PRACTICE AND PROCEDURE – Statement of Claim – Whether pleading discloses a cause of action – Whether claim has no real prospect of success – Claim for malicious prosecution and injurious falsehood – Malicious prosecution – Elements of the tort – Necessary to allege instigation of judicial process – Whether statement of claim alleges that a prosecution had been instigated – Plaintiff alleges arrest by police – Arrest without warrant or other judicial involvement – Dismissal of cause of action – Civil Procedure Act 2010 (Vic) ss 62-64 – County Court Civil Procedure Rules 2008 (Vic) Order 23.
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Appearances:
Counsel
Solicitors
For the Applicant
Dr S B McNicol SC with Mr G Boas
Madgwicks
For the Respondents
Mr M A Strang with Mr J B McDougall
Joy Popovska & Associates
WHELAN JA:
I will ask Santamaria JA to deliver the first judgment.
SANTAMARIA JA:
Introduction
Dr Philip Mutton and Dr Chris Baker are medical practitioners. In July 2013, Mutton commenced proceedings in the County Court against Baker and C.C.D. Services Pty Ltd, a service company providing facilities to Baker. The following version of the facts surrounding the dispute between Mutton and Baker is taken from the statement of claim. The statement of claim comprises a series of allegations by Mutton. None of these has yet been tested in court. On 13 August 2013, the defendants filed and served their defence.
Baker and C.C.D. Services Pty Ltd (‘the defendants’) occupied medical suites in Collins Street Melbourne (‘premises’). In 2000, Baker and Mutton entered into an agreement pursuant to which, in consideration of the payment by Mutton of part of the fees earned by him, Baker permitted Mutton to use the premises for professional purposes. In 2010, the parties fell into dispute about the agreement. Part of the dispute concerned the payment by Mutton of the amounts owing by him under the agreement.
In 2005, Mutton authorised the Victorian WorkCover Authority (‘VWA’) in writing to pay amounts owed to him directly to Baker and C.C.D. Services (‘the authority’). It is alleged that there was an arrangement whereby the defendants ‘would make certain payments to (Mutton) in advance of receiving payments from (VWA)’.
At the time of the dispute, Mutton revoked the authority to VWA and directed that, henceforth, all payments to which he was entitled from VWA be paid directly to himself. From what is alleged in the statement of claim, it appears that, at the time that Mutton revoked the VWA authority, payments had been made to him
by the defendants…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mutton v Baker [2014] VSCA 43
Case
[2014] VSCA 43
Decision Date
CaseChat Overview and Summary
Mutton commenced proceedings against Baker, alleging that Baker maliciously caused his arrest by police, which constituted malicious prosecution, and further alleging that Baker made defamatory statements, injurious falsehood, in respect of the plaintiff’s business. The court was required to determine whether the statement of claim disclosed a cause of action, whether the claim had any real prospect of success, and if so, whether it was appropriate to grant leave to serve the amended statement of claim. The court considered that the elements of the tort of malicious prosecution include the instigation of judicial process, and whether the statement of claim alleged that a prosecution had been instigated. The court found that the plaintiff had not alleged any instigation of judicial process, and therefore did not allege the necessary elements of the tort of malicious prosecution. The court also found that the statement of claim did not allege that any defamatory statements were made to any third party, and therefore did not allege the necessary elements of the tort of injurious falsehood. The court dismissed the claim for want of prosecution. The court held that the claim for malicious prosecution had no real prospect of success because it was not pleaded that there had been any instigation of judicial process. The court further held that the claim for injurious falsehood had no real prospect of success because it was not pleaded that any defamatory statements were made to any third party. The court dismissed the application for leave to serve an amended statement of claim.