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)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Le v Plummer [No 2] [2023] WASC 377
Case
[2023] WASC 377
Decision Date
CaseChat Overview and Summary
Michael Le has commenced proceedings against numerous defendants for damages for malicious prosecution. The proceedings were initiated in 2021 and the amended statement of claim was struck out in 2022. The plaintiff has applied for an order that a minute of a second substituted statement of claim, filed on 27 January 2023, stand as his statement of claim. The application followed the striking out of the amended statement of claim on 2 December 2021. The defendants opposed the application. The plaintiff alleged that the defendants acted maliciously, without reasonable and probable cause, in bringing or maintaining criminal proceedings against him. The defendants argued that the statement of claim did not disclose reasonable causes of action and that it may prejudice, embarrass or delay the fair trial of the action. Tottle J found that the statement of claim should be disallowed in its entirety. There were serious deficiencies in the manner the plaintiff pleaded that the individual defendants were prosecutors, in the manner the plaintiff pleaded an absence of reasonable and probable cause, and in the pleading of malice. The deficiencies were fundamental and cumulative in their effect. The plaintiff's application was dismissed.