility. In other words, it was contended that leave should not be granted because, if the proposed pleading were filed, it would itself be struck out pursuant to either r 23.01 or 23.02. None of this affects the substance of the matter.

[19] R F V Heuston and R A Buckley, Salmond & Heuston on the Law of Torts (Sweet & Maxwell Ltd, 21st ed, 1996).

[21] Each of these is a proceeding involving a use of the proceedings of a court for a collateral purpose. 'Malicious arrest' is to be distinguished from false imprisonment. The action for malicious arrest involves the improper use of the power of a court to effect an arrest. See Roy v Prior [1971] AC 470; Varawa v Howard Smith & Co. Ltd [1911] HCA 46; (1911) 13 CLR 35.

[22] Evidence Act 2008 (Vic) s 194; County Court Civil Procedure Rules 2008 (Vic) r 66.06 (Attendance of natural person); r 66.07 (Attendance of Corporation).

[26] On the power of arrest as an adjunct to the powers once associated with the writ ne exeat colonia (now conferred by r 57.10 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)), see Talacko v Talacko (No 2) (2009) 25 VR 613 (Habersberger J).

[33] Ibid 797C-D. In Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, Mason CJ, Dawson, Toohey and McHugh JJ discussed an objection to the jurisdiction to grant a permanent stay for abuse of criminal process. They said (at 520): 'Other objections to the exercising of the jurisdiction arising from the availability of other remedies in the form of contempt, malicious prosecution and the tort of collateral abuse of process have not prevailed. Neither the action for malicious prosecution nor the action for collateral abuse offers the prospect of early termination of the subject proceedings. An action for malicious prosecution cannot be brought until those proceedings have terminated.' See also Batistatos v RTA (NSW) [2006] HCA 27; (2006) 226 CLR 256, 263.

[36] (2013) 248 CLR 432. In Beckett, the plaintiff had been tried on an indictment containing nine counts. She was convicted in respect of eight of them. She was sentenced to a term of imprisonment. She had served most of the non-parole period when her appeal against conviction was allowed in part. A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 concerned the elements of absence of reasonable cause and malice; at [2] and [164]. In A, the plaintiff was charged with conduct in contravention of the Crimes Act 1900 (NSW). Subsequently, at a committal hearing, a magistrate discharged the plaintiff on both charges.

[37] (2013) 248 CLR 432, 438[4]. The plaintiff must also prove damage. In Savile v Roberts [1792] EngR 2096; (1698) 1 Ld. Raym., 374, 378; [1792] EngR 2096; 91 ER 1147, 1149-1150, Holt CJ identified the relevant forms of damage: namely (1) 'damage to a man's fame, as if the matter whereof he is accused be scandalous'; (2) 'where a man is put in danger to lose his life, or limb, or liberty'; 3) 'damage to a man's property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused'. See also Quartz Hill Consolidated Gold Mining Co. v Eyre (1883) 11 QBD, 674, 683, 689; R v MacFarlane [1923] HCA 39; (1923) 32 CLR 518, 546 (Isaacs J). For a discussion of the meaning of Holt CJ's categories, see Little v Law Institute of Victoria (No. 3) [1990] VicRp 25; [1990] VR 257.

[40] Amin v Bannerjee [1947] AC 322, 331.

[44] The majority comprised Cartwright, Martland, Ritchie and Spence JJ. Judson J dissented**.**

[46] Ibid 57. The law in the United States appears to be to the same effect. Prosser and Keeton on Torts Fifth Edition (1984) say (at 871-872):

The proceeding must, however, have been commenced. It is not enough that a mere complaint has been made to the proper authorities for the purpose of setting prosecution in motion, where no official action ever has been taken, or that evidence has been presented to a grand jury which refuses to indict. On the other hand, it usually is held to be sufficient that a warrant has been issued for the plaintiff's arrest, although it never has been served. The initial step is of course a matter of the procedure of the particular jurisdiction; and where prosecution is begun by an indictment, or an information filed by the prosecuting attorney, it seems clear that this should be enough, since it constitutes official action and sets the law in motion.

[47] During oral submissions, counsel for Mutton said that, by reporting the matter to the police, Baker had either 'set the law' or had 'set the machinery of justice' in motion or had 'set in train a process which could lead to a proceeding being brought in court'. So much can be accepted. However, the requirement of the tort is more precise than any of these terms or phrases would suggest. It will be observed that, in the amended pleading it is alleged that Mutton was arrested. The truth of that allegation is assumed in the present application. However, people can be arrested in many different circumstances. It is only when they have been arrested pursuant to judicial order or warrant that a prosecution has been instigated for the purposes of the tort.

[56] Ibid 379. See also Commercial Union Assurance Co of New Zealand Ltd v Lamont [1988] NZCA 247; [1989] 3 NZLR 187.

[58] Ibid 86H-87A (Lord Slynn, Lloyd, Nicholls and Steyn agreed with Lord Keith).

[59] The test seems to be the same in an action for false imprisonment. 'If a private person is active in promoting and causing the false arrest and imprisonment, and uses police officers to achieve that purpose, that person is accountable at law': Weston v Indigo Shire Council [1995] (Unreported, Supreme Court of Victoria Appeal Division, Winneke P, Phillips and Hayne JJA, 10-11 October 1995) 7 (Winneke P with whom Phillips and Hayne JJA agreed) applying Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597, 629.

[60] This is particularly so in the case of the intentional torts of malicious prosecution and injurious falsehood.

[61] Turner v Bulletin Newspaper Co Pty Ltd [1974] HCA 25; (1974) 131 CLR 69, 80 (Barwick CJ).

[63] Ibid 425 [114]. See also Hamod v New South Wales [2011] NSWCA 375, [692] (Beazley JA); Whitbread v Rail Corporation NSW [2011] NSWCA 130, [201]-[205] (Whealy JA).

[64] Gibbs v Rea [1998] UKPC 3; [1998] AC 786, 797D and see also Amin v Bannerjee [1947] AC 322, 330; and Martin v Watson [1996] 1 AC 74, 88.

[65] Amin v Bannerjee [1947] AC 322 and Casey v Automobiles Renault Canada Ltd [1965] SCR 607; (1965) 54 DLR (2d) 600.

[66] As set out in A v New South Wales [2007] HCA 10; (2007) 230 CLR 500, 502-503 and Beckett v New South Wales (2013) 248 CLR 432, 438.

[67] Martin v Watson [1996] 1 AC 74, 80-87.

[68] A v New South Wales [2007] HCA 10; (2007) 230 CLR 500, 520-532 and Beckett v New South Wales (2013) 248 CLR 432, 438.

[69] Beckett v New South Wales (2013) 248 CLR 432, 439, 453.

[70] Amin v Bannerjee [1947] AC 322, 328-30.

[73] Casey v Automobiles Renault Canada Ltd [1965] SCR 607, [51]-[52].

[74] See for example Howard v Australian Jet Charter Pty Ltd (1991) 6 ANZ Ins Cas 77 and Executor Trustee Aust Ltd v Peat Marwick Hungerfords [1995] SASC 4918; (1994) 15 ACSR 556.

[75] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130.

Arrest on Mesne Process Act 1902(NSW)

Court Civil Procedure Rules 2008

Court (General Civil Procedure) Rules 2005

Mutton v Baker & Anor [2014] VSCA 43

At a glance

Court

Decision date

Before

Source

Judgment (176 paragraphs)

Mutton v Baker & Anor [2014] VSCA 43 (19 March 2014)

Parties

Legislation Cited (7)

Cases Cited (15)