Citation: Macculloch v TNT Ltd & Ors [2000] NSWSC 1183
Court: Supreme Court of New South Wales, Common Law Division
Date: 15 December 2000
Judge(s): Master Harrison
Background
The plaintiff brought proceedings against nine defendants across two groups. The first to fifth defendants were a transport company and four of its employees or officers. The sixth to ninth defendants were the State of New South Wales and three individual officers. The proceedings arose from the plaintiff's arrest and prosecution, and the statement of claim alleged malicious prosecution, wrongful arrest, and false imprisonment.
The matter had a lengthy history, reflected in the fact that the operative pleading by the time of the motions was a "further further amended statement of claim" (FFASC) filed in July 1999. The case was proceeding under s 88 of the Supreme Court Act, which requires claims in malicious prosecution and false imprisonment to be tried by jury.
Legal Issues
- Whether the proceedings against the first to fifth defendants should be dismissed or permanently stayed under Part 13 r 5 of the Supreme Court Rules (SCR), or alternatively struck out under Part 15 r 26 SCR
- Whether the FFASC against the sixth to ninth defendants should be struck out in whole or in part under Part 15 r 26 SCR
- Whether summary judgment under Part 13 was available at all given that s 88 of the Supreme Court Act requires jury trial for malicious prosecution and false imprisonment claims
- Whether the pleading contained inconsistent allegations regarding the arresting officer's reasonable grounds for suspicion
Decision
Master Harrison first addressed whether summary judgment under Part 13 was available. Relying on the authority of Associated Securities Finance Ltd v Harrow Properties Pty Limited, her Honour confirmed that s 88 of the Supreme Court Act excludes proceedings involving malicious prosecution and false imprisonment from the summary judgment procedure under Part 13. The first to fifth defendants' application under that rule therefore failed.
The alternative basis for strike-out was Part 15 r 26, which allows pleadings to be struck out where they disclose no reasonable cause of action, tend to cause prejudice or embarrassment, or constitute an abuse of process. Master Harrison applied the well-established high threshold for summary dismissal, drawing on the principles in General Steel Industries Inc v Commissioner for Railways, and concluded that the plaintiff's case was not so clearly untenable that it should be denied a trial.
On the sixth to ninth defendants' motion, Master Harrison declined to strike out the FFASC. She rejected the submission that the plaintiff's claims were not genuinely made simply because three years had elapsed before certain grounds were pleaded. She also observed that Part 15 r 26 operates on the pleading itself, and she was not prepared to assume an absence of supporting evidence at this interlocutory stage.
Her Honour did identify one pleading deficiency: the FFASC contained inconsistent allegations concerning whether the arresting officer (the seventh defendant) had reasonable grounds to suspect the plaintiff had committed a crime. The plaintiff was directed to clarify this inconsistency in a further amended pleading, failing which the wrongful arrest claim would be at risk of being struck out.
Orders Made
- The first to fifth defendants' notice of motion filed 4 August 2000 is dismissed.
- The sixth to ninth defendants' notice of motion filed 22 March 2000 is dismissed.
- The plaintiff is to file a further further further amended statement of claim (FFFASC) by 29 January 2001.
- The defendants are to pay the plaintiff's costs of the motions.
- The plaintiff is to pay the defendants' costs thrown away by the amendments to the FFFASC.
Key Takeaways
- Under s 88 of the Supreme Court Act, proceedings involving claims in malicious prosecution or false imprisonment are excluded from the summary judgment procedure under Part 13 of the Supreme Court Rules, as confirmed by this decision following Harrow Properties.
- The high threshold for summary dismissal under Part 15 r 26 requires a plaintiff's case to be so clearly untenable that it cannot possibly succeed before it will be struck out, and mere delay in advancing a pleading point does not, by itself, establish that a claim lacks genuineness.
- Where a pleading simultaneously asserts that an arresting officer had reasonable grounds for suspicion and that evidence exculpating the plaintiff was concealed from that officer, the two allegations may be irreconcilably inconsistent and require clarification.
- A person imprisoned without lawful authority is entitled to damages regardless of fault on the part of the person responsible, as confirmed in R v Governor of Brockhill Prison ex parte Evans (No 2).
- In dismissing both motions, the court ordered the defendants to pay the plaintiff's costs of the motions, while the plaintiff bore the costs thrown away by the need to further amend the statement of claim.
Legislation and Cases Referenced
Legislation
- Supreme Court Act (NSW), s 88
- Supreme Court Rules (NSW), Part 13 r 5; Part 15 r 26; Part 40 r 8
- Crimes Act
- Justices Act, s 81(4)
Cases
- Associated Securities Finance Ltd v Harrow Properties Pty Limited (NSWSC, Lee J, 26 May 1977, unreported)
- Air Services Australia v Zarb (NSWCA, unreported, 26 August 1998)
- Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62
- General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
- Webster & Anor v Lampard (1993) 177 CLR 598
- R v Governor of Brockhill Prison ex parte Evans (No 2) [1998] All ER 993
- Cox v Journeaux (No 2) (1935) 52 CLR 713
- Commonwealth Life Assurance Society Limited v Brian (1935) 53 CLR 343
- Sourian v State of NSW [1999] NSWSC 1173
- McDonald v Coles Myers Ltd (1995) Aust Tort Reports 81-361
- Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545