It is also an appeal from the Chamber Judge's order that the appellant make and serve on the respondent's solicitors within 28 days a list of documents as required by rule 214 of the Uniform Civil Procedure Rules. It seems the appellant has already complied with that order.

The respondent's action is an unusual one. The respondent company is developer of a housing estate on land which shares a common boundary with property owned by the appellant and Mrs Stubberfield. The Stubberfields appealed to the Planning and Environment Court in respect of council approval given to the respondent company for the development of that land.

The respondent company claims loss and damage suffered subsequent to 1 July 1993 when the appellant continued to prosecute an appeal to the Planning and Environment Court, despite the dismissal of the appeal in the Court of Appeal. See John Richard Stubberfield v. Redlands Shire Council and Paradise Grove Pty Ltd (1993) QPLR 370. The damages claimed are additional interest costs caused by the delay allegedly occasioned by the appellant's action.

On 17 June 1994, his Honour Judge Skoien, sitting in the Planning and Environment Court gave a ruling in respect of the matter and found the continuance of Mr Stubberfield's appeal frivolous and vexatious under s.7.6 of the Local Government Planning and Environment Act 1990.

The respondent's action has two parts. The first is for malicious prosecution. The pleadings do not, as they stand at the moment, disclose a cause of action for malicious prosecution. That tort necessitates the bringing of a criminal charge; that is an essential element of the cause of action. See Butler v. Simmonds Crowley & Galvin [1999] QCA 475, [7].

The statement of claim, so far as it relies upon any claim of malicious prosecution, does not and does not appear to be able to establish that tort.

The respondent plaintiff also claims damages on the basis of an abuse of process. This tort was first established in Grainger v. Hill [1838] EngR 365; [1838] 4 Bing NC 212, 132 ER 769 and was explained by Priestly JA in Spautz v. Gibbs (1990) 21 NSWLR 230 at 270-280.

The tort arises out of the misuse of the court's process, no matter how properly obtained, for any purpose other than which it was designed to serve. It is immaterial whether the action commenced was founded on reasonable cause or even terminated in favour of the instigator. The gravamen of the offence is the use of the action for improper purposes. See Fleming, The Law of Torts, 8th Ed, 622-624.

In addition to the improper purpose, there must be some overt act or threat distinct from the proceedings themselves in furtherance of that purpose, for were it otherwise, any legal process could be challenged on account of its hidden agenda.

Here, the appellant's actions in the proceeding in the Planning and Environment Court seem to have had no purpose other than that for which the proceedings were designed, that is, to promote the appellant's cause before that Court by challenging the lawfulness of the council approval, even if this was done in a frivolous and vexatious manner.

There are no facts pleaded in the statement of claim in its present form that support the claim of the tort of abuse of process.

For those reasons, I would allow the appeal. I am conscious of the fact that the application to the Chamber Judge was not argued on this basis. Nevertheless, the pleadings are in such a state that it would be wasteful both of time and money not to allow the appeal.

I would allow the appeal and strike out the statement of claim. I would vacate the orders made below and would make no orders as to costs of this appeal or of the proceedings below.

DUTNEY J: I agree. I cannot see, on the present material, how a claim for abuse of process can succeed if its foundation is, as it has been suggested, the ultimate withdrawal of the appeal to the Planning and Environment Court on 15 June 1994 because this followed the appellant being unsuccessful in an argument before Skoien DCJ as to the effect of the earlier Court of Appeal decision in the same matter. The withdrawal is consistent with its having been rendered pointless by the outcome of the legal argument.

Since abuse of process depends on the subjective intention of the appellant, the weakness of the case does not, of itself, assist the respondent. Nonetheless, because we have not heard full argument, I am prepared to allow the respondent time to consider its position and replead if it is able.