Le v Plummer [No 2] - [2023] WASC 377

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   LE -v- PLUMMER [No 2] [2023] WASC 377
CORAM:   TOTTLE J
HEARD:   15 MAY 2023
DELIVERED          :   3 OCTOBER 2023
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
PAUL NEVILLE BEVILACQUA
Fourteenth Defendant
KAMINNI KUMAR
Fifteenth Defendant

Catchwords:

Practice and procedure - Pleading - Application for minute of second substituted statement of claim to stand as statement of claim - Whether statement of claim sufficiently particularises claim - Whether matters pleaded would prejudice, embarrass or delay the fair trial of the action - Whether matters pleaded disclosed no reasonable cause of action - Turns on own facts

Legislation:

Director of Public Prosecutions Act 1993 (Cth), s 6, s 9
Judiciary Act 1903 (Cth), s 71(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	M L Bennett
First Defendant	:	M Howard SC & A Willinge
Second Defendant	:	M Howard SC & A Willinge
Third Defendant	:	M Howard SC & A Willinge
Fourth Defendant	:	M Howard SC & A Willinge
Fifth Defendant	:	M Howard SC & A Willinge
Sixth Defendant	:	M Howard SC & A Willinge
Seventh Defendant	:	M Howard SC & A Willinge
Eighth Defendant	:	M Howard SC & A Willinge
Ninth Defendant	:	M Howard SC & A Willinge
Tenth Defendant	:	M Howard SC & A Willinge
Eleventh Defendant	:	G J Pynt
Twelfth Defendant	:	T J Hammond SC & A Owen
Fourteenth Defendant	:	E M Heenan SC
Fifteenth Defendant	:	M D Cuerden SC

Solicitors:

Plaintiff	:	Bennett
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
Fourteenth Defendant	:	DLA Piper Australia - Perth
Fifteenth Defendant	:	Barry Nilsson Lawyers (WA)

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

A v New South Wales [2007] HCA 10; (2007) 230 CLR 500
Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635
Clavel v Savage [2015] NSWCA 61
Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343
Davis v Gell [1924] HCA 56; (1924) 35 CLR 275
Ea v Diaconu [2019] NSWSC 795
Edwards v New South Wales [2022] NSWCA 187
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Flowers v New South Wales (No 5) [2021] NSWSC 887
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
HD v New South Wales [2016] NSWCA 85
Hrdavec v New South Wales [2021] NSWSC 560
Klein v National Australia Bank Ltd [2016] VSCA 144
Le v Plummer [2021] WASC 463
Le v The Queen [2019] WADC 11
Lock v Australian Securities and Investments Commission [2016] FCA 31; (2016) 248 FCR 547
Lye v New South Wales [2005] NSWCA 282
New South Wales v Landini [2010] NSWCA 157
New South Wales v Quirk [2012] NSWCA 216
Sahade v Bischoff [2015] NSWCA 418
Skrijel v Mengler [2003] VSC 270
Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109

TOTTLE J:

Overview

In this action for damages for malicious prosecution the plaintiff has applied for an order that the minute of second substituted statement of claim filed on 27 January 2023 stand as his statement of claim. The application follows the striking out of the amended statement of claim on 2 December 2021.[1] The defendants oppose the application. I will refer to the minute of second substituted statement of claim simply as 'the statement of claim'.
[1] Le v Plummer [2021] WASC 463.
The origins of this action lie in a joint Australian Federal Police (AFP) and Western Australian Police Force (WAPOL) operation set up in 2013 to investigate the activities of the plaintiff and his family. Relevantly, the Le family operated a substantial market gardening business in the Perth metropolitan area. The investigation led to the laying of charges against the plaintiff and others in 2014 and 2015 and the prosecution of the plaintiff on indictments in the District Court, indictment 293 and indictment 294. By those indictments the plaintiff was charged with counts of money laundering and harbouring unlawful non‑citizens.
There were serious failures in the provision of disclosure to the plaintiff and his co‑accused. Ultimately each indictment was permanently stayed. In giving his reasons for permanently staying indictment 294, Chief Judge Sleight of the District Court said:[2]
The failure of the Crown to give proper and full disclosure prior to the commencement of the trials and 294 of 2016 and 293 of 2016 was an extremely egregious breach of its prosecutorial obligations to the accused and the court. Although I accept that the failure was not due to a deliberate act not to disclose material to the accused in each trial, the breach of the Crown's prosecutorial obligations is of the highest order, given the need in such lengthy and complex trials to ensure that issues of disclosure are diligently attended to prior to the commencement of trial. The obligation to give full disclosure prior to trial is enshrined in legislation in Western Australia, as it is at common law. It is an ongoing obligation but that does not mean that it can be put aside and dealt with during the course of the trial. Fundamental to an accused person receiving a fair trial is the obligation of the prosecuting authorities to disclose all potentially relevant material. It is one of the essential tools which ensure that an accused person receives a fair trial. In relation to these prosecutions the Crown has manifested a cavalier disregard for its obligations. The failure of the Crown to fulfil its disclosure obligations has caused a substantial waste of the public resources as detailed in my observations made on the 27 August 2018. This court cannot tolerate such an abuse of process in the context of the great demands on its time and resources in both its criminal and civil jurisdictions, including the number of criminal cases delayed for trial or sentencing (often leaving persons in custody on remand for very long periods) because not enough judges are available. The public resources of the court are not the property of the parties and should not be either deliberately or recklessly wasted. The judiciary must protect these public resources.
[2] Le v The Queen [2019] WADC 11 [119].
The breaches of the Crown's disclosure obligations are a focus of the plaintiff's claims. Simply put the foundation of the plaintiff's claims is that such a substantial volume of material was not reviewed and disclosed that objectively there was an insufficient basis for each defendant to have formed the view that there was a proper case for prosecuting the plaintiff.
The plaintiff must plead facts to establish: first, that criminal proceedings were initiated or maintained against him by each of the defendants, secondly, that the proceedings were terminated in his favour, thirdly, that each defendant in bringing or maintaining the proceedings acted maliciously, and fourthly, that each defendant acted without reasonable and probable cause in bringing or maintaining the proceedings.[3]
[3] A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 [1].
By bringing this action against 12 individual defendants, the plaintiff has cast a wide net. The allegations he makes against the individual defendants impugn their integrity and such claims must be pleaded with specificity and with proper particularisation.
The statement of claim attempts to plead multiple malicious prosecution causes of action, arising on multiple dates, against multiple defendants. The pleading and proof of the tort of malicious prosecution presents formidable challenges in even the most straightforward case. This is not a straightforward case. It is impossible to estimate the length of the trial but it can be safely said that it is to be measured in weeks rather than in days. The object of insisting that the elements of the cause of action are pleaded with clarity, precision and sufficient detail is not the pedantic observance of pleading principles but it is to ensure that the litigation is undertaken efficiently and fairly without increasing the already considerable drain on the resources of the parties and the court that litigation of this nature involves. This protects the interests of the plaintiff as well as those of the defendants and the court.
The plaintiff has assumed a heavy burden, which for the reasons explained below, he has been unable to discharge. There are serious deficiencies in:
(a)the manner the plaintiff has pleaded that the individual defendants were prosecutors;
(b)the manner the plaintiff has pleaded an absence of reasonable and probable cause; and
(c)in the pleading of malice.
The deficiencies are fundamental and are cumulative in their effect. In my judgment the statement of claim should be disallowed in its entirety.

Statement of claim

The statement of claim extends over 92 pages. In the paragraphs that follow I outline the critical facts alleged by the plaintiff. On an application of this nature the court assumes that the facts alleged in the statement of claim are true. In what follows, generally I will recount the facts in terms that assume their truth but it must be remembered that they are no more than allegations. Unless otherwise indicated, in the balance of these reasons all references in square brackets are to paragraphs of the statement of claim.

Prosecutions and outcomes

The investigations [20] - [33]

The joint police investigation was named Operation Polo. It was preceded by other investigations by law enforcement agencies which had begun in 1992. In September 2013 the investigation was expanded by the commencement of another investigation. The expanded operation is defined in the statement of claim as 'Tricord/Polo'. In January 2014 a 'Multi-Agency Investigation Plan' was prepared for Tricord/Polo.
In furtherance of the Tricord/Polo investigation the police obtained telecommunication intercept warrants. The execution of these warrants generated a substantial volume of records, defined in the statement of claim as 'TI Product'. The number of records generated as part of the Tricord/Polo investigation was 110,693. These records were supplemented by 18,093 records generated during a related investigation, Operation Malden. In addition, an unknown number of records were generated by an investigation undertaken by the Department of Immigration and Border Protection.
In 2014 the police obtained and executed search warrants in respect of properties owned by the members of the Le family and various other properties. These search warrants included the execution of a search warrant on 28 March 2014 on a property in the Perth suburb of Carabooda and the execution of search warrants on 3 May 2014 on various farming and other properties in Western Australia and Victoria.

The summary charges [34.1] - [34.3]

The following prosecutions were commenced in the Magistrates Court of Western Australia:
(a)On 3 May 2014 the plaintiff was charged with money laundering contrary to s 400.3(1) of the Criminal Code Act 1995 (Cth).
(b)On 4 July 2014 the plaintiff was charged with nine counts of harbouring unlawful non-citizens contrary to s 233E(3) of the Migration Act 1958 (Cth).
(c)On 12 May 2015 the plaintiff was charged with entering into an agreement to commit a money laundering offence contrary to s 11.2A(1) and s 400.3(1) of the Criminal Code 1995.

Disclosures to the media and business - 'Institutional context' [147] - [157]

On 3 and 5 May 2014 'Operation Tricord/Polo' published media releases and on 6 May 2014 published an open letter addressed to businesses in Western Australia.
On 3 May 2014 'Tricord/Polo' held a media conference at which Assistant Commissioner Ramzi Jabbour of the AFP, Assistant Commissioner Craig Ward and Mr Adams (both of the WAPOL) spoke. The general substance of the media releases, the open letter and the comments attributed to those who spoke at the media conference was as follows: the search warrants and the charges were part of a large-scale investigation into the activities of organised crime, money laundering and the employment of 'illegal workers' were particular activities on which the investigation was focused.
The AFP and the WAPOL contacted Woolworths, a customer of the market gardening business operated by the Le family, to inform it that charges had been laid against the plaintiff and others as part of their ongoing efforts to identify, target and dismantle organised crime syndicates operating in Western Australia.

The charges on indictment [34.4] - [35]

On 24 February 2016 the plaintiff was committed for trial in the District Court of Western Australia.
On 18 May 2016 the plaintiff was indicted. The indictments are as follows:
(a)Indictment 293 of 2016 charged the plaintiff with one count of conspiracy to deal with money the proceeds of crime with a value of $1,000,000 or more contrary to s 11.2A and s 400.3(1) of the Criminal Code 1995 and five counts of harbouring unlawful non-citizens contrary to s 233E(3) of the Migration Act 1958.
(b)Indictment 294 of 2016 charged the plaintiff with one count of conspiracy to deal with money the proceeds of crime with a value of $1,000,000 or more contrary to s 11.2A and s 400.3(1) of the Criminal Code 1995 and four counts of harbouring unlawful non-citizens contrary to s 233E(3) of the Migration Act 1958.
The summary proceedings and the proceedings on indictment are defined collectively in the statement of claim as 'the Prosecutions'.
The indictments were amended from time to time, [35]. The timing and nature of the amendments are not pleaded.

The trial of indictment 293 and the outcome [91] - [121]

On 25 August 2016 the trial of indictment 293 was listed to commence on 17 July 2017, [91].
On 28 June 2017 the July 2017 trial dates were vacated, [95]. The trial was relisted for eight weeks to commence on 9 October 2017, [98].
The trial of indictment 293 commenced on 11 October 2017, [99]. During the trial, additional material was disclosed by the prosecution on 47 separate occasions and the prosecution brief was updated on 32 occasions, [101] and [102].
In April 2018 as the trial of indictment 293 was proceeding:
(a)A schedule was disclosed to defence counsel that identified nine telecommunications intercept warrants the existence of which had not previously been disclosed, [106]. The TI Product generated by these warrants included 34,321 audio and SMS communications many of which were in Vietnamese or other foreign languages, [109]. The AFP had disclosed the existence of these nine warrants to the Commonwealth Director of Public Prosecutions (CDPP) in June 2015, [107].
(b)The existence of the TI Product from Operation Malden was disclosed to defence counsel, [108]. The existence of this material had only been disclosed to prosecuting counsel on the same day it was disclosed to defence counsel, 18 April 2018, [108]. The Operation Malden TI Product comprised 18,093 records, [109.2].
On 26 April 2018 the plaintiff and his co‑accused applied for orders discharging the jury and vacating the trial of indictment 293 and on 7 May 2018 the trial judge made the orders sought, [112] - [115]. The trial judge held that the Crown had failed to comply with its disclosure obligations, [116.1].
On 31 July 2018 the CDPP disclosed a further 22,558 pages of documents including notes, notebooks and diaries, [116.2]. The plaintiff contends it is to be inferred that the materials had not been read or assessed by the prosecution at the time they were disclosed, [117].
On 23 August 2018 the CDPP sought leave to discontinue the prosecution of indictment 293. Leave was granted on 27 August 2018, [120]. The plaintiff contends it is to be inferred that the prosecution accepted that there was an absence of reasonable and probable cause to continue with the prosecution of indictment 293, [121].

The trial of indictment 294 and the outcome

On 25 August 2016 the trial of indictment 294 was listed to commence for a period of nine weeks on 24 April 2017, [122].
On 1 May 2017 the trial of indictment 294 was adjourned to 8 May 2017, [126]. The prosecution had been unable to finalise and disclose the TI Product on which it wished to rely and this was a significant reason for the adjournment, [126]. The trial commenced on 8 May 2017 and proceeded for 20 days, [127] - [128]. During the trial it was established that the CDPP had failed to comply with the prosecution's disclosure obligations, [129]. The plaintiff contends that the trial should never have been commenced as proper and adequate disclosure had not been completed, [130].
On 8 June 2017 the trial judge discharged the jury and aborted the trial principally due to disclosure failures by the prosecution including the failure to disclose 66,819 TI Products, [131].
On 28 June 2017 the trial of indictment 294 was relisted to commence on 6 March 2018 for eight weeks, [135].
On 15 January 2018 the trial due to commence on 6 March 2018 was vacated, [136]. Subsequently, on 15 February 2018 the trial was relisted to commence on 27 August 2018 for 12 weeks, [140]. The plaintiff and his co‑accused made an application that the prosecution of indictment 294 be permanently stayed, [141]. The application was heard in August 2018. On 24 January 2019 Chief Judge Sleight made orders permanently staying the unlawful harbouring charges and conditionally staying the money laundering charge, [142]. The prosecution failed to comply with the conditions of the conditional stay order in respect of the money laundering charge, [66] - [67] and that charge was permanently stayed on 23 February 2019, [67].
On 21 February 2019 the CDPP sought leave to discontinue the prosecution of indictment 294, [68]. Leave was granted on 26 February 2019, [70].

The prosecutors [37] - [60]

Relying on the facts summarised below, the plaintiff alleges that each individual defendant was a prosecutor.

Obligations imposed on the prosecutors

A recurring allegation made against the individual defendants is that they were obliged to observe one or more set of professional policies or rules, [38], [40], [42], [44], [46], [48], [50], [52], [54], [56], [58], [60]. Those matters were pleaded as follows:
16At all material times the CDPP required its staff, including the first to fifth defendants to abide by and give effect to the Prosecution Policy of the Commonwealth which materially provided that:
16.1in determining whether to prosecute or continue with a prosecution the CDPP must be satisfied that there is prima facie evidence of the extent of the offence and a reasonable prospect of obtaining a conviction;
16.2in so determining the CDPP must have regard to any basis of defence upon and any factors that could affect the likelihood or otherwise of a conviction.
17At all material times the AFP in so far as it initiated prosecutions or continued prosecutions, adopted the AFP and CDPP Best Practice Guidelines which included a Prosecution Policy requiring the CDPP to consider whether there are reasonable prospects of obtaining a conviction on the available admissible evidence and whether the prosecution is in the public interest.
18At all material times the WA Bar Association adopted the Western Australian Bar Rules which applied, inter alia, to the fourteenth and fifteenth defendants and which materially provided that in respect of a prosecution a barrister must seek impartially to have the whole of the relevant evidence placed intelligibly before the Court.
19In so far as the fourteenth and fifteenth defendants acted, on instructions from the CDPP, they were and each of them was obliged to act in accordance with the Prosecution Policy of the Commonwealth and the WA Bar Association Rules referred to in paragraph 18 herein.

CDPP lawyers

The first defendant, Mr Plummer, initiated and maintained the prosecutions from at least 18 May 2016 to 21 February 2019, [37]. Mr Plummer was employed by the CDPP as a Senior Assistant Director of the CDPP, [37.1]. He signed the District Court indictments, [37.2], [37.3] and the discontinuance of the charges the subject of each indictment, [37.4], [37.5]. Mr Plummer 'played a key role in the conduct of the Prosecutions on behalf of the CDPP in his position as Senior Assistant Director of the CDPP', [37.6].
The second defendant, Mr Johnston, maintained the prosecution from at least 18 May 2016 until 26 February 2019, [39]. Mr Johnston was employed by the CDPP as a prosecution team leader, [39.1]. He 'supervised the CDPP practice groups conducting the Prosecutions including the CDPP Case Officer for the Prosecutions and thereby played a key role in the conduct of the Prosecutions on behalf of the CDPP', [39.2]. Mr Johnston appeared on behalf of the Crown at a hearing before Chief Judge Sleight on 26 February 2019 of the Crown's application for consent to discontinue the prosecution of indictment 294 of 2016, [39.3].
The third defendant, Ms Oliver, initiated and maintained the Prosecutions from July 2014 until the end of June 2016, [41]. Ms Oliver was employed as a Principal Legal Officer of the CDPP, [41.1]. From July 2014 to the end of June 2016 she was the Case Officer with conduct of the Prosecutions, [41.2]. In that capacity Ms Oliver provided 'partial disclosure' to the plaintiff, [41.3], appeared at each hearing in the Magistrates Court, [41.4], authorised the signing of a listing certificate in the prosecution of indictment 293, [41.5] and appeared on behalf of the Crown at the hearing of indictment 293 on 20 May 2016, [41.6]. Ms Oliver knew, as from 19 June 2015, that certain telephone intercept materials had not been disclosed to the plaintiff, [41.4]. Ms Oliver deposed that she had been managing the Prosecutions 'essentially on her own from June 2015 to April 2016', [41.7].
The fourth defendant, Ms Martin, maintained the Prosecutions from at least June 2016 until February 2017, [43]. Ms Martin was a Senior Federal Prosecutor, [43.1] and in that capacity was the CDPP Case Officer with conduct of the Prosecutions between June 2016 and February 2017, [43.2]. Ms Martin appeared at a directions hearing on 25 August 2016 at which she requested that the indictments be listed for trial, [43.3]. She appeared at a further directions hearing on 27 October 2016 as junior counsel led by the fifteenth defendant, Ms Kumar, [43.4].
The fifth defendant, Mr Cade, maintained the Prosecutions from February 2017 until February 2019, [45]. Mr Cade was a senior Federal Prosecutor, [45.1] and, in that capacity, he was the CDPP Case Officer with conduct of the Prosecutions from around February 2017, [45.2]. Mr Cade undertook various activities in relation to the conduct of the proceedings in the District Court, [45.3] - [45.13].

Independent counsel [57] - [60]

The fourteenth defendant, Mr Bevilacqua, maintained the Prosecutions from May 2016 until February 2019, [57]. Mr Bevilacqua was a member of the independent bar briefed by the CDPP to appear as prosecuting lead counsel in the District Court proceedings, [57.2]. Mr Bevilacqua played 'an active role in the conduct of the Prosecutions' including by appearing on behalf of the Crown at various directions hearings and at the trials to which reference has been made, [57.4]. The plaintiff alleges that Mr Bevilacqua had an independent obligation to satisfy himself that there was a proper basis to maintain the Prosecutions, [57.3].
The fifteenth defendant, Ms Kumar, maintained the Prosecutions from 17 August 2016 until February 2019, [59]. Ms Kumar was briefed by the CDPP as prosecuting junior counsel, [59.1] and played an active role in the conduct of the prosecutions in various ways pleaded in more detail by the plaintiff, [59.2] - [59.3]. The plaintiff contends it is to be inferred that in her role as junior counsel Ms Kumar advised on the maintenance of the Prosecutions, [59.4].

The police officers

The seventh defendant, Mr Knight, initiated and maintained the Prosecutions from at least May 2014 until at least December 2017, [47]. Mr Knight was a Federal Agent employed by the AFP, [47.1]. He was 'a Team Leader of the Serious and Organised Crime Team in the AFP Perth Office and subsequently from around 2017 was a Team Leader of the Joint Organised Crime Task Force in the AFP Perth Office', [47.2]. He was the 'Forward Commander' in respect of the execution of the search warrants executed at various farming properties in May 2014, [47.3]. Mr Knight was a co‑signatory to the statements of facts in respect of the money laundering offence with which the plaintiff was charged on 3 May 2014 and the harbouring offences with which the plaintiff was charged on 4 July 2014, [47.4] - [47.5]. Mr Knight was the AFP Case Officer in respect of Operation Polo from 24 June 2016, [47.6]. He signed three witness statements, [47.7], and played an active role in the conduct of the Prosecutions by reviewing materials to be disclosed to the defence and liaising with the CDPP after the CDPP formally took over conduct of the Prosecutions, [47.8].
The eighth defendant, Ms Addiscott, initiated and maintained the Prosecutions from May 2014 to June 2016 and from July 2017 to February 2019, [49]. Ms Addiscott was a Federal Agent, [49.1] and was the AFP Case Office for Operation Polo from January 2014 to 'around 2018' save for a period when she was on maternity leave. Ms Addiscott was 'a principal AFP agent with conduct of the investigation into the proposed prosecutions against [the plaintiff]', [49.3]. Ms Addiscott was the named warrant holder in respect of various search warrants and executed those search warrants in May 2014, [49.4] - [49.6], [49.11]. Ms Addiscott also interviewed the plaintiff's co‑accused on 3 May 2014, [49.7]. She was a co-signatory to the statements of material facts in respect of the money laundering offence with which the plaintiff was charged on 3 May 2014 and the harbouring offences with which the plaintiff was charged on 4 July 2014, [49.8] - [49.9]. She signed the prosecution notice in respect of the May 2015 money laundering charge, [49.10]. Ms Addiscott was responsible for coordinating the disclosure of evidentiary materials and played an active role in the conduct of the Prosecutions including reviewing materials to be disclosed to the plaintiff and liaising with the CDPP, [49.12]. She coordinated the provision of witness statements, [49.13]. She signed eight witness statements, [49.13]. She swore an affidavit in opposition to the stay application in the indictment 294 proceedings in which she provided an explanation of disclosure issues that had arisen in the trial of indictment 293, [49.14].
The ninth defendant, Mr Clifford, initiated the Prosecutions from at least May 2014, [51]. Mr Clifford was a police officer employed by the AFP and was 'one of the main investigating federal agents in respect of the investigations into and the prosecutions against [the plaintiff]', [51.1] - [51.2]'. Mr Clifford was named as a warrant holder for various search warrants which were executed by him and others in May 2014, [51.3] - [51.4]. Mr Clifford signed the prosecution notice in respect of the money laundering offence with which the plaintiff was charged on 3 May 2014, [51.5]. He signed a witness statement included in the prosecution brief in indictment 293, [51.6].
The eleventh defendant, Mr Adams, initiated the Prosecutions from at least May 2014, [53]. Mr Adams was a member of the WAPOL and held the rank of Acting Detective Superintendent, [53.2]. He was the operational commander of Tricord/Polo, [53.3]. He had responsibility for overseeing and coordinating all agencies involved in investigating the plaintiff, [53.3]. He was the author of 'the Multi‑Agency Investigation Plan', [53.5]. It is to be inferred 'given his key supervisory role and seniority' that Mr Adams was involved in the decisions to lay the charges giving rise to the Prosecutions, [53.8].
The twelfth defendant, Mr Pargin, initiated and maintained the Prosecutions from May 2014 until January 2018, [55]. Mr Pargin was a member of the WAPOL and held the rank of Detective Sergeant, [55.1]. He was assigned the role of Western Australia Police Investigating Officer for Operation Polo and was listed as an 'Investigating Officer Persons of Interest Suspect Manager' in the Multi‑Agency Investigation Plan, [55.3]. He attended the execution of various search warrants, [55.4] - [55.5]. He signed the prosecution notice in respect of the harbouring charge offences with which the plaintiff was charged on 4 July 2014, [55.6]. He coordinated the creation of statements from Western Australia police officers regarding the execution of search warrants on behalf of the AFP, [55.8] assisted in the preparation of the indictment 293 case, [55.9] and played an active role in the conduct of the Prosecutions in his position as Investigating Officer for Operation Polo, [55.10].

The absence of reasonable and probable cause

Before turning to the detail, it is helpful to outline the plaintiff's approach to pleading the absence of reasonable and probable cause. The plaintiff pleads the facts on which he relies in respect of each summary charge and each indictment by reference to critical dates in the progress of the prosecutions. For each date the plaintiff identifies those defendants whom he contends were 'prosecutors', makes allegations about their knowledge of the state of the investigation and the preparation of the prosecutions at that date and pleads the matters that support the conclusion that there was an absence of reasonable and probable cause. The plaintiff adopts a similar template for the pleas of an absence of reasonable and probable cause at the various relevant dates.

The money laundering charge - 3 May 2014 [71] - [73]

To illustrate the structure of the absence of reasonable and probable cause pleas I will reproduce the full text of the plea in respect of the 3 May 2014 money laundering charge:
71At the time Mr Le was charged with the First Summary Laundering Charge:
71.1Mr Le had not:
71.1.1given a recorded interview to the AFP or WAPOL or any other investigator involved in the investigation herein; or
71.1.2made any admission of guilt;
in respect of the First Summary Money Laundering Charge;
71.2the execution of the Search Warrants pleaded in paragraph 33 herein had not been completed and investigations pleaded herein were continuing;
71.3the material seized in the execution of the Search Warrants had not been:
71.3.1assessed;
71.3.2assembled; and/or
71.3.3in some cases, obtained;
71.4the TI Product referred to in paragraph 32 herein had not be translated (where necessary) or assessed;
71.5the gathering of evidence from relevant witnesses had not been completed:
Particulars
(a)The evidence included the evidence of relevant persons and organisations which also used the relevant labour hire supply companies being at least:
(i)Accommodation Wholesalers Australia Pty Ltd;
(ii)Brasher Transport Pty Ltd;
(iii)David Tran Family Trust T/A Treasure Cove;
(iv)Gravity Zone;
(v)Hussey & Co Pty Ltd;
(vi)Lucinda Estates;
(vii)Oanh V Duong;
(viii)Otto Sub Contractors;
(ix)Strawberry Springs Pty Ltd;
(x)Sumich Evoo Australia Pty Ltd;
(xi)T&L Produce Marketing Pty Ltd;
(xii)Tho Hoang Truong;
(xiii)V.B.A. Farming Pty Ltd; and
(xiv)Wang Chung Farming Pty Ltd.
(b)Further particulars will be provided after discovery and inspection and in any event prior to trial.
71.6the material seized during the execution of the Search Warrants had not been reviewed and/or assessed by an accounting expert nor had any statement been obtained from an accounting expert following such an assessment; and
71.7Mr Le's co-accused had not given statements or recorded interviews that implicated Mr Le.
72By reason of their involvement in the conduct of the investigations pleaded herein, and their obligations pleaded in paragraphs 52, 54, 56, 48 and 50 herein respectively, Mr Clifford, Mr Adams, Mr Pargin, Mr Knight and Ms Addiscott knew or ought to have known the matters pleaded in paragraph 71 herein and that there was substantial material relevant to the Prosecutions that had not been reviewed as at 3 May 2014, being the date that the First Summary Money Laundering Charge was laid.
73By reason of the matters referred to in paragraph 71 further or alternatively paragraph 72 herein as at 3 May 2014:
73.1objectively, there was an insufficient basis for any of Mr Clifford, Mr Adams, Mr Pargin, Mr Knight and Ms Addiscott to have formed a view there was a proper case for prosecution against Mr Le in relation the First Summary Money Laundering Charge;
73.2in the circumstances referred to in paragraph 72, to have formed the view that there was a proper case for prosecution against Mr Le was contrary to the requirements referred to in paragraph 17 herein;
73.3accordingly, there was an absence of reasonable and probable cause in initiating and/or maintaining the First Summary Money Laundering Charge; and
73.4by reason of the matters referred to in paragraphs 148 to 149, further 150 to 151, further 152, further 153, further 154 and further paragraph 156 herein it is to be inferred that at 3 May 2014 Tricord/Polo (and thereby each of Mr Clifford, Mr Adams, Mr Pargin, Mr Knight and Mr Addiscott) had formed the view that Mr Le was in fact guilty of criminal offences notwithstanding matters referred to in paragraph 71.1 to 71.7 and by reason therein had lost any ability to objectively or properly assess whether there was a reasonable and probable cause in instituting and/or maintaining the First Summary Money Laundering Charge.

The harbouring charge - 4 July 2014 [74] - [77]

Ms Oliver, Mr Clifford, Mr Adams, Mr Pargin, Mr Knight and Ms Addiscott did not have reasonable and probable cause for initiating the prosecution. The pleading of this allegation follows the template adopted for the plea of the absence of reasonable and probable cause in respect of the May 2014 money laundering charge.
On 4 July 2014:
(a)The plaintiff had not given a recorded interview to any investigator or made any admission of guilt.
(b)The plaintiff's co-accused had not given statements or recorded interviews implicating him.
(c)All of the TI Product had not been translated (where necessary) assembled or assessed.
(d)Material documents relevant to the charges had not been obtained, gathered or assessed.
(e)The evidence from relevant witnesses had not been obtained and their proposed evidence had not been recorded in witness statements. The relevant witnesses were the same as those whose evidence was relevant to the money laundering charge of 3 May 2014. In addition, the prosecution had not obtained and recorded in witness statements, the evidence of two 'unlawful non-citizens' apprehended during the execution of search warrants.
The pleading of an objectively insufficient basis of a proper case for prosecution is materially no different from the plea in respect of the May 2014 money laundering charge save that Ms Oliver is also identified as a prosecutor.
The plea in [73.4] about the subjective views of Mr Clifford, Mr Adams, Mr Pargin, Mr Knight and Ms Addiscott is repeated in [77.4].

The money laundering charge - 12 May 2015 [78] - [81]

Ms Oliver, Mr Pargin, Mr Knight and Ms Addiscott did not have reasonable and probable cause for initiating the prosecution. The form and structure of the pleading is not materially different to the pleading in respect of the May and July 2014 charges.
On 12 May 2015:
(a)The plaintiff had not given a recorded interview to any investigator or made any admission of guilt.
(b)The plaintiff's co-accused had not given statements or recorded interviews that implicated the plaintiff.
(c)The TI Product had not been translated (where necessary), assembled or assessed.
(d)Material documents had not been obtained or assessed.
(e)The evidence of relevant witnesses had not been obtained and their proposed evidence recorded in witness statements.
(f)The prosecution had not obtained a statement from an accounting expert.

Notice of committal to the District Court - 17 February 2016 [82] - [86]

On 17 February 2016, the date on which Ms Oliver gave notice that the prosecution had complied with its disclosure obligations and would seek to have the summary charges committed to the District Court, Ms Oliver, Mr Clifford, Mr Adams, Mr Pargin, Mr Knight and Ms Addiscott did not have reasonable and probable cause to maintain the Prosecutions. The form and structure of this plea is not materially different from that adopted in respect of the summary charges.
On 17 February 2016:
(a)The plaintiff had not given a recorded interview to any investigator or made any admission of guilt.
(b)The plaintiff's co‑accused had not given statements or recorded interviews that implicated the plaintiff.
(c)The TI Product had not been translated (where necessary), assembled or assessed.
(d)A substantial volume of material relevant to the Prosecutions and required to be disclosed had not been disclosed.
(e)It is to be inferred from the subsequent disclosure of additional material by the prosecution that the prosecution had not completed: a proper or complete inquiry to identify the materials relevant to the Prosecutions against the plaintiff or a proper or any review of the materials subsequently disclosed.

The indictments - 18 May 2016 [87] - [90]

When the plaintiff was indicted in the District Court on 18 May 2016 Mr Plummer, Mr Johnston, Ms Oliver, Mr Bevilacqua, Mr Pargin, Mr Knight and Ms Addiscott did not have reasonable and probable cause to initiate and maintain the prosecution of the indictments. The form and structure of the plea is not materially different from the earlier pleas of absence of reasonable and probable cause save that the pleas about the subjective states of mind of Mr Pargin, Mr Knight and Ms Addiscott made in [73.4] and [77.4] are not repeated.
On 18 May 2016:
(a)The plaintiff had not given a recorded interview to any investigator or made any admission of guilt.
(b)The plaintiff's co-accused had not given statements or recorded interviews that implicated the plaintiff.
(c)The TI Product had not been translated (where necessary), assembled or assessed.
(d)A substantial volume of material relevant to the Prosecutions and required to be disclosed had not been disclosed.
(e)It is to be inferred from the subsequent disclosure of additional material that the prosecution had not completed a proper or complete inquiry to identify the materials relevant to the Prosecutions against the plaintiff or a proper or any review of the materials subsequently disclosed.
The pleading of objective insufficiency of the materials is as follows, [90]:
90By reason of the matters referred to in paragraph 96 herein as at 28 June 2017:
90.1 Objectively, there was an insufficient basis for any of Mr Plummer, Mr Johnston, Mr Bevilacqua, Ms Kumar, Mr Knight, Ms Addiscott, Ms Oliver and Mr Pargin to have formed a view there was a proper case for prosecution in maintaining IND 293 of 2016 and IND 294 of 2016 in the District Court of Western Australia;
90.2in the circumstances, to have formed a view that there was a proper case for prosecution of Mr Le was contrary to the requirements referred to in paragraphs 16, 17 and 18 herein; and
90.3accordingly, there was an absence of reasonable and probable cause in maintaining IND 293 of 2016 and IND 294 of 2016.

Indictment 293 - 25 August 2016 [91] - [94]

On 25 August 2016, the date on which indictment 293 was listed for trial to commence on 17 July 2017, Mr Plummer, Mr Johnston, Ms Martin, Mr Knight, Mr Pargin, Mr Bevilacqua and Ms Kumar did not have reasonable and probable cause to maintain the prosecution of indictment 293. The plea follows the structure and form of the earlier pleas of the absence of reasonable and probable cause.
On 25 August 2016:
(a)All the TI Product had not been translated (where necessary) assembled or assessed.
(b)Material documents relevant to the charges had not been gathered or assessed.
(c)The obtaining of evidence from relevant witnesses had not been completed.
(d)The plaintiff's co-accused had not given statements or recorded interviews that implicated him.
(e)It is to be inferred from the subsequent disclosure of additional material by the prosecution to the defence that the prosecution had not completed a proper or complete inquiry to identify materials relevant to the Prosecutions or a proper or any review of materials subsequently disclosed, the latter matters being established by inferences drawn from the subsequent disclosure of a substantial volume of material.
Objective insufficiency is pleaded in similar terms to [90].

Indictment 293 - 28 June 2017 [96] - [97]

On 28 June 2017 (the date on which the trial listed to begin on 17 July 2017 was vacated) Mr Plummer, Mr Johnston, Mr Bevilacqua, Ms Kumar, Mr Knight, Mr Cade and Mr Pargin did not have reasonable and probable cause for maintaining the prosecution of indictment 293. The plea follows the structure and form of the earlier pleas of the absence of reasonable and probable cause.
On 28 June 2017:
(a)A substantial volume of material relevant to the Prosecutions that was required to be disclosed had not been disclosed.
(b)It is to be inferred from the subsequent disclosure of additional material that the prosecution had not completed a proper or complete inquiry to identify the materials relevant to the Prosecution or a proper or any review of the materials subsequently disclosed.
Objective insufficiency is pleaded in similar terms to [90].

Indictment 293 - in trial disclosures [98] - [105]

Mr Plummer, Mr Johnston, Mr Cade, Mr Knight, Mr Pargin, Mr Bevilacqua and Ms Kumar had an absence of reasonable and probable cause for maintaining the prosecution of indictment 293 on the dates on which each late disclosure or addition to the prosecution brief was made. The structure of this plea differs from the earlier pleas because in [103] and [104] the plaintiff introduces the concept of a 'reasonable prosecutor'. Paragraphs [103] - [105] read as follows:
103By reason of the late disclosures referred to in paragraphs 101 and 102 herein Mr Plummer, Mr Johnston, Mr Cade, Mr Knight, Mr Pargin, Mr Bevilacqua and Ms Kumar were put on inquiry as at the date of each late disclosure that they had failed to identify and review substantial materials relevant to the Prosecutions.
104A reasonable prosecutor would have investigated when put on inquiry and thereby ascertained that the prosecution had failed to identify a substantial volume of material relevant to the Prosecutions and failed to give disclosure of that material such that Mr Plummer, Mr Johnston, Mr Cade, Mr Knight, Mr Pargin, Mr Bevilacqua and Ms Kumar knew or ought to have known of the substantial material relevant to the Prosecutions which had not yet been disclosed to the defence as detailed in Annexure A. [Annexure A is a 14 page list of the dates on which disclosure was given to the plaintiff between 22 June 2017 and 18 April 2018].
105By reason of the matters referred to in paragraphs 103 and 104 herein as at the dates of the late disclosure referred to in paragraphs 101 and 102 herein:
105.1objectively, there was an insufficient basis for any of Mr Plummer, Mr Johnston, Mr Cade, Mr Knight, Mr Pargin, Mr Bevilacqua and Ms Kumar to have formed a view there was a proper case for prosecution in maintaining IND 293 of 2016 in the District Court of Western Australia;
105.2in the circumstances, to have formed the view that there was a proper case for maintaining the prosecution of Mr Le was contrary to the requirements referred to in paragraphs 16, 17 and 18 herein; and
105.3accordingly, there was an absence of reasonable and probable cause in maintaining IND 293 of 2016.

Indictment 293 - 7 May 2018 [115] - [121]

On 7 May 2018 (the date on which the trial judge made orders discharging the jury and vacating the trial because of the late disclosures) Mr Plummer, Mr Johnston, Ms Addiscott, Mr Cade, Mr Bevilacqua and Ms Kumar did not have reasonable and probable cause for maintaining the prosecution of indictment 293.
This allegation is founded on allegations that the material that had not been disclosed to the plaintiff had not been read or assessed 'by the prosecution', [117] and that 'the prosecution admitted that Mr Bevilacqua and Ms Kumar had still not considered all of the material' that had not been disclosed, [118].
Objective insufficiency is pleaded in similar terms to [90].

Indictment 294 - 25 August 2016 [122] - [125]

On 25 August 2016 (the date on which indictment 294 was first listed for trial) Mr Plummer, Mr Johnston, Ms Martin, Mr Knight, Mr Pargin, Mr Bevilacqua and Ms Kumar did not have reasonable and probable cause for maintaining the prosecution of indictment 294.
On 25 August 2016:
(a)All the TI Product had not been translated (where necessary), assembled or assessed.
(b)Material documents relevant to the charges had not been gathered or assessed.
(c)The obtaining of evidence from relevant witnesses had not been completed.
(d)The plaintiff's co-accused had not given statements or recorded interviews that implicated him.
(e)It is to be inferred from the subsequent disclosure of additional material by the prosecution to the defence that the prosecution had not completed a proper or complete inquiry to identify materials relevant to the Prosecutions or a proper or any review of materials subsequently disclosed, the latter matters being established by inferences drawn from the subsequent disclosure of a substantial volume of material.
Objective insufficiency is pleaded in similar terms to [90].

Indictment 294 - 8 June 2017 [126] - [134]

On 8 June 2017 (the date on which the trial judge discharged the jury and vacated the first trial of indictment 294) Mr Plummer, Mr Johnston, Mr Cade, Mr Knight, Mr Pargin, Mr Bevilacqua and Ms Kumar did not have reasonable and probable cause to maintain the prosecution of indictment 294.
On 8 June 2017:
(a)All the TI Product had not been translated (where necessary), assembled or assessed.
(b)Material documents relevant to the charges had not been gathered or assessed.
(c)The obtaining of evidence from relevant witnesses had not been completed.
(d)The plaintiff's co-accused had not given statements or recorded interviews that implicated him.
(e)It is to be inferred from the subsequent disclosure of additional material by the prosecution to the defence that the prosecution had not completed a proper or complete inquiry to identify materials relevant to the Prosecutions or a proper or any review of materials subsequently disclosed, the latter matters being established by inferences drawn from the subsequent disclosure of a substantial volume of material.
Objective insufficiency is pleaded in similar terms to [90].

Indictment 294 - 15 January 2018 [135] - [139]

On 15 January 2018 (the date on which Chief Judge Sleight vacated the trial listed to begin on 6 March 2018) Mr Plummer, Mr Johnston, Mr Cade, Ms Addiscott, Mr Pargin, Mr Bevilacqua and Ms Kumar did not have reasonable and probable cause to maintain the prosecution of indictment 294.
On 15 January 2018 the full extent of the TI Product had not been disclosed and it is to be inferred that it had not been assessed and, in some cases, translated into English.
Objective insufficiency is pleaded in similar terms to [90].

Indictment 294 - 24 January 2019 [140] - [146]

On 24 January 2019 Mr Plummer, Mr Johnston, Mr Cade, Ms Addiscott, Mr Pargin, Mr Bevilacqua and Ms Kumar did not have reasonable and probable cause for maintaining the Prosecutions.
On 24 January 2019:
(a)The total number of intercept calls the existence of which were disclosed by the prosecution to the plaintiff exceeded 128,000.
(b)The material obtained by Tricord/Polo had not been sufficiently or appropriately processed.
(c)Material relevant to the charges against the plaintiff had been lost or was missing and the prosecution had not been able to review that material.
(d)The CDPP had failed to make witnesses helpful to 'the plaintiff's case available in the aborted trials of indictments 293 and 294.
(e)There was a continuing failure to investigate other people.
(f)The court could not rely on assurances from the prosecution that they had given full disclosure.
Objective insufficiency is pleaded in similar terms to [90].

Malice [147] - [169]

The plaintiff relies on the media releases, the statements attributed to the police officers at the media conference and the open letter to businesses in Western Australia as 'Institutional context'.
The plaintiff's pleas of malice against the individual defendants follow a common form exemplified by the plea in respect of Mr Plummer:
158Mr Plummer, whilst acting as a prosecutor in the initiation of the Indictments or alternatively in the continuation of the Prosecutions, acted maliciously in that there was an absence of reasonable and probable cause for the Prosecutions as pleaded in paragraphs 90, 94, 97, 105, 119, 125, 134, 139 and 146 herein.

Liability of the defendants

The plaintiff pleads this issue as follows:
187In the circumstances pleaded herein, Mr Knight, Ms Addiscott, Mr Clifford, Mr Adams, Mr Pargin, Mr Plummer, Mr Johnston, Ms Oliver, Ms Martin, Mr Cade, Mr Bevilacqua and Ms Kumar are liable to Mr Le for the loss and damage suffered by Mr Le because their acts combined to produce the loss and damage suffered by Mr Le, and as such they are joint tortfeasors, alternatively several concurrent tortfeasors from the following dates:
187.1in respect of Mr Knight, Ms Addiscott, Mr Clifford, Mr Adams and Mr Pargin, from 3 May 2014;
187.2in respect of Ms Oliver, from around July 2014;
187.3in respect of Mr Plummer, Mr Johnston and Mr Bevilacqua, from around May 2016;
187.4in respect of Ms Martin, from around June 2016;
187.5in respect of Ms Kumar, from around 17 August 2016; and
187.6in respect of Mr Cade, from around 1 February 2017.

Relevant pleading principles

The defendants oppose the application on the grounds that the statement of claim does not disclose reasonable causes of action and that it may prejudice, embarrass or delay the fair trial of the action. The relevant principles are those that govern applications to strike out pleadings. The principles were stated by the Court of Appeal in English v Vantage Holdings Group Pty Ltd[4] which adopted Smith J's summary at first instance. The principles are well‑known. It is unnecessary to recite them.
[4] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55].

Malicious prosecution - the principles in overview

In the introduction I referred to the elements of the tort of malicious prosecution as stated by the plurality in A v New South Wales.[5] In New South Wales v Quirk,[6] Tobias AJA (Beazley and Hoeben JJA agreeing) distilled the plurality's reasoning in A v New South Wales on the issues of malice and the absence of reasonable and probable cause into the following fifteen propositions:[7]
[5] A v New South Wales.
[6] New South Wales v Quirk [2012] NSWCA 216.
[7] New South Wales v Quirk [70]. Subject to the reformulation of one of the propositions they were endorsed in Clavel v Savage [2015] NSWCA 61 [50].
(a)To succeed with respect to the tort of malicious prosecution, the plaintiff is required to prove two distinct elements, one positive (malice) and the other negative (absence of reasonable probable cause). Each has a separate role to play: [54].[8]
[8] The paragraph references are to paragraphs of the plurality's judgment in A v New South Wales.
(b)Although a conclusion about malice does not render it irrelevant (as proof of particular facts may provide evidence of both elements), the inquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain a prosecution, if the prosecution fails, an action for malicious prosecution will not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge. This would be so notwithstanding a finding of malice: [54], [56].
(c)Thus the inquiry about reasonable and probable cause has two aspects. The first is what did the prosecutor make of the material available to him and the second is what should the prosecutor have made of it. The first is a subjective test the second an objective test: [58].
(d)As the question as to whether there is an absence of reasonable and probable cause must be determined at the time the prosecution is commenced, attention is necessarily directed to what material the prosecutor has available for consideration when deciding whether to commence or maintain the prosecution: [59].
(e)It is important to recognise that in an action for malicious prosecution the plaintiff must establish a negative (the absence of reasonable probable cause). The forensic difficulty of proving such a negative is well known. It is very much dependent upon the nature of the forensic circumstances of a particular case. What must be avoided is the tendency to translate the negative question - whether the defendant prosecutor acted without reasonable and probable cause - into the different question - what will constitute reasonable and probable cause to initiate criminal proceedings: [60].
(f)Subject to the qualification in (h) below, in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469 Jordan CJ said that there were five conditions to be met if a person was to have reasonable and probable cause for prosecuting another for an offence:
'(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.'
(g)To succeed on the issue of absence of reasonable and probable cause, the plaintiff has to establish 'that one or more of the foregoing conditions did not exist' which, according to Jordan CJ, he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds: [64].
(h)The five conditions stated by Jordan CJ provide guidance about the particular kinds of issue that might arise at trial in those cases where the defendant prosecutor may be supposed to have personal knowledge of the facts giving rise to the charge and the plaintiff alleges either that the prosecutor did not believe the accused to be guilty, or that the prosecutor's belief in the accused's guilt was based on insufficient grounds. However those five conditions should not be understood as completely or exhaustively describing what will constitute reasonable and probable cause: [66].
(i)If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining a prosecution, that is an allegation about the prosecutor's state of persuasion. The subject matter of the relevant state of persuasion in the mind of prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the process of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies, the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt: [71].
(j)The negative proposition that the plaintiff must establish (that the prosecutor acted without reasonable and probable cause) may be established in either or both of two ways: the defendant prosecutor did not 'honestly believe' the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief: [77].
(k)In most cases, honesty, or more accurately, the allegation of lack of honesty, will require consideration of what the prosecutor knew, believed or concluded, about some aspect of the material. However, if the prosecutor's knowledge or belief must be considered, honesty will add nothing to the inquiry: [78].
(l)What is required is an examination of the prosecutor's state of persuasion about the material considered by him or her. That should not be done by treating the five conditions stated by Jordan CJ as a complete and exhaustive catalogue of what will constitute reasonable and probable cause although they are generally sufficient where the prosecutor is not required to act upon information provided by others [as in the present case]. However the focus must be on the absence of one or more of those conditions: [81].
(m)The objective element of the absence of reasonable and probable cause has been couched in terms of the 'ordinarily prudent and cautious man placed in the position of the accuser' or explained by reference to 'evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution'. The resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may (not must) depend upon evidence demonstrating that further inquiry could and should have been made [no such assertion was made in the present case]: [83], [86].
(n)With respect to malice the plaintiff must establish that the dominant purpose of the prosecutor was a purpose other than the proper invocation of the criminal law - an 'illegitimate or oblique motive'. That improper purpose must be the sole or dominant purpose actuating the prosecutor. Various examples are given of malice such as personal animus, ill-will, spite, a desire to punish the plaintiff or to stop a civil action brought by the plaintiff against the prosecutor. The list is non‑exhaustive. Malice can be defined only by the negative proposition: a purpose other than a proper purpose: [91], [92].
(o)Although proof of malice is often a matter of inference, it is proof that is required, not conjecture or suspicion. It requires evidence from which the court can infer that the prosecutor wished to pursue some illegitimate or oblique motive other than a proper invocation of the criminal law: [93].
There is an additional aspect of the plurality's reasoning on the issue of the absence of reasonable and probable cause and it is connected to the point summarised at (i) in the extract from New South Wales v Quirk in the preceding paragraph. That point was the second of what the plurality described as 'three critical points'. The third critical point was:[9]
The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion? (emphasis added)
[9] A v New South Wales [77].

In A v New South Wales the High Court was concerned primarily with the issue of reasonable and probable cause and malice but in the course of their reasons the plurality touched upon the issue of who is a prosecutor for the purposes of the tort of malicious prosecution and said:[10]
The identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion.
[10] A v New South Wales [34].
A person may incur liability for malicious prosecution by maintaining the prosecution, that is, by playing an active role in continuing the prosecution.[11] I will refer to the authorities in which the principles applied to identify who is a prosecutor are explained in more detail later in these reasons.
[11] New South Wales v Landini [2010] NSWCA 157 [52] - [59]; Sahade v Bischoff [2015] NSWCA 418 [121].

An overview of the criticisms of the statement of claim

Unsurprisingly the parties' submissions were extensive and detailed. It is impractical to attempt a summary of the submissions made by each defendant and the plaintiff's responses to those submissions. In summary, the main themes developed by the defendants were as follows:
(a)The statement of claim does not identify with sufficient precision the basis on which it is alleged that each defendant was a prosecutor, and the facts pleaded do not establish a reasonable cause of action that the defendant was a prosecutor. This deficiency is aggravated by the use of the term 'Prosecutions' as a collective definition of the summary charges and the indictments in the District Court.
(b)The pleading of the absence of reasonable and probable cause does not engage with the questions: what did each prosecutor make of the available material? And, what should each prosecutor have made of it? The plaintiff's reliance on the failure to disclose materials as a basis for establishing an absence of reasonable and probable cause without identifying what it is about the undisclosed material that was relevant to the decisions made by the prosecutors does not cure the plaintiff's failure to address the two critical questions and, separately, is embarrassing because the statement of claim does not adequately inform the defendants, other than at an impermissibly high level of generality, of the case they are required to meet. Subsumed in these criticisms is the plaintiff's failure to plead, by reference to the elements of the charges, how the material available to each defendant did not warrant the initiation or maintenance of the prosecution of each charge.
(c)The plaintiff's reliance on the allegation that each prosecutor did not have reasonable and probable cause as a basis for establishing that each defendant acted maliciously is inadequate. In the context of malicious prosecution malice connotes that the prosecution was initiated or maintained (as the case may be) for a purpose other than the proper invocation of the criminal law. The plaintiff does not plead any improper purpose. Moreover, the plaintiff's allegations of an absence of reasonable and probable cause do not rely on an absence of an honest belief in the existence of a proper case for prosecution. Rather the plaintiff relies on the alternative basis for finding an absence of reasonable and probable cause, that is, that the defendants had an insufficient basis for forming the view that there was a proper case for prosecution. An honest belief in the existence of a proper case for prosecution will generally sufficiently explain the prosecution and preclude a finding that the prosecutor was actuated by an impermissible motive.[12]
[12] Lye v New South Wales [2005] NSWCA 282 [52] - [55].

The pleading of the prosecutors

General principles

Identifying who was a prosecutor is critically important. It is the prosecutor's state of mind, or the materials available to the prosecutor, which must be examined for the purposes of establishing an absence of reasonable and probable cause. It is the prosecutor's state of mind that is the focus of the inquiry as to the existence of malice. These inquiries must be undertaken by reference to the dates on which it is alleged the putative prosecutor initiated or maintained the prosecutions.
The identity of the prosecutor is a question of fact to be determined not by reference to legal theory or form but by reference to substance. The law is concerned to identify 'the person in fact instrumental in prosecuting the accused as the real prosecutor'.[13]
[13] Davis v Gell [1924] HCA 56; (1924) 35 CLR 275, 282 (Isaacs ACJ).
In Commonwealth Life Assurance Society Ltd v Brain,[14] Dixon J said:[15]
The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on the ground of indefiniteness. It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority. But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible … The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him. The expression 'instigate' is not altogether free of ambiguity. (citations omitted)
[14] Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343.
[15] Commonwealth Life Assurance Society Ltd v Brain (379).
Citing Commonwealth Life Assurance Society Ltd v Brain in Flowers v New South Wales,[16] Rothman J put the matter this way:[17]
[I]t is necessary for the defendant to be actively instrumental in procuring the use of legal process against the plaintiff.
[16] Flowers v New South Wales (No 5) [2021] NSWSC 887.
[17] Flowers v New South Wales (No 5) [176]. See also Hrdavec v New South Wales [2021] NSWSC 560 [69].
In Skrijel v Mengler,[18] Nettle J observed:[19]
[B]eing 'actively instrumental' means either instituting or continuing the proceeding, as by the laying of an information or continuing the prosecution of the proceeding, or so dominating another by prevailing upon them or procuring them to institute or continue the proceeding as to be regarded as really taking that action through them.

[18] Skrijel v Mengler [2003] VSC 270.

[19] Skrijel v Mengler [200]; cited with approval in Klein v National Australia Bank Ltd [2016] VSCA 144 [23].

In New South Wales v Landini,[20] Macfarlane JA reviewed the authorities relating to the acts capable of constituting the maintenance of a prosecution. The appellant submitted that, following the conduct of a prosecution being taken over by a Crown Prosecutor, two police officers were not prosecutors but only witnesses. Macfarlane JA examined the authorities to identify the nature of the conduct that had been held sufficient to constitute the maintenance of a prosecution:[21]
[20] New South Wales v Landini.
[21] New South Wales v Landini [53] - [59].
In Daniels v Telfer the plaintiff alleged that shortly after the defendants procured the issue of a warrant for the arrest of the plaintiff on a charge of larceny, the defendants became aware that the plaintiff was innocent of that charge. The plaintiff's Declaration filed in those proceedings alleged that the defendants 'falsely and maliciously and without reasonable and probable cause refrained from taking any steps to prevent the execution of the said warrant and to prevent the plaintiff from being arrested thereunder' (Daniels v Telfer at 99). On demurrer, the Court held that the Declaration was defective as it did not allege that the defendants maliciously took any active step to continue the prosecution.
Harvey ACJ made the following observations:
'In my opinion malicious prosecution connotes an active prosecution of the plaintiff. It must be shown that at some time when the defendants took some steps towards pressing on the prosecution they were actuated by malice. Mere saying nothing, taking no part in pressing on the execution, in my opinion is no breach of any duty which the defendants owed to the plaintiff. They must at the time when they do something by way of prosecution of the defendant be actuated by malice and without reasonable or probable cause. All that is alleged here is that after the warrant had been properly issued they refrained from taking steps to withdraw the warrant. In my opinion that gives no cause of action. Had they taken any steps such as by way of giving evidence in support of the prosecution, had they actively prevented the giving of evidence by persons who were qualified to give evidence, had they suppressed evidence, then I think on the authorities on the cases which have been cited to us, particularly the case of Fitzjohn v [Mackinder] (8 C.B. (N.S.) 592 and 9 C.B. (N.S.) 505)[,] I think the Court is justified in saying that they took an active step actuated by malice without reasonable and probable cause sufficient to establish malicious prosecution; but mere abstaining from doing or taking any action at all is not, in my opinion, malicious prosecution' (at 102).
James and Halse Rogers JJ concurred. Halse Rogers J added the following observation:
'The only matter that has caused me any doubt is that in the course of the history the pleader alleges that the defendants procured a further adjournment of the hearing. That in itself of course was an active step and in my opinion in a declaration properly framed, if the plaintiff declared that after the arrest the defendants knowing of the innocence of the plaintiff maliciously and without reasonable and probable cause suppressed from the magistrate their knowledge of the innocence of the plaintiff and procured an adjournment and caused damage to the plaintiff, in my opinion that would give them ground for action …' (at 103).
In Fitzjohn v Mackinder, a decision of the Court of Exchequer Chamber referred to by Harvey ACJ, the defendant gave false evidence in civil proceedings that the plaintiff had signed an acknowledgement. The plaintiff denied that the signature was his, but he was disbelieved by the County Court judge who determined the civil claim. The judge, on his own motion, bound the defendant over to prosecute the plaintiff for perjury. This the defendant did by preferring a bill of indictment, but the plaintiff was ultimately acquitted.
The plaintiff was non-suited in his subsequent action against the defendant for malicious prosecution, but he succeeded in obtaining a verdict on appeal (Cockburn CJ, Bramwell and Channell BB agreeing, Blackburn and Wightman JJ dissenting). Cockburn CJ, with whom Channell B concurred, said this (9 CB (NS) 505 at 531; 142 ER 199 at 210):
'In my opinion … a prosecution, though in the outset not malicious, as having been undertaken at the dictation of a judge or a magistrate, or, if spontaneously undertaken, from having been commenced under a bona fide relief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution, with the intention of procuring per nefas a conviction of the accused. Take, for instance, the case of a prosecutor, who, after the commitment of a prisoner, and before going before the grand jury, chanced to discover the clearest proof of the prisoner's innocence, and yet went on with the indictment and prosecution, suppressing the newly-ascertained facts, and supporting the case against the prisoner by evidence either absolutely false or rendered so by the suppression of facts which would have shewn the innocence of the accused. Can it be said that to prefer an indictment under such circumstances, to be followed up by such a course of proceeding as I have referred to, would not be a malicious prosecution, for which the man whose life or liberty had been put in peril by it should have a remedy by civil action?'.
Daniels v Telfer was followed in Coleman v Buckingham's Ltd where it was held that allegations that the plaintiff had maliciously and without reasonable and probable cause continued the prosecution of a civil proceeding by taking certain identified steps were capable of establishing the commission of the tort. The steps alleged to have been taken comprised the procuring of an order to proceed, and of a judgment, 'by falsely and maliciously representing to the court by a false affidavit certain facts' (at 178).
The joint judgment in A v New South Wales pointed out that '[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. 'To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion'" (at [34] citing John G Fleming, The Law of Torts, 9^th ed (1998) LBC Information Services at p 676). Their Honours continued:
'[35] In Martin v Watson ([1996] AC 74), a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She went to a police station and complained. A detective constable laid an information against the neighbour. At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had 'in substance procured the prosecution' ([1996] AC 74 at 89). The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation ([1996] AC 74 at 89). Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand (Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at 207-208), that a person may be regarded as the prosecutor if he puts the police in possession of information which virtually compels an officer to bring a charge'.
In Edwards v New South Wales[22] Macfarlane JA was again called upon to consider whether a police officer had maintained a prosecution. Detective Senior Constable Gill, who had signed a Court Attendance Notice requiring the plaintiff to attend court to answer charges, was the officer‑in‑charge of the investigation. The issue was whether he was a prosecutor after the prosecution had been taken over by the Director of Public Prosecutions of New South Wales (on 2 March 2011). Macfarlane JA (with whom Gleeson and Kirk JJA agreed) held that DSC Gill was not a prosecutor once the prosecution had been taken over by the DPP. Although it is lengthy it is helpful to reproduce his Honour's analysis:[23]
[22] Edwards v New South Wales [2022] NSWCA 187.
[23] Edwards v New South Wales [96] - [100].
As was recognised by this Court in Stanizzo v Fregnan [2021] NSWCA 195 at [222], there is 'long-standing authority that recognises that, for the purposes of the tort of malicious prosecution, the term "prosecutor" is not limited to public officers (for example, a police officer "informant" or the DPP) who, in the name, or on behalf, of the State, invoke the criminal process, or (more rarely in modern times) to a private individual who does the same thing.' It is undoubted that DSC Gill was a prosecutor for the purposes of the tort of malicious prosecution prior to the DPP taking over the prosecution on 2 March 2011 as he had commenced the prosecution in his name. However, he ceased on that date to have that role either in a formal or de facto sense.
As noted above by reference to A v NSW at [34] (see [24] above), establishing hat a defendant was a "prosecutor" when the defendant had no official capacity as such, requires proof that the defendant took 'an active role in the conduct of the proceedings, as by "instigating" or setting them in motion'. In Commonwealth Life Assurance Ltd v Brain (1935) 53 CLR 343 at 379; [1935] HCA 30, Dixon J identified as follows circumstances where this requirement would be satisfied:
'It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority. But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible.' (Footnotes omitted)
More recent cases have also referred to the defendant's knowledge of the falsity of information supplied to the police as a relevant, though not necessarily sufficient, element in this context: see State of New South Wales v Landini [2010] NSWCA 157 at [55] and [57]; Sahade v Bischoff [2015] NSWCA 418 at [121]; Stanizzo v Fregnan [2021] NSWCA 195 at [237].
…
On the other hand, the element of dishonesty was absent in Stanizzo v Fregnan[2021] NSWCA 195 where the malicious prosecution claim failed, although the Court did note (at [231] and [232]) that even if the relevant statement had been a deliberate lie, there was nothing to suggest, in that case at least, that it operated on the mind of the prosecuting authority so as to 'procure' the laying of the charges, it being nothing more than a supporting statement as to the complainant's version of events.
Once it is accepted, as it must be, that Mr Edwards did not prove that DSC Gill was dishonest in any relevant respect and, in particular, did not hold the belief that the prosecution was based on false information, the conclusion must follow that after 2 March 2011 DSC Gill was not a 'prosecutor' in the relevant sense as there were no other features of his conduct that would require that characterisation. Whilst DSC Gill was active in assisting the prosecution in this period, his conduct did not go beyond that of the conventional role of a police officer assisting in the preparation of a prosecution that was under the control of the DPP. As the primary judge put it, 'DSC Gill did little more than banal tasks of collation and following up experts (which largely corresponded to the extent of any claim by the plaintiff as to DSC Gill's involvement)'.
In Ea v Diaconu,[24] the plaintiff was charged with offences under the Criminal Code 1995 and the Migration Act 1958. A trial was held and the jury was unable to agree upon any verdicts. The jury was subsequently discharged. A further trial was held at which the plaintiff was acquitted of the Criminal Code 1995 charges and convicted of the Migration Act1958 charges. The plaintiff commenced proceedings for damages for malicious prosecution in respect of the Criminal Code 1995 charges against the AFP case officer, Ms Diaconu, the Director of Public Prosecutions for the Commonwealth and the Commonwealth of Australia. The defendants applied for summary dismissal of the action, alternatively to strike out the statement of claim. When considering the pleading of the malicious prosecution claim against Ms Diaconu, R A Hulme J said:[25]
Returning to the case against the first defendant, the pleadings fail to assert anything relevant to her maintenance of the prosecution up to the time of the first trial. The pleaded facts make only a meagre attempt at asserting her involvement in institution of the proceedings; i.e. she 'caused the plaintiff to be charged'. Taking the plaintiff's case at its highest, and thereby assuming there is something sufficient pleaded for her involvement at that stage, there is nothing further pleaded as to her having maintained the proceedings over the 16 months until the first trial concluded. What is pleaded is that very soon after the Court Attendance Notices were issued the proceedings were taken over by the Commonwealth Director of Public Prosecutions who had carriage of them through until finalisation. There is no pleading of any facts which could, if accepted, make good an assertion that she had any prosecutorial input. By way of example, there is nothing alleged in respect of her having any decision-making responsibility in relation to the prosecution, such as whether it should proceed or be terminated; what evidence and what charges it might be based upon; or what case theory might be pursued. (citations omitted)
[24] Ea v Diaconu [2019] NSWSC 795.
[25] Ea v Diaconu [81].

The plaintiff emphasised that the shape of the forensic contest in the criminal proceedings dictated the way in the which the plaintiff shapes the argument on the absence of reasonable and probable cause. The plaintiff contended:
56This is not a case where the basis of the defendants' absence of reasonable and probable cause can be shown by the materials they did consider, it is a case that proceeds on the basis that the defendants' failure to consider such a large volume of material that was available to them (or upon proper enquiry would have been available to them) meant that they cannot objectively be said to have had an honest belief that here was reasonable and probable cause in either (or both) initiating or maintaining the Prosecutions.
57The way Mr Le pleads this is to, at each pleaded stage of the Prosecutions, plead that the relevant defendants knew, or ought to have known, of the continually unfolding disclosure issues faced by the prosecution, the failure to have the materials available to be used by the prosecution (i.e. translated into English), that there was a lack of incriminating statements against Mr Le, and (it is inferred from the subsequent disclosure of additional information), the prosecution had not properly identified or reviewed all the materials relevant to the Prosecutions. On that basis, there was an objectively insufficient basis for the relevant defendant to have formed an honest view there was a proper case for prosecution and, accordingly, there was an absence of reasonable and probable cause.
58To the best of Mr Le's knowledge, a complete review of the materials available to each of the prosecutors was never conducted.
59Of course, it is a matter for the defendants to assert by way of defence that their failure to consider the full extent of the available material was reasonable. The defendants can point to the evidence they did consider to assert that evidence or material could give rise to a reasonable honest belief.
The various pleas of the absence of reasonable and probable cause fail to disclose a reasonable cause of action and, in the respects to which I refer below, are embarrassing. My reasons for reaching these conclusions are as follows.
First, the plaintiff does not attempt to engage with the central questions of what each defendant made of the materials available to him or her and what he or she should have made of those materials. Addressing these questions is essential to pleading a reasonable cause of action. A plaintiff bringing an action for malicious prosecution based on an objective insufficiency in the materials available to a prosecutor must identify what it is that constituted the insufficiency. Ordinarily this would involve relating the available evidence to the elements of the charge and identifying in what respects the evidence was deficient but, whatever approach is adopted, it is an essential step. Identifying the insufficiency in the materials available to the prosecutor is integral to the very nature of the cause of action. It is not a step that can be avoided. Unless a plaintiff engages with this exercise, allegations of an absence of reasonable and probable cause amount to no more than general assertions unsupported by material facts and particulars. Fundamentally, as presently formulated, the pleas of absence of reasonable and probable cause, are speculative.
Secondly, the plaintiff is not precluded from relying on the materials that were the subject of the various late disclosures. If he wishes to plead those materials, however, he must identify what it is about their content that was relevant to the alleged insufficiency of the materials relied on by the defendants on each of the dates they initiated or maintained (as the case may be) the prosecutions. Once again, unless this is done the plaintiff's case is speculative. Implicitly it relies on the proposition that the material, the subject of the late disclosures, contained exculpatory subject matter that was relevant to the objective insufficiency of the other material considered by the defendants but the exculpatory material is not identified. As the plurality noted in A v New South Wales,[30] an absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before charges were laid, and the prosecutor's duty is not to ascertain whether there is a defence but whether there is a reasonable and probable cause for a prosecution.
[30] A v New South Wales [86].
As presently formulated the plaintiff's case appears to be founded on the proposition that regardless of objective sufficiency of the materials available to, and considered by, the defendants, 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.
Thirdly, and flowing on from the first and second points, to the extent to which the plaintiff does plead investigative steps that were not taken but should have been taken (for example material seized in the search warrants that had not been assessed and material documents that 'had not been obtained gathered and/or assessed') the facts are alleged at too high a level of generality. The factual background is complex and detailed. It is not sufficient for the statement of claim to inform the defendants of the general nature of the plaintiff's case. The statement of claim must descend to the level of detail required to enable each defendant to know in advance precisely what case they are required to answer. The existing pleading does not tell the defendants what it is about the deficiencies in the preparation of the case that justifies the plea that 'by reason of' those deficiencies there was objectively an insufficient basis for the defendants to have formed a view that there was a proper case for prosecution. In this respect the pleading is embarrassing and it should be struck out. The remedy is not the provision of particulars.[31]
[31] Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109, 111 - 114.
In a case such as this to require the plaintiff to plead with the specificity referred to in the preceding paragraph is not to adopt an overly pedantic approach to pleading. It has been said on many occasions that cases alleging professional impropriety or misconduct must be pleaded with precision. In Lock v Australian Securities and Investments Commission,[32] in the course of dealing with an application to strike out a statement of claim that alleged misfeasance in public office, Gleeson J (sitting as a judge of the Federal Court) made the point (supported by references to authority) that as in the case of fraud or dishonesty, the tort of misfeasance in public office must be distinctly alleged and sufficiently particularised, and it is not sufficiently particularised if the facts pleaded are consistent with innocence or honest incompetence.[33] Her Honour went on to say it is not sufficient to allege unlawful conduct. It is necessary to plead the primary facts that will be relied upon to justify any inference of unlawfulness. While it may be accepted that the plaintiff does not allege that the individual defendants did not honestly believe that there was a proper case for prosecution, the plaintiff's case impugns their professional reputations and integrity in a most serious way. Gleeson J's observations, though made in the context of a misfeasance in public office case, apply with equal force to allegations of malicious prosecution made in this case.
[32] Lock v Australian Securities and Investments Commission [2016] FCA 31; (2016) 248 FCR 547.
[33] Lock v Australian Securities and Investments Commission [126].
Fourthly, the onus is on the plaintiff to plead (and prove at trial) the negative proposition that there was an absence of reasonable and probable cause. Undoubtedly, this is a significant burden. It is, however, a burden that the plaintiff has voluntarily assumed by bringing this action against each individual defendant. It is no answer to the criticism that the statement of claim does not disclose a reasonable cause of action to say that the plaintiff is unable to identify the materials available to each defendant 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 plaintiff is unable to plead each of the elements of the cause of action in respect of each defendant, he should not have formulated his claim in the manner he did. Moreover, it is not, as the plaintiff suggests in his submissions, for the defendants to assert by way of defence the sufficiency of the basis of the materials available to them without first knowing the specific basis on which the plaintiff maintains there was an objective insufficiency.
Fifthly, given that the case against each individual defendant rests on an objective insufficiency of materials rather than the absence of an honest belief that there was a proper case for prosecution, those paragraphs - [72], [75], [76], [79], [80], [85], [89], [93], [104], [124], [133], [138], [145], that plead the defendants 'knew or ought to have known' of various investigative steps that had not been taken give rise to false issues. The objective insufficiency of the available materials was not affected by the defendants' actual or constructive knowledge of the investigative steps the plaintiff alleges had not been undertaken. The pleas of what the defendants 'knew or ought to have known' give rise to false issues and are thus embarrassing.
Similar points may be made about the reliance on the matters pleaded as 'Institutional context' as a basis for alleging that various police officers had lost objectivity and the introduction of the concept of the 'reasonable prosecutor' in [104].
As to the first of these matters, the plaintiff pleads that Mr Clifford, Mr Adams, Mr Pargin, Mr Knight and Ms Addiscott, were subjectively of the view that the plaintiff was guilty of 'criminal offences' and had lost objectivity - [73.4], [77.4], [81.4], [86.4]. The plea of the officers' subjective views does not add to the pleas of the objective insufficiency of the materials available to them. The pleas give rise to false issues. In any event, merely pleading the content of the media statements and the other public comments that form part of the 'Institutional context' is not a sufficient factual basis for drawing inferences about the states of mind of Mr Clifford, Mr Pargin, Mr Knight and Ms Addiscott. No facts are pleaded to establish that these defendants had any involvement with the making of the statements, that they were aware of them or agreed with them.
As to the second matter, it is unclear what purpose is served by introducing the concept of the 'reasonable prosecutor' in [104] and what relevance the investigations the hypothetical reasonable prosecutor would have undertaken is to the actual or constructive knowledge of Mr Plummer, Mr Johnston, Mr Cade, Mr Pargin, Mr Knight, Mr Bevilacqua, and Ms Kumar of the substantial undisclosed material. The use of the expression 'such that' as a conjunction obscures rather than clarifies the case the plaintiff is attempting to plead. Moreover, it is not clear whether the plaintiff is alleging that the specified defendants knew or ought to have known of the existence of the substantial material or of its existence and content.
Sixthly, the plaintiff's reliance on the CDPP's Prosecution Policy in [16] and [17], to establish an absence of reasonable and probable cause, not only suffers from the difficulties to which I have referred earlier but reflects what was described in A v New South Wales, as the impermissible tendency to translate the negative question - whether the defendant acted without reasonable and probable cause into the different question of what will constitute reasonable and probable cause. The same point may be made in relation to the plaintiff's reliance on the WA Bar Association Rules though there is an additional point to be made about the reliance on those rules. As pleaded in [18] those rules apply to the conduct of the trial and, relevantly, impose an obligation on a prosecuting barrister to 'seek impartially to have the whole of the relevant evidence placed intelligibly before the Court'. That is a rule that governs the conduct of the trial and does not govern a barrister's approach to the sufficiency of available materials for the purposes of determining whether there was a proper case for prosecution. [16], [17] and [18] and the allegations that refer back to those paragraphs will be disallowed on the basis that they give rise to false issues and are embarrassing.

The malice pleas

There are two fundamental difficulties with the plaintiff's pleas of malice. First, the plaintiff does not identify for what purpose, other than the proper invocation of the criminal law, each defendant initiated or maintained the prosecutions.
In A v New South Wales, the plurality commented on the relationship between the absence of reasonable and probable cause and malice as follows:[34]
No little difficulty arises, however, if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. In particular, attempts to reduce that relationship to an aphorism - like, absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause - may very well mislead. Proof of particular facts may supply evidence of both elements. For example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. No universal rule relating proof of the separate elements can or should be stated.
What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an 'illegitimate or oblique motive'. That improper purpose must be the sole or dominant purpose actuating the prosecutor.
Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be deﬁned only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in an action for malicious prosecution - a purpose other than a proper purpose. (footnotes omitted and original emphasis)
[34] A v New South Wales [90] - [92].
That the facts relied on to establish an absence of reasonable and probable cause may support an inference of malice does not relieve a plaintiff of the requirement to plead the purpose that actuated the defendant to instigate or maintain a prosecution. The existence of a dominant purpose other than the proper invocation of the criminal law is an essential element of the cause of action and it must be pleaded because a defendant must know the case the plaintiff is advancing. The improper purpose cannot be left at large on the basis that it will be possible to infer some improper purpose at the conclusion of the trial when all the evidence has been adduced. The plaintiff is required to plead the improper purpose he alleges as the basis for the malice plea.
The second difficulty is that the pleas of malice are entirely dependent on the pleas of the absence of reasonable and probable cause and if those pleas are disallowed then it follows that the malice pleas must also be disallowed.

Miscellaneous matters

In [47.8] in which it is alleged that Mr Knight played an active role in the Prosecutions with a reference to the CDPP 'formally [taking] over the conduct of the Prosecutions'. The date on which the CDPP took over the Prosecutions is significant because, as explained earlier, once that occurred the police officers who signed the prosecution notices were no longer prosecutors (on the basis of the materials presently pleaded). The present wording of [47.8] suggests that the plaintiff knows when the CDPP formally took over the Prosecutions and this date should be pleaded.
In [35] it is alleged the charges against the plaintiff were amended from time to time and 'the Prosecutions' refer to the charges as amended from time to time. I have already commented on the difficulty created by the use of the term 'the Prosecutions' and [35] will be disallowed on the ground that it adopts this term. If the amendments to the charges are alleged to have been of any significance, then the amendments should be pleaded. If they are not significant then there does not appear to be any need to plead the fact of the amendment. These observations do not warrant striking out the plea that the charges were amended but the plea would benefit from some further consideration.
Ms Kumar contends that the plea in [187] that she and the other defendants are liable for the plaintiff's loss and damage 'because their acts combined to produce the loss and damage suffered by [the plaintiff], and as such they are joint tortfeasors, alternatively several concurrent tortfeasors …' does not disclose a reasonable cause of action in so far as it is alleged that she is liable as a joint tortfeasor.
In Baxter v Obacelo Pty Ltd,[35] Gleeson CJ and Callinan J explained the distinction between joint tortfeasors and concurrent tortfeasors as follows:[36]
Glanville Williams, in Joint Torts and Contributory Negligence, published in 1951, used 'concurrent tortfeasors' as a generic term for joint tortfeasors and several concurrent tortfeasors. Concurrent tortfeasors are persons whose acts concur to produce the same damage. Joint tortfeasors are responsible for the same wrongful act leading to single damage. Such joint responsibility may arise from vicarious responsibility of one for another, or from the non-performance of a joint duty, or from concerted action. Several concurrent tortfeasors are independent tortfeasors whose separate acts combine to produce damage. In their case, 'concurrence is exclusively in the realm of causation'. In Thompson v Australian Capital Television Pty Ltd, Brennan CJ, Dawson and Toohey JJ said:
'The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage. As was said in The 'Koursk', for there to be joint tortfeasors 'there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage'. Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort.' (footnotes omitted)
[35] Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635.
[36] Baxter v ObaceloPty Ltd [18].
The pleading in [187] is a plea that the several acts combined to produce damage, not that the defendants were responsible for the same acts or that they were acting in concert. It is a plea that alleges the defendants were concurrent tortfeasors not joint tortfeasors. The allegation that they were joint tortfeasors should be disallowed.

Leave to replead

The defendants oppose the course of giving the plaintiff a further opportunity to plead. They point to multiple attempts by the plaintiff to plead his case and the fundamental difficulties the plaintiff must overcome to plead a case that discloses a reasonable cause of action in a manner that is not embarrassing. As observed in the introductory paragraphs to these reasons, the plaintiff has assumed a heavy burden that he has so far failed to discharge.
I appreciate the force of the defendants' submissions but I am not satisfied that the stage has been reached when the court should summarily determine the action against the plaintiff on a pleading summons. A further opportunity will be extended to the plaintiff to replead his claim.

Conclusion

For the reasons given, the plaintiff's application will be dismissed.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
3 OCTOBER 2023