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] WASCA 47
Girgis v Poliwka [2016] WASCA 158
Le v Plummer [2021] WASC 463
Low v Romaro [2023] WASCA 155
Trobridge v Hardy (1955) 94 CLR 147

REASONS OF THE COURT:

At the conclusion of the hearing of the appellant's application for leave to appeal, we made orders refusing leave to appeal and dismissing the appeal. We said that we would publish reasons for making those orders later. These are our reasons for making those orders.

Summary

In the primary proceedings, the appellant seeks to plead a cause of action of malicious prosecution against fourteen defendants[1] who are alleged to have each played an active role in the conduct of the prosecution of various Commonwealth charges against him.
[1] Although the primary proceedings were instituted against fifteen defendants, they were discontinued as against the thirteenth defendant.
Those prosecutions were either discontinued or permanently stayed due to a significant failure by the prosecuting authorities to comply with disclosure obligations in respect of a very large volume of material. The primary judge described the foundation of the appellant's claim as being that such a substantial volume of material was not reviewed and disclosed that objectively there was an insufficient basis for each respondent to have formed the view that there was a proper case for prosecuting the appellant.[2]
[2] Le v Plummer [No 2] [2023] WASC 377 (primary decision) [4].
On 2 December 2021, the primary judge struck out the entirety of the appellant's statement of claim in the primary proceedings and gave him leave to replead.[3] On 27 January 2023, the appellant filed a Minute of Proposed Second Substituted Statement of Claim (Minute). The filing of the Minute was treated as an application by the appellant that the Minute stand as his statement of claim (Application).[4] On 3 October 2023, the judge ordered that the Application be dismissed and that the appellant have leave to file and serve an application to file a further substituted statement of claim (Primary Orders).
[3] See Le v Plummer [2021] WASC 463.
[4] Primary decision [1]; orders of Justice Tottle dated 31 January 2023.
The appellant now seeks to appeal against the Primary Orders. Because the orders are interlocutory, leave to appeal is required. These reasons consider the application for leave to appeal.
For the following reasons, we refused leave to appeal and dismissed the appeal.

Elements of a cause of action for malicious prosecution

Broadly speaking, a plaintiff who was the subject of a public prosecution terminated in his or her favour and who seeks to establish the tort of malicious prosecution against a defendant must prove each of the following matters:
1.The defendant played an active role in the conduct of the prosecution.[5]
2.The defendant acted without reasonable and probable cause,[6] which can be established by proving either:
(a)the defendant did not honestly conclude that the material on which he or she acted provided a proper case for prosecution;[7] or
(b)the material on which the defendant acted, considered in light of all of the facts of the particular case, was not objectively sufficient to support the conclusion that there was a proper case for prosecution.[8]
3.The defendant acted maliciously in instituting or maintaining the prosecution: ie, that the defendant was actuated by a sole or dominant purpose other than the proper invocation of the criminal law.[9]
[5] A v The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 (A v NSW) [34].
[6] A v NSW [1], [38] - [40], [54], [56].
[7] A v NSW [71], [77], [80] - [81], [118].
[8] A v NSW [82] - [87], [118].
[9] A v NSW [1], [91] - [92].

Primary judge's approach

In the present case, the primary judge found the Minute to be deficient in pleading each of the elements of the cause of action referred to at [7.1], [7.2(b)] and [7.3] above. The primary judge did not understand the appellant to be advancing a case that the respondents did not honestly believe that there was a proper case for prosecution.[10]

Active role in the conduct of the prosecution

[10] Primary decision [92(c)].

The primary judge found the pleading that the respondents played an active role in the conduct of the prosecution to be embarrassing.
In part, the embarrassment arose from the use of the term 'the Prosecutions', which was defined to refer to all the summary charges and the charges on indictment, when it did not appear to be alleged that each respondent was a prosecutor in respect of every charge. The primary judge held that each prosecution must be the subject of a separate plea that identifies who is alleged to have been a prosecutor and the factual basis for that allegation.[11]
[11] Primary decision [104] - [105].
The primary judge also found pleas that specific respondents played an active role in the conduct of the prosecution to be embarrassing, for reasons including because:[12]
1.The factual basis for the allegation that the particular respondent initiated or maintained the prosecutions was not pleaded or was pleaded inadequately.
2.Pleas that a putative prosecutor complied with internal guidelines, policies or professional conduct rules raised a false issue.

Reasonable and probable cause

[12] Primary decision [106] - [133].

The primary judge found that various pleas of the absence of reasonable and probable cause failed to disclose a reasonable cause of action and were embarrassing.[13] In outline, the primary judge's reasons for reaching that conclusion were as follows.
[13] Primary decision [137].
First, the appellant did not attempt to engage with the central essential question of what each respondent made and should have made of the materials available to him or her. Identifying the insufficiency in the materials available to the prosecutor is integral to the very nature of the cause of action.[14]
[14] Primary decision [138].
Secondly, the appellant did not identify what it was about the content of the late disclosed materials that he says established the alleged insufficiency of the materials relied on by the respondents on each of the dates they initiated or maintained (as the case may be) the prosecutions.[15] The primary judge observed:[16]
As presently formulated the [appellant's] case appears to be founded on the proposition that regardless of objective sufficiency of the materials available to, and considered by, the [respondents], the existence of a substantial body of (not yet considered) undisclosed materials raised the possibility that those materials might contain exculpatory material and thus, no charges should have been laid. That foundational proposition does not, however, constitute an absence of reasonable and probable cause as that concept has been understood in the authorities. (original emphasis)
[15] Primary decision [139].
[16] Primary decision [140].
Thirdly, the appellant's pleas as to investigative steps that were not taken but should have been taken alleged facts at too high a level of generality. The pleas were embarrassing because they did not tell the respondents what it is about the deficiencies in the preparation of the case that justified the plea that 'by reason of' those deficiencies there was objectively an insufficient basis for the respondents to have formed a view that there was a proper case for prosecution.[17]
[17] Primary decision [141].
Fourthly, the onus was on the appellant to plead the negative proposition that there was an absence of reasonable and probable cause. The judge observed:[18]
It is no answer to the criticism that the statement of claim does not disclose a reasonable cause of action to say that the [appellant] is unable to identify the materials available to each [respondent] and is unable to say in what respect those materials were objectively insufficient to sustain the view that there was a proper case for prosecution. If the [appellant] is unable to plead each of the elements of the cause of action in respect of each [respondent], he should not have formulated his claim in the manner he did.
His Honour rejected the appellant's submission that it was for the respondents to assert by way of defence the sufficiency of the materials available to them without first knowing the specific basis on which the appellant maintains there was an objective insufficiency.
[18] Primary decision [143].
Fifthly, the appellant's case in the primary proceedings rested on an objective insufficiency of materials rather than the absence of an honest belief that there was a proper case for prosecution. Given that finding, paragraphs of the Minute that pleaded the respondents 'knew or ought to have known' of various investigative steps that had not been taken gave rise to false issues and were embarrassing.[19] Allegations that various police officers had lost objectivity and the introduction of the concept of the 'reasonable prosecutor' also raised false issues and were embarrassing for that reason.[20]
[19] Primary decision [144].
[20] Primary decision [145] - [147].
Sixthly, the appellant's reliance on the CDPP's Prosecution Policy and WA Bar Association Rules gave rise to false issues and were embarrassing.[21]

Malice pleas

[21] Primary decision [148].

The pleas of malice adopted a common form of alleging that the relevant respondent 'acted maliciously in that there was an absence of reasonable and probable cause for the Prosecutions as pleaded' in previous paragraphs of the Minute.[22] The primary judge identified two fundamental difficulties with these pleas.
[22] Primary decision [85].
First, the appellant did not identify for what purpose, other than the proper invocation of the criminal law, each respondent initiated or maintained the prosecutions. The judge held that the appellant was required to plead the improper purpose he alleges as the basis for the malice pleas.[23]
[23] Primary decision [149] - [151].
Secondly, the pleas of malice were entirely dependent on the pleas of the absence of reasonable and probable cause. Disallowance of the malice pleas followed from the disallowance of the pleas as to the absence of reasonable and probable cause.[24]
[24] Primary decision [152].

The appeal to this court

The appellant seeks to appeal against the Primary Orders on five grounds of appeal.
Ground 1 contends that the primary judge erred in law in 'failing to apply the principle that upon dealing with interlocutory applications the Court should be astute to not stifle the development of the law'.
Grounds 2 and 3 in effect challenge the primary judge's conclusion that the pleas alleging that each of the respondents played an active role in the conduct of the prosecutions were embarrassing.
Ground 4 contends that the primary judge erred in law in disallowing the pleas alleging that each of respondents acted without reasonable and probable cause:
in that having regard to the volume of undisclosed material each of the [respondents] could not have had an honest belief that there was reasonable and probable cause so as to initiate or maintain the prosecution.
Ground 5 contends that the primary judge erred in law in disallowing the pleas alleging the respondents acted maliciously and that, by the absence of an honest belief that there was reasonable and probable cause, malice is to be inferred.

The requirement for leave to appeal

The Primary Orders are interlocutory in character. Leave to appeal is required under s 60(1)(f) of the Supreme Court Act 1935 (WA).
We summarised the general principles governing the grant of leave to appeal from interlocutory procedural decisions in Arvind Pty Ltd v Lamers,[25] and recently repeated that summary in Low v Romaro.[26] Generally, leave should not be granted unless the decision below is plainly wrong or is attended by sufficient doubt to justify the grant of leave and a substantial injustice would be done if it remains undisturbed. Further, as Martin CJ (Newnes & Murphy JJA agreeing) observed in Girgis v Poliwka,[27] there is a particular need to refrain from interfering with interlocutory procedural decisions made by judges managing cases in the commercial and managed cases list. That said, the discretion is broad and these considerations are not applied as if they were rigid or exhaustive criteria. The ultimate touchstone is whether the grant of leave to appeal is in the interests of justice.
[25] Arvind Pty Ltd v Lamers [2020] WASCA 47 [15] ‑ [17].
[26] Low v Romaro [2023] WASCA 155 [28] - [30].
[27] Girgis v Poliwka [2016] WASCA 158 [1].

Disposition

In our view, the primary judge was correct to conclude that the pleas that the respondents played an active role in the conduct of the prosecution and the pleas that the respondents acted without reasonable and probable cause were embarrassing in the respects which his Honour identified.
The appellant made allegations of serious professional misconduct in a complex matter. As a matter of fairness to the respondents, and in the interests of the efficient conduct of the trial, it was imperative that the pleadings alleging absence of reasonable and proper cause specifically identify in respect of each respondent:
1.The conduct of the respondent which constituted the playing of an active role in the conduct of the prosecution.
2.The material considered by the respondent at the time of engaging in that conduct.
3.What it was about that material which was objectively insufficient to support a conclusion that there was a proper case for prosecution.
As to the first of these matters, what must be pleaded is not merely the position held by the particular respondent but the conduct which amounted to that respondent instituting or maintaining the prosecution. The pleadings in the Minute are defective in that they identify certain respondents as prosecutors by reference to the roles that they played without any, or any sufficiently specific, statement of what that respondent did. For example, the first respondent (Mr Plummer) is identified as having signed indictments on 18 May 2016, which clearly constitutes instituting the prosecutions on those indictments. However, he is also pleaded to have 'maintained the Prosecutions from at least 18 May 2016 until 21 February 2019'. The only facts pleaded in support of that contention were that he was a Senior Assistant Director of the CDPP and played an unspecified 'key role in the conduct of the Prosecutions'. Those 'Prosecutions', as defined in the Minute, were not confined to the offences charged in the indictments signed on 18 May 2016.[28]
[28] Minute, par 37, referred to at primary decision [37].
As to the second matter noted at [30] above, the appellant submits that, because of the failure by the prosecution to comply with its disclosure obligations, he does not know, and cannot know, what is contained in the remaining undisclosed material. However, it is not necessary for the appellant to plead the content of the undisclosed material if that was not said to be known to the relevant respondent at the time the respondent acted. What is necessary for the appellant to plead, if reliance is to be placed on the existence of undisclosed material, is what the material considered by the relevant respondent at the relevant time said about the existence, extent and content of undisclosed material. It is necessary to identify what material the prosecutor considered when pleading the objective insufficiency of material on which the respondent acted, considered in light of all of the facts of the particular case, to support the conclusion that the material provided a proper case for prosecution.
As to the third matter referred to at [30] above, the appellant accepts that, at trial, it will be incumbent on him to engage with the central questions of what each respondent made of the materials available to him or her or what he or she should have made of those materials and to establish the content that was relevant to the alleged insufficiency.[29] In our view, it is also necessary for the appellant to engage with those questions at the pleading stage, so that each respondent knows precisely the case which he or she has to meet. It is necessary for the pleading to disclose what about the material considered by the prosecutor made it insufficient to support the conclusion that the material provided a proper case for prosecution of the relevant offence, having regard to the elements of that offence and evidence of those elements referred to in that material.
[29] Appellant's submissions, par 59.

In our view, the way in which the impugned conduct of the respondents and the material considered by the respondents at the critical time is identified in the Minute will embarrass the fair and efficient trial of the claim sought to be advanced in the primary proceedings.
The pleadings as to malice were also deficient in our view. Insofar as they rely on the pleadings of absence of reasonable and probable cause as constituting malice, the embarrassing aspects of the earlier pleas as to reasonable and probable cause infect the pleas as to malice. More fundamentally, malice and absence of reasonable and probable cause are distinct elements of the cause of action and have separate roles to play.[30] The pleadings in the Minute treat these concepts as equivalent. Lack of an honest belief that the material considered provides a proper case for prosecution, or insufficiency of the material to support that conclusion, may support an inference that the prosecutor acted for an improper purpose. However, the state of mind which the appellant invites the court to infer must be separately pleaded.
[30] A v NSW [54].
As to the appellant's grounds of appeal (see [23] - [26] above):
1.Ground 1 does not provide an independent basis for setting aside the Primary Orders.
2.Grounds 2 and 3 do not relate to a matter giving rise to substantial injustice or an aspect of the primary judge's reasoning which is attended by sufficient doubt to justify the grant of leave to appeal.
3.Ground 4, in alleging that the respondents could not have had an honest belief, is expressed in a way that appears to depart from the case advanced by the appellant before the primary judge. In any event, the pleadings alleging an absence of reasonable and probable cause are embarrassing for the reasons indicated by the primary judge.
4.Ground 5 relates to an aspect of the Primary Orders which is not attended by sufficient doubt to justify the grant of leave to appeal and does not give rise to any substantial injustice.
The embarrassing nature of the pleadings means that the primary judge was correct to refuse the appellant's application that the Minute stand as his statement of claim in the primary proceedings. The correctness of the Primary Orders is not attended by sufficient doubt to justify the grant of leave to appeal. Further, even if the primary judge's conclusion as to the embarrassing nature of the pleadings was wrong, there would be no substantial injustice in leaving the orders undisturbed. The additional inconvenience and expense which the appellant may suffer by being required to reformulate his pleadings with greater specificity would not constitute substantial injustice for these purposes.
In reaching this conclusion, we note two aspects of the primary judge's reasoning as to whether the pleas disclose a reasonable cause of action, which potentially raise legal substantive questions that may be open to debate and, if the statement of claim was otherwise to be in a satisfactory state, might have the potential to give rise to substantial prejudice to the appellant for the purpose of an application for leave to appeal.
First, the primary judge's observation quoted at [14] above might be taken as precluding the appellant from running his case as to the absence of reasonable and probable cause. The question of whether a properly formulated plea of a case to that effect is unarguable, and should be resolved at the pleading stage, might be open to debate.
Secondly, the judge's conclusion that it was necessary for the appellant to positively plead the improper purpose for which he alleges the respondents acted (see [20] above) might also be open to debate. At least in some cases, it may be open to infer that a prosecutor acted for a purpose other than a proper purpose even though the positive purpose for which the prosecutor acted is not established.[31] On one view, it might be sufficient to plead that the prosecutor was actuated by a sole or dominant purpose other than the proper invocation of the criminal law. That is the material fact which a plaintiff must prove, and it is that fact, rather than evidence from which that fact might be inferred, which must be pleaded. There may be very considerable difficulties in convincing the court to draw that inference when a plaintiff is unable to point positively and with specificity to any other actuating purpose. But that will be a question of proof of the fact rather than pleading a material fact which constitutes this element of the cause of action.
[31] Cf Trobridge v Hardy (1955) 94 CLR 147, 163 - 164 (Kitto J), 174, 176 (Taylor J). See also A v NSW [90].
These two aspects of the primary judge's reasons, if applied to effectively prevent the appellant from running the case he seeks to establish at trial, might give rise to substantial injustice if they involved error.
However, an appeal is against orders, not reasons. For reasons we have explained, the Primary Orders were correctly made in any event for reasons which do not concern these two aspects of the primary judge's reasons. Further, if this court were required on appeal to consider these more substantive issues, it is in the interests of justice that it do so on the basis of an otherwise properly formulated pleading in which the material facts are clearly identified. In oral submissions, counsel for the appellant indicated that, if the above two matters were determined in the appellant's favour but the pleading was embarrassing, then the appropriate order would be to remit the matter to the primary judge to consider a new minute formulated in light of this court's reasons. That position would be little different from that prevailing under the Primary Orders, which provide for the appellant to file an application to file a further substituted statement of claim.
For these reasons, the Primary Orders are not attended by sufficient doubt to justify the grant of leave to appeal and there is, in any event, no substantial injustice in leaving them undisturbed in circumstances where the appellant has been given leave to replead. To the extent that the appeal seeks to raise substantive issues as to the material facts which constitute the elements of the cause of action, it is not in the interests of justice for this court to seek to determine those issues on the current inadequate state of the pleadings in the Minute. Rather, it is in the interests of justice that any substantive issues which properly require the determination of this court be dealt with in the context of a specific pleading of the material facts which the appellant contends constitutes the cause of action.
These reasons should not be taken to preclude the appellant from seeking leave to appeal against a future decision disallowing an otherwise properly formulated pleading on grounds which raise substantive issues of the kind referred to at [39] - [40] above.

Fifteenth respondent's cross-appeal

The fifteenth respondent filed a notice of cross-appeal against the Primary Orders. Senior counsel for the fifteenth respondent indicated that this cross-appeal proposed to challenge the grant of leave to replead. He also indicated that the fifteenth respondent did not seek to pursue the cross-appeal if leave to appeal was refused and the appeal dismissed. In circumstances where we decided to make those orders, it was appropriate to order the cross-appeal to be dismissed.

Orders

For these reasons, we made the following orders at the conclusion of the hearing of the appellant's application for leave to appeal:
1.Leave to appeal is refused.
2.The appeal is dismissed.
3.The fifteenth respondent's cross-appeal is dismissed.
4.The appellant is to pay the respondents' costs of the appeal to be assessed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
7 DECEMBER 2023