NSW Caselaw
New South Wales Court of Appeal
CITATION: JOHNSTON v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD & ORS [2006] NSWCA 218 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 2 June 2006
JUDGMENT DATE: 7 August 2006
JUDGMENT OF: Giles JA at 1; Santow JA at 2; Basten JA at 3
DECISION: (1) Appeal allowed; (2) Order of primary judge dismissing the proceedings be set aside; (3) Orders of the primary judge with respect to the costs of the application before him be set aside; (4) In lieu thereof; (a) grant leave to the Appellant to file a further amended statement of claim in the form in which it was provided to this Court with amendment of clauses 40 and 41 to comply with these reasons; (b) there be no order of the costs of the proceedings before the primary judge; (c) the Respondents pay the Appellant's costs of the proceedings in this Court; (5) The Respondents have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise so entitled
CATCHWORDS: MALICIOUS PROSECUTION – pleadings – elements of the tort – who is the prosecutor – what is the required belief of the prosecutor – whether defects in pleading incapable of correction – "rolled up" pleadings
LEGISLATION CITED: Inclosed Lands Protection Act 1901 (NSW), s4 Real Property Act 1900 (NSW), s57
A v State of New South Wales (2005) 63 NSWLR 681 Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 Danby v Beardsley (1880) 43 LT 603 Davis v Gell (1924) 35 CLR 275 Evans v London Hospital Medical College [1981] 1 WLR 184 CASES CITED: First Valley Bank of Los Fresnos v Martin 144 SW 3d 466 (Tex 2004) Johnston v ANZ Banking Group Ltd & Ors [2004] NSWSC 1250 Johnston v Australia New Zealand Banking Group Ltd & Ors [2005] NSWCA 383 Mahon v Rahn (No. 2) [2001] 1 WLR 2150 Martin v Watson [1996] 1 AC 74 Sharp v Biggs (1932) 48 CLR 81 The Bank of Eureka Springs v Evans 109 SW 3d 672 (Ark 2003)
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