New South Wales Supreme Court CITATION : Christopher George Murtough v Betham & Anor [2004] NSWSC 753 HEARING DATE(S) : 07/08/03, 10/10/03, 27/02/04, 06/08/04 JUDGMENT DATE : 18 August 2004 JUDGMENT OF : Buddin J DECISION : Notice of Motion dismissed with costs. CATCHWORDS : Notice of Motion - application for summary dismissal - malicious falsehood - collateral abuse of process. Defamation Act 1952 (UK) LEGISLATION CITED : Solicitors Act 1974 (UK) Supreme Court Rules Butler v Simmonds Crowley & Galvin [2000] 2 Qd R 252 De Beers Abrasive Products Ltd & Others v International General Electric Co of New York Ltd & Anor [1973] 1 WLR 972 General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gray v Avadis [2003] EWHC 1830 (QB) Hercules v Phease [1994] 2 VR 386 In re Majory [1955] Ch 600 CASES CITED : Joyce v Sengupta & Anor [1993] 1 All ER 897 Peter Kent Development Pty Ltd v ANZ Banking Group Ltd (NSWSC unreported 6 May 1980 CL No 16824/79) Khodaparast v Shad [2000] 1 All ER 545 Lincoln v Daniels [1962] 1 QB 237 Metall & Rohstoff v Donaldson [1990] 1 QB 391 Shorey v PT Ltd [2003] HCA 27 Spellson v George (1992) 26 NSWLR 666 PARTIES : Christopher George Murtough (Plaintiff/Respondent) Gyanendra Parshu Ram (Second Defendant/Applicant) FILE NUMBER(S) : SC 20018/2002 COUNSEL : P Brereton SC (Plaintiff/Respondent) D Allen (Second Defendant/Applicant) SOLICITORS : Russell C Byrnes (Plaintiff/Respondent) Cheney & Wilson (Second Defendant/Applicant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J WEDNESDAY 18 AUGUST 2004 20018/2002 – CHRISTOPHER GEORGE MURTOUGH v ADRIAN JOHN BETHAM & ANOR JUDGMENT 1 HIS HONOUR: By Notice of Motion Gyanendra Parshu Ram (whom I shall refer to as the defendant) seeks summary dismissal of the plaintiff's Amended Statement of Claim (ASOC) pursuant to Part 13 rule 5 of the Supreme Court Rules. 2 In the principal proceedings the plaintiff seeks damages arising from a complaint which was made about him by Adrian John Betham (who is the first defendant in the principal proceedings) and the defendant (who is the second defendant in those proceedings) to the Office for the Supervision of Solicitors of the Law Society of England and Wales (OSS). In essence the complaint alleged professional misconduct on the part of the plaintiff whilst he was practising as a solicitor in London. 3 The plaintiff practised as a solicitor in New South Wales from November 1978 until June 1989. He was subsequently admitted to practice in the United Kingdom and practised there as a sole practitioner between May 1991 and December 1995. He now practices at the New South Wales Bar. His practice in London largely comprised legally aided civil matters. 4 The defendant is a chartered accountant. The plaintiff from time to time retained both him and Mr Betham (who is an architect) to provide expert advice and/or reports as well as to give evidence in various of his matters. It was in that context that the complaint was made by them about him. 5 The terms of the retainers as set out in the ASOC are in the following terms: 5.1 the Plaintiff would not be personally liable for the relevant Defendant's professional fees, and for the purposes of the Solicitor's Professional Conduct Rules principle 20.01, there was an express agreement to the contrary, namely that the solicitor would not be personally responsible for paying the proper costs of the relevant Defendant; 5.2 the relevant Defendant would be entitled to payment of his fees for work done pursuant to the retainers only to the extent that such fees were approved in advance by the Legal Aid Board pursuant to a CLA 31 Application for prior authority, or subsequently allowed on assessment or taxation; 5.3 in the event that a matter was for any reason transferred to another solicitor (the Subsequent Conducting Solicitor), then once the Plaintiff had done everything necessary on his part to transfer the matter he would have no further responsibility to the Defendants with respect to any of their outstanding fees not subject to a CLA 31 prior authority and not yet taxed or assessed, and the Defendants would rely on the Subsequent Conducting Solicitor to bring the matter to completion and arrange taxation or assessment of costs and payment. 6 In order to understand the background to these proceedings, it is necessary to set out at some length relevant parts of the ASOC. 6 In or about late 1994 or early 1995, the First Defendant:- orally informed the Plaintiff that there had been a severe downturn in his practice and his bankers were pressing him to demonstrate a sufficient cashflow position to sustain his overdraft; and requested the Plaintiff to release to him funds on account of fees of £30,000 for work done, but not yet billable in accordance with the term pleaded in par 5.2 above ("the Anticipated Fees"). 7 On or about 1 February 1995, the Plaintiff and the First Defendant agreed that in matters in respect of which there was no CLA 31 prior authority, if the First Defendant rendered accounts to the Plaintiff for Anticipated Fees, the Plaintiff would then submit a CLA 28 Application form to the Legal Aid Board for advance payment to the Plaintiff of such Anticipated Fees, and if paid by the Legal Aid Board, the Plaintiff's (sic) would pay the moneys so received to a nominated bank holding account in the name of the First Defendant, to be held by the First Defendant in such account subject to the condition that he would repay such money in whole or in part to the extent that the Anticipated Fees were subsequently not allowed on assessment or taxation, and to be released from the holding account only with the consent of the Plaintiff, for which purpose the Plaintiff would be a co-signatory. … 8 On or about 29 December 1994, the Plaintiff and the Second Defendant agreed that in the two matters of CA Ward, if the Second Defendant rendered accounts to the Plaintiff, for Anticipated Fees the Plaintiff would then submit a CLA 28 Application form to the Legal Aid Board for advance payment to the Plaintiff of such Anticipated Fees, and if paid by the Legal Aid Board, the Plaintiff would pay the moneys so received to a nominated bank holding account in the name of the Second Defendant, to be held by the Second Defendant in such account subject to the condition that he would repay such moneys in whole or in part to the extent that the Anticipated Fees were subsequently not allowed on assessment or taxation, and to be released from the holding account only with the consent of the Plaintiff, for which purpose the Plaintiff would be a co-signatory. … 9 Pursuant to the agreements referred to in paragraphs 7 and 8 above:- holding accounts were established in the name of each of the First Defendant and the Second Defendant at Barclays Bank PLC, 99 Hatton Garden, London (the "Barclays Holding Accounts"); funds received by the Plaintiff from the Legal Aid Board on account of Anticipated Fees were deposited to the Barclays Accounts . 10 In or about late 1994:- the Plaintiff intended to wind down his London practice with a view to closing it down and returning to Australia to commence practice at the New South Wales Bar; the Plaintiff approached other London solicitors, in particular Mr John Andrew Gilbert of Barry Posner Pentol & Co, solicitors of Camden Town, North London and Mr Michael Segen of Michael Segen & Co, solicitors of Piccadilly, Central London, who each agreed to take on any of the Plaintiff's clients that wished to transfer their matters to him; the Plaintiff notified each of his clients of his intention to close down his London practice and gave each client the option of having his, her or its files transferred to Barry Posner Pentol & Co, Michael Segen & Co, or any other solicitor of his, her or its own choosing ; the Plaintiff informed each of the Defendants that it was his intention to wind down his London practice with a view to closing it down and returning to Australia to commence practice at the New South Wales Bar. … 11 By 24 June 1996, practically all of the then files of the Plaintiff's London practice, including most if not all matters in which the Defendants had done work for which they had not yet been paid, had been transferred to other solicitors. 12 In or about December 1996 the Defendants:- made formal demand upon the Plaintiff for payment of fees for work done on the footing that such fees were immediately and unconditionally due and payable by the Plaintiff personally; threatened to make complaints of professional misconduct against the Plaintiff to the Office for the Supervision of Solicitors of the Law Society England and Wales ("OSS") unless immediate payment was made to them of such fees. … 13 In or about March 1997, each of the Defendants instituted and thereafter prosecuted proceedings against the Plaintiff in Central London County Court for recovery of fees for work done ("the County Court Proceedings"). … 14 Between May and July 1997, each of the Defendants procured default judgment to be entered against the Plaintiff in their respective County Court Proceedings ("the Default Judgments"). 15 Prior to procuring entry of the relevant Default Judgment, the relevant Defendant did not properly or regularly serve the Plaintiff with the originating process or other notice of the County Court Proceedings. 16 Following May 1997, the First Defendant sought to enforce his Default Judgment, by means of:- a Garnishee Order Nisi in respect of the moneys standing to the credit of the Barclays Holding Account in the First Defendant's name; obtaining and/or attempting to obtain charging orders in respect of (1) the Plaintiff's former matrimonial home and office premises situate at and known as 9 Claigmar Gardens, Finchley, London where the Plaintiff's ex-wife Mrs Atsuko Murtough (nee Ishizuki) resided; and (2) two flats situate at and known as Flats 9 and 11 Huntswood Court, Finchley Road, Barnet, London, in which the Plaintiff held a proprietary leasehold interest. 17 On 11 November 1999, the Central London County Court (District Judge Langley) by order set aside the default judgment in favour of the First Defendant. 18 Subsequently, the Central London County Court by consent of the Second Defendant set aside the default judgment in favour of the Second Defendant. 19 Since 11 November 1999, the First Defendant has taken no further step to prosecute the County Court Proceedings nor otherwise to recover from the Plaintiff any fees for work done. 20 Since the Default Judgment in his County Court Proceedings was set aside, the Second Defendant has taken no further step to prosecute the County Court Proceedings (save, in 2002, to file a Notice of Discontinuance) nor otherwise to recover from the Plaintiff fees for work done. 21 On or about 28 January, 1997, each of the Defendants made a complaint to the OSS that the Plaintiff was guilty of professional misconduct ("the Disciplinary complaint"). 22 By the Disciplinary Complaint, the defendants published the following words (the Matter Complained Of"):- Despite many requests, Mr Murtough has failed and/or neglected to arrange payment of these invoices and attend to his considerable indebtedness to our clients. We have now been instructed to commence proceedings against him. We have also been instructed to place before you a formal complaint as to Mr Murtough's conduct, the complaint being that, having engaged our client's services, he has failed, without sufficient or any excuse, to discharge professional fees due to them. 23 On or about 2 December 1997, in the course of investigating the Disciplinary Complaint and having regard inter alia to the Disciplinary Complaint and the pendency of the County Court Proceedings and the Default Judgments, the Compliance and Supervision Committee of the OSS, pursuant to powers delegated to it by the Council of the Law Society:- resolved to undertake an intervention into the Plaintiff's London Practice ("the Intervention Resolution"); appointed Mr John Gould, solicitor, a partner in the firm of Russell-Cooke Potter and Chapman as its agent for the purposes of the intervention; required the Plaintiff to deliver up all documents in his possession or control relating to his London practice and by notice pursuant to Solicitors Act 1974 , s.35, and Schedule 1, par 6(2)(a), effected a vesting in the Law Society of all moneys referred to in the notice, including the moneys standing to the credit of the Barclays Holding Accounts in the name of the Defendants. 24 Pursuant to the intervention resolution, the Law Society of England and Wales ("the Law Society") took possession of such of the documents and files of the Plaintiff's London Practice which had remained in his possession or control in the United Kingdom, and took control of all bank accounts of the Plaintiff's London Practice in the United Kingdom. 25 In or about early 1998, in respect of the Disciplinary Complaint, the Compliance and Supervision Committee of the OSS:- made a prima facie finding of professional misconduct against the Plaintiff ("the Prima Facie Finding"); resolved that the Plaintiff's dealings with the defendants be referred to the Solicitor's Disciplinary Tribunal ("the Referral"); notified the New South Wales Bar Association of the aforementioned finding and resolution ("the Notification"). 26 On or about 11 December 2001, the Law Society instituted proceedings in the Queens Bench Division (HQIX0587) against the Plaintiff, claiming from him the sum of £74,191.15 in respect of the costs of the intervention pursuant to the Intervention Resolution. 7 The plaintiff has three causes of action. The first count, as it has been described, is for malicious falsehood and is said to arise from what is referred to as the Matter Complained Of. The second and third counts each allege the tort of collateral abuse of process. They are said to arise from the institution of the County Court proceedings and the Disciplinary Complaint respectively. For convenience I will use the same terminology as the plaintiff has employed throughout these proceedings. 8 It is common ground that the elements of tort of malicious falsehood are as follows: (a) a false statement of or pertaining to the plaintiff's goods or business; (b) publication of that statement by the defendant to a third person; (c) malice on the part of the defendant; and (d) actual damage. 9 The Matter Complained of is said to be false in that it conveyed the following imputations: "(a) the plaintiff despite requests had failed to pay substantial debts which were due and payable by him to the defendants and had been duly invoiced, to him; (b) the plaintiff was deliberately delinquent in the payment of debts to the defendant incurred in his professional practice; (c) the plaintiff was thereby guilty of professional misconduct." 10 The plaintiff contends however that he was not personally liable for the moneys in question because the conditions precedent to payment had not been satisfied. The plaintiff accordingly asserts that the defendants in publishing the Matter Complained Of acted maliciously in that they each knew that the conditions precedent to payment of their fees had not been satisfied and that there was no current indebtedness on the part of the plaintiff to them. He also asserts that each of them by publishing the Matter Complained Of intended the Law Society to act in a manner which would facilitate the recovery of moneys to which each knew "he was not presently or unconditionally entitled". Finally, the plaintiff asserts that the Matter Complained Of was part of the material which was taken into account by the OSS. That led, it is asserted, to the adoption of the Intervention Resolution and the consequent intervention in the plaintiff's practice and in due course to the Prima Facie finding, the Referral and the Notification. 11 During the course of the hearing, the defendant significantly refined the issues upon which he relied in support of the Notice of Motion. One important consequence of that refinement is that he no longer seeks the summary dismissal of the third count. He conceded, in those circumstances, that that matter at least must proceed to trial. 12 Nor is there any issue as to the legal principles which govern the court's power to summarily dismiss proceedings. It is accepted by the defendant that it is a jurisdiction which is to be exercised only where the defect in the plaintiff's cause of action is clearly demonstrated. The test has been variously expressed and includes descriptions such as "manifestly groundless" and "so obviously untenable that it cannot possibly succeed". See General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125. It is also accepted that it is inappropriate to summarily dismiss proceedings where there are serious questions of fact to be determined. See Spellson v George (1992) 26 NSWLR 666. 13 It is common ground that the applicable substantive law is that of England and Wales. It is also accepted that the state of that law may well require the calling of expert evidence should the matter proceed to trial. I have not, for the purposes of the present Motion, had the benefit of any such evidence. First Count 14 In the final analysis the defendant advances three arguments in support of his contention that the first count, namely the claim for malicious falsehood, should be summarily dismissed. 15 The first submission is that absolute privilege provides a complete defence to the claim. In support of that proposition, Mr Allen, who appears for the defendant, relies upon the decision in Gray v Avadis [2003] EWHC 1830 (QB). In that case the client (Mr Gray) complained to the Office for the Supervision of Solicitors (OSS) about the conduct of his solicitor (Mr Avadis). What was at issue was the solicitor's response to communications from the OSS concerning the client's complaints. It was held that the solicitor's responses attracted the immunity of absolute privilege. In relation to a further submission which had been made on behalf of the solicitor, the trial judge (Tugenhat J) made the following observations: For this part of her submissions Miss Skinner relies on Mahon v Rahn (No2) [2001] 1 WLR 2150 for the proposition that absolute privilege extends to any matter incidental to the proceedings which is practically necessary for the administration of justice, including enquiries made in connection with potential proceedings before any tribunal the proceedings of which are protected by absolute privilege. As noted above, she submits, correctly in my view, that the SDT is protected by absolute privilege. The Law Society is a regulatory body comparable to The Securities Association considered in Mahon . It is true that in that case the words complained of were in a letter addressed to the regulatory body, whereas in the present case (as in Trapp ) the words complained of are in a response to the complaint. To my mind that can make no difference. (at para 39) 16 It was that passage upon which Mr Allen relied, although it is apparent that Tugenhat J's remarks are clearly dicta. The defendant also relied upon the decision in a Victorian case, Hercules v Phease [1994] 2 VR 386, but ultimately appeared to accept that it could be of little assistance in resolving the state of the law in England and Wales. 17 I have been provided with an extract from Chapter 30 of the Law Society's Guide to Professional Conduct in England and Wales. It appears from that material that the OSS is the Law Society's independent complaints handling arm. It may refer matters to the Solicitors Disciplinary Tribunal but only where it is satisfied that there is a prima facie case against the solicitor. In those circumstances the Tribunal is the appropriate forum for the determination of the case. The OSS's functions are apparently investigatory in nature. Presumably it also has a prosecutorial role. In any event it does not hear and determine complaints and in that sense it is unlike a court or a tribunal. Furthermore the Law Society's Guide to which I have been referring, and the leading English text, Cordery on Solicitors, both express the view that complaints to the OSS are protected by qualified privilege only. 18 Mr Brereton SC, who appears on behalf of the plaintiff, relies upon Lincoln v Daniels [1962] 1 QB 237. In that case the plaintiff who was a Queen's Counsel was awarded damages for libels contained in two communications sent by the defendant to the secretary of the Bar Council alleging professional misconduct by the plaintiff. On appeal, it was contended that the communications constituted a step in an inquiry before the Bench of the plaintiff's Inn of Court and were thus entitled to the protection of absolute privilege. 19 The court held that a disciplinary inquiry before the Bench of an Inn of Court into the conduct of a practising member of the Bar was a judicial process recognised by law to which absolute privilege attached. However, it was pointed out that the communications were not to the plaintiff's Inn of Court but were to the secretary of the Bar Council. 20 In the course of his judgment Sellers LJ observed that: A letter written to the Bar Council does not initiate proceedings and therefore is not within the absolute privilege accorded to the form of complaint and other documents in the case. Nothing at all may arise out of it of any such nature. The same may be true of a letter written direct to an Inn of Court. The qualified privilege is sufficient at that stage to protect the writer and anyone who gives preliminary consideration to the matter involved. It is at a later stage that a charge may be framed which would lead to a judicial inquiry, and although proofs taken beforehand may fall under absolute protection as in Watson v. M'Ewan ([1905] AC 480), the absolute privilege of the proceedings themselves might, I think, properly and reasonably be held to apply from the time the charge is made on which the conduct of the barrister is assessed, but this precise point does not arise in the present case. That stage was not reached here. The communications remained with the Bar Council, which was not performing any function on behalf of the Inner Temple and which had no authority to act on its behalf. I recognise that the position is not wholly satisfactory, for the defendant had inquired before he wrote as to whom he should address his letter, and in any event the functions of the Inns of Court and the Bar Council and their respective spheres of activity are unique and perhaps not generally or well understood. But the defendant wrote with the apparent intention of injuring the plaintiff, and if a man so determines he cannot complain if he is held liable because he is found to be not within the letter of the law. At that stage he was too remote from judicial proceedings to be immune and I doubt if he thought at the time that he had any such protection. In my view, the defence of absolute privilege fails. (at 251-2) (emphasis added) 21 Devlin LJ observed that: I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court. It is a convenience to the public to have a central body to deal with, but that is as high as it can be put. In my judgment the defence of absolute privilege fails. (at 263)) 22 Danckwerts LJ observed that: No doubt the making of a complaint to the Bar Council or its Secretary, as the proper officer to receive the complaint, would attract qualified privilege, but I can find no ground for conferring the immunity of absolute privilege, since the Bar Council is no more than an investigating body, without, as it seems to me, any judicial or quasi-judicial functions or any disciplinary powers. (at 269) 23 The Bar Council performs, it would appear, a substantially similar role to the OSS in that it does not ultimately hear and determine complaints against barristers. That is a matter for the Benchers of the Inns of Court and those proceedings are, as I have said, the subject of absolute privilege. 24 Lincoln v Daniels has the advantage of being a decision of the Court of Appeal. Moreover, given its significance, it is somewhat surprising that it received no attention in Gray v Avadis. It may be, in any event, that there is a material difference between the contents of a spontaneous voluntary complaint such as the one which was made in the present case and the contents of a response, such as the one made in Gray v Avadis, to the OSS which has power to compel a response from a solicitor. That is not something however which falls to me to decide. 25 I am not persuaded, upon that analysis of the authorities that the law on this issue in England and Wales can be said to have been finally determined. That being so, it cannot in my view be realistically contended that the plaintiff's proposition that absolute privilege does not provide a defence in the present case, is unarguable. Accordingly, I reject the first of the defendant's submissions 26 The second basis upon which it is contended that the plaintiff's cause of action in respect of the first count is bound to fail depends upon what the defendant characterises as an argument about causation. It is submitted that the Matter Complained Of by the defendant did not lead to either the Intervention Order being made or for that matter the Prima Facie Finding, the Referral and the Notification. 27 For the purposes of this application, the defendant has tendered various items of correspondence. Included in that bundle is a two page report in which a recommendation is made by Mr David Clare, on behalf of the Solicitors Practice Unit, that the OSS should intervene in the plaintiff's practice "on the grounds that he has abandoned [his] practice". The defendant contends that it was upon the basis of that report that the Compliance and Supervision Committee of OSS subsequently resolved on 2 December 1997 to intervene in the plaintiff's practice. Accordingly, it is submitted that it was not the defendant's complaint that led to the Intervention Order being made but rather the actions or inactions of the plaintiff in abandoning his practice. Moreover it is pointed out that at no stage did the defendant raise an allegation in the Matter Complained Of that the plaintiff had abandoned his practice. Nor, it was submitted, was it relied upon by the OSS as a basis for the intervention order being sought or made. Reference was also made to s 35, and in particular, to Schedule 1 of the Solicitors Act 1974 (UK) which lists the circumstances in the Society may intervene in a solicitor's practice. The defendant relies upon the fact that an allegation that there has been a failure to meet debts which are payable is not included in the list. 28 The defendant then pointed to material which indicates that various other complaints had been made against the plaintiff in respect of his professional conduct. Mr Clare specifically referred to this material when he subsequently recommended that the plaintiff's conduct be referred to the Solicitors Disciplinary Tribunal. Clearly there are a number of such complaints, of which the Matter Complained Of is but one. The defendant further submits that his complaint is far from being the most serious one. In those circumstances, the defendant submits that it was inevitable that the resolutions would be made and that the OSS would have proceeded against the plaintiff regardless of the existence of the Matter Complained Of. To emphasise the point, the defendant brought to my attention a letter from the OSS in which it is stated that "the number and seriousness of the…matters meant that the SDT was the only appropriate forum to deal with Mr Murtough's conduct". Accordingly, it is submitted that the Prima Facie finding, the Referral and the Notification would have been made in any event and thus were not caused by the defendant's complaint. 29 So far as the first aspect of the matter is concerned it is important to have regard to the following passages which also appear in Mr Clare's report in which he recommends that the OSS should intervene in the plaintiff's practice: It has now come to the Office's attention that Mr Murtough currently holds clients (sic) money in various client accounts with Barclays Bank plc in excess of £30,000. The Office has also learned that there is currently a garnishee nisi order from the Central London County Court attached to the money held in client accounts. This garnishee order has been obtained by Messrs. Lloyd & Co., Solicitors acting on behalf of Betham Associates. Betham are a firm of architects who were instructed by Mr Murtough as professional experts on various client matters. The Office is aware of Betham Associates claim (sic) against Mr Murtough as Lloyd & Co. have complained to the Office in respect of Mr Murtough's professional conduct in not paying the experts he instructed. It is understood from Lloyd & Co. that certain sums of money are held in a bank account at Barclay Banks to the joint order of Mr Murtough and the Betham Associates. Whilst the Office accepts that Betham Associates may well be entitled to certain money to which the garnishee order has been attached, the Office is clearly concerned at the situation where client accounts, containing a sizeable sum of money, are the subject of a garnishee nisi order. In the circumstances, it is considered imperative that the Office be represented at the hearing on 11 December before the Central London County Court when the Court considers whether or not to make the garnishee order absolute. The only way the office would have standing to attend such a hearing would be if a formal resolution to intervene into Mr Murtough's practice had been made by Committee and accordingly the recommendation below is to intervene into Mr Murtough's practice on the grounds that he has abandoned his practice. 30 It would appear that the report, and in particular the last sentence of it, provides some insight into what motivated the OSS to act. In those circumstances, it is difficult to maintain that there is no causal link between the Matter Complained Of and the action taken by the OSS and the damage which is alleged to have flowed from it. The fact that the present defendant is not mentioned by name in Mr Clare's report is of no great moment because the overall effect of the material before me indicates that at the relevant time the defendant and Mr Betham were in large measure acting in concert and were pursing similar objectives. Moreover the fact that the formal resolution to intervene recites one of the available statutory grounds for doing so is not, in my view, determinative of the question of what it was that led to the making of that decision. 31 In the final analysis, the plaintiff submits that the Intervention Resolution (and the Prima Facie Finding, the Referral and the Notification) were all a natural and probable result of the making of the Disciplinary Complaint. Indeed it is submitted that they were the very consequences which the making of the complaint was likely to produce and was in fact calculated to produce. 32 In that context the plaintiff relies upon a letter dated 6 June 1997 from the defendant in which he makes it clear that he had contemplated the prospect of asking the OSS to intervene in the plaintiff's practice. The letter reads in part: My serious concern is to get in the fees which are due to Ram & Co from Murtough & Co. In the absence of any sign from you that you were indeed dealing with matters as you promised you would, I wrote to Mr Peter Monaghan of the London Legal Aid Area Office. I enclose for your information copies of my letter dated 30 May and the enclosures and his reply which is dated 3 June 1997. … I ought now to be writing to the Office for the Supervision of Solicitors (OSS – formerly Solicitors Complaints Bureau) to ask them to intervene in your UK practice. In view of the indication given in your letter to Adrian Betham I will refrain from contacting the OSS to give you time to submit the bills which have already been drafted. However please note that should there not be any evidence of bills of costs being submitted by Monday 30 June 1997 I shall proceed to contact the OSS without further reference to you. 33 The plaintiff also relies upon other material which I shall refer to in greater detail when dealing with the defendant's argument in relation to the second count. Suffice it to say that I have had regard to that material in the present context as well. 34 In any event I accept the plaintiff's contention that he does not have to establish that there was a single cause for the event in respect of which damages are claimed. As Kirby J said in Shorey v PT Ltd [2003] HCA 27: It is a basic principle of the law governing the recovery of damages that a claimant does not have to prove that an impugned event was "the" cause, in the sense of the one and only cause. It is enough that the claimant shows that the event is "a" cause of the condition for which damages are claimed. … There is more than a hint in the reasoning of the majority in the Court of Appeal of a search for a single cause of the appellant's disability whereas the applicable law and the relevant facts contemplated that this was a case of multiple causes in which the fall and its outcomes could only be really understood in the context of events that happened before and after, rendering the appellant more susceptible to the kind of disability that in fact resulted. (pars 41-2) 35 His Honour then made the following observation concerning the correct approach to be adopted in a case where there were multiple causes: So far as the evidentiary presumption is concerned, this is the presumptio hominis to which Dixon CJ referred in Watts . It stands in a plaintiff's favour and "any tribunal of fact should insist that the defendant should overcome [it]". The presumption was explained in these terms: If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred. (par 46) 36 As I have already observed, the defendant concedes that the Matter Complained Of was one of the matters that the OSS had before it when it recommended that the plaintiff's conduct be referred to the Solicitors Disciplinary Tribunal. 37 In those circumstances, it would in my view, be a bold move on the limited material which has been placed before me, to arrive at the conclusions for which the defendant contends and in particular to arrive at the inference which the defendant submits should be drawn as to what it was that prompted the OSS to act in the manner in which it did. 38 The plaintiff contends that even if it was not able to establish the necessary causal link between the Matter Complained of and the Intervention Order and the subsequent action taken by the OSS, then that would not of itself be fatal to its case. He submits that all that he needs to plead, and indeed to prove, is that the relevant statement is "calculated to cause pecuniary damage". See s 3(1) Defamation Act 1952 (UK). See also De Beers Abrasive Products Ltd & Others v International General Electric Co of New York Ltd & Anor [1973] 1 WLR 972. To publish of a solicitor that he has failed to pay substantial debts which were incurred by him in the course of his professional practice and which were then due and payable by him, and that he is guilty of professional misconduct is, it is submitted, plainly calculated to cause pecuniary damage to a solicitor in his or her profession. Indeed during the course of giving evidence in December 2002, in proceedings taken by him in this Court to set aside a default judgment which had been obtained against him by the plaintiff, the defendant acknowledged that he was aware that the complaint which he had made could have "serious consequences" for a professional person in the position of the plaintiff. In all the circumstances I reject the second basis upon which the defendant challenges the first count. 39 The third and final basis upon which the defendant challenges the first count concerns the question of damages. The challenge is very much confined in its scope and is limited to what is contained in paragraphs 31.7 & 31.8 of the ASOC, which are in the following terms: 31.7 the Plaintiff has sustained serious damage to his personal and professional reputation with the Law Society, the English legal profession, the New South Wales Bar Association, and the New South Wales legal profession. 31.8 Since approximately October 1997, the Plaintiff has suffered from episodes of generalised anxiety disorder and major depressive disorder, and distress and embarrassment, which have been caused, contributed to and/or aggravated by the publication of the matter complained of and the consequences thereof. 40 The defendant concedes that were he to be successful in respect of this argument, then the consequence would be simply that the relevant parts of the claim would be struck out. It would not result in the summary dismissal of the count itself. Moreover the defendant does not dispute the plaintiff's entitlement to seek damages of the kind claimed in paragraph 31.1 – 31.6 inclusive. The defendant also concedes that the plaintiff is entitled to seek and recover damages for any loss to his professional reputation. It is submitted however that he is not entitled to recover damages for any loss to his personal reputation (which is said to be the subject of part of the claim in paragraph 31.7) or for personal injuries of the type claimed in paragraph 31.8. 41 The latter question was considered in the Court of Appeal in England in two recent decisions. In Joyce v Sengupta & Anor [1993] 1 All ER 897, Sir Donald Nicholls VC, with whom Butler-Sloss LJ agreed, considered at some length the question of whether damages for distress and injury to feelings were recoverable. 42 His Lordship said: The plaintiff claims, thirdly, that as a consequence of the article she suffered anxiety, distress and injury to her feelings. Mr Browne submitted that this third head of damages is irrecoverable as a matter of law and should be struck out. Mr Robertson QC contended that, although at common law proof of pecuniary damage was an essential ingredient of the tort, once pecuniary loss is established, or a claim under s 3 is made out, a plaintiff is entitled to recover his whole loss. If he suffered mental distress, the law will include an award of damages under this head also. The point seems never to have been decided. As already noted, it is well settled that a common law proof of 'special damage' is an essential ingredient in this cause of action. At common law if such damage is not established the action will fail. Lord Robertson emphasised this is Royal Baking Powder Co v Wright Crossley & Co (1900) 18 RPC 95 at 103: 'Unless the Plaintiff has in fact suffered loss which can be and is specified, he has no cause of action. The fact that the Defendant has acted maliciously cannot supply the want of special damage, nor can a superfluity of malice eke out a case wanting in special damage.' With one exception there is no authority dealing expressly with the question whether, if pecuniary loss is established, a plaintiff can also recover damages for anxiety and distress. The authorities are silent on the point. Thus, so far as reported decisions go, they show that an award of 'parasitic' damages under this head has never been made for malicious falsehood. The one exception is an observation of high authority. In Fielding v Variety Inc [1967] 2 All ER 497 at 499, [1967] 2 QB 841 at 850 Lord Denning MR stated, in the context of a case where s 3 was being relied on, that the plaintiffs could only recover damages for probable money loss and not for their injured feelings. This state of the authorities suggests that damages for anxiety and distress are not recoverable for malicious falsehood. If that is the law it could lead to a manifestly unsatisfactory and unjust result in some cases. Take the example I gave earlier of a person who maliciously spreads rumours that his competitor's business has closed down. Or the rumour might be that the business is in financial difficulty and that a receiver will soon be appointed. The owner of the business suffers severe financial loss. Further, because of the effect the rumours are having on his business he is worried beyond measure about his livelihood and his family's future. He suffers acute anxiety and distress. Can it be right that the law is unable to give him any recompense for this suffering against the person whose malice caused it? Although injury to feelings alone will not found a cause of action in malicious falsehood, ought not the law to take such injury into account when it is connected with financial damage inflicted by the falsehood? One turns to analogous torts for guidance. Inducement of breach of contract is another tort in which proof of damage is an essential ingredient. In Pratt v British Medical Association [1919] 1 KB 244 at 282, [1918-19] All ER Rep 104 at 122 McCardle J took humiliation and menace into account when assessing the damages. Likewise in conspiracy (see directions to the jury in Quinn v Leathem [1901] AC 495 at 498). A close analogy is that of slander in a case where it is actionable only on proof of pecuniary damage. In Lynch v Knight (1861) 9 HL Cas 577 at 598, 11 ER 854 at 863, Lord Wensleydale said: Mental pain or anxiety the law cannot value and does not pretend to redress, when the unlawful act complained of causes that alone; though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested. The point bristles with problems, not all of which were explored in argument. One possibility is that in an action for malicious falsehood damages are limited to financial loss. That would mark out a clear boundary, but it would suffer the drawback of failing to do justice in the type of case I have mentioned. I instinctively recoil from the notion that in no circumstances can an injured plaintiff obtain recompense from a defendant for understandable distress caused by a false statement made maliciously. However, once it is accepted there are circumstances in which non-pecuniary loss, or some types of non-pecuniary loss, can be recovered in a malicious falsehood action, it becomes extremely difficult to define those circumstances or those types of loss in a coherent manner. It would be going too far to hold that all non-pecuniary loss suffered by a plaintiff is recoverable in a malicious falsehood action, because that would include injury to reputation at large. The history of malicious falsehood as a cause of action shows it was not designed to provide a remedy for such injury: the remedy for such loss is an action for defamation in which, incidentally, damages for injury to feelings may be included in a general award of damages ( see Fielding v Variety Inc [1967] 2 All ER 497 at 500, 502, [ 1967] 2 QB 841 at 851, 355 per Lord Denning MR and Salmon LJ). Nor would these difficulties be solved by rejecting damages for distress as a separate head of loss in a malicious falsehood action but permitting distress to be taken into account as an aggravating factor. On this footing the judge or jury could take injury to feelings into account when awarding a lump sum of damages 'in the round'. I do not see how, if only pecuniary loss is recoverable , the amount awarded can be increased to reflect the plaintiff's distress. That would be a contradiction in terms. It would be to award damages for distress in a disguised fashion. If distress can inflame the damages recoverable for pecuniary loss, the difference between awarding aggravated damages for that reason and awarding damages for distress as a separate head of loss is a difference of words only. My conclusion is that, on the limited argument addressed to us, it would undesirable to decide this point. (at 906-8) 43 Sir Michael Kerr said: I agree with the judgment of Sir Donald Nicholls V-C and the order which he proposed. I only add a few words on the issues relating to damages. However, I do so with some hesitation, since my remarks refer to authorities which were not canvassed in the arguments before us. I therefore mention them merely as an aide mémoire for the sake of completeness. (at 908) 44 Having reviewed some of the authorities His Lordship concluded: As already mentioned, in my view all these authorities must be equally applicable to claims for malicious falsehood. Furthermore, I can see no reason why they should apply any differently according to whether the plaintiff pleads that he has suffered special damage in the form of some pecuniary loss, as he had to before 1952, or whether he now takes advantage of s 3 of the Defamation Act 1952, as in the present case. But they only support the possibility of an award for aggravated general damages, not for an additional claim for distress and injury to feelings, as is expressly claimed in the present case. I would accordingly strike out this claim as such, although I recognise that something of the same nature could still be recovered as an ingredient of a possible award of aggravated damages. However, since none of the foregoing authorities were considered in the arguments before us and the issue was not explored in depth, I agree that it would be undesirable to decide this point at the present stage and that the pleading should be left as it stands. (at 911-12) 45 In Khodaparast v Shad [2000] 1 All ER 545, Stuart Smith LJ referred, with approval, to the dicta of Nicholls V-C in Joyce. His Lordship concluded: Malicious falsehood is a species of defamation. It is well established that aggravated damages can be awarded for defamation of character for the additional injury to feelings caused by the defendant's conduct both before and after the issue of proceedings. In my judgment, once the plaintiff is entitled to sue for malicious falsehood, whether on proof of special damage or by reason of section 3 of the 1952 Act, I can see no reason why, in an appropriate case, he or she should not recover aggravated damages for injury to feelings. As Nicholls V.-C. pointed out, justice requires that it should be so. (at 556) 46 Otton LJ agreed. His Lordship said: Even though she could not be compensated for loss of her reputation, on the particular facts of this case she was clearly entitled, in my view, to recover damages for the aggravation caused by the defendant's insulting behaviour in accordance with Nicholls V.-C. and Sir Michael Kerr in Joyce v. Sengupta to which Stuart-Smith LJ has referred. (at 558) 47 It is plain in my view, given the state of the authorities, that the Court of Appeal has not definitively decided the issue. Accordingly, it cannot be said that the claim for damages made in paragraph 31.8, is unarguable. 48 I also accept the plaintiff's submission that the reference to damage to his personal reputation in paragraph 31.7, when read in context, relates not to reputation in a general sense but only insofar as it pertains to his professional reputation with the various professional bodies and the legal profession. Accordingly I reject the final submission made by the defendant in respect of the first count. Second Count 49 The second and third counts each assert that there was a collateral abuse of process although, as I have said, the defendant no longer raises any complaint in relation to the third count. There remains however an argument in respect of the second count, which relates to the institution of the County Court proceedings. 50 The tort of collateral abuse of process arises where the legal process has been abused by the actions of a person who is using it as a means of carrying out a collateral purpose thereby causing damage to another party. The essence of the tort is the use by that person of the machinery of the law to achieve a purpose which is entirely outside the ambit of the legal claim upon which the court is asked to adjudicate. In other words, the person must have instituted the proceedings to effect an object which is not within the scope of, but is extraneous to the proceedings. The predominant purpose must have been an improper one. As Lord Evershed MR said in In re Majory [1955] Ch 600: "court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist" at (623-4). 51 In essence the defendant submits that there was no collateral purpose because the proceedings were instituted for the simple purpose of recovering fees for work done by the defendant on behalf of the plaintiff. 52 The plaintiff points to the terms of the retainer between the plaintiff and the defendant which I have already set out. According to its terms the plaintiff was not personally responsible for the defendant's costs and the defendant became entitled to be paid his fees only upon, and to the extent that they were approved in advance by the Legal Aid Board, pursuant to a CLA 31 authority for prior authority or subsequently allowed on assessment or taxation. 53 Furthermore, as I have said, holding accounts had been established in the defendant's name at Barclay's Bank (the Barclays Holding Accounts). Funds received by the plaintiff from the Legal Aid Board on account of the defendant's anticipated fees were deposited in that account. However the defendant was bound to repay such funds in whole or in part to the extent that the anticipated fees were subsequently not allowed on assessment or taxation. He was entitled to withdraw funds from that account only with the plaintiff's consent. 54 Accordingly, as at the date (in March 1997) when he instituted the County Court proceedings, the defendant was not then entitled to payment of his fees from the plaintiff or to withdraw money from the holding accounts. That being so, the proceedings were instituted, the plaintiff submits, not for the bona fide purpose of recovering a judgment in those proceedings but for the improper collateral purpose of pressuring the plaintiff into doing what he was not bound to do, namely paying the fees and releasing the moneys in the holding account in circumstances where the defendant was not, and must have known that he was not, entitled to judgment in those proceedings. 55 In considering this aspect of the matter I have had regard to a large body of material, which was originally prepared for the purpose of other proceedings which involve the present parties. It was tendered by the plaintiff because it contains admissions by the defendant concerning the nature of the arrangements between him and the plaintiff as to the payment of his fees. Even more importantly it also contains admissions, or what could be construed as such, by the defendant as to his purpose in instituting and pursuing the County Court proceedings. 56 In correspondence in August and September 1996 (that is before any action was taken by him) the defendant requested the plaintiff to release 50% of the funds held in the designated accounts "pending taxation". 57 In December 1996 (that is the month before the complaint was made) the defendant wrote to the plaintiff in the following terms: I now advise you that unless I receive full payment by 1 January 1997 or a full and credible explanation I shall report this matter to the Law Society's office for the Supervision of Solicitors. I shall also institute legal proceedings for recovery of this debt. 58 In May 1997 (that is after the proceedings had been instituted) the defendant wrote to the Legal Aid Board in the following terms: I do understand that the position between this firm and Murtough & Co is a matter of contract. Whilst Mr Betham and I have initiated proceedings for recovery of this debt from Mr Christopher Murtough it does appear that there [sic] difficulties and we may not succeed in obtaining settlement from him. Mr Murtough would have only settled our costs with sums allowed on taxation or assessment for disbursements incurred with firms such as mine. Given this I ask please whether the Legal Aid Board can exceptionally agree to make payments directly to the experts in full settlement or substantially on account of the costs the experts are claiming against Murtough & Co. 59 Shortly thereafter the defendant wrote the letter dated 6 June 1997 to which I referred earlier in these reasons. 60 In an affidavit sworn on 30 July 1998 the defendant stated that he and Mr Betham had tried to encourage the plaintiff to finalise "his bill of costs with a view to having them lodged for taxation or assessment". He also admitted that: I became extremely frustrated with the situation and…threatened to institute legal proceedings and report his failure to deal with the outstanding matters to the Law Society's Office for the Supervision of Solicitors. 61 A little later he said "We later discovered that the [plaintiff] could draw down funds and make payments on accounts in matters to myself, [Mr Betham] and other experts in cases where there was no prior authority. However the [plaintiff] was insistent that he would not agree to this….With some disappointment [Mr Betham] and I accepted the situation and we expected that we would receive payment at the end of each case after taxation or assessment" . 62 In April 2002 the defendant provided a witness statement in proceedings in which the plaintiff sought leave to appeal against a judgment of Judge Langley. As the plaintiff places considerable emphasis upon the contents of that statement it is necessary to set out relevant extracts from it. In it the defendant said: I am now of the belief that Mr Alan John Bruce, Mr Nigel George Lloyd and/or Lloyd & Co (herein called the solicitors) failed to act for me with reasonable skill and competence in relation to the issue of and the maintenance of proceedings number CL 704209 in the Central London County Court. Had they applied due care and diligence as expected of a reasonably competent solicitor they would have discovered there was no cause of action upon which a claim could be properly founded against Mr Christopher George Murtough. I am of the view that had Mr Alan Bruce/Lloyd & Co conducted the matter competently on my behalf in early 1997, Mr Murtough's defence to my intended claim would have been established and I would not have issued proceedings. I would have pursued the successor firms to ensure they diligently attended to taxation or assessment of cases in which Ram & Co were interested. … Upon learning that my solicitors had obtained "Judgment in Default" but service had not been effected properly, I instructed them to take no further action and later I served formal notice of discontinuance as a result of which I became liable for Mr Murtough's costs. … Further it is apparent from the affidavit of Alan John Bruce sworn in the Betham proceedings in 1998 in support of applications for Charging Orders absolute that Mr Bruce and the solicitors well knew about the Barclays Bank accounts and the fact that substantial fees had been paid on account particularly to Mr Betham and that those fees were already in accounts in Mr Betham's name at Barclays Bank awaiting taxation or assessment of costs. Now that I have taken some advice in relation to these matters I cannot understand the basis upon which Mr Bruce and the solicitors could have possibly advised Mr Betham to institute proceedings against Mr Murtough claiming from Mr Murtough monies which the solicitors must have known had already been drawn down from the Legal Aid Board and paid to Mr Betham. It is correct that those monies were held in what have been called "holding accounts" but Mr Betham and I were both well aware of the terms and conditions upon which those monies were held and that we had a personal and professional responsibility to Mr Murtough, the client and/or the Legal Aid Board (now the Legal Services Commission) to deal with those funds in accordance with the terms of the agreements which had been reached with Mr Murtough. … I believe that Mr Bruce, Mr Lloyd and/or Mr Lloyd & Co were negligent and acted incompetently in relation to the bringing of the action in CL704209 and in the advice that they gave me to institute such proceedings from the outset. I now am aware that those proceedings should never have been instituted against Mr Murtough in the first place and that in such circumstances I join with Mr Murtough in seeking an Order from the Court that a wasted costs order be made against Mr Bruce and Mr Lloyd and/or Lloyd and Co. It is my belief that a wasted costs order should also be made against the solicitors in relation to proceedings CL 703096 (Betham v Murtough) as it is apparent that as in my action (a) the proceedings were never served upon Mr Murtough in accordance with the rules of Court and (b) that the proceedings were in any event misconceived and constituted an abuse of the Court's process. …. The witness statement of Mr Peter Monaghan also confirms that the arrangements between myself and Mr Murtough and as between Mr Betham and Mr Murtough were simple straightforward contractual arrangements as between Mr Murtough and Mr Betham and Mr Murtough and myself. The sole purpose of this arrangement was to pay over the funds to the expert (as otherwise the Legal Aid Board required their return) whilst ensuring that the monies were kept available for return if proven upon taxation or assessment to be excessive. I say that these proceedings have become unnecessarily complex and time consuming because the Law Society has become involved. It remains my professional view that the Law Society is not now and never was properly a party to the Betham proceedings and that the Law Society should have no involvement in relation to the Ward monies which are held in Barclays Bank in an account in my name. In a personal sense I remain content for Mr Murtough to be a co-signatory to that account. It does not trouble or concern me as I propose in any event to fully honour the terms of my agreement with Mr Murtough and the client in relation to those monies. … I was never comfortable or happy about Mr Betham's attempts to secure the release of the monies in the Betham Barclays accounts in relation to matters which had been transferred on to other solicitors such as Ritchie (which accounted for more than half of Mr Betham's claim). It is quite inconceivable to me that Mr Betham could be under any misapprehension whatsoever but that the monies in those accounts had to remain where they were until the subsequent conducting solicitors had seen to the taxation and/or assessment of such costs. … In relation to The Law Society my primary position is that it should never have been a party to either the Betham or the Ram London proceedings from the outset and that its attempts to be joined were misconceived. Certainly I am of the view that The Law Society should not be a party to either the Betham or the Ram London proceedings now. If that contention be incorrect then my secondary position is that The Law Society would never have become involved in these matters but for the fact that Lloyd & Co improperly sought to release the monies in the "Betham" Barclays accounts from Barclays Bank in reliance upon: (a) A judgment which was improperly obtained because the proceedings were never properly served; (b) False and/or misleading representations made to The Law Society and/or Barclays Bank by Mr Betham and/or Lloyd and Co; (c) The issue of garnishee proceedings by Mr Betham and/or Lloyd and Co when such garnishee proceedings were clearly misconceived and in any event related to a judgment which had been improperly and illegally obtained in the first place. … I regret the part I played in relation to these matters. With hindsight these matters could have been handled much better by both Mr Betham and myself. Further, Mr Murtough's conduct and/or delay has not assisted matters. .. Finally, I say that the solicitors were negligent in that they: … Instituted proceedings in the Central London County Court in proceedings number CL704209 (the Ram London proceedings) claiming the sum of £32,796.78 when there was in fact no cause of action extant in my favour as against Mr Murtough/Murtough & Co for the sum of £32,796.78 at that time. 63 Moreover during the course of giving evidence in the proceedings in December 2002, to which I earlier referred, the defendant acknowledged that that statement contained "a truthful account" of the matter even though by then the parties were, as Mr Brereton put it, "at loggerheads". 64 Mr Allen drew my attention to the decision of the Court of Appeal in Metall & Rohstoff v Donaldson [1990] 1 QB 391 in which it was held that the tort is not "available against a party who, however dishonestly presents a false case for the purpose of advancing or sustaining his claim or defence in civil proceedings". (at 470) Although that decision may be instructive as to the scope of the tort, the circumstances referred to in it are of a somewhat different character from what is asserted here. The collateral purpose alleged in the present case was an endeavour by the defendant to procure payment of monies without proceeding to obtain judgment by using the court's process to apply improper pressure to the plaintiff in circumstances in which the defendant knew that he was not entitled to the relief claimed. Mr Brereton submitted that more assistance was to be derived from the decision in Butler v Simmonds Crowley & Galvin [2000] 2 Qd R 252 in which the Court provided as an example of a collateral purpose, a case in which there was an "intention to coerce the plaintiff into paying the defendant monies which the defendant knew it was not entitled to" (at 259-260). 65 The plaintiff contends that the defendant had an improper purpose in that he instituted the Disciplinary Complaint and the County Court proceedings in order to thereby apply pressure to the plaintiff to force him to make payment to the defendant when he was not required by law to do so. It is conceded by the plaintiff that it could not amount to an abuse of process for a party to institute proceedings in the hope that they may lead to an appropriate settlement. It is submitted that it could however be an abuse of process for a party to institute proceedings in which the ultimate objective is to obtain payment of moneys for work done by that party for the party against whom the proceedings are instituted, if the purpose in doing so was to improperly pressure the other party into facilitating the circumvention of the necessary preliminary steps to enable payment to be made. The plaintiff emphasised that the institution of the Disciplinary Complaint and the County Court proceedings were, upon the material before the Court, part of a concerted strategy on the part of the defendant and Mr Betham to pressure the plaintiff in the manner to which I have just referred. In support of his submission that the pair had acted in concert the plaintiff pointed out that the same firm of solicitors, Lloyd & Co, had acted for each of them from the outset in respect of both the Disciplinary Complaint and the County Court proceedings. 66 There is perhaps a degree of subtlety about the way in which the plaintiff puts his case. So far as the tort of collateral abuse of process is concerned, it may be a difficult task to determine upon which side of the line a particular set of facts will fall. Nevertheless given the nature of the jurisdiction which the defendant seeks to invoke, and particularly given the state of the evidence which concerns the defendant's purpose in instituting these proceedings together with the Disciplinary Complaint, I am not persuaded that the defendant has demonstrated that the plaintiff's case is unarguable. 67 Finally the plaintiff relies upon the following statement of principle which was enunciated in Peter Kent Development Pty Ltd v ANZ Banking Group Ltd (NSWSC unreported 6 May 1980 CL No 16824/79) (referred to in Ritchie's Supreme Court Procedure (NSW) at [15.26.1B]). In that decision Hunt J said "the remedy afforded by Pt 13 r 5 is discretionary. Where part of a claim or a cross-claim must in any event proceed to trial, the application for summary judgment on the other party would, in my view, have to show an exceedingly strong case why the whole case should not go to trial." The principle just referred to was said to assume even greater significance when, as here, it was conceded by the defendant that the matter should proceed to trial in relation to one of the two counts alleging collateral abuse of process. Furthermore it was said that the factual substratum and the evidentiary material to be relied upon in relation to those two counts considerably overlap. 68 I am of the view that the defendant's arguments in relation to count two must fail. 69 The order which I make is that the Notice of Motion is dismissed with costs. ********** Last Modified: 09/23/2004 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. 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