Law Institute of Victoria & Ors v Little

[1989] HCATrans 239

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M23 of 1989

B e t w e e n -

LAW INSTITUTE OF VICTORIA,

GORDON DAVID LEWIS and

BERNARD GEORGE TEAGUE

Applicants

and

JOHN DAVID LITTLE

Respondent

Application for special

leave to appeal

BRENNAN J

DAWSON J

Institute

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 OCTOBER 1989, AT 9.46 AM

Copyright in the High Court of Australia

; .,

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MR H.R. HANSEN± QC: If the Court pleases, I appear for the

app icants, with my learned friend, MR G.M. RANDALL.

(instructed by McKean & Park)

MR J.D. LITTLE:	I appear in person, Your Honour.
BRENNAN J:	Mr Hansen.

MR HANSEN: If Your Honour pleases. This matter, Your Honours,

arises out of the case of LITTLE V LEWIS that was

ultimately reported and came here on an application

for leave by Mr Little in 1987 from the dismissal

of his appeal to the Full Court against the committal

order that had been made against him following his

failure to pay the insurance contribution under the

LEGAL PROFESSION PRACTICE ACT and his practising

without a certificate. That was in August,

Your Honours, and then following that in October

he issued a writ for damages against the applicants

on grounds of malicious prosecution, misfeasance in

a public office, conspiracy and breach of the

FAIR TRADING ACT.

The Full Court, in dealing with that pleading,

by a majority, allowed the malicious prosecution

counts to stand including that which has sued upon

the committal proceedings which resulted in a decision

in favour of the applicants and struck out one part

of the misfeasance in a public office, struck out the

conspiracy and struck out the FAIR TRADING.

The points that we wish to make about the matter

are these - they are exactly as we have set them
out in the affidavit, Your Honours, but two of the
points concern the plea of malicious prosecution

and one concerns the plea of misfeasance in a public

office.

The first point concerning the claim of

malicious prosecution is concerned with paragraphs 7

and 8 of the statement of claim which which are a

pleading based entirely upon the taking of the

committal proceedings and the order of committal.

The point is simply this, Your Honours, that it

has always been the law that for a plaintiff to be

able to sue in respect of malicious prosecution, the

original proceedings must have been terminated in
his favour and it was for that reason that
Mr Justice Gobbo, at first instance, and · ·

Mr Justice Ormiston, in the Full Court, said that

those paragraphs must be struck out of the statement

of claim. That is an element that has always been

insisted upon in decisions in this Court and everywhere.

What Their Honours in the majority appear to have said was this: they acknowledged at the outset of their reasons that that was an element; they then

said that all the elements of the cause of action

had been pleaded when they had not actually because

there had been no plea, as Mr Justice Ormiston

pointed out, that that element was satisfied, of

the successful termination of proceedings.

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Their Honours then went on to apparently

say that if there could be demonstrated to be some

dependence between the two proceedings - what

Their Honours say appears at page 52, I think, of

the appeal book - then somehow that element would

be done away with and not have to be satisfied.

DAWSON J: It is not really that, is it, Mr Hansen? It is that

ultimately the plaintiff was - I am not saying this
is right but ultimately he was vindicated and the

substratum - the ultimate substratum of the committal

proceedings was removed and that may in some way take

you outside the rule or, at least, allow you to

apply the rule differently. I am not saying that is

right for one moment but that is the gravamen of it.

MR HANSEN:  No. Well, that is, of course, the point that

Mr Little made when he was in the Full Court.	It is
the point he made on his application for special

leave to this Court. It is the point he tried to

reopen before the Full Court. It is that when the

restraining order was set aside, that the whole basis

of the committal order went and the committal order

should have been set aside.

DAWSON J:	It may or may not be a strong point but we are,
after all, dealing with a pleading summons, are we
not?

MR HANSEN: Well, yes, Your Honour, but it was not really put

that way. The effect of it must be, if it is put
the way Your Honour has put it or the way the

Full Court has put it which has been put in a way that would be entirely impossible to charge a jury

upon, in our submission, then one has really done

away with that essential element of the cause of

action because the fact is there were two separate

proceedings with two results. There were two appeals.

Mr Little was successful in one, unsuccessful in the

committaJ.; an application for leave to this Court

on the committal order which failed.	It stands.
That is the result, and nothing, really, can detract

from that fact.

We would submit, Your Honours, that what the

majority in the Full Court's reasoning has done is

to really make a change in the law. It is an entirely

novel approach. It is one that means that there is

a separate position in Victoria and it is one which

also, in our submission, is impossible to apply.

There is no criteria that is specified. What the

Full Court - what the majority have referred to on

page 52 of the application book is an appropriate

finding by a jury but - - -

DAWSON J:	It will only be a temporary thing if the case goes on.
It may only be a temporary - if you say the law is
wrongly decided, it will only be a temporary situation.

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I mean, ultimately, the matter will be decided

and there will be a factual situation in which, if

it is appropriate, the matter can come to this

Court but on a pleading summons it is not very

satisfactory, is it, to have that before this

Court?

MR HANSEN:  Yes, but in the meantime one has to bear it.

UAWSON J: That is right.

BRENNAN J: Well, that is right.

MR HANSEN:  But, Your Honours, it is to bear something that

is quite inconsistent with the principles, as

they have always been, and when the judge is in

that impossible position, we would submit.

BRENNAN J:  The choice really lies, does it not, Mr Hansen,

between this Court undertaking a review of

interlocutory orders that it has ma.de in order to ensure

that subsequent trials are conducted according to

law or reserving its capacities to deal with

factual situations which raise substantive

questions of law for decision.

MR HANSEN:  Well, yes, but the way in which we put it, of

course, is that there seemed to be a change in law

and not just something that is dealing with fact.

BRENNAN J:  But there is no express disclaimer of the existing

law with respect to the - - -

MR HANSEN:	Not by Their Honours.
BRENNAN J:	No.
MR HANSEN:	No, and yet that, as we submit, is the effect of

it.

BRENNAN J: If the action goes to trial, the problems which

you may now wish to agitate on the pleadings may,

in fact, never arise.

MR HANSEN: Well, they may not, Your Honour. In the ultimate,

they may not, no.	Your Honours, that is the first
point.

The second point is one also concerning the

plea of malicious prosecution and it concerns all

of the paragraphs of that pleading and it is this,

that what Their Honours have decided is that as a

matter of policy there ought to be a change in the

law in this respect: one of the elements of the

tort is that there be damage and, of course, one

of the great control mechanisms that has been

imposed through the cases for a long time is through

the statement as to what may constitute damage for

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this purpose, and the first head of damage

that is recognized is damage to a person's

fame. And what it has always been said is

that, on the civil side of things, apart from

a bankruptcy petition or a winding up petition,

in a civil case, there simply is not damage to

a person's fame from the institutional

maintenance of proceedings. So, one simply

cannot bring this type of case for an ordinary civil case, and what the majority have decided

is that there ought to be a change in that

rule and - - -

DAWSON J:  They all decided that, did they not?

MR HANSEN:  Yes, Your Honour; Mr Justice Ormiston for his

separate reasons. But the result is that in

Victoria there is a substantial and significant change in the law which has a - of

great significance because it now removes one

of the great fetters that has always been imposed,

one of the controls, as it were, on the ability

to freely use this cause of action.

DAWSON J: Undoubtedly, there is a question and an important

question there which you may have a chance to

agitate when a decision has been made and this

Court will have the benefit of a factual decision.

MR HANSEN:  Yes, Your Honour, of course that is so but we

wanted to have a decision at this stage, Your Honour.

BRENNAN J: )res.

TOOHEY J:	But if you isolated that question, Mr Hansen, and
special leave were granted in respect of that
point and you received ·a favourable answer,
it would not dispose of the action, would it?

MR HANSEN: Well, what it would mean is that the entire

claim based on malicious prosecution would go.

It would leave otherwise the claim for misfeasance

in a public office. That would be all that is

left as it stands at the moment, Your Honour.

That really brings me to the third point

which is the claim of misfeasance in a public

office and here our point-is this, that what

one has here is an application to a court by
the Secretary of the Law Institute who, it may

be assumed for this purpose is a public officer -

for the purpose of the tort - and he makes an
application to the Court and it is by the order

of the Court that the damage, if there be damage,

is suffered by Mr Little and our submission is that

as a matter of basic concept, the tort is applicable

to administrative acts which themselves cause the

harm that is complained of to the plaintiff and not

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to an act such as this where the public officer

under a statutory power takes a proceeding in

court and then the plaintiff complains of the

consequence of a court order. And it is put as

simply as that, that there is simply no authority

that we are aware of that has ever so concluded

and we would submit there is good reason for

that because one really, if one can sue for

misfeasance in a public office here, one has

really substituted the cause of action for that of

malicious prosecution which is sued upon.

One would allow the cause of action to trespass into

that area.	Now, that is the third point, Your Honours,
upon which we seek leave.	If Your Honours please.

BRENNAN J: Yes, thank you. We need not trouble you,

Mr Little.

This Court is especially slow to grant special

leave to appeal from an interlocutory order. This

case is no exception. True it is that if special

leave were granted and the appeal were wholly

successful, the proceedings would be permanently

stayed. On the other hand, if the action continues

the issues of fact may be so resolved that the

questions which the applicant wishes to agitate

on appeal may not arise.

There may be some cases where the result of

an attack on a statement of claim on appeal to

this Court is so clear that it would be a manifest waste to allow the action to proceed. If there be

any such cases they would be most exceptional.

This is not one of them.

It is therefore appropriate to refuse special

leave to appeal.

MR LITTLE:  I ask for costs, Your Honour.

BRENNAN J: Refused with costs.

AT 10.01 AM THE MATTER WAS ADJOURNED SINE DIE

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