Le v Plummer - [2023] WASCA 178

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LE -v- PLUMMER [2023] WASCA 178
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   7 DECEMBER 2023
DELIVERED          :   7 DECEMBER 2023
PUBLISHED           :   7 DECEMBER 2023
FILE NO/S:   CACV 113 of 2023
BETWEEN:   MICHAEL LE
Appellant
AND
MARTYN GRAEME ALLAN PLUMMER
First Respondent
JORDAN ALAN JOHNSTON
Second Respondent
SARAH JANE OLIVER
Third Respondent
ERICA JANE MARTIN
Fourth Respondent
EDWARD JAMES CADE
Fifth Respondent
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Sixth Respondent
TIMOTHY KNIGHT
Seventh Respondent
KAREN MARGARET ADDISCOTT
Eighth Respondent
GREGORY CLIFFORD
Ninth Respondent
THE COMMONWEALTH OF AUSTRALIA
Tenth Respondent
CHRISTOPHER MARTEN ADAMS
Eleventh Respondent
GILES TIMOTHY PARGIN
Twelfth Respondent
GRAEME DORAN
Thirteenth Respondent
PAUL NEVILLE BEVILACQUA
Fourteenth Respondent
KAMINNI KUMAR
Fifteenth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: LE -v- PLUMMER [No 2] [2023] WASC 377
File Number            :   CIV 1133 of 2021

Catchwords:

Practice and Procedure - Leave to appeal - Where appellant seeks to plead a cause of action of malicious prosecution - Where appeal is against orders dismissing an application for minute of second substituted statement of claim to stand as statement of claim - Whether there is any substantive injustice to the appellant if the challenged orders are allowed to stand - Where pleadings would prejudice, embarrass or delay the fair trial of the action

Legislation:

Supreme Court Act 1935 (WA), s 60(1)(f)

Result:

Leave to appeal refused
Appeal dismissed
Fifteenth respondent's cross-appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M L Bennett
First Respondent	:	A C Willinge
Second Respondent	:	A C Willinge
Third Respondent	:	A C Willinge
Fourth Respondent	:	A C Willinge
Fifth Respondent	:	A C Willinge
Sixth Respondent	:	A C Willinge
Seventh Respondent	:	A C Willinge
Eighth Respondent	:	A C Willinge
Ninth Respondent	:	A C Willinge
Tenth Respondent	:	A C Willinge
Eleventh Respondent	:	T J Hammond SC
Twelfth Respondent	:	T J Hammond SC
Thirteenth Respondent	:	No appearance
Fourteenth Respondent	:	E M Heenan SC
Fifteenth Respondent	:	M D Cuerden SC

Solicitors:

Appellant	:	Bennett
First Respondent	:	Australian Government Solicitor - Perth
Second Respondent	:	Australian Government Solicitor - Perth
Third Respondent	:	Australian Government Solicitor - Perth
Fourth Respondent	:	Australian Government Solicitor - Perth
Fifth Respondent	:	Australian Government Solicitor - Perth
Sixth Respondent	:	Australian Government Solicitor - Perth
Seventh Respondent	:	Australian Government Solicitor - Perth
Eighth Respondent	:	Australian Government Solicitor - Perth
Ninth Respondent	:	Australian Government Solicitor - Perth
Tenth Respondent	:	Australian Government Solicitor - Perth
Eleventh Respondent	:	Tindall Gask Bentley Lawyers
Twelfth Respondent	:	Tindall Gask Bentley Lawyers
Thirteenth Respondent	:	In Person
Fourteenth Respondent	:	DLA Piper Australia - Perth
Fifteenth Respondent	:	Barry Nilsson Lawyers (WA)

Case(s) referred to in decision(s):

A v The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
Arvind Pty Ltd v Lamers [2020]…

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 Le v Plummer

Details

AGLC: Le v Plummer [2023] WASCA 178
Case: [2023] WASCA 178
Decision Date

CaseChat Overview and Summary

In Le v Plummer, the appellant sought to appeal against orders dismissing his application for a minute of a second substituted statement of claim to stand as his statement of claim in the primary proceedings. The appellant, Michael Le, sought to plead a cause of action of malicious prosecution against fourteen respondents, who were alleged to have played an active role in the conduct of various Commonwealth charges against him. The primary judge had previously struck out the appellant's statement of claim and granted leave to replead.

The appellant's minute of a proposed second substituted statement of claim was found to be deficient in pleading the elements of the cause of action. The primary judge concluded that the pleadings were embarrassing and did not disclose a reasonable cause of action. The appellant sought to appeal against the primary judge's orders, arguing that the primary judge erred in law and that the pleadings would not prejudice, embarrass, or delay the fair trial of the action.

The Court of Appeal considered the application for leave to appeal and found that the primary judge was correct in concluding that the pleadings were embarrassing. The pleadings did not sufficiently identify the conduct of the respondents, the material considered by the respondents at the time, and what was objectively insufficient about the material to support a conclusion that there was a proper case for prosecution. The Court found that the appellant needed to specifically identify these aspects in his pleadings to ensure fairness to the respondents and the efficient conduct of the trial.

The Court also found that the pleadings as to malice were deficient, as they relied on the pleadings of absence of reasonable and probable cause as constituting malice. The Court noted that malice and absence of reasonable and probable cause are distinct elements of the cause of action and have separate roles to play. The Court concluded that the correctness of the primary judge's orders was not attended by sufficient doubt to justify the grant of leave to appeal, and that there was no substantial injustice in leaving the orders undisturbed.

The Court dismissed the appellant's appeal and the fifteenth respondent's cross-appeal, and ordered the appellant to pay the respondents' costs of the appeal. The Court emphasized that any substantive issues which properly require the determination of the court should be dealt with in the context of a specific pleading of the material facts which the appellant contends constitutes the cause of action.

Orders