New South Wales Supreme Court CITATION : Johnston v ANZ Banking Group & Ors [2001] NSWSC 593 CURRENT JURISDICTION: Common law Division FILE NUMBER(S) : SC 20553 of 2000 HEARING DATE(S) : 5 July 2001 JUDGMENT DATE : 17 July 2001 Daryl Lindsay Johnston (Plaintiff) v PARTIES : Australia and New Zealand Banking Group Ltd (First Defendant) John Edward Star (Second Defendant) Stuart Karim Ariff (Third Defendant) JUDGMENT OF : Master Malpass Mr A T McInnes QC (Plaintiff) COUNSEL : Mr J E Thomson (First Defendant) N/A (Second and Third Defendants) Weatherly & Bartram (Plaintiff) SOLICITORS : Coudert Brothers (First Defendant) N/A (Second and Third Defendants) CATCHWORDS : Strike out application - malicious prosecution - abuse of process - pleading deficiencies. LEGISLATION CITED : Supreme Court Rules 1970, Pt 15 r 7 and r 26. CASES CITED : N/A DECISION : See Paragraph 17. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS TUESDAY 17 JULY 2001 20553 of 2000 DARYL LINDSAY JOHNSTON v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD & ORS JUDGMENT 1 Proceedings were commenced by Statement of Claim filed on 17 November 1999. It names three defendants. At all material times, the plaintiff was a director and secretary of certain companies. The first defendant held securities over the assets of the companies. Pursuant to the securities, the first defendant appointed the second defendant as receiver and manager of the companies. The third defendant was an employee of the second defendant. 2 On 6 April 2001, Master Harrison struck out the Statement of Claim for pleading deficiencies. Leave was given to file an Amended Statement of Claim. An Amended Statement of Claim was filed on 4 May 2001. 3 The second and third defendants have pleaded to the Amended Statement of Claim. The first defendant now seeks to have the allegations made against it struck out. 4 Both parties have prepared written submissions. In addition, there has been oral submission to supplement this material. This application can be disposed of without the need to become embroiled in the extensive detail generated by the submissions. 5 Broadly speaking, the first defendant points to what it says are numerous deficiencies in the Amended Statement of Claim. Broadly speaking, the plaintiff responds by saying that these complaints are matters properly the subject of a request for particulars. 6 Counsel for the plaintiff has said that the pleading purports to propound two causes of action. The first is that of malicious prosecution. The second is that of abuse of process. It is said that both causes of action are alleged against all three defendants. There are claims for aggravated and exemplary damage together with special damages. It is said that these claims are made as against all defendants. 7 The plaintiff looks to certain proceedings as the foundation for the alleged causes of action. There was a police prosecution brought against the plaintiff in substance for trespass upon the property (Lilydale). These proceedings were dismissed on 6 August 1998. Later, both the second and the third defendants sought and obtained an ex parte Interim Apprehended Violence Order against the plaintiff. 8 The first defendant was not the party who instituted any of the proceedings. It is common ground that the causes of action which are pleaded in the Amended Statement of Claim can only be propounded on the basis that the first defendant caused the proceedings to be instituted. The authorities suggest that the defendant must have been "actively instrumental" in the institution of the proceedings. 9 In the case of malicious prosecution, absence of reasonable and probable cause and malice inter alia are elements of the cause of action. In the case of abuse of process, the gist of the tort lies in the misuse of process for any purpose other than that which it was designed to serve (the process has been perverted to serve some extraneous purpose). 10 It is now convenient to briefly look at the structure of the pleading. Paragraphs 1 - 5 deal with the parties themselves. Paragraphs 6 - 18 appear to have particular relevance to the allegations of malicious prosecution. Paragraphs 19 - 21 and 25 appear to have particular relevance to the allegations of abuse of process. At least in part paragraph 22 might be seen as containing the allegations of loss and damage relevant to all causes of action. The pleading does not contain any paragraph 23 or 24. Paragraph 22 contains particulars. These are not particulars of loss and damage. The particulars of aggravated and exemplary damage together with the particulars of special damages appear at the end of the pleading following the particulars provided in respect of paragraph 25. 11 Paragraph 11 inter alia alleges that the first defendant lodged complaints to the police about certain matters (inter alia that he was guilty of entering inclosed lands and attempting to illegally enter a dwelling). Paragraph 12 inter alia alleges that the first defendant made untrue complaints to the police about certain matters. Paragraph 13 alleges that the police did not intend to take action on any of the complaints. Paragraph 14 alleges that the first defendant by its solicitor wrote a letter making accusations or implications that were unfounded, misleading and untrue. Paragraph 16 alleges that as a result of the complaints and the letter, the police, in reliance on the untrue allegations made to them were led into prosecuting the plaintiff. It further alleges that there would not have been any prosecution if the letter containing the untrue statements had not been written and sent to the police and that the prosecutions were based on the false allegations of trespass. Paragraph 18 inter alia alleges that the first defendant's actions outlined in paragraphs 11, 12 and 14 were malicious acts intended to result in the prosecution of the plaintiff. 12 Paragraph 19 inter alia alleges that the second defendant at the behest of the first defendant obtained an ex parte Interim Apprehended Violence Order. Paragraph 20 inter alia alleges that the third defendant at the behest of the first defendant obtained an ex parte Interim Apprehended Violence Order. Paragraph 21 alleges that the said orders were obtained by the second and third defendants giving false evidence to the court. Paragraph 25 inter alia alleges that the first defendant's conduct in relation to both the police and the apprehended violence orders was to prevent the plaintiff gaining certain knowledge. 13 The Amended Statement of Claim does not comply with the rules of court (inter alia Pt 15 r 7). It seems to me to have numerous pleading deficiencies. 14 By way of general comment a number of observations may be made. It is a confusing document. There are pleading inconsistencies and lack of precision. It is embarrassing in a pleading sense. 15 A function of a pleading is to define and narrow the real issues. It seems to me that this pleading has the effect of throwing up a multiplicity of false and/or irrelevant issues. Further, it fails to plead all of the elements of the causes of action sought to be alleged and/or the real questions to be determined in deciding the proceedings. 16 The first defendant seeks relief pursuant to Pt 15 r 26 of the Supreme Court Rules 1970. In my view, the relevant onus has been discharged. It seems to me that the many pleading deficiencies justify the granting of the relief sought by the first defendant. Further, it is in the interests of both of the parties and of the court that the pleading deficiencies be remedied. 17 Accordingly, those parts of the Statement of Claim that relate to the first defendant are struck out. Leave is given to the plaintiff to file a Further Amended Statement of Claim. Any such pleading is to be filed within 28 days. The plaintiff is to pay the costs of the application. ********** Last Modified: 07/18/2001 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.