Roddan v Walker
[2000] WASCA 376
•30 NOVEMBER 2000
RODDAN -v- WALKER & ANOR [2000] WASCA 376
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 376 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:23/2000 | 24 OCTOBER 2000 | |
| Coram: | STEYTLER J PARKER J | 30/11/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | LINDSAY GORDON RODDAN MICHAEL JOHN WALKER DOMINIC ANTHONY STALTARI |
Catchwords: | Appeal Interlocutory decision Pleading Whether mere opposition to bail can found action for malicious prosecution No cause of action |
Legislation: | Nil |
Case References: | Cabassi v Vila (1940) 64 CLR 130 Connell v The Queen (No 5) (1993) 10 WAR 424 Lim v Gregson [1989] WAR 1 The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 Wan v Sweetman and Ors (1998) WAR 95 Wilson v Metaxas (1999) WAR 285 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Bevis v Smith (1856) 18 CB 126 Castrique v Behrens (1861) 3 E&E 709 Clarke v Bailey (1993) 30 NSWLR 556 Cody v Nelson (1947) 74 CLR 629 Commonwealth Dairy Produce Equalisation Community Ltd v McCabe (1938) 38 SR (NSW) 397 Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343 Cooper Brookes (Woolongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Everett v Ribbands [1952] 2 QB 198 Gibbons v Duffell (1932) 47 CLR 520 Hooker Corp Limited v Commonwealth (1996) 65 ACTR 32 Mann v O'Neill (1996) 191 CLR 204 Marrinan v Vibart [1962] 3 All ER 380 Martin v Watson [1996] 1 AC 74 Raleigh v Goschen [1898] 1 CH 73 River Wear Commissioners v Adamson (1877) 2 App Cas 743 Roy v Prior [1971] AC 470 Water Authority of Western Australia v All Holdings Pty Ltd (No 2) (1992) 10 WAR 233 Watson v M'Ewan [1905] AC 480 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RODDAN -v- WALKER & ANOR [2000] WASCA 376 CORAM : STEYTLER J
- PARKER J
- Applicant
AND
MICHAEL JOHN WALKER
First Respondent
DOMINIC ANTHONY STALTARI
Second Respondent
Catchwords:
Appeal - Interlocutory decision - Pleading - Whether mere opposition to bail can found action for malicious prosecution - No cause of action
Legislation:
Nil
Result:
Leave to appeal refused
(Page 2)
Representation:
Counsel:
Applicant : In person
First Respondent : Mr T Darbyshire
Second Respondent : Mr T Darbyshire
Solicitors:
Applicant : In person
First Respondent : Kott Gunning
Second Respondent : Kott Gunning
Case(s) referred to in judgment(s):
Cabassi v Vila (1940) 64 CLR 130
Connell v The Queen (No 5) (1993) 10 WAR 424
Lim v Gregson [1989] WAR 1
The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Wan v Sweetman and Ors (1998) WAR 95
Wilson v Metaxas (1999) WAR 285
Case(s) also cited:
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bevis v Smith (1856) 18 CB 126
Castrique v Behrens (1861) 3 E&E 709
Clarke v Bailey (1993) 30 NSWLR 556
Cody v Nelson (1947) 74 CLR 629
Commonwealth Dairy Produce Equalisation Community Ltd v McCabe (1938) 38 SR (NSW) 397
Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343
Cooper Brookes (Woolongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Everett v Ribbands [1952] 2 QB 198
Gibbons v Duffell (1932) 47 CLR 520
Hooker Corp Limited v Commonwealth (1996) 65 ACTR 32
(Page 3)
Mann v O'Neill (1996) 191 CLR 204
Marrinan v Vibart [1962] 3 All ER 380
Martin v Watson [1996] 1 AC 74
Raleigh v Goschen [1898] 1 CH 73
River Wear Commissioners v Adamson (1877) 2 App Cas 743
Roy v Prior [1971] AC 470
Water Authority of Western Australia v All Holdings Pty Ltd (No 2) (1992) 10 WAR 233
Watson v M'Ewan [1905] AC 480
(Page 4)
1 STEYTLER J: I have had the benefit of reading, in draft, the reasons to be published by Parker J. I agree with his Honour's reasons and have nothing further to add.
2 PARKER J: This was an application for leave to appeal against a decision of a Master.
3 The applicant is the plaintiff in an action in this Court against two police officers. The action was commenced by a writ with a statement of claim endorsed on 6 August 1999. The respondents to the present application are the two defendants to the action. For the purposes of these reasons it is convenient to refer to the applicant as the plaintiff and the respondents as the defendants.
4 The plaintiff, who is unrepresented, has had much difficulty formulating an adequate statement of claim and has suffered the striking out of an amended form of his original pleading. After some delay, and an extension of time, on 9 December 1999 the plaintiff lodged a minute of proposed substituted statement of claim. The defendants objected on a number of bases to the form of the proposed substituted statement of claim. They also sought the dismissal of the action against both defendants on the basis that the statement of claim, even as then proposed, disclosed no cause of action.
5 Master Sanderson dealt with these matters in a hearing on 15 December 1999. His decision was delivered on 11 February 1999. The Master did not strike out the action. He did refuse leave to amend in the form then proposed by the plaintiff, but he did grant leave to the plaintiff to file and serve a further minute of substituted statement of claim.
6 As far as can be discerned from the minute of the further proposed substituted statement of claim dated 9 December 1999 the plaintiff sought to raise as causes of action against the defendants - false imprisonment, trespass to the person, intimidation, assault and battery, malicious prosecution, malicious falsehood, trespass to goods, conspiracy to injure by unlawful means, negligence, and misfeasance in public office.
Application for leave to appeal
7 The plaintiff seeks leave to appeal against a number of aspects of the decision of the Master. As initially amended at the hearing of the application, the plaintiff at first sought to raise five grounds of appeal.
(Page 5)
- Briefly stated, they were that the learned Master erred in law first, in finding that a claim for malicious prosecution founded in allegedly false testimony in legal proceedings could not be maintained; secondly, that there could be no action for malicious prosecution with respect to a bail application the plaintiff had made; thirdly, when he ruled out an action in the nature of abuse of legal process regarding the revocation of a firearms licence of the plaintiff; fourthly, in finding that there was no cause of action in malicious prosecution because proceedings on indictment in respect of the relevant charges was still pending at the time of the institution of the action; and fifthly, in holding that contemplated causes of action were statute barred notwithstanding a submission of the plaintiff that s 39 of the Limitation Act 1935 should be read to exclude from the limitation period the period of time which the plaintiff had spent in prison.
8 During the course of presentation of his submissions on this application the plaintiff determined that he would not pursue the first and third of these grounds and at the conclusion of the argument he sought and was granted leave to withdraw the fourth and fifth grounds. Thus, the only remaining ground of appeal raised on this application is the second ground.
Ground 2
9 On 10 August 1993 the plaintiff was arrested and charged in respect of a matter which is only described in the proposed statement of claim as "The Argyle Diamonds' Matter". It appears he was refused bail by a Justice of the Peace on that same day. The plaintiff sought to plead that on 11 and 12 August 1993 he made an application for bail before a Stipendiary Magistrate in the East Perth Court of Petty Sessions, and that this application for bail was further heard on 16, 17 and 18 August 1993, but bail was refused by the Magistrate on 18 August 1993 and the plaintiff was remanded in custody. From the proposed pleading it appears that the plaintiff seeks to advance that in respect of this bail application, without reasonable and probable cause, the defendants maliciously opposed bail, that the second defendant wilfully swore false testimony, that the defendants with others conspired to fabricate evidence which fabricated evidence may have been or included "fabricated allegations of criminal conduct by the plaintiff".
10 The plaintiff did not seek to plead that either of the defendants was the complainant in respect of the charge or charges laid on 10 August 1993 concerning "The Argyle Diamonds Matter". Nor did the plaintiff seek to plead a case for malicious prosecution against the defendants, or
(Page 6)
- the complainant, or indeed any person, in respect of the charge or charges laid against him on 10 August 1993. The case he sought to plead and pursue was confined to the allegations of opposition in the Court of Petty Sessions between 11 and 18 August 1993 to his being granted bail.
11 The elements of the tort of malicious prosecution were conveniently considered and identified in Wan v Sweetman and Ors (1998) WAR 95 as follows:
(a) Proceedings against the plaintiff which were instituted or continued by the defendants;
(b) In instituting or continuing the proceedings the defendants acted without reasonable or probable cause;
(c) The proceedings were terminated in the plaintiff's favour; and
(d) The plaintiff suffered damage to person, property or reputation.
12 It was the Master's conclusion that no distinct claim in malicious prosecution could lie in law on the basis proposed by the plaintiff. More than one deficiency was identified. First, he considered the bail application commenced on 11 August 1993 to be a distinct proceeding which was pursued by the plaintiff, not by the defendants. In the present case, the application commenced on 11 August 1993 appears to come within s 5(2) of the Bail Act 1982, which entitles a person in the plaintiff's then situation "to have his case for bail … considered …". Jurisdiction to grant bail pursuant to the Bail Act was conferred on the Magistrate by s 13(1) of that Act. While proceedings on an applicant's case for bail are, in a sense, ancillary to the criminal proceedings which have led to the applicant's custody, they appear to be distinct statutory proceedings, the creation of and regulated by the provisions of the Bail Act. In this Court they may properly be regarded as miscellaneous criminal proceedings. They take their character from the criminal proceedings to which they are ancillary, but they are distinct from the prosecution on indictment or complaint which underlies and provides the occasion for the bail application. In these respects some of the discussion in Lim v Gregson [1989] WAR 1 and Connell v The Queen (No 5) (1993) 10 WAR 424 is relevant and helpful although, of course, the statutory provisions providing for bail have changed since Lim v Gregson was decided. It was on this apparent basis that the Master concluded that opposition to a bail application was not, in itself, a prosecution of the plaintiff such as could found a cause of action in malicious prosecution. The argument on this
(Page 7)
- application does not provide reason to conclude that the Master was in error in this respect.
13 Secondly, by s 21 of the Bail Act, the parties to the proceedings on the plaintiff's case for bail were the prosecutor and the defendant, ie the present plaintiff, the prosecutor relevantly being the complainant (see s 3(1)). As the defendants were not the complainant in respect of the relevant charge or charges, they were not the party opposing the bail application of the plaintiff. In this respect, however, the Master was prepared in his reasons, in effect, to overlook this issue on an assumption that it could be said that the resistance to bail was motivated by the actions of the defendants. In this, the Master may have taken a somewhat generous view of the case which the plaintiff sought to plead and advance.
14 There is a third difficulty which was emphasised in the course of the hearing of this application. It must also be shown by the plaintiff that the proceedings which the defendants instituted or continued were terminated in the plaintiff's favour. The application for bail commenced on 11 August 1993 was terminated against the plaintiff on 18 August 1993. The plaintiff sought to overcome this in argument by relying on a proposed pleading that April 1994 Seaman J did grant "very restrictive home detention bail" and that in May 1997 unrestricted bail was granted by Hammond CJ DC "on all charges then pending in the District Court relating to the Argyle Diamonds matter". This submission involves, in my view, an insupportable slide from the proceedings as to the plaintiff's case for bail considered in the Court of Petty Sessions in August 1993, which are the proceedings on which the plaintiff sought to rely, to what, under the Bail Act, could only be entirely fresh and distinct proceedings in 1994 and 1997 in the Supreme and the District Courts respectively. These were proceedings to which the Crown was the opposing party rather than the complainant in the Court of Petty Sessions.
15 Given the elements of the tort of malicious prosecution, and having regard to the matters just considered, it has not been shown in my view that it would be open to this Court to conclude that the decision of the Master in this respect was wrong or attended with doubt such as would justify a grant of leave to appeal, or that substantial injustice would be done by leaving the decision of the Master unreversed. These are the matters which need to be shown by an applicant for leave from an interlocutory decision; Wilson v Metaxas (1999) WAR 285; The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40.
(Page 8)
16 In his submissions the plaintiff sought to explore what might be the situation if he pleaded the opposition to bail in a different form or to raise a different cause of action. There is no occasion on this application for leave to appeal to attempt to consider such theoretical possibilities. The Master granted the plaintiff leave to replead. Any further proposed statement of claim will have to be considered on its merits in due course.
17 From his submissions it became apparent that the plaintiff was, in part, concerned by an observation in the reasons of the Master. The Master, having indicated the plaintiff would be allowed to replead, said:
"The repleading must not include matters which I have indicated cannot stand as against the two defendants."
- Given the history of the pleadings of the plaintiff to that time and the careful reasons given by the Master for concluding that a number of aspects of the proposed statement of claim could not stand against the defendants, it can be understood why the Master would make this comment. The plaintiff submitted that this comment should be read as precluding any attempt to plead in any way the matter of the opposition to his bail. For my part, I would not understand the comment in this way. The comment is, however, a clear indication that, if and when the plaintiff does replead, in any respect in which a new proposed pleading does not overcome the deficiencies identified by the Master in the present one, it can be expected to meet the same fate. Nothing more may be said usefully until there is a further proposed form of the statement of claim advanced by the plaintiff.
Other grounds
18 As the plaintiff is not represented I record that the part of the decision of the Master which was to have been raised by ground 1 was founded in the decision of Cabassi v Vila (1940) 64 CLR 130. This led the Master to the view that, insofar as the plaintiff sought to found a case for malicious prosecution on allegedly fabricated evidence, false depositions and false testimony in legal proceedings, it could not stand. Ground 3 which the plaintiff also did not pursue appeared to have been based on a misunderstanding of the Master's reasons for decision which did not deal with the matter the ground sought to agitate.
19 Ground 4, which in the end the plaintiff abandoned, concerned the conclusion of the Master that at the date of the commencement of the action, which was 6 August 1999, the plaintiff could not have had one
(Page 9)
- cause of action for malicious prosecution which he sought to plead because, at that date, the relevant prosecution was still pending in the District Court. At a later date a nolle prosequi was presented in respect of those proceedings by the Court being informed by writing under the hand of an officer appointed to present indictments that the Crown would not further proceed upon the indictment then pending in the Court; cf Criminal Code s 581. As the third paragraph of s 581 reveals, it is when such information is given to the Court in that manner that the accused is to be discharged from further proceedings upon that indictment. The plaintiff argued before the Master that the criminal proceedings should be taken to have been terminated on the date the nolle prosequi was signed, a date which he contended was earlier than 6 August 1999. In this respect, too, the Master held against the plaintiff. The Master's decision accords with the apparent effect of s 581. There is perhaps a further issue, which was not and need not be considered, whether a prosecution which does not proceed by virtue of a nolle prosequi is concluded in the plaintiff's favour in the relevant sense.
20 The plaintiff also abandoned ground 5 which raised the rejection by the Master of the contention that, by virtue of its marginal note, s 39 of the Limitation Act should be read so as in effect to prevent time running for limitation purposes during any period for which a plaintiff is imprisoned. On this basis a number of causes of action which the plaintiff sought to plead, but which were not commenced until more than two years after the expiry of the relevant limitation period, would be competent. The Master considered the submission must fail as s 39 had the opposite effect from that which the plaintiff contended.
21 I mention each of these grounds, which the plaintiff did not in the end seek to pursue or which he formally abandoned, to record that it was not apparent from either the oral or extensive written submissions that were placed before the Court that there was reason to apprehend that in these matters the Master erred in his decision or that there was apparent reason to doubt the correctness of his decision.
Conclusion
22 For these reasons I would refuse the applicant leave to appeal from the decision of the Master.
0
12
1