Ivory v Telstra Corporation Ltd

[2001] QSC 102

SUPREME COURT OF QUEENSLAND

CITATION:	Ivory v Telstra Corporation Limited & Anor [2001] QSC 102
PARTIES:	KENNETH CLYDE IVORY (plaintiff) v TELSTRA CORPORATION LIMITED (CAN 051 775 556) (first defendant) STEPHEN JOHN MEAD (second defendant)
FILE NO/S:	S 9084/99
DIVISION:	Trial Division
DELIVERED ON:	11 April 2001
DELIVERED AT:	Brisbane
HEARING DATE:	29 January 2001
JUDGE:	Douglas J
ORDER:	Action dismissed
CATCHWORDS:	MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – MALICIOUS CRIMINAL AND CIVIL PROCEEDINGS – ESSENTIALS OF CAUSE OF ACTION GENERALLY – MALICE – whether the defendants maliciously and without reasonable and probable cause laid the complaint on which the prosecution and the warrant upon the plaintiff was made
MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – MALICIOUS CRIMINAL AND CIVIL PROCEEDINGS – ABUSE OF PROCESS – whether the defendants made and brought the complaint and prosecution of the plaintiff for the improper purposes of bringing pressure to bear on the plaintiff to cause himself and third parties to withdraw demands for civil compensation, and to pay disputed accounts owing to the first defendant
MALICIOUS  PROCEDURE AND FALSE
IMPRISONMENT  – FALSE IMPRISONMENT –
ESSENTIALS OF CAUSE OF ACTION
OFFENCES AGAINST PEACE AND PUBLIC ORDER – INSULTING, ABUSIVE, UNSEEMLY OR THREATENING LANGUAGE AND BEHAVIOUR – GENERALLY – whether the behaviour of the plaintiff towards employees of the first defendant reasonably amounted to acts invoking fear and threatening behaviour that would warrant prosecution under the Peace and Good Behaviour Act 1982
Peace and Good Behaviour Act 1982
Abrath v North Eastern Railway Co (1882-1883) 11 QBD 440 Australian Solar Mesh Sales Pty Ltd v Anderson [1999] FCA 641 Bayliss v Cassidy & Ors (1998) QSC 186 Gibbs v Rea (1998) 3 WLR 72 Glinski v McIver (1962) AC 726 Hope v Evered (1886) 17 QBD 338 Johnstone v Sutton 1 Term Rep 493 Mitchell v John Heine & Son Ltd (1938) 38 SR NSW 466 Rapley v Rapley (1930) 30 SR(NSW) 94 Williams v Spautz (1992) 174 CLR 509
COUNSEL:	K Ivory self represented P A Keane QC, SG and with him L Kelly for first and second defendants
SOLICITORS:	K Ivory self represented Thynne & Macartney for first and second defendants

1. DOUGLAS J: This action has its genesis in a dispute which arose between the plaintiff, Kenneth Clyde Ivory, and the first defendant, Telstra Corporation Limited, concerning the change by the first defendant from the 008 system of toll free telephone calls to a system which altered the prefix to 1800. The plaintiff claims that as a result of the change and because of the first defendant’s default his subscription to the toll free service was, for a considerable time, not operative and that as a result he (and or entities associated with him) suffered damage.

2. The evidence reveals that he began to make a series of complaints to the first defendant and, according to him, he has achieved no satisfactory result. The question of whether or not he (or his associates) are entitled to damages for the first defendant’s default in those circumstances is the subject of another action in this court which is to be heard at some later time.

[3] The present action is one for malicious prosecution. In his Statement of Claim the
plaintiff alleges (inter alia) the following:

(a)	that the defendants prosecuted him pursuant to s 2 of the Peace and Good Behaviour Act 1982 (“the Act”) under a complaint made by the defendants and sworn on 23 December 1996;
(b)	that on 23 December 1996, in the course of the prosecution the defendants caused the issuing of a bench warrant addressed to the plaintiff;
(c)	that the prosecution was heard by the Magistrates Court of Queensland on 27 February 1997, and that the prosecution and warrant were dismissed;
(d)	that the defendants maliciously and without reasonable and probable cause laid the complaint on which the prosecution and the warrant were based.

1. In the particulars provided in the Statement of Claim the plaintiff alleged that the allegations of fact relied upon were false and were known to be false by the defendants; and that the defendants did not have the state of mind of fear necessary to cause the defendants to have cause to pursue the complaint or the prosecution. In particular the following paragraph appeared in the Statement of Claim:

“7.

The defendants made and brought the complaint and
prosecution for the improper collateral purposes of:

(a)	bringing pressure to bear on the plaintiff to cause himself and third parties to withdraw demands for civil compensation from the first defendant;
(b)	bringing pressure to bear on the plaintiff to pay disputed accounts owing by third parties to the defendant.”

1. I take it that the third parties there referred to are the companies and firms associated with the plaintiff and that the demand for civil compensation is a reference to the claim being made by the plaintiff against the first defendant in respect of the alleged faulty connection of a toll free 1800 number.

2. The Statement of Claim further alleged that the complaint and prosecution were brought by the defendants with knowledge “that it had little if any prospects of success and for the improper collateral purpose of wasting the plaintiff’s resources”; and “for the improper collateral purpose of damaging the plaintiff’s business.”. The business there referred to appears to me to be the business carried on by the plaintiff and companies and firms associated with him.

3. By their defence the defendants admitted:

(a)	that the warrant was dismissed by a Stipendiary Magistrate in the Brisbane Magistrates Court on 27 February 1997; and
(b)	that the complaint itself was heard and dismissed by the same Magistrate on the same day.

1. The defendants denied malice and allege that they acted with reasonable and probable cause in making the complaint and procuring the issue of the warrant. They asserted that they acted on and were motivated by a fear that the plaintiff would commit assault or bodily injury to employees of the first defendant at various premises from which the first defendant conducted its business operations and that the plaintiff had provoked such a fear by having engaged in a course of threatening behaviour towards various employees of Telstra as particularised in various affidavits relied upon by them for the making of and hearing of the complaint. Each of those deponents was called before me.

2. At the outset having seen and heard the plaintiff giving evidence and conducting his own case before me, I have concluded that his evidence should only be accepted if it is adverse to his own interests, or if it is corroborated by other reliable evidence. I am of the view that his case was a fundamentally dishonest one, based as it was on the allegation, necessary to its success, that the deponents, on whose evidence the complaint was based, were deliberate liars who had concocted their evidence.

[10] The evidence of the complainants in the Magistrates Court is summarised in the
defence of the defendants. It is as follows:

(i)         On or around 6 December 1994 the plaintiff attended the offices of the first defendant and demanded to see Mr Frank Blount, the then Chief Executive Officer of the first defendant. The plaintiff spoke to Ms Fiona Kim Hills, Manager, Customer Response Unit, Telecom Office of Customer Affairs of the first defendant. During the course of this meeting the plaintiff caused a chair to be swung at Ms Hills.

(ii)        On or around 7 January 1995, the plaintiff attended the Archerfield branch of the first defendant. The plaintiff spoke there with Mr Timothy Howard, Store Manager of the Archerfield branch of the first defendant. During the course of this meeting the plaintiff was abusive towards Mr Howard and pushed him.

(iii)       On or around 27 November 1996, the plaintiff attempted to contact Mr Frank Blount, the then Chief Executive Officer of the first defendant. The plaintiff spoke with Ms Carmel Parisi, the personal assistant to Mr Blount. During the course of this conversation the plaintiff became abusive towards Ms Parisi and said words to the effect:

“I won’t be responsible for another Tasmanian, you know Bryant, incident happened at 242. I’m gonna come looking for you and William Blount. I’m gonna get you.”

(iv)       On or around 7 December 1996, the plaintiff caused a facsimile to be sent to Mr Frank Blount, the then Chief Executive Officer of the first defendant. In this facsimile, the plaintiff stated, inter alia:

“But I would get a great deal of personal satisfaction if you were to vomit up your Christmas dinner in front of your family, as a result of your OWN PERSONAL POMPOUS inability to resolve these matters amicably long ago …

… Perhaps your NEW YEARS RESOLUTION should be to resolve this accumulating reprisals that we herein refer to and are attempting to if have any compassion and or integrity left at all. If you do then we herein beg of you to order full compensation too be paid immediately to this company and it’s licensee’s and their franchisees and the like forthwith, before New Years eve and before you sit down and try and enjoy your Christmas dinner, with your family” (sic).

(v)        On or around 10 December 1996, the plaintiff contacted Mr Justin Edward Noel Wastell, Telstra Case Officer, employed by the first defendant. During the course of this conversation the plaintiff became abusive towards Mr Wastell and said words to the effect:

“Your are a fucking corrupt person Justin … Get your little arse up here so that I can grab you by the throat you little … I will fuck your life up for good … Yes I want revenge. It is beyond a business matter.”

1. I find that each of those incidents occurred as particularised and the statements

   were made as deposed to in the affidavit and in the evidence before me.

2. In reaching the conclusion that the plaintiff’s evidence should only be accepted if it is adverse to his own interests or if it is corroborated by all reliable evidence, I rely particularly upon the following matters:

(a)	in evidence (even in evidence in chief) he was constantly evasive;
(b)	he refused to answer questions when he perceived or thought that the answer may adversely affect his interest;
(c)	despite warnings given by me to him that he appeared to me to be evasive, he continued in that behaviour. It was not as if he was a novice to giving evidence. He had been involved in a number of commercial cases involving the businesses of his companies and firms and his evidence had previously been commented upon adversely by Branson J in Australian Solar Mesh Sales Pty Ltd v Anderson [1999] FCA 641.

1. Despite the fact that the evidence revealed that he had been to the first defendant’s offices at 242 Exhibition Street, Melbourne, and the fact that this was the address to which he addressed his correspondence, he pretended ignorance of that address.

[14] When the defendants’ case was put to him in cross examination his retort often was
“look, will you stop making up stories” or some such other remark.

1. In contradiction to his verbal testimony there was written support for the evidence of each of the first defendant’s witnesses, in particular the diary notes of Mr Wastell; Ms Parisi’s e-mail of 27 November 1996; and her facsimile to Mr Mead of 28 November 1996. In addition, there were Mr Howard’s notes of 7 January 1995, and his typed version two days later. Mr Mead’s evidence was supported by numerous documents made contemporaneously.

2. Most implausible was his version of the encounter with Mr Howard at a Telstra shop near the plaintiff’s residence. Mr Howard was obviously concerned about the plaintiff’s behaviour, yet the plaintiff dishonestly claimed that the events did not occur in the manner alleged by Mr Howard, or at all.

3. What disturbed me most was his feigning of a lack of knowledge of the significance of the words “Martin Bryant” and that Tasmanian connection. His failure to honestly reply to questions concerning the threat made to Ms Parisi indicated to me that there was nothing about the plaintiff’s evidence that I could possibly accept, except as indicated.

4. The threats which were made against the first defendant and its officers began on or about 6 December 1994. They were in two groups. The first group ceased on or around 7 January 1995. There was then an hiatus until 27 November 1996 when he had the “Bryant” conversation with Ms Parisi. The nature and level of his threats increased and became repetitious between then and 10 December 1996 when he threatened the life of Mr Wastell. These serious incidents, coming as they did within a short space of time, must be viewed together and not in insolation from each other. It was at this point in time that Mr Mead, a solicitor employed by the first defendant, became more concerned about the first defendant’s safety and that of its employees. The plaintiff’s threats were being taken seriously and security on relevantly located Telstra buildings was increased. The first defendant obtained and acted upon external legal advice in instituting and continuing the proceedings. In particular the solicitors advised Mr Mead that the Act provided an appropriate way of proceeding. Mead believed that the case of the defendants’ had strength even though he originally thought that the problems raised by the plaintiff were better left with the police. It was when the police were approached by the first defendant’s solicitors that the police recommended proceedings be taken under the Act.

5. The idea of the warrant for the arrest of the plaintiff, as distinct from the issuing of a summons with a return date, originated from the Magistrate on the day of the first application.

6. The elements of the tort of malicious prosecution are:

(a)	the prosecution of the plaintiff by the defendant;
(b)	that the proceedings complained of terminated in the plaintiff’s favour;
(c)	that the prosecution was instituted without any reasonable and probable cause;
(d)	that the defendant instituted or continued the proceedings maliciously. See Bayliss v Cassidy & Ors (1998) QSC 186 per Muir J at 15-19; and Glinski v McIver (1962) AC 726 at 742, 753.

1. The onus is on the plaintiff to prove each of these elements: see Glinski v McIver (supra) at 742, per Viscount Simonds; and the onus borne by a plaintiff seeking to make out such a case is “a heavy one”: see Williams v Spautz (1992) 174 CLR 509 at 529.

[22] The plaintiff has made out elements (a) and (b) above. The case concerned whether
or not he also made out elements (c) and (d) above.

1. As to the element of want of reasonable and probable cause, Jordan CJ in Mitchell v John Heine & Son Ltd (1938) 38 SR NSW 466 at 469 said that the following conditions should exist:

   “(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information , whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence in believing that the accused is probably guilty.”

2. A person who puts in train the processes of the court need only “be satisfied that there is a proper case to lay before the court, or in the words of Lord Mansfield, that there is a probable cause “to bring the (accused) to a fair and impartial tribunal”: see Johnstone v Sutton 1 Term Rep 493 at 547”: see Glinski v McIver, supra, at 758; 766-767.

3. Similarly a person who fairly and honestly lays the facts now on which he relies and on which he bases his suspicions before a Magistrate who then issues the warrant is not liable for the exercise of the Magistrate’s discretion. See Hope v Evered (1886) 17 QBD 338 at 340; Bayliss v Cassidy & Ors, supra, at 31.

4. In my view the circumstance that the proceedings failed because of error of law on the part of a prosecutor or its advisers does not establish a want of reasonable and probable cause. This is clearly so where the first defendant acted upon legal advice honestly given and honestly obtained: Glinski v McIver, supra, at 744-745 and 758- 759; and Bayliss v Cassidy, supra, at 27.

5. While it is a necessary element of the tort that the prosecution was terminated in the plaintiff’s favour, it is clear that “if the plaintiff merely proved that, and gave no evidence of the circumstances in which the prosecution was instituted, it seems that the plaintiff would fail; and a judge could not be asked, without some evidence of the circumstances in which the prosecution was instituted, to say that there was an absence of reasonable and probable cause. See Abrath v North Eastern Railway Co (1882-1883) 11 QBD 440 at 449-450.

6. Malice in the context of malicious prosecution includes improper motive, in this context meaning “an indirect or improper motive, and not in furtherance of justice”, or “a motive or desire (other) than to do what the moving party bona fide believed to be right in the interests of justice”. Bayliss v Cassidy (supra) at 25; Gibbs v Rea (1998) 3 WLR 72 at 80; Rapley v Rapley (1930) 30 SR(NSW) 94 at 99.

7. In my finding the plaintiff has failed to make out the motives pleaded in paragraph 7 of the Statement of Claim. Indeed, on the evidence, the claims made in that paragraph were in any real sense fanciful.

8. Further the plaintiff failed to establish, either an absence of reasonable and probable cause, or malice, in the bringing of the complaint under the Act, and failed to establish that any of the defendants had knowledge of the falsity of the defendants’ allegations as contained in the affidavits used in the earlier proceedings and referred to in the defence.

9. It follows then that the plaintiff’s action must fail.

10. I shall, in any event, make some findings on damages.

11. The plaintiff failed to adduce any satisfactory evidence in relation to damages. In particular he failed to call any medical evidence. For example, from his treating doctor or doctors, as to any deterioration of his mental or physical health after his arrest in December 1996. I am therefore permitted to draw an inference against him that any such evidence would not have supported his case.

12. Further, he did not call his wife to testify as to any observable affect the arrest had upon him. Her absence from the case was not explained. He did call two lay witnesses, in particular a Mr Blake who, in reality, proved that the plaintiff had been involved in a “litany of legal activities” for a period spanning more than ten years. Mr Blake was told by the plaintiff that the temporary incarceration of him had been “devastating to him” but seemingly did not observe this devastation himself. The evidence of Mr Blake and Mr Hinwood was limited in scope and relevance and did not assist me in coming to any conclusion that the plaintiff had suffered any real loss or damage as a result of his temporary incarceration.

13. Similarly, the plaintiff’s claim for legal costs allegedly incurred by him in defending the complaint and summons is vague in the extreme. He did tender an invoice from the solicitors which had not been paid. However, I am not sure that he acknowledges an obligation to pay that account. He was evasive on this point and at best it might be that he suggested that acknowledgment of a moral obligation to pay but not a legal one. It is, however, clear that the plaintiff claims that the lawyers engaged by him breached their duty to him by entering into secret agreements with the first defendant. Therefore as submitted by the first defendant and, in light of this attitude, his evidence to the effect that he recognised a moral obligation to them ought to be rejected as being implausible.

1. Another head of claim was that the plaintiff suggested that he had spent many, many hours in pursuing his defence, and that he was entitled to a rate of $15 per hour for his own time in so doing. However, to find this amount and the fact that the time was in fact spent depends upon believing the plaintiff. Frankly I do not on this matter either. Indeed the plaintiff seems to spend most of his time in endless correspondence and he prefers to waste it pursuing extreme and fanciful conspiracy theories rather than being engaged in any useful or gainful endeavour.

2. Finally, as to medical expenses his evidence was so unsatisfactory as to sum that I am quite unable to come to any conclusion that he spent any money at all on medical expenses related to his short period of incarceration.

3. It follows then that the plaintiff is only entitled to a nominal sum by way of damages relating to his arrest and temporary incarceration. I assess those damages as $1,000.

4. On 9 April 2001 I received some further submissions from the plaintiff. They are in the main unintelligible and concern particularly an alleged conflict between Mr Mead who was a solicitor employed by Telstra but seconded from Messrs Mallesons Stephen Jaques, which was the firm engaged by Mead to give advice to the first defendant concerning the plaintiff.

5. The nature of the conflict alleged in Mr Mead to me is quite improbable and fanciful. Further, those submissions deal with matters which may be relevant in the plaintiff’s other action against the first defendant concerning the faulty connection of the 1800 telephone prefix. Unfortunately the plaintiff is confused between this action and the other action. I could not make any sense of the further submissions and, indeed, regard them as quite rambling. None of the allegations made in them have been made out and, in any event, they rely mainly upon my accepting the plaintiff as a witness of truth which I cannot.

6. In the event I order that the action be dismissed. I shall hear submissions as to cost.