New South Wales Supreme Court CITATION : Abram v NAB Ltd [2002] NSWSC 116 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20155/2000 HEARING DATE(S) : 26 February 2002 JUDGMENT DATE : 4 March 2002 Joseph Abram (Plaintiff) PARTIES : National Australia Bank Limited (Defendant) JUDGMENT OF : Master Harrison Joseph Abram (Plaintiff in person) COUNSEL : Mr P M Wood (Defendant) Mr McCarthy, SOLICITORS : Henry Davis York (Defendant) CATCHWORDS : Summary judgment - malicious prosecution LEGISLATION CITED : Supreme Court Rules - Part 15 r 26; Part 13 r 5 Supreme Court Act - -s 88 Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Dey v Victoria Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : Webster & Anor v Lampard (1993) 177 CLR 598 Associated Securities Finance Ltd v Harrow Properties Pty Limited (NSWSC, 26 May 1977) Little v Law Institute of Victoria (No 3) [1990] VR 257 Mitchell v John Heine & Son Limited (1938) 38 SR(NSW) 466 Grimwade v State of Victoria (1997) ATR 81-422 DECISION : (1) The first defendant's notice of motion filed 27 October 2001 is dismissed; (2) The first defendant is to pay the plaintiff's costs as agreed or assessed. - 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON MONDAY, 4 MARCH 2002 20155/2000 - JOSEPH ABRAM v NATIONAL AUSTRALIA BANK LIMITED & ANOR JUDGMENT (Summary judgment; malicious prosecution) 1 MASTER: By notice of motion filed 27 November 2001 the first defendant seeks an order that the amended statement of claim filed 15 November 2001 be dismissed pursuant to Part 13 r 5 of the Supreme Court Rules (SCR) or alternatively that the proceedings be struck out pursuant to Part 15 r 26 of the SCR. The plaintiff is an articulate self-represented litigant. The first defendant is the National Australia Bank Limited. The second named defendant, the State of New South Wales is no longer a party to these proceedings. The first defendant relied on the affidavit of John David Evans sworn 26 November 2001. 2 The short history of the matter is as follows. (1) On 1 May 2000, the statement of claim was filed. (2) On 9 May 2000 the first defendant filed its notice of appearance. (3) On 13 September 2000, the first defendant filed a notice of motion seeking an order that the amended statement of claim be dismissed pursuant to Part 13 r 5 of the SCR , or alternatively, that the amended statement of claim be struck out pursuant to Part 15 r 26 of the SCR . It relied on the affidavit of Cameron John Cheetham sworn 13 September 2000 in support of its motion. (4) On 30 October 2000, the plaintiff filed a notice of motion seeking an order that leave be granted to amend his statement of claim filed 1 May 2000, and relied on his affidavit sworn 27 October 2000. (5) On 20 February 2001, Master Malpass made the following orders: "I dismiss the notice of motion and order the plaintiff to pay the costs of that notice of motion. Looking at the two notices of motion, which have been relied on by the defendants, I order that the statement of claim filed on 1 May 2000 be struck out. The matter will be placed in the Registrar's list on 23 April 2001 for the purposes of dealing with any application for leave to amend which Mr Abram wishes to make on that day, together with dealing with the balance of the two notices of motion which have been filed by the defendants. I refer all matters for hearing to the Registrar. I direct the plaintiff to serve the proposed amended statement of claim on each defendant on or before 4pm on 9 April 2001. The plaintiff is to pay the costs to date of the notices of motion filed respectively by each defendant." (6) On 30 April 2001, the plaintiff swore and filed an affidavit in support of his notice of motion filed 30 October 2000. (7) On 8 May 2001, first defendant filed an affidavit of Cameron John Cheetham sworn 7 May 2001, in further support of its notice of motion filed 13 September 2000 and seeks to rely on a further affidavit of Cameron John Cheetham sworn 8 May 2001. (8) On 28 May 2001, Assistant Registrar Howe made the following orders: "1. The application for leave to amend the statement of claim is dismissed. 2. The plaintiff is to pay the defendants' costs of the application. 3. The plaintiff is to pay the first defendant's costs of its motion of 13 September 2000 and the second defendant's costs of its motion of 26 September 2000. 4. The proceedings to remain struck out." (9) On 25 June 2001, the plaintiff filed a notice of motion seeking orders that the court review the orders made by Assistant Registrar Howe on 28 May 2001. The notice of motion was returnable on 9 July 2001. (10) On 18 October 2001, Taylor AJ made the following orders: "1. As between the applicant/plaintiff and the respondent/second defendant the second defendant's notice of motion is dismissed. 2. Order the applicant/plaintiff to pay the respondent's/second defendant's costs of the motion. 3. The decision of Assistant Registrar Howe of 28 April 2001 is set aside. 4. Direct the applicant file proposed amended statement of claim within 28 days. 4. The applicant/plaintiff's Notice of Motion is otherwise dismissed. 5. Order the applicant/plaintiff pay the respondent's/first defendant's costs of his and its Notice of Motion." (11) On 15 November 2001 the plaintiff filed, pursuant to the orders of Taylor AJ, an amended statement of claim. The law on summary judgment 3 Part 15 r 26 provides: "(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 pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 4 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 5 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 Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 6 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." 7 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'." 8 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous test stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 9 According to Rolfe AJA in Zarb: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." The amended statement of claim 10 The amended statement of claim pleads the tort of malicious prosecution arising out of contempt proceedings. On 6 August 1993, the National Bank (first defendant in these proceedings) charged the plaintiff and Mr R M Hastie with contempt. On 10 August 1994, O'Keefe CJ CommD convicted the plaintiff with contempt and ordered him to perform community service for 100 hours. By 25 March 1995, the plaintiff completed 100 hours community service. 11 On 1 May 1997 the Court of Appeal set aside the orders of O'Keefe CJ CommD and ordered that the charge of contempt against the plaintiff be dismissed. 12 The proceedings for malicious prosecution cannot be summarily dismissed under Part 13 because of s 88 of the Supreme Court Act 1970 (SCA). 13 Section 88 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. 14 In Associated Securities Finance Ltd v Harrow Properties Pty Limited (NSWSC, 26 May 1977, unreported) Lee J 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." 15 Under s 88 SCA on the authority of Harrow, summary judgment under Part 13 is not permitted. This part of the first defendant's claim fails. However, the first defendant can rely upon Part 15 r 26 of the SCR. 16 The first defendant submitted that the amended statement of claim commences by pleading the tort of malicious prosecution but then at paragraphs 10.1 to 10.9, 13 and 14.1.3 (to the end of that paragraph) takes a detour. At paragraph 10 collateral purpose, which is an element of the tort of abuse of process, is pleaded. The first defendant submitted that the interweaving of the tort of abuse of process with malicious prosecution renders the pleading confusing and embarrassing. The first defendant further submitted that the tort of malicious prosecution is not properly pleaded. Thirdly, on the issue of whether the plaintiff should be given a further opportunity to replead, the first defendant submitted that the plaintiff has already been given three chances and when the history of the matter (referred to earlier in this judgment) is taken into account, leave should be refused. 17 The plaintiff stated that it was not his intention to plead the tort of abuse of process because he accepted counsel's advice that it was statute barred. The plaintiff informed the court that his pleading was confined to the tort of malicious prosecution. According to the plaintiff the extraneous matters are pleaded because they form the evidence that he will be relying upon at trial. He does not wish to take the first defendant by surprise. Malicious prosecution 18 The elements that the plaintiff must plead and prove are firstly, that the proceedings are actionable; secondly, that the proceedings complained of were instituted by the defendants; thirdly, that the defendants instituted the proceedings maliciously; fourthly, that the defendants acted without reasonable and probable cause; and fifthly that the proceedings were terminated in the plaintiff's favour. - see Little v Law Institute of Victoria (No 3) [1990] VR 257 at 262 and 265; Mitchell v John Heine & Son Limited (1938) 38 SR (NSW) 466 at 469 per Sir Frederick Jordan CJ. 19 There is no dispute that all elements except the fourth one, namely that the defendant's acted without reasonable cause, have been properly pleaded. The plaintiff submitted that the facts that give rise to the element of without reasonable and probable cause are wide. The contentious paragraphs of the amended statement of claim are 10, 13 and 14. I shall reproduce paragraph 10. 20 It states: "The first defendant maliciously and without reasonable and probable cause commenced and continued to conviction the prosecution of the plaintiff for contempt: 10.1 to distract, prevent or stop the plaintiff from assisting Mr Hastie in his civil proceedings against the first defendant in the Supreme Court; 10.2 to put pressure on Mr Hastie to settle, in favour of the first defendant, the proceedings in the Supreme Court, brought by Mr Hastie against the first defendant, to confirm that Mr Hastie held a valid lease to the said property at Mulgrave, to thus facilitate for the first defendant a quick sale of the said property at Mulgrave as a vacant property; 10.3 to put pressure on Miss Benecke to settle, in favour of the first defendant, her application for Special Leave to Appeal to the High Court of Australia against the first defendant's order of possession to the said property of Miss Benecke at Mulgrave and other property of Miss Benecke affected by the orders; 10.4 to distract, prevent or stop from continuing and/or put pressure on the plaintiff and indirectly on his wife to settle, in favour of the Bank of New Zealand (then owned by the first defendant) their proceedings against Bank of New Zealand in the Federal Court of Australia. Those proceedings involved the plaintiff's family home; 10.5 to put pressure indirectly on the plaintiff's wife, Mrs Abram to surrender her rights and settle, in favour of the Bank of New Zealand (then owned by the first defendant), the proceedings against the Bank of New Zealand in the Federal Court of Australia; 10.6 to put pressure on the plaintiff to settle, in favour of the first defendant, the proceedings before the Local Court at Penrith NSW between the plaintiff and the first defendant; 10.7 to punish and make an example of the plaintiff because he was a member of the Financial Victims Association; 10.8 to "break" the plaintiff mentally, socially and financially; 10.9 to facilitate for the first defendant to be able to rid itself of the plaintiff, whom the first defendant viewed as a nuisance and/or threat to the first defendant as the plaintiff did have proceedings against the first defendant and Bank of New Zealand (which the first defendant owned) and the plaintiff was supporting other including Mr Hastie and Miss Benecke in their proceedings against the first defendant." 21 In Mitchell at 469-470, Sir Frederick Jordan CJ outlined the requirements of what has to be proved by a plaintiff to show that the defendants lacked reasonable and probable cause. "In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist: 1. The prosecutor must believe that the accused is probably guilty of the offence. 2. This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. 3. The information, whether it consisted of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. 4. This belief must be based upon reasonable grounds. 5. The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty." 22 The Court of Appeal decision in Mitchell was cited with approval in Grimwade v State of Victoria (1997) ATR 81-422. Harper J stated: "the plaintiff must, if he is to have any hope of ultimate success in his claim to have been maliciously prosecuted, call evidence of the kind described by Sir Frederick Jordan. The defendant is entitled to be provided, by way of particulars, with an outline of that evidence. [Unless those particulars are provided] [t]he Court should accordingly refuse to allow the claim in malicious prosecution to go ahead,…" 23 In Little Ormiston J at 276 stated: "Whatever views one may have formed as to the likelihood of these allegations being established, the issue here is whether it has been demonstrated that the plaintiff could not prove at trial that the defendants had no genuine belief that they had reasonable and probable cause for their actions. There was no evidence upon which the court could have reached a conclusion at present, nor was it incumbent on the plaintiff to prove the allegations at this stage of the proceeding." 24 Paragraph 13 is headed "Particulars of Exemplary Damages" and pleads the acts that give rise to a claim for exemplary damages. Paragraph 14 gives particulars of malice. 25 It is my view that the plaintiff has outlined the evidence he wishes to rely upon to establish without reasonable and probable cause. It is for the reasons outlined in paragraph 13 that the plaintiff alleges that the first defendant commenced and maintained the contempt proceedings. In accordance with Little, the issue of without reasonable and probable cause is to be determined at trial. In the exercise of my discretion the plaintiff's claim should not be dismissed and should be allowed to go to trial. It is my view that the first defendant will not be taken by surprise and is aware of the case it has to meet. The allegations made against the first defendant are serious ones and should go to trial expeditiously. Costs are discretionary. Normally costs follow the event. The first defendant is to pay the plaintiff's costs as agreed or assessed. 26 The court orders: (1) The first defendant's notice of motion filed 27 October 2001 is dismissed. (2) The first defendant is to pay the plaintiff's costs as agreed or assessed. ********** Last Modified: 03/05/2002 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.