Porter v OAMPS Ltd (No 2)

In the matter of Porter v OAMPS Ltd (No 2), the Federal Court of Australia addressed a claim of malicious prosecution brought by the applicant, Porter, against several respondents, including OAMPS Ltd and others. The applicant sought to hold the respondents responsible for his wrongful prosecution by ASIC, alleging that the respondents supplied false and misleading information to ASIC which led to the charges against him. The case revolved around whether the allegations in the amended statement of claim were sufficient to establish a cause of action for malicious prosecution.

The primary legal issues before the court were whether the applicant's pleadings sufficiently outlined the basic and constitutive facts to support a claim of malicious prosecution, and whether the applicant had alleged sufficient facts to demonstrate that the respondents acted maliciously without reasonable or probable cause. The court was also tasked with determining whether the applicant's claim could proceed without the need to establish his innocence, and if the termination of the applicant's insurance cover by the respondents could be considered an integral part of the malicious prosecution cause of action.

The court found that the applicant's amended statement of claim did not adequately plead the material facts necessary to support a claim of malicious prosecution. The allegations were deemed to be conclusory and lacked specificity regarding how the respondents' actions influenced ASIC's decision to prosecute. The court rejected the applicant's argument that a nolle prosequi was sufficient without establishing innocence, noting more recent authority that casts doubt on this proposition. Additionally, the court held that the termination of insurance cover, while possibly occurring, was not an essential element of the cause of action for malicious prosecution. Consequently, the court concluded that the applicant had not established a cause of action for malicious prosecution.

The court dismissed the proceeding, ordering the applicant to pay the costs of the first respondent and the second to sixth respondents on an indemnity basis in relation to their notices of motion filed on 26 May 2005, and on a party and party basis for any remaining costs not covered by this order or earlier orders.