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Supreme Court 29 August 2005

James v State of NSW

[2005] NSWSC 844

Public order & justice offences
MALICIOUS PROSECUTION

Citation: James v State of NSW [2005] NSWSC 844
Court: Supreme Court of New South Wales, Common Law Division
Date: 29 August 2005
Judge(s): Associate Justice Harrison

Background

The plaintiff, a solicitor who practised in northern New South Wales, brought proceedings against the State of NSW claiming damages for malicious prosecution, wrongful arrest, and unlawful imprisonment. Between 1996 and 1997, a police officer stationed at Lismore initiated five charges against him, principally relating to the conduct of his legal practice. The plaintiff had regularly acted for members of a motorcycle club suspected of criminal activity and had conducted substantial Legal Aid work.

All five charges were ultimately resolved in the plaintiff's favour, either by dismissal following committal hearings or by the Director of Public Prosecutions withdrawing them. The plaintiff then commenced civil proceedings against the State.

The proceedings had reached the stage of a further amended statement of claim (FASC), and the defendant sought to have a number of its paragraphs struck out. By the time of the hearing on 17 August 2005, the dispute had narrowed to a specific question about how a prosecutor's "knowledge" could be pleaded, and in particular to paragraphs 51M(g) and (h) of the FASC.

  • Whether pleading that a prosecutor "knew" something (as distinct from "ought to have known") is a permissible form of pleading in a malicious prosecution claim.
  • Whether paragraphs 51M(g) and (h), which alleged that the prosecutor knew what a third party (Barnier) knew, disclosed material facts or descended into conjecture.
  • Whether paragraph 51M(f), which alleged the prosecutor's direct knowledge of courtroom events he personally attended, could stand.

Decision

Associate Justice Harrison identified five elements a plaintiff must plead and prove in malicious prosecution: that the proceedings are actionable; that they were instituted by the defendant; that the defendant acted maliciously; that the defendant acted without reasonable and probable cause; and that the proceedings terminated in the plaintiff's favour. The dispute turned on the second and third elements, specifically the proper way to plead the prosecutor's state of mind.

The court confirmed that a pleading of actual knowledge using the word "knew" is permissible and should remain in the FASC. Relying on her earlier decision in Sunraysia Natural Beverage Co Pty Ltd v NSW [2002] NSWSC 275 and Wickstead v Browne (1992) 30 NSWLR 1, the Associate Justice observed that actual knowledge can only be finally established at trial, either through direct evidence from the officer or by inference drawn from surrounding facts and circumstances. Rule 15.4 of the Uniform Civil Procedure Rules 2005, which requires particulars for pleadings as to a "condition of mind" (including malice and fraudulent intention), expressly excludes knowledge from that requirement, though the court noted this does not prohibit knowledge from being pleaded at all.

Paragraphs 51M(g) and (h) were struck out. Those paragraphs alleged that the prosecutor Gallagher knew what a third party, Barnier, knew about potential leniency in sentencing and about the consequences of not providing a statement. The court found that how Gallagher could know the contents of another person's mind was a matter of conjecture, not a pleading of material facts. By contrast, paragraph 51M(f) was allowed to stand: it alleged that Gallagher knew Barnier was in court and was aware of orders made at that hearing, matters within Gallagher's direct observation as someone also present in court. The plaintiff also indicated he might seek to replead the paragraph in the alternative using "ought to have known" rather than "knew."

Orders Made

  • Paragraphs 51M(g) and (h) of the FASC are struck out.
  • Costs of the motion are reserved.
  • The matter is to be listed for a status conference as soon as possible, with the court to notify the parties.

Key Takeaways

  • Pleading actual knowledge ("knew") is permissible in a malicious prosecution claim; rule 15.4(2) of the Uniform Civil Procedure Rules 2005 expressly carves knowledge out of the conditions of mind requiring particularisation, though knowledge may still be pleaded and tested at trial.
  • A pleading that attributes to a prosecutor knowledge of what a third party knew crosses from material fact into conjecture, and will not survive a strike-out application.
  • Where a pleading attributes direct, first-hand knowledge of events a party personally witnessed, the court will generally permit that pleading to remain.
  • Under r 15.4, conditions of mind such as malice and fraudulent intention require supporting particulars to be pleaded, but knowledge does not attract the same formal requirement.
  • The decision confirms that the boundary between permissible "knowledge" pleadings and impermissible conjecture turns on whether the asserted knowledge arises from facts the party could directly observe or infer, rather than from speculation about another person's mental state.

Legislation and Cases Referenced

Legislation
- Justices Act 1902 (NSW), s 41(2)
- Uniform Civil Procedure Rules 2005 (NSW), r 15.4

Cases
- East-West Airlines (Operations) Ltd v Commonwealth of Australia & Ors (1983) 49 ALR 323
- Fox v Wood (Harrow) Ltd [1963] 2 QB 601
- Little v Law Institute of Victoria (No 3) [1990] VR 257
- Mitchell v John Heine & Sons Limited (1938) 38 SR (NSW) 466
- Sunraysia Natural Beverage Co Pty Ltd v NSW [2002] NSWSC 275
- Wickstead v Browne (1992) 30 NSWLR 1