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Supreme Court 4 March 2002

Abram v NAB Ltd

[2002] NSWSC 116

Public order & justice offences
SUMMARY JUDGMENT MALICIOUS PROSECUTION

Citation: Abram v NAB Ltd [2002] NSWSC 116
Court: Supreme Court of New South Wales (Common Law Division)
Date: 4 March 2002
Judge(s): Master Harrison

Background

The plaintiff, a self-represented litigant, brought proceedings against the National Australia Bank Limited (the bank) alleging malicious prosecution. The claim arose from contempt proceedings that the bank had commenced and maintained against the plaintiff. The plaintiff alleged that the bank had done so without reasonable and probable cause and with malice, and sought damages including exemplary damages.

The proceedings had a lengthy interlocutory history. Earlier versions of the statement of claim had been struck out, and leave to amend had at one point been refused by an Assistant Registrar. That refusal was later set aside on review, and the plaintiff filed an amended statement of claim in November 2001 in accordance with those revised orders.

The bank then filed a fresh notice of motion seeking either the dismissal of the amended statement of claim under Part 13 r 5 of the Supreme Court Rules, on the basis that no reasonable cause of action was disclosed or the proceedings were frivolous or vexatious, or alternatively its striking out under Part 15 r 26 on the basis that the pleading disclosed no reasonable cause of action or was an abuse of process.

  • Whether the amended statement of claim disclosed a reasonable cause of action in malicious prosecution and should be permitted to proceed to trial.
  • Whether the pleading adequately particularised the essential elements of malicious prosecution, including absence of reasonable and probable cause and malice.
  • Whether the proceedings should be summarily dismissed or struck out under the applicable Supreme Court Rules.

Decision

Master Harrison reviewed the well-established test for summary dismissal, drawing on the High Court decisions in General Steel, Dey, and Webster v Lampard, as affirmed by the Court of Appeal in Air Services Australia v Zarb. The test is demanding: summary dismissal is appropriate only where the plaintiff's case is so clearly untenable that it cannot possibly succeed. The power must be exercised with exceptional caution and only where no real question exists to be tried.

Applying that test to the tort of malicious prosecution, the Master noted the five elements identified in Mitchell v John Heine & Son Limited: that the defendant was an active prosecutor; that the prosecution terminated in the plaintiff's favour; that the defendant acted without reasonable and probable cause; that the defendant acted maliciously; and that the plaintiff suffered damage. The Master also noted, following Grimwade and Little, that the question of whether the defendant had a genuine belief in reasonable and probable cause was one to be determined at trial, not on a summary application.

The Master found that the plaintiff's amended statement of claim, through its particulars of exemplary damages and malice, adequately outlined the evidence he intended to rely upon in establishing that the bank commenced and maintained the contempt proceedings without reasonable and probable cause. Consistent with Little v Law Institute of Victoria (No 3), the Master held that the plaintiff was not required to prove those allegations at this stage. The motion was dismissed and the claim was allowed to proceed to trial. Costs followed the event and were awarded against the bank.

Orders Made

  • The bank's notice of motion filed 27 October 2001 is dismissed.
  • The bank is to pay the plaintiff's costs as agreed or assessed.

Key Takeaways

  • The Supreme Court confirmed the highly demanding threshold for summary dismissal: a plaintiff's case must be so clearly untenable that it cannot possibly succeed before summary relief will be granted.
  • A malicious prosecution claim requires proof of five elements, including that the defendant acted without reasonable and probable cause and with malice, as set out in Mitchell v John Heine & Son Limited and affirmed in Grimwade v State of Victoria.
  • Where a plaintiff adequately particularises the evidence to be relied upon at trial to establish absence of reasonable and probable cause, a court will not require that evidence to be proved at the summary dismissal stage.
  • In dismissing the bank's motion, the Master held that the question of whether a defendant had a genuine belief in reasonable and probable cause is one for the trial court to resolve, not for a summary application.
  • Costs ordinarily follow the event: having failed in its summary dismissal application, the bank was ordered to pay the plaintiff's costs.

Legislation and Cases Referenced

Legislation:
- Supreme Court Rules, Part 13 r 5 and Part 15 r 26
- Supreme Court Act, s 88

Cases:
- Air Services Australia v Zarb (NSWCA, unreported, 26 August 1998)
- Dey v Victoria Railways Commissioners (1949) 78 CLR 62
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
- Webster & Anor v Lampard (1993) 177 CLR 598
- Associated Securities Finance Ltd v Harrow Properties Pty Limited (NSWSC, 26 May 1977)
- Little v Law Institute of Victoria (No 3) [1990] VR 257
- Mitchell v John Heine & Son Limited (1938) 38 SR(NSW) 466
- Grimwade v State of Victoria (1997) ATR 81-422