David Millar v Lynette McDade

[2017] NSWSC 984

Supreme Court

New South Wales

Medium Neutral Citation:

David Millar v Lynette McDade [2017] NSWSC 984

Hearing dates:

21 July 2017

Date of orders:

21 July 2017

Decision date:

21 July 2017

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1)   Grant leave to the plaintiff to amend the statement of claim in accordance with these reasons and substantially in the form propounded in the further amended statement of claim attached to the submissions of the plaintiff of 26 June 2017.

 

(2) Dispense with the requirements of r 19.5 Uniform Civil Procedure Rules 2005 and instead grant leave to the plaintiff to file a further amended statement of claim re-cast as to form but not as to substance.

 

(3)   The costs of and incidental to today are costs in the cause.

 

(4)   The plaintiff is to serve the re-cast further amended statement of claim within 14 days.

 

(5)   The defendant is to raise any objection concerning the content of the re-cast statement of claim within a further seven days, 11 August 2017.

 

(6)   Grant both parties liberty to apply on short notice if a dispute arises about the form of the re-cast further amended statement of claim.

 

(7)   Absent a dispute, the defendant is to file a defence to the further amended statement of claim within a further period of 14 days, 25 August 2017.

 (8)   The matter is set down for directions before the Common Law Registrar on 4 September 2017 at 9am.

Catchwords:

PROCEDURE – application to amend statement of claim – malicious prosecution – where amendments are particulars of an averment relating to a lack of reasonable and probable cause – distinction between particulars and evidence considered – UCPR r 15.4 considered – held that amendment to be allowed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

PPK Willoughby Pty Limited v Roads and Maritime Services [2014] NSWSC 407
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Category:

Procedural and other rulings

Parties:

David Millar (Plaintiff)
Lynette McDade (First Defendant)
Commonwealth of Australia (Second Defendant)

Representation:

Counsel:
J J Hyde with D F Villa (Plaintiff)
A M Mitchelmore with J K Edwards (First and Second Defendants)

  Solicitors:
K&L Gates (Plaintiff)
Australian Government Solicitor (First and Second Defendants)

File Number(s):

2016/307299

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. This is a claim for damages for malicious prosecution brought by a former member of the Australian Defence Force in relation to a court martial that was resolved in his favour. The event giving rise to that prosecution occurred while he was on active service with one commando company of the 1st Commando Regiment in Afghanistan.

2. The dispute that has come before me today relates to proposed amendments to the statement of claim. Mr Hyde, who appears for the plaintiff with Mr Villa, and Ms Mitchelmore, who appears for the defendant with Mr Edwards, have very commendably, and if I may say so sensibly, very much reduced the issues in dispute between them. There is now no dispute about the proposed new paragraphs 46A and 46B and I need not say any more about them.

3. The matters that remain in dispute are five paragraphs only in the further amended statement of claim, shown as paragraphs 69A to 69F. They are, in fact, as has been made clear in the course of argument today, particulars of the averment at paragraph 69, that the Director of Military Prosecutions (“the DMP”) lacked reasonable and probable cause for instituting and maintaining the prosecution.

4. The debate has been broken up into two points. The first concerns paragraphs 69A and 69B which purport to incorporate some matters which appear later in the further amended statement of claim as particulars of aggravated damages. The objection to those matters is essentially that they are too remote in time to be relevant facts concerning the elements of the tort given that the prosecution ran from late 2010 to the middle of 2011.

5. I interpolate that I have formed the view that those two paragraphs are bad in form as they purport to provide evidence when r 14.7 Uniform Civil Procedure Rules 2005 (NSW) provides:

“…a party’s pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved.”

These are particulars, as I have said, but there remains a distinction between particulars and the means by which the matter contained in the particular will be proved. This defect can be readily rectified simply by adopting the language of incorporation.

6. Turning to the substantial point that Ms Mitchelmore makes, the relevant particular goes to proving the DMP's state of mind at the relevant time. Rule 15.4 requires that a pleading that alleges any condition of mind must give particulars of the facts on which the party pleading relies. It is common-place that a person's state of mind can only be proved by either circumstantial evidence or admission: see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. It's also common-place that circumstantial evidence embraces all of the surrounding circumstances, and juries are commonly instructed that in considering the state of mind of an accused they are entitled to have regard to circumstances established by the evidence before, during and after the relevant act. Doubtless there will be a question about whether matters that arose after the prosecution was discontinued are sufficiently relevant to be capable of proving the DMP's state of mind when the proceedings were instituted and during the period when they were maintained. That, however, is a question of fact that can only be decided at the trial.

7. It seems to me that whether the incorporated facts said to have occurred in paragraphs 83 and 84 in August and September 2011 or even those set out in paragraphs 93A to 93F which occurred in 2016, are sufficiently relevant to be admitted in evidence can only be decided at the trial. However, to the extent to which the DMP’s statement to the ABC in 2016 is said to be an admission, the fact that it occurred five years after the prosecution may not be of decisive importance. It seems to me that it cannot be said that the matter is so clearly immaterial that it ought not to be included in the pleading and, subject to the correction of the form of the amendment, I will allow the substance of 69A and 69B to proceed.

8. The defendant's second complaint about paragraphs 69C to 69F is similar. Ms Mitchelmore points out that in substance the matters set out in those paragraphs relate, firstly, to a statutory event which occurred before the institution of the proceedings and, secondly, to media comment made during the currency of the prosecution, and that they cannot be relevant.

9. First, she submits that the matters set out in 69D relating to the representation made by the "superior authority" occurred before the institution of the prosecution and can say nothing about the state of mind of the DMP at the time it was instituted and when it was maintained. Secondly, media comment or criticism, it is submitted, or indeed parliamentary debate, is incapable of saying about what was going on in the DMP's mind at the relevant time.

10. The gravamen of the matter is 69F which draws together the four preceding paragraphs and ascribes to the DMP an ulterior motive for instituting and maintaining the proceedings. It's couched in language that the proceedings were instituted and maintained by implication, I will say, because it would have been professionally embarrassing for the DMP to have dropped the matter. I am paraphrasing what is in the pleading. That matter may be characterised as an improper motive for maintaining a prosecution, the only proper motive being the advancement of the administration of military justice. As I remarked in the course of argument, a determination to continue with the charges in the face of criticism may support more than one inference. A favourable inference might be the courageous discharge of one's duty as a prosecutor despite public criticism. However, either inference, and perhaps others, may be open.

11. It seems to me that looked at in that way, paragraphs 69C and 69E provide a necessary context to what is contained in 69F and although one would not foreclose any argument about admissibility at a trial, I certainly can understand how they are put and their potential relevance to the specific matter raised at 69F. Accordingly, I would allow an amendment in terms of those paragraphs.

12. There is one matter which I have so far skirted around and that is, as Ms Mitchelmore correctly points out, that the form of language in s 69F is illogical inasmuch as it refers to a failure to withdraw the charges when the matter pleaded in 69D, for instance, necessarily precedes the institution of the proceedings. I think that is a fair criticism of the syntax of the paragraph which no doubt can readily be corrected.

13. I will allow the substance of the proposed amendments for those reasons.

14. I had cause to remark in PPK Willoughby Pty Limited v Roads and Maritime Services [2014] NSWSC 407 that practical difficulties will sometimes arise, whereas here, the need arises to make many amendments to a pleading which has been assessed as insufficient by a party's legal advisors. The attempt to salvage the existing pleading may compound rather than cure the problem. Sometimes it may be better simply to start again although the rules do not accommodate such an approach readily. I think this is also such a case where despite the best endeavours of competent counsel to draft, as it were, the proposed changes onto a generally well-drawn existing pleading, a certain amount of confusion has crept into the document in that process. Both counsel agree that it would be in the interests of clarity and the better definition of the issues in the case if the plaintiff was given the opportunity to, as it were, re-organise the pleading without substantially changing the content of the further amended statement of claim. Mr Hyde and Mr Villa have pointed out to me r 19.5 Uniform Civil Procedure Rules 2005 (NSW) which requires them to take the approach they have to propounding this further amended statement of claim in draft form. Subject to being given the opportunity to vet, as it were, the new draft to make sure that she is satisfied that it does not change things substantially, Ms Mitchelmore agrees with that approach. Accordingly, I think it appropriate that the plaintiff's legal advisors be given that opportunity.

(See transcript for further discussion re costs.)

15. My orders are:

1. Grant leave to the plaintiff to amend the statement of claim in accordance with these reasons and substantially in the form propounded in the further amended statement of claim attached to the submissions of the plaintiff of 26 June 2017.

2. Dispense with the requirements of r 19.5 Uniform Civil Procedure Rules 2005 and instead grant leave to the plaintiff to file a further amended statement of claim re-cast as to form but not as to substance.

3. The costs of and incidental to today are costs in the cause.

4. The plaintiff is to serve the re-cast further amended statement of claim within 14 days, 4 August 2017.

5. The defendant is to raise any objection concerning the content of the re-cast statement of claim within a further seven days, 11 August 2017.

6. I grant both parties liberty to apply on short notice if a dispute arises about the form of the re-cast further amended statement of claim.

7. Absent a dispute, the defendant is to file a defence to the further amended statement of claim within a further period of 14 days, 25 August 2017.

8. The matter is set down for directions before the Common Law Registrar on 4 September 2017 at 9am.

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Decision last updated: 24 July 2017