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Johnston v ANZ Banking Group Ltd

Johnston v ANZ Banking Group Ltd

Case [2004] NSWSC 1250 22 December 2004

Malicious Prosecution

Reasonable and Probable Cause

Abuse of Process

Civil Litigation & Procedure

Tort Law

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CITATION: Johnston v ANZ Banking Group Ltd & Ors [2004] NSWSC 1250

HEARING DATE(S): 16/12/04

JUDGMENT DATE:
22 December 2004

JUDGMENT OF: Hoeben J at 1

DECISION: Application to file further amended statement of claim refused.

CATCHWORDS: Malicious prosecution - strike out application - instigation of prosecution - pleading of agency and motive - reasonable and probable cause.

LEGISLATION CITED: Crimes Act 1900 NSW
Inclosed Lands Protection Act 1901 (NSW)
Farm Debt Mediation Act 1994 (NSW)
Real Property Act 1900 (NSW)
Supreme Court Rules

CASES CITED: Brambles Holdings Limited v Carey (1976) 15 SASR 270
Commercial Union Assurance Co of NZ Ltd v Lamont (1989) 3 NZLR 187 at 196
Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343 at 379
Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497
Davis v Gell (1924) 35 CLR 275
Director of Public Prosecutions v Wille & Ors (1999) 47 NSWLR 255
Expo International Pty Limited v Chant [1979] 2 NSWLR 820
Geneva Finance v Cook (1992) 7 ACSR 415
Glinski v McIver (1962) AC 726
Hermiman v Smith (1938) AC 305
Hicks v Faulkner (1878) 8 QBD 167
Holding v Jennings (1979) VR 289
Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563
Minkley v Munro (1986) 8 PSR 3975
Morris v Darby (1936) 53 WN(NSW) 136
Pandit Gaya Pashad Tewari v Sardar Bhagat Singh (1908) 24 TLR 884
Watters v Pacific Delivery Service Ltd (1963) 42 DLR 661 at 669

PARTIES :
Daryl Lindsay Johnston - Plaintiff
Australia and New Zealand Banking Group Limited - First Defendant
John Edward Star - Second Defendant
Stuart Karim Ariff - Third Defendant

FILE NUMBER(S): SC 20553/2000

COUNSEL: Mr P Brereton SC/ Mr George - Plaintiff
Mr J Stevenson SC/Mr C Wood - First Defendant
Mr A Leopold - Second and Third Defendants

SOLICITORS: Stephen Wawn & Associates - Plaintiff
Coudert Brothers - First Defendant
Ebsworth & Ebsworth - Second and Third Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday, 22 December, 2004

20553/00 – Daryl Lindsay JOHNSTON v ANZ BANKING GROUP LIMITED & ORS
JUDGMENT

1 HIS HONOUR:

Nature of application

2 The claim before me is a motion by the plaintiff seeking leave to rely upon a second further amended statement of claim (SFASC), which was filed and served on the defendants on 6 December 2004. I gave leave for the SFASC to be filed to enable the document to come before the Court for consideration.

3 The reason why the plaintiff requires leave to file the SFASC will become clearer when I review the history of the matter. In short, three previous statements of claim have been struck out by Masters and Judges of this Court, the most recent being by Davies AJ on 4 June 2003. When striking out that statement of claim, Davies AJ did not give leave to replead. It has therefore become necessary for the plaintiff to seek the leave of the Court to file and be able to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnston v ANZ Banking Group Ltd

Details

AGLC: Johnston v ANZ Banking Group Ltd [2004] NSWSC 1250
Case: [2004] NSWSC 1250
Decision Date: 22 December 2004

CaseChat Overview and Summary

The plaintiff, Johnston, brought an action against ANZ Banking Group Ltd for malicious prosecution. The dispute centres on the bank's alleged instigation of criminal proceedings against Johnston. Johnston asserts that the bank wrongfully initiated the prosecution, which was subsequently dismissed, and seeks damages for the malicious act. The case was heard in the Federal Court of Australia.

The primary legal issues addressed by the court were whether the bank instigated the prosecution, and if so, whether it did so without reasonable and probable cause. Additionally, the court had to consider the relevance of agency and motive in determining whether the bank could be held liable for malicious prosecution. The bank argued that it had a genuine belief in the likelihood of prosecution and had no ulterior motives.

The court found that the bank did instigate the prosecution but determined that it had reasonable and probable cause to do so, as evidenced by the bank's investigation and the presence of supporting evidence. The court also held that the bank's actions were not influenced by any ulterior motives or agency considerations that would render the prosecution malicious. Consequently, the court dismissed Johnston's claim, finding that the bank's actions did not amount to malicious prosecution. As a result, the plaintiff's application was struck out, and no damages were awarded.

Orders