Adams v Reynolds - [1996] QSC 71

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane No. 908 of 1988

Before the Hon Justice White

[Adams v. Reynolds]

BETWEEN:

ELWIN BERNARD ADAMS
Plaintiff

AND:

JOHN PHILLIP REYNOLDS
Defendant
REASONS FOR JUDGMENT - WHITE J

Judgment delivered 01/05/1996

CATCHWORDS O.90 r.9(2) - action for malicious prosecution - explanation for delay - prejudice to defendant - strength of plaintiff's case.

Counsel:Mr P Dutney QC with him
Mr PJ Murphy
for the applicant/plaintiff
Mr J Griffin QC with him
Mr M O'Sullivan
for the respondent/defendant

Solicitors:Robertson O'Gorman for the applicant/plaintiff
Crown Solicitor for the respondent/defendant

Hearing date: 18 April 1996

IN THE SUPREME COURT

OF QUEENSLAND

No. 908 of 1988

[Adams v. Reynolds]

BETWEEN:

ELWIN BERNARD ADAMS
Plaintiff

AND:

JOHN PHILLIP REYNOLDS
Defendant
REASONS FOR JUDGMENT - WHITE J

Judgment delivered 01/05/1996

This is an application by the plaintiff that he be granted leave to take a further proceeding in the action notwithstanding the expiration of three years since the taking of the last proceeding pursuant to O.90 r.9(2) of the Rules. The action is one for damages for malicious prosecution commenced by writ of summons on 11 March 1988. By his statement of claim the plaintiff alleges that on or about 20 August 1984 the defendant a member of the Queensland Police Service without reasonable and probable cause maliciously caused a warrant to be issued for his arrest upon a charge of murder. The plaintiff was extradited from New Zealand to Queensland on 27 August 1984. He continued in custody pending his committal. That concluded on 25 January 1985 when he and his co-accused were committed for trial. He was remanded in custody and was released when a no true bill was presented.
The last step in the action was taken on 17 March 1992 when a supplementary affidavit of documents was delivered by the plaintiff.
In Dempsey v. Dorber [1990] 1 Qd. R. 418 Connolly J with whom Carter and Moynihan JJ agreed said at p. 420
"On an application for leave to proceed under O.90 r.9, the applicant for leave must "show that there is good reason for excepting the particular proceedings from the general prohibition" on the taking of a fresh proceeding without the order of a court or a judge in a case in which three years have elapsed from the time when the last proceeding was taken. ... The question whether there is good reason for making such an order obviously involves the consideration of all relevant matters and the question whether there was reasonable excuse for the delay is unquestionably a relevant matter. ... In my judgment, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order."

See also William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 at p. 496.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Reynolds

Details

AGLC: Adams v Reynolds [1996] QSC 71
Case: [1996] QSC 71
Decision Date: 1 May 1996

CaseChat Overview and Summary

In the Supreme Court of Queensland, the plaintiff Elwin Bernard Adams brought an action against the defendant John Phillip Reynolds for damages for malicious prosecution. The plaintiff alleged that the defendant, a member of the Queensland Police Service, maliciously caused a warrant to be issued for his arrest on a charge of murder without reasonable and probable cause. The plaintiff was extradited from New Zealand to Queensland, where he was remanded in custody until a no true bill was presented. The last step in the action was taken on 17 March 1992, and the plaintiff applied for leave to take a further proceeding in the action notwithstanding the expiration of three years since the last step, pursuant to O.90 r.9(2) of the Rules. The court had to decide whether the plaintiff should be granted leave to proceed with the action.

The court considered the explanation for the delay, prejudice to the defendant, and the strength of the plaintiff's case. The plaintiff's solicitors were slow to seek copies of the Commissioner's documents, which had been inspected, but the documents initially provided for inspection were far from complete. The delay was also due to difficulties experienced by the plaintiff's solicitors in obtaining copies of documents or inspection of documents not originally provided. Furthermore, the delay was due to counsel's inaction. However, the court accepted that the file was not left to lie idle in the solicitors' office and that there was regular contact with the plaintiff.

The court also considered the prejudice to the defendant. The defendant resigned from the Queensland Police Service in 1993 and was one of a large number of police officers involved in the murder investigation. The defendant submitted that he was prejudiced by the death of two witnesses and the loss of the warrant of apprehension and the grounds therefore. However, the court found that the evidence which was available to and availed of by the defendant at the relevant time was relevant, not further enlightenment which the witnesses might have been able to cast upon the plaintiff's involvement in the murder.

Finally, the court considered the strength of the plaintiff's case. The elements to be established in an action for damages for malicious prosecution were not in dispute. The plaintiff must show that he was prosecuted by the defendant in the sense that the law was set in motion against him on a criminal charge by that defendant. The plaintiff must show that the prosecution was determined in his favour, that it was brought without reasonable and probable cause, and that it was malicious. The plaintiff had some prospects of demonstrating want of reasonable and probable cause, and the major issue would be whether the matters drawn to the court's attention were sufficient to constitute malice.

The court concluded that the plaintiff ought to be permitted to proceed with his action, subject to the condition that the plaintiff not deliver interrogatories for the examination of the defendant. The court ordered that the plaintiff pay the defendant's costs of and incidental to the summons to be taxed.

Orders