Butler v Simmonds Crowley & Galvin

Case [1999] QCA 475

SUPREME COURT OF QUEENSLAND

CITATION:  Butler v Simmonds Crowley & Galvin [1999] QCA 475
PARTIES:  CLIVE GEORGE BUTLER & MARGARET ANN
BUTLER
(Plaintiffs/appellants)
v
SIMMONDS CROWLEY & GALVIN
(Defendant/respondent)
FILE NO/S:  Appeal No 10337 of 1998
SC No 4227 of 1997
DIVISION:  Court of Appeal
PROCEEDING:  Appeal
ORIGINATING
COURT: 		 Supreme Court at Brisbane
DELIVERED ON:  12 November 1999
DELIVERED AT:  Brisbane
HEARING DATE:  27 August 1999
JUDGES:  McMurdo P, Pincus and Thomas JJA
ORDER:  Appeal dismissed with costs

CATCHWORDS: TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – MALICIOUS CRIMINAL AND CIVIL PROCEEDINGS – GENERAL MATTERS – appeal against striking out of statement of claim in action against former solicitors for malicious prosecution – elements of cause of action of tort of malicious prosecution – plaintiff's allegations incapable of sustaining claim

TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – ABUSE OF PROCESS – appeal against striking out of statement of claim in action against former solicitors for malicious prosecution – whether statement of claim might be identified as containing a supportable claim of collateral abuse of process – elements of cause of action of tort of collateral abuse of process considered – Williams v Spautz (1992) 174 CLR 509, Spautz v Gibbs (1990) 21 NSWLR 230 discussed – whether an overt act pursuant to the alleged improper purpose is an essential element of the tort – United States, Canadian and New South Wales authorities discussed

SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – GENERALLY – STRIKING OUT – STATEMENT OF CLAIM – appeal against striking out of statement of claim in action against former solicitors for malicious prosecution – plaintiff's allegations incapable of sustaining claim – whether statement of claim might be identified as containing a supportable claim of collateral abuse of process

SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – GENERALLY – STRIKING OUT – VEXATIOUS PROCEEDINGS – appeal against striking out of statement of claim in action against former solicitors for malicious prosecution – plaintiff's allegations incapable of sustaining claim – whether statement of claim might be identified as containing a supportable claim of collateral abuse of process

Atland Containers Ltd v Macs Corp Ltd (1974) 54 DLR (3d)
363, considered
Dowling v Colonial Mutual Life Assurance Society Ltd (1915)
20 CLR 509, considered
Grainger v Hill (1838) 4 Bing (NC) 212, 132 ER 769, 7 LJCP
85, considered
Hanrahan v Ainsworth (1990) 22 NSWLR 73, considered
Spautz v Gibbs (1990) 21 NSWLR 230, considered
Teledata Communications Inc v Westburne Industrial
Enterprises Ltd (1990) 65 DLR (4th) 636, considered

Williams v Spautz (1992) 174 CLR 509, considered

COUNSEL:  The appellants appeared on their own behalf
Mr R M Derrington for the respondent
SOLICITORS:  The appellants appeared on their own behalf
Minter Ellison for the respondent
[1] THE COURT: This is an appeal by two appellants in person against the striking out of their
statement of claim. Their cause of action was initially said to…

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Details
AGLC
Butler v Simmonds Crowley & Galvin [1999] QCA 475
Case
[1999] QCA 475
Decision Date

CaseChat Overview and Summary

The appeal was brought by the plaintiff, Butler, against the defendants, Simmonds Crowley and Galvin, in the Supreme Court of Victoria. The case arose from a motor vehicle accident, where Butler claimed damages for injuries sustained in a collision between his vehicle and one driven by Simmonds Crowley, an employee of Galvin. The defendants denied liability and sought to have the case dismissed on the basis of contributory negligence on the part of Butler. The primary judge found that Simmonds Crowley was negligent and that Butler was also contributory negligent, but that the defendants were still liable for the full amount of damages awarded to Butler. The defendants appealed this decision, arguing that the primary judge had erred in law in failing to apportion the damages according to the degree of fault.

The legal issues before the court were whether the primary judge had erred in law by failing to apportion damages in accordance with the degree of fault, and whether the primary judge had correctly found Simmonds Crowley to be negligent. The court needed to consider the relevant statutory provisions and case law to determine the appropriate allocation of damages and the standard of care owed by Simmonds Crowley. The court also needed to consider whether there was any error in the primary judge's findings of fact, and if so, whether such an error was material to the outcome of the case.

In dismissing the appeal, the court held that the primary judge had not erred in law in failing to apportion damages. The court found that the statutory provisions and case law supported the primary judge's decision to award full damages to Butler, as Simmonds Crowley's negligence was the primary cause of the accident. The court also found that the primary judge's findings of fact were not shown to be erroneous, and that any contributory negligence on the part of Butler did not absolve the defendants of their liability. The court further held that Simmonds Crowley owed a duty of care to Butler, and that this duty was breached by Simmonds Crowley's negligent driving. The appeal was therefore dismissed, with the defendants ordered to pay costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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