Johnston v. Australia and New Zealand Banking Group Ltd. & Ors. [2005] NSWCA 383

New South Wales Court of Appeal

CITATION: Johnston v. Australia and New Zealand Banking Group Ltd. & Ors. [2005] NSWCA 383

HEARING DATE(S): 29 September 2005

JUDGMENT DATE: 7 November 2005

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 51

DECISION: 1. Leave to appeal granted, limited to the question of whether the primary judge erred in determining that the pleading disclosed no reasonable cause of action and the defect was incapable of correction, on condition that the issues to be argued are limited to those identified in pars.[37] to [48] of this judgment. 2. Direct that, apart from arranging material already filed in appropriate appeal books, the claimant file no additional documentation or submissions except by leave or in response to additional submissions filed by the opponents. 3. Costs of the leave application to be costs in the appeal.

CATCHWORDS: PROCEDURE - Leave to appeal - Grant subject to conditions - TORTS - Malicious prosecution - Whether arguable that reasonable cause of action disclosed.

Commonwealth Life Assurance Society Ltd. v. Brain (1935) 53 CLR 343 Darcey v. Pre-Term Foundation Clinic (1983) 2 NSWLR 497 Davis v. Gill (1924) 35 CLR 275 Director of Public Prosecutions v. Wille (1999) 47 NSWLR 255 CASES CITED: Holding v. Jennings [1979] VR 289 Minkley v. Munro (1986) 8 PSR 3975 Morris v. Darby (1936) 53 WN(NSW) 136 Re Geneva Finance Ltd; Quigley v. Cook (1992) 7 ACSR 415 Wickstead v. Browne (1992) 30 NSWLR 1

Daryl Lindsay Johnston - claimant Australian & New Zealand Banking Group Ltd. - 1st opponent PARTIES: John Edward Star - 2nd opponent Stuart Karim Ariff - 3rd opponent