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Supreme Court 17 July 2001

Johnston v ANZ Banking Group & Ors

[2001] NSWSC 593

Other
STRIKE OUT APPLICATION MALICIOUS PROSECUTION ABUSE OF PROCESS PLEADING DEFICIENCIES.

Citation: Johnston v ANZ Banking Group & Ors [2001] NSWSC 593
Court: Supreme Court of New South Wales, Common Law Division
Date: 17 July 2001
Judge(s): Master Malpass

Background

The plaintiff was a director and secretary of several companies over which the first defendant bank held securities. The bank appointed a receiver and manager (the second defendant) over those companies, and the third defendant was an employee of that receiver.

The plaintiff commenced proceedings alleging that the defendants were responsible for two sets of legal proceedings brought against him: a police prosecution for trespass on a property called Lilydale (dismissed in August 1998), and ex parte Interim Apprehended Violence Orders obtained by the second and third defendants.

The plaintiff's original Statement of Claim had already been struck out for pleading deficiencies by Master Harrison in April 2001, with leave granted to replead. The bank then moved to strike out the Amended Statement of Claim on the basis that it remained inadequate.

  • Whether the Amended Statement of Claim adequately pleaded the causes of action of malicious prosecution and abuse of process against the first defendant.
  • Whether the deficiencies in the pleading were matters properly remedied by a request for particulars, or whether the pleading itself was fundamentally defective.
  • Whether the first defendant's alleged role in causing the relevant proceedings to be instituted was sufficiently pleaded.

Decision

The court found that the Amended Statement of Claim failed to comply with the rules of court, specifically Part 15 rule 7 of the Supreme Court Rules 1970. Master Malpass described the document as confusing, internally inconsistent, imprecise, and "embarrassing in a pleading sense."

A central difficulty was that the bank itself had not instituted any of the relevant proceedings. For either cause of action to lie against the bank, the pleading needed to establish that the bank was "actively instrumental" in bringing those proceedings about. The court found the pleading failed to plead all necessary elements of the causes of action and instead generated a multiplicity of false or irrelevant issues, rather than defining the real questions in dispute.

On malicious prosecution, the pleading needed to address elements including absence of reasonable and probable cause and malice. On abuse of process, it needed to show that the relevant process was used for a purpose other than that for which it was designed. The court found the amended pleading fell short on both fronts.

The court rejected the plaintiff's submission that the deficiencies were merely the kind of matters to be addressed by requests for particulars. Given the extent of the deficiencies, the interests of both parties and the court were better served by requiring a proper repleading.

Orders Made

  • Those parts of the Amended Statement of Claim relating to the first defendant are struck out.
  • The plaintiff is granted leave to file a Further Amended Statement of Claim within 28 days.
  • The plaintiff is to pay the costs of the application.

Key Takeaways

  • A pleading asserting malicious prosecution or abuse of process against a party who did not personally institute the relevant proceedings must affirmatively plead that the party was "actively instrumental" in causing those proceedings to be brought.
  • Malicious prosecution requires pleading, among other elements, absence of reasonable and probable cause and malice; abuse of process requires pleading that the process was used for an extraneous purpose rather than its proper one.
  • Pleading deficiencies of a substantive nature cannot be deflected by offering to provide further particulars; where a pleading fails to plead the elements of the cause of action, it is liable to be struck out rather than simply particularised.
  • The Supreme Court confirmed that a function of pleadings is to define and narrow the real issues, and a document that generates a multiplicity of false or irrelevant issues does not serve that function.
  • Where a statement of claim has already been struck out once and the amended version remains defective, the court retains a clear discretion to strike out the offending portions again and impose costs on the plaintiff.

Legislation and Cases Referenced

Legislation:
- Supreme Court Rules 1970 (NSW), Part 15 rule 7 (pleading requirements) and Part 15 rule 26 (power to strike out)

Cases:
- No cases were cited in the judgment.