Calabro v The State of Western Australia [No 2] - [2013] WASC 367

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CALABRO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASC 367

CORAM: KENNETH MARTIN J

HEARD: 18 SEPTEMBER 2013

DELIVERED : 11 OCTOBER 2013

FILE NO/S: CIV 1622 of 2012

BETWEEN: DOMINIC CALABRO
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
BRIAN CONNOLLY
Second Defendant
PAUL STEWART BRUNINI
Third Defendant

Catchwords:

Practice and procedure - Pleadings - Joinder application - Malicious prosecution - Turns on own facts

Legislation:

Criminal Code (WA), s 397(2)
Director of Public Prosecutions Act 1991 (WA), s 20
Rules of the Supreme Court 1971 (WA), O 6, O 16, O 18, O 20, O 21

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     Ms K E McDonald
Second Defendant         :     Ms K E McDonald
Third Defendant           :     Ms K E McDonald

Solicitors:

Plaintiff:     In person
First Defendant             :     State Solicitor for Western Australia
Second Defendant         :     State Solicitor for Western Australia
Third Defendant           :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

A v State of New South Wales [2005] NSWCA 292; (2005) 63 NSWLR 631
A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
Calabro v The State of Western Australia [2012] WASC 418
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Neil v Nott (1994) HCA 23; (1994) 68 ALJR 509
Noye v Robbins [2010] WASCA 83
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers [No 5] (1986) 6 NSWLR 534
Williams v Spautz [1991] HCA 34; (1992) 174 CLR 509

KENNETH MARTIN J: On 18 September 2013 I dealt with and dismissed the application of the plaintiff (Mr Calabro) by his chamber summons of 17 July 2013 (filed 19 July 2013). Mr Calabro was seeking leave to add to his action, as fourth and fifth defendants respectively, Ms Sharyn Bowman (State prosecutor) and Mr Joseph McGrath SC, the present Director of Public Prosecutions. In each instance, leave had been sought to add the prospective fourth and fifth defendants in accord with a minute of amended substituted writ of summons dated 17 July 2013 (filed 19 July 2013).
By order 4 of his 17 July 2013 chamber summons Mr Calabro, who represents himself in this litigation, also sought leave to file and serve a 'proposed amended statement of claim' dated 17 July 2013 (filed 19 July 2013).
The matter was argued at a special appointment before me on 18 September 2013. After about an hour's submissions from Mr Calabro in person, a short adjournment was requested by him ‑ to which I agreed. When I returned, Mr Calabro essentially said that he had reached a position whereby he would no longer seek to pursue his application to add the fourth and fifth defendants to his action. Thereafter, I dismissed his application and awarded costs to the proposed fourth and fifth defendants, who had (by counsel) successfully resisted the application.
Because Mr Calabro acts in person there present some uncertainties over his documentation in this action. I indicated that I would publish brief reasons effectively recording the position I had reached at the end of argument on 18 September 2013. The exercise is an attempt to set a reliable foundation to proceed from to resolve further interlocutory applications made by the first, second and third defendants by their chamber summons of 17 July 2013. The first, second and third defendants challenge various components of the plaintiff's writ, and his statement of claim (pursuant to O 20 r 19 of the Rules of the Supreme Court (WA) (RSC). The defendants also seek summary judgment against the plaintiff pursuant to RSC O 16 r 1, regarding the plaintiff's present claims of malicious prosecution against the first, second and third defendants. Those applications presently remain unresolved.

Procedural history

It is necessary to record the position regarding various iterations of the plaintiff's writ and minutes thereof which have followed since these proceedings were first commenced (by writ filed 16 April 2012).
On my review of the court file there looks to be 16 iterations either of a writ, amended writ, minutes of amended writ, or statement of claim or purported statement of claim. These are:
1.16 April 2012 ('writ of summons');
2.22 June 2012 ('ammended [sic] substituted writ of summons');
3.18 July 2012 ('ammended [sic] substituted writ of summons');
4.15 August 2012 ('minutes of proposed ammended [sic] substituted writ of summons');
5.3 September 2012 ('minute of ammended [sic] substituted writ of summons');
6.11 September 2012 ('ammended [sic] substituted writ of summons');
7.8 October 2012 ('minute of ammended [sic] substituted writ of summons' and also filed as an attachment to the affidavit of Dominic Calabro on 19 October 2012);
8.26 November 2012 ('minute of ammended [sic] substituted writ of summons');
9.7 June 2013 ('minute of ammended [sic] substituted writ of summons');
10.7 June 2013 ('statement of claim');
11.12 June 2013 ('minute of ammended [sic] substituted writ of summons');
12.12 June 2013 ('amended statement of claim');
13.26 June 2013 ('ammended [sic] substituted writ of summons');
14.26 June 2013 ('amended statement of claim');
15.19 July 2013 ('minute of ammended [sic] substituted writ of summons'); and
16.19 July 2013 ('amended statement of claim').
Document 1 above is the writ initiating proceedings filed by the plaintiff (then as against some nine intended defendants).
Iteration 8 (of 26 November 2012) became by leave, in effect, the plaintiff's amended writ. It is directed at just the current first, second and third defendants. That came about by reason of orders made by the CMC case manager, Beech J, in accord with his Honour's directions of 14 November 2012. That is the case notwithstanding that the filed document is headed 'Minute Of Ammended [sic] Substituted Writ Of Summons As Per Justice Beech Directions Dated 14 November 2012'.
The application determined today was the failed attempt to add the fourth and fifth defendants, under iteration 13 and then 15. I note that the document that I have assessed in these reasons is iteration 15, the 19 July 2013 'Minute of Ammended [sic] Substituted Writ of Summons'.
By reason of the failure of the application to obtain leave, regrettably, the iteration 15 minute requires some more adjustment, essentially by way of deletions insofar as there are now redundant references to the intended fourth and fifth defendants.
To assist Mr Calabro providing a further minute of amended writ of summons (what would be his 17th iteration) I will try to identify and contrast differences between his amended writ of November 2012 (iteration 8) and the document which I considered today, albeit only in the context of the intended fourth and fifth defendants (iteration 15).
Before that, however, I should say that the court file records Mr Calabro eventually filed a statement of claim on 7 June 2013 and an amended statement of claim on 12 June 2013. The amended statement of claim is directed against the first, second and third defendants only. It remains the relevant pleading, notwithstanding that, with a view to Mr Calabro's obtaining leave to add putative fourth and fifth defendants, he has further filed two documents entitled 'Amended Minute Of Claim Pursuant To Justice Beech Orders Dated 13 June 2013'. The court file shows the dates of those documents as 26 June 2013 and 19 July 2013. Both in fact, look to be only minutes of proposed amended statement of claim in respect of which leave would be required, by Beech J's orders of 13 June 2013. Under order 1 of those orders:
The plaintiff (had) 14 days in which to file any application to amend his writ dated 26 November 2012 and/or statement of claim dated 7 June 2013 and/or to add any parties to the action.
Item 4 of Mr Calabro's chamber summons filed 19 July 2013 refers to the 'proposed amended statement of claim dated 17 July 2013 attached'.
Leave cannot be granted to Mr Calabro to proceed in accordance with the proposed amended pleadings filed 26 June 2013 and 19 July 2013, by reason of its now redundant references to proposed fourth and fifth defendants, as leave to add these defendants has not been obtained.
I note by reference to (unnumbered) pages of the minutes of pleading of 26 June 2013 and 19 July 2013 that claim number 2 par 1) ends with this sentence:
The continuation of the prosecution was an act of Abuse of Process or Malicious Prosecution by the Fourth and Fifth Defendants.
The proposed pleadings have not been permitted. Mr Calabro's relevant statement of claim therefore remains his amended statement of claim filed by him on 12 June 2013.

The indorsements

I return to the indorsements of claim on the amended writ (iteration 8), viewed by way of contrast to what is sought under the minute of amended writ (iteration 15).
Although Mr Calabro should have, but has not attempted this exercise, what I set out below is my consolidation and contrast as between the indorsements found upon iteration 8 and iteration 15. I have either ruled out or underlined his augmentations and his deletions under iteration 15 where they depart from iteration 8.
Additionally, I have shown as shaded in grey for section 2 of the indorsement, all references by the plaintiff to the fourth and fifth defendants. These must now be shown as deleted on the 17th iteration ‑ as leave was not obtained to add these extra defendants at today's hearing.
INDORSEMENT OF CLAIM
Against the first, second and third defendants:
1.False Imprisonment and Misfeasance in Public Office
a)At approximately 10 am the morning of 20 July 2010 Plaintiff was asked to attend police headquarters Curtin House via phone by Detective Brunini for the purpose of a 'chat'. The appointment was made for 3pm and that was when the plaintiff arrived. The Plaintiff accompanied Detective Brunini to his floor which was secure. Immediately the plaintiff was ordered by Detective Brunini to remove his shoes and the contents of his pockets, which remained outside of a holding cell that he was immediately locked in. The plaintiff was unaware that he would be locked up upon his arrival. The plaintiff felt an assertion of authority and submission to imprisonment. The Plaintiff was not informed of being under arrest until several hours later during an official recorded interview. The charge was false and without any reasonable basis causing the plaintiff to be wrongfully arrested. When en‑route to other holding facilities and the Perth Magistrates court the plaintiff was escorted by several law enforcement officers. The plaintiff was falsely imprisoned by ~~ministerial~~ police actions until approximately 3pm on 21 July 2010 by at which point a judicial order was made by a Magistrate at the Perth Magistrates Court. Detective Connolly was in charge of the investigation and signed the charge sheet. It is to be inferred that these actions occurred with Detective Connolly's concurrence and under his direction. Detective Connolly and Detective Brunini are liable and the first defendant is vicariously liable and are responsible for the plaintiff's injuries and the plaintiff is entitled to compensation from the defendants. The plaintiff seeks general and aggravated damages were in a public office purporting to discharge their duties. The Detectives either knew or were recklessly indifferent to the fact that false arrest, baseless charges, and false imprisonment were unlawful and would cause harm to the plaintiff in the purported discharge of his duties. These actions were carried out in an improper manner with an improper motive and not done in good faith. These actions caused the plaintiff to suffer injury to liberty, personal trespass, indignity, intimidation, fear, stress, anxiety, humiliation, injured feelings and confiscation of personal possessions, and other detriments and losses past and future. If it is found that malice is involved then either or both the second and third defendants are liable are responsible for the plaintiff's injuries and the plaintiff is entitled to compensation from the defendants. The plaintiff seeks general damages, aggravated damages, exemplary damages, and loss of income. If either of the second or third defendant is found not to have acted maliciously then the first defendant is liable for the Plaintiff's injuries and entitlement to compensation resultant from the False Imprisonment. The plaintiff claims general damages, aggravated damages and loss of income.
Against the First, Second and Fourth and Fifth Defendants
2.Abuse of Process or Malicious Prosecution and Misfeasance in Public Office
a)At approximately 3 pm on 21 July 2010 the plaintiff was remanded by a judicial order made by a Perth Magistrate on the charge of extortion. There was insufficient evidence to support the charge and an absence of reasonable and probable cause. Strict bail conditions were imposed. Investigation continued until 7 February 2011. ~~The plaintiff was not indicted until 1 September 2011.~~ Detective Connolly was in a public office purporting to discharge his duties. The Defendant either knew or was recklessly indifferent to the fact that false arrest, baseless charges, and false imprisonment were unlawful and would cause harm to the plaintiff in the purported discharge of his duties. These actions were carried out in an improper manner with an improper motive and not done in good faith. The Fourth Defendant as a State Prosecutor adopted and continued the prosecution. The fourth defendant either had knowledge or was recklessly indifferent to the fact that the charge was baseless and that proceedings continued in an abuse of process of the courts. The fourth defendant knew or was recklessly indifferent to the fact that the prosecution was causing and would continue to cause harm to the plaintiff. The plaintiff was indicted by the Fifth defendant with the current baseless charge and further baseless charges on the 1 September 2011. The Fifth Defendant is the Director of Public Prosecutions either knew that or was recklessly indifferent to the fact that adopting and continuing the prosecution was an abuse of process of the courts and caused harm to the plaintiff. The Fourth defendant continued the prosecution until 9 February 2012. Prosecutors filed a notice of discontinuance 9 February 2012 for lack of grounds for a conviction. Trial date was set for 13 February 2012. Detective Connolly acted maliciously in laying, and or alternatively maintaining the charge. The fourth and fifth defendants acted maliciously in maintaining the prosecution. These actions caused the plaintiff suffered deprivation and constraint of liberty, psychological imprisonment, loss of reputation, loss of enjoyment of life, deleterious effects of the plaintiffs health, pain and suffering including serious psychological harm, intimidation, depression, fatigue, fear, stress, disgrace, anxiety, humiliation, mental anguish, injured feelings, mistrust in law enforcement and the state, loss of dignity, sleeping problems, fatigued, muscle and chiropractic issues, loneliness, tortured, social anxieties and phobias and other detriments and losses past and future. Due to the seriousness of the charges the plaintiff could not obtain business insurance in order to be self‑employed, nor could he be employed by other organisations. Detective Connolly is liable and is responsible for the plaintiffs injuries and the plaintiff is entitled to compensation from the defendant for Malicious Prosecution and for Misfeasance in Public office. The Fourth and Fifth Defendants are also liable and responsible for the plaintiffs injuries and the plaintiff is entitled to compensation from those defendants for Malicious Prosecution. The plaintiff claims general damages, aggravated damages, exemplary damages, ~~and economic loss~~ and loss of income. If either of the defendants are found not to have acted maliciously then the first defendant is liable for the Plaintiffs injuries and entitlement to compensation of these defendants for Abuse of Process. The Plaintiff claims general damages, aggravated damages and loss of income.
3.~~Malicious Prosecution~~
Abuse of Process and Misfeasance in Public Office
a)Detective Connolly applied for restraining orders on 7 March 2012 at Perth Magistrate Court on behalf of a solicitor, a seasoned business man, and a contracts manager of a large construction company, all who were more than capable of applying on their own behalf under the Restraining Orders Act ex‑parte. The claims were baseless. There was insufficient evidence to support the applications and an absence of reasonable and probable cause. Detective Connolly gave the notion that the plaintiff was guilty by association and reports a long history of commercial disputes. Detective Connolly abused his position as a police officer in order to bring the baseless claim against the Plaintiff under the Restraining Orders Act and was at the time purporting to discharge his duty as a public officer. Detective Connolly either knew that or was recklessly indifferent to the fact that applications were baseless, could not be justified at law, and that the institution and maintaining of the proceedings was an abuse of the courts processes and would cause harm to the Plaintiff. Interim VROs were granted. Detective Connolly continued with the prosecution to 2 May 2012 where the matter went to a final orders hearing. All matters were found in favor [sic] of the plaintiff. These actions risked exposing the Plaintiff to the jeopardy of further authoritive [sic] action had the orders been breached, and risk exposing the Plaintiff to the jeopardy of an order that brands the Plaintiff as a violent person or a person whom one needs protection against by the courts and the police. ~~Detective Connolly acted maliciously in applying for and maintaining application for the restraining orders on behalf of others against the plaintiff.~~ These actions also caused the plaintiff injury to liberty, loss of reputation, loss of enjoyment of life, intimidation, depression, fatigue, fear, stress, disgrace, anxiety, humiliation, loneliness, injured feelings, sleeping problems and loss of income. If Detective Connolly is found to have acted maliciously ~~in applying for and maintaining application for the restraining orders on behalf of others against the plaintiff.~~ then he is liable and responsible for the plaintiffs injuries and the plaintiff is entitled to compensation from the defendant. The plaintiff claims general damages, aggravated damages, exemplary damages, and loss of income. If Detective Connolly is found to not have acted maliciously then the first defendant is liable for the Plaintiffs injuries and entitlement to compensation from abuse of process. The Plaintiff claims general damages, aggravated damages and loss of income.
It is necessary there be a 17th iteration of an indorsement from Mr Calabro for what would then be a minute of amended writ reflecting the outcome of the 18 September 2013 hearing. That should be implemented within 14 days of the publication of these reasons. Furthermore, I afford Mr Calabro the option to file another minute of a proposed amended statement of claim (which would be his fifth iteration of such a pleading or proposed pleading) should he choose, within the same period of 14 days. Alternatively, he may elect to proceed in accordance with his second iteration of statement of claim of 12 June 2013.
I now proceed to render some brief observations for the record about Mr Calabro's unsuccessful application.

Dismissed application for leave to add fourth and fifth defendants

From Mr Calabro's perspective, the materials relied upon in pursuit of his application to add these extra defendants were:
(a)Plaintiff's minute of amended substituted writ of summons (15th iteration) filed 19 July 2013.
(b)Plaintiff's minute of amended statement of claim (fourth iteration of that document, listed at number 16 above) filed 19 July 2013.
(c)Plaintiff's affidavit of 19 July 2013 (which is essentially a document comprised almost entirely of legal argument or submissions running to some 75 paragraphs). The document was treated as a submission only, as it is wholly inadmissible as an affidavit adducing evidence.
(d)Plaintiff's second affidavit filed on 6 September 2013 of some 206 paragraphs. Again, this prolix document was redolent with conclusions, argument or hearsay references to extracts from documents not attached to the affidavit. Even making considerable allowances for the efforts of a litigant in person, this document presents in dramatically inadmissible form. To the extent it contains submissions or arguments, as it does in most places, it can be treated as that alone, for what they are worth. But this affidavit is certainly not evidence to support the plaintiff's position.
(e)Plaintiff's written submissions supporting his chamber summons filed 1 August 2013 and comprising some 21 pages of materials.
Opposing the application for joinder, the State Solicitor, acting for the putative extra defendants, filed outline of written submissions of 21 August 2013. These submissions deal in part also with the State's application on behalf of the first, second and third defendants to strike out aspects of the plaintiff's indorsement, his statement of claim and also seeking the summary dismissal of the malicious prosecution claims pursuant to RSC O 16.
Additionally, on 17 September 2013, the State filed a supplementary outline of submissions purely in respect of its objection to the joinder of the proposed fourth and fifth defendants.
Essentially, the plaintiff's application seeking to add the fourth and fifth defendants looked to be framed around his attempted invocation of the tort of malicious prosecution or the tort of (collateral) abuse of process against them. As regards malicious prosecution, the elements of this tort were settled in Australia by the reasons of the plurality in A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon & Crennan JJ). Their Honours said:
For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(i)that the proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(ii)that the proceedings terminated in favour of the plaintiff;
(iii)that the defendant, in initiating or maintaining the proceedings, acted maliciously; and
(iv)that the defendant acted without reasonable and probable cause.
For present circumstances, it is sufficient to note regarding Mr Calabro:
(a)he looks to have been arrested and detained by Detective Sergeant Brunini on 20 July 2010 at about 3.00 pm;
(b)he was subsequently charged with at least one offence contrary to s 397(2) of the Criminal Code (WA) (the Code);
(c)he was presented before a magistrate some time during the afternoon of 21 July 2010 at the Perth Magistrates Court ‑ where he was remanded into custody until certain bail conditions imposed could be met;
(d)he appears to have been remanded in custody in Hakea Prison until about 5.00 pm on 24 or 25 July 2010, when Mr Calabro was essentially able to meet all his bail conditions;
(e)he subsequently appeared before various magistrates from time to time, as his bail was renewed;
(f)he was subsequently indicted on 1 September 2011 under an indictment signed by the Director of Public Prosecutions in respect of offences contrary to s 397(2) of the Code (extortion), two other charges related to graffiti, a charge of arson and a charge of damage to property;
(g)he had indicated his intention to plead not guilty to all charges and was due to stand trial in the District Court of Western Australia upon those indicted charges at a trial fixed to commence on 13 February 2012;
(h)that on 9 February 2012 a notice of discontinuance was filed by the Director of Public Prosecutions for all charges brought against the plaintiff, on a basis of what the plaintiff told me was a 'lack of grounds' for a conviction (this is possibly a reference to an exercise of the Director of Public Prosecutions' powers pursuant to s 20 of the Director of Public Prosecutions Act 1991 (WA)), although that was by no means made clear;
(i)an ex parte application was subsequently made by the second defendant on behalf of three persons, seeking a violence restraining order (VRO) against Mr Calabro in the Perth Magistrates Court on 7 March 2012. Interim VROs were then granted; and
(j)on 2 May 2012 presiding Magistrate Malone refused to extend or to make final the VROs against Mr Calabro.
Mr Calabro's intended pursuit of the proposed fourth and fifth defendants for damages for the tort of malicious prosecution requires something to indicate a basis for Mr Calabro meeting elements three and four identified from A v New South Wales [1] above. But the essential thrust of his materials, repetitiously stated, is that he contends the charges brought against him were always baseless. Ultimately, they were discontinued as of 9 February 2012. This, in effect, is the sole foundation put forward to advance his proposed claims of malicious prosecution against the would be fourth and fifth defendants over their alleged 'continuing' or 'maintaining' the prosecution against him.
As I told Mr Calabro, I detect nothing, upon a thorough scrutiny of all his materials (as earlier identified above) to suggest any potential basis for an argument that the third or fourth elements of the tort of malicious prosecution might possibly be maintained against the prospective additional parties. As regards the tort of malicious prosecution, I refer to RSC O 6 r 3(b) which places that tort in a category effectively akin to that of an action in libel or slander, in terms of what can be put in a writ. Clearly, the indorsements of claim seen under all of Mr Calabro's writ iterations to date, fail to meet the requirements of O 6 r 1(1). The rule refers to the writ being 'indorsed with a concise statement of the nature of the claim made, and of the remedy or relief required in the action'. The plaintiff's indorsements instead take on the character of repetitious narratives. To date, that aberrant feature has been largely overlooked, presumably, on the basis of a concession made to the plaintiff as an unrepresented litigant. In that respect, see Beech J in earlier reasons in this action, Calabro v The State of Western Australia [2012] WASC 418 [22] referring to Wentworth v Rogers [No 5] (1986) 6 NSWLR 534, 536 ‑ 537, and Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J); Neil v Nott (1994) HCA 23; (1994) 68 ALJR 509; and Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (Newnes JA & Murphy J).
But even making substantial allowances for the unrepresented position of Mr Calabro, the desired extra contention of malicious prosecution against the fourth and fifth defendants requires some underlying basis more than a formulaic repetition of the bare elements of the tort and repetitive references to 'baseless' charges.
On my view, the fact that the charges were discontinued on 9 February 2012 (on the basis of an expressed lack of confidence towards securing his conviction at a trial if that was the case) is not, of itself, sufficient indicia that there was not an existence of reasonable and probable cause at the time Mr Calabro was indicted, on 1 September 2011.
The fact that indicted charges are later dropped is no basis on which to legitimately infer from that fact of dismissal alone that there was no reasonable or probable cause for a prosecution at the time that Mr Calabro was indicted. As to that proposition, see Noye v Robbins [2010] WASCA 83 [205]. There it was observed by Owen JA:
Much later, when the shortcomings in the evidence came to be better appreciated, the DPP dropped the charges and no attempt has been made to revive them. However, I am satisfied that when they were made, [Robbins who was the police officer concerned] was honestly of the opinion that they should be laid as part of his responsibility to put a suspected offender on trial for good cause …and that he reached that belief after taking advice from persons whom he was entitled to respect and rely upon in that regard.
In A v State of New South Wales [2005] NSWCA 292; (2005) 63 NSWLR 631, Beazley JA stated:
It is also apparent on the evidence as discussed earlier that at some later stage the second respondent formed the view that the case may not survive the criminal process … such a belief does not, of itself, amount to evidence that there was not reasonable and probable cause or that he did not believe the material upon which he could properly make an assessment was such as to justify the laying of a charge [172].
On the subsequent appeal to the High Court (A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500) Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ observed that the tort of malicious prosecution has a 'temporal dimension', in that attention is directed to:
the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light [59].
Accordingly, as regards the tort of malicious prosecution, no arguable basis to obtain leave to add the fourth and fifth defendants as extra parties pursuant to RSC O 18 r 6(2)(b) has been demonstrated on Mr Calabro's materials. Likewise, no basis for leave to add the additional parties and further causes of action necessarily associated with proceeding against such extra parties in accord with RSC O 21 r 1(3)(a) and (b) could be established. These presenting deficiencies were raised and discussed at some length with Mr Calabro during the course of argument on 18 September 2013. In the end, he accepted the apparent difficulties and as a result indicated he would withdraw his leave application. In the circumstances, that was, in effect, his only option. The State sought an award of costs in its favour in respect of the application which could not be opposed. Orders in those terms were duly issued.
Likewise, Mr Calabro's proposed, alternate cause of action on a basis of collateral abuse of process, presented equally as conceptually deficient: see Williams v Spautz [1991] HCA 34; (1992) 174 CLR 509, 523. The majority (Mason CJ, Dawson, Toohey & McHugh JJ) said:
Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers.
Nothing in any of the materials submitted on behalf of Mr Calabro (to which I have referred) indicated he had any prospect of meeting such a requirement as regards the four and fifth defendants. Nothing was shown to suggest Mr Calabro's 1 September 2011 indictment was for an improper purpose, or for an extraneous object going beyond bringing the charges on which he was then indicted (see also Williams v Spautz (526 ‑ 527)).

Future developments

As indicated, Mr Calabro must file a corrected minute of amended writ and as well, if he wishes, a further iteration of a minute of amended statement of claim within 14 days of the publication of these reasons. Any changes should be marked up to show what Mr Calabro is altering by deletion or addition in any further indorsement or statement of claim. Alternatively, Mr Calabro may rely on his existing amended statement of claim of 12 June 2013. The matter should be relisted for a further directions hearing before either Beech J or myself (depending upon our respective availabilities) to programme a hearing to determine residual unresolved applications by the first, second and third defendants.