Le v Plummer - [2021] WASC 463

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LE -v- PLUMMER [2021] WASC 463
CORAM:   TOTTLE J
HEARD:   2 DECEMBER 2021
DELIVERED          :   2 DECEMBER 2021
PUBLISHED           :   16 DECEMBER 2021
FILE NO/S:   CIV 1133 of 2021
BETWEEN:   MICHAEL LE
Plaintiff

AND

MARTYN GRAEME ALLAN PLUMMER
First Defendant

JORDAN ALAN JOHNSTON
Second Defendant

SARAH JANE OLIVER
Third Defendant

ERICA JANE MARTIN
Fourth Defendant

EDWARD JAMES CADE
Fifth Defendant

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Sixth Defendant

TIMOTHY KNIGHT
Seventh Defendant

KAREN MARGARET ADDISCOTT
Eighth Defendant

GREGORY CLIFFORD
Ninth Defendant

THE COMMONWEALTH OF AUSTRALIA
Tenth Defendant

CHRISTOPHER MARTEN ADAMS
Eleventh Defendant

GILES TIMOTHY PARGIN
Twelfth Defendant

GRAEME DORAN
Thirteenth Defendant

PAUL NEVILLE BEVILACQUA
Fourteenth Defendant

KAMINNI KUMAR
Fifteenth Defendant

Catchwords:

Practice and procedure - Pleading - Application to strike out the statement of claim - Whether statement of claim sufficiently particularises claim - Whether statement of claim sufficiently identifies material facts relied upon - Turns on own facts

Practice and procedure - Application for summary judgment - Factual issues raised - Inappropriate to determine on a summary basis - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 16

Result:

Application for summary judgment dismissed
Application to strike out statement of claim granted
Leave to replead granted

Category: B

Representation:

Counsel:

Plaintiff	:	M L Bennett
First Defendant	:	A Mitchelmore SC
Second Defendant	:	A Mitchelmore SC
Third Defendant	:	A Mitchelmore SC
Fourth Defendant	:	A Mitchelmore SC
Fifth Defendant	:	A Mitchelmore SC
Sixth Defendant	:	A Mitchelmore SC
Seventh Defendant	:	A Mitchelmore SC
Eighth Defendant	:	A Mitchelmore SC
Ninth Defendant	:	A Mitchelmore SC
Tenth Defendant	:	A Mitchelmore SC
Eleventh Defendant	:	G J Pynt
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Fifteenth Defendant	:	M D Cuerden SC

Solicitors:

Plaintiff	:	Bennett + Co
First Defendant	:	Australian Government Solicitor - Perth
Second Defendant	:	Australian Government Solicitor - Perth
Third Defendant	:	Australian Government Solicitor - Perth
Fourth Defendant	:	Australian Government Solicitor - Perth
Fifth Defendant	:	Australian Government Solicitor - Perth
Sixth Defendant	:	Australian Government Solicitor - Perth
Seventh Defendant	:	Australian Government Solicitor - Perth
Eighth Defendant	:	Australian Government Solicitor - Perth
Ninth Defendant	:	Australian Government Solicitor - Perth
Tenth Defendant	:	Australian Government Solicitor - Perth
Eleventh Defendant	:	D G Price & Co
Twelfth Defendant	:	Tindall Gask Bentley Lawyers
Thirteenth Defendant	:	Tindall Gask Bentley Lawyers
Fourteenth Defendant	:	DLA Piper Australia - Perth
Fifteenth Defendant	:	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
ABC (A Pseudonym) v Reader Lawyers & Mediators [2021] WASCA 202
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Le v The Queen [2019] WADC 11
Zaghloul v Bayly [2021] WASCA 125

TOTTLE J:

(This judgment was delivered extemporaneously on 2 December 2021 and…

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 [2021] WASC 463
Case: [2021] WASC 463
Decision Date

CaseChat Overview and Summary

In Le v Plummer, the plaintiff brought a malicious prosecution claim against thirteen individuals, the Commonwealth of Australia, and the Office of the Commonwealth Director of Public Prosecutions (CDPP). The defendants filed multiple applications, including applications to strike out various paragraphs of the plaintiff's statement of claim and an application for summary judgment. The court had to decide whether the statement of claim sufficiently particularised the claims, identified the material facts relied upon, and whether the summary judgment application could be determined on a summary basis.

Justice Tottle found that the statement of claim had significant structural deficiencies. It failed to sufficiently identify the case against each defendant, particularly in terms of their role as a prosecutor, the elements of malice, and the absence of reasonable and probable cause. The plaintiff's pleadings were too vague and generalised, using a formulaic approach that did not adequately disclose the material facts. The court also found that the fifteenth defendant's application for summary judgment could not be determined on a summary basis as it involved questions of fact.

The court struck out the statement of claim in its entirety, allowing the plaintiff leave to replead the case with adequate specificity and detail. The court emphasised that the plaintiff must disaggregate the pleas made against the various defendants and identify the case advanced against each defendant, including their alleged role as a prosecutor, accompanied by specific pleas of malice and absence of reasonable and probable cause.

In conclusion, the court dismissed the application for summary judgment and granted the application to strike out the statement of claim, with leave to replead. The plaintiff was required to file an amended statement of claim that sufficiently identified the material facts relied upon and the specific elements of the tort of malicious prosecution against each defendant.

Orders