Irving v Pfingst (No 2)

Case [2025] QSC 224

SUPREME COURT OF QUEENSLAND

CITATION:

Irving v Pfingst (No 2) [2025] QSC 224

PARTIES:

TERRY IRVING
(Plaintiff)
v
HELEN MAREE PFINGST

(First Defendant)

THE STATE OF QUEENSLAND

(Second Defendant)

FILE NO/S:

BS 234 of 1999

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2024; further submissions received from the plaintiff on 18 September 2024

JUDGES:

Brown J

ORDERS:

1.   The parties are directed to calculate and agree to the amount of interest at the rate in [2] of the Proposed Orders for the relevant period.

2.   The parties are to provide an agreed draft order containing the Proposed Orders which includes the calculation of interest referred to in [1] above to the Associate for Brown J by 4 pm on 18 September 2025 to be provided by email.

3.   The defendants are to pay 40 per cent of the plaintiff’s costs of proceedings in the Trial Division excluding:

(a)     the plaintiff’s costs of the aborted trial before Boddice J;

(b)     reserve costs in respect of the applications filed by the plaintiff on 30 January 2004 and 11 July 2011; and

(c)     costs in respect of proceedings s 914 of 1999 and s 63 of 2001.

CATCHWORDS:

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – GENERALLY – where the plaintiff brought a successful claim for malicious prosecution against the defendants – where the plaintiff claims damages for general, aggravated and exemplary damages and an award of interest  – whether the plaintiff is entitled to general, aggravated and exemplary damages and in what amount? – whether the delay of the plaintiff should affect period for which interest awarded?

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the plaintiff brought alleging two malicious prosecutions – where one claim successful and  other claim unsuccessful – where the plaintiff seeks an order that the defendants pay all of the plaintiff’s costs of the trial on a standard basis to be assessed – where the defendants submit that the costs should reflect the level of success on the issues that had to be considered and the plaintiff’s unreasonable delay increased costs – whether the plaintiff is entitled to all of his costs?

Bulsey v State of Queensland [2015] QCA 187, considered
Hrdavec v State of New South Wales [2021] NSWSC 560, considered
Houda v The State of New South Wales [2005] NSWSC 1053, cited
Irving v Pfingst [2020] QSC 280, related
Irving v Pfingst [2021] QCA 280, related
Spedding v State of New South Wales [2022] NSWSC 1627, considered
State of New South Wales v Riley (2003) 57 NSWLR 496, cited
State of New South Wales v Spedding [2023] NSWCA 180, considered
Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020, considered

COUNSEL:

G Mullins KC and E Gass for the Plaintiff

S McLeod KC and M Wilkinson for the Defendants

SOLICITORS:

Maurice Blackburn for the Plaintiff

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Details
AGLC
Irving v Pfingst (No 2) [2025] QSC 224
Case
[2025] QSC 224
Decision Date

CaseChat Overview and Summary

In the case of Irving v Pfingst (No 2), the plaintiff, Irving, pursued a claim against Pfingst and another defendant for malicious prosecution. The plaintiff was successful in his claim concerning one of the charges but not the other. The plaintiff sought general, aggravated, and exemplary damages, as well as interest. The defendants argued that the delay of the plaintiff should affect the period for which interest was awarded. The plaintiff also sought an order that the defendants pay all of the plaintiff’s costs of the trial on a standard basis. The defendants argued that the costs should reflect the level of success on the issues considered and the plaintiff's unreasonable delay, which increased costs.

The court found that the assessment of damages must take into account the findings of the majority of the Court of Appeal that the defendants were liable for malicious prosecution and any relevant evidence from the trial. The court found that the objective insufficiency of the material to warrant the Accessory Charge was demonstrated by the absence of material in the first defendant's possession to warrant the allegation that Wayne Suthers had committed the robbery. The court found that the insufficiency of the material was such that it supported an inference that the first defendant could not honestly have formed the view that there was a proper case for the prosecution of Irving in relation to the Accessory Charge. The court found that the first defendant could not have held an honest belief that Irving was guilty of the offence charged if, at the same time, she suspected that it was Irving, and not Suthers, who robbed the bank.

The court ordered that the parties were to calculate and agree on the amount of interest at the rate in the Proposed Orders for the relevant period. The parties were to provide an agreed draft order containing the Proposed Orders which includes the calculation of interest to the Associate for Brown J by 4 pm on 18 September 2025 to be provided by email. The defendants were to pay 40 per cent of the plaintiff’s costs of proceedings in the Trial Division excluding certain specified costs.

Orders

Orders of the court

1. The parties are directed to calculate and agree to the amount of interest at the rate in [2] of the Proposed Orders for the relevant period.

2. The parties are to provide an agreed draft order containing the Proposed Orders which includes the calculation of interest referred to in [1] above to the Associate for Brown J by 4 pm on 18 September 2025 to be provided by email.

3. The defendants are to pay 40 per cent of the plaintiff’s costs of proceedings in the Trial Division excluding:

(a) the plaintiff’s costs of the aborted trial before Boddice J;

(b) reserve costs in respect of the applications filed by the plaintiff on 30 January 2004 and 11 July 2011; and

(c) costs in respect of proceedings s 914 of 1999 and s 63 of 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The background to this matter has been set out in both the reasons I delivered following the trial and by the Court of Appeal. I will therefore not repeat it.Decision of the Court of Appeal The assessment of damages must take into account the basis of the findings expressed by the majority of the Court of Appeal determining that the defendants are liable for malicious prosecution and any relevant evidence from the trial relevant to the assessment of damages. It is not otherwise an occasion on which this Court revisits its findings made in the trial below. Justice Fraser in his reasons found that the objective insufficiency of the material to warrant the Accessory Charge was demonstrated by the absence of material in the first defendant’s possession to warrant the allegation that Wayne Suthers had committed the robbery.[2] According to his Honour, the insufficiency of the material was such that it supported an inference that the first defendant could not honestly have formed the view that there was a proper case for the prosecution of plaintiff in relation to the Accessory Charge.[3] Justice Fraser agreed with Justice McMurdo, that there was overwhelming evidence that when the first defendant brought the Accessory Charge she suspected the plaintiff had committed the armed robbery, the strength and enduring character of that suspicion being revealed by the evidence that she was then in the midst of investigating.[4][2]COA Decision at [20]. [3]COA Decision at [20].[4]COA Decision at [23]. Justice McMurdo found that at the time that the plaintiff was charged with the Accessory Charge he could not have been both the robber and an accessory after the fact to his own offence.[5] He found that the first defendant could not have held an honest belief that the plaintiff was guilty of the offence charged if, at the same time, she suspected that it was the plaintiff, and not Mr Suthers who robbed the bank. In particular, McMurdo JA found that: “[101] Although, in her evidence-in-chief, Ms Pfingst did say that she believed that Mr Irving was guilty of the Accessory Charge, such a belief was disproved by other evidence, including her own. She admitted that she knew nothing about Suthers, apart from what she had been told by Mr Irving. She accepted that she had no evidence that Suthers was the robber. She suspected that Mr Irving was the robber. The evidence of that suspicion was overwhelming. She was pursuing a line of enquiry that one of Mr Irving’s shirts was that of the robber. In several documents which she prepared by then, she described him as a suspect for the robbery itself. She could not have held, at the same time, a belief that Suthers was the robber whilst suspecting that Mr Irving was the robber.…[105]It is therefore demonstrated that the judge erred in finding that when she laid the Accessory Charge, Ms Pfingst believed Mr Irving was guilty as charged, or was probably guilty of that charge. And if this case is characterised as one where the prosecutor may not have known where the truth lay, it should have found that it was demonstrated that Ms Pfingst had not honestly concluded that the material was such as to warrant setting the process of the criminal law in motion on this charge.”

Ratio Decidendi

Legal Principle Established

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