Seabrook v Allianz Australia Insurance Limited

[2004] QSC 159

SUPREME COURT OF QUEENSLAND

CITATION:

Seabrook v Allianz Australia Insurance Limited & Ors [2004] QSC 159

PARTIES:

MARK LEONARD SEABROOK
(plaintiff/respondent)
v
ALLIANZ AUSTRALIA INSURANCE LIMITED
(first defendant)
CLUB MARINE LTD
(second defendant)
TROY ERIN LUCK
(third defendant)
BRIAN ERNEST ASHER
(fourth defendant)

FILE NO:

S9379 of 2001

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

27 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2004

JUDGE:

Mullins J

ORDER:

With respect to para 41A of the further amended statement of claim filed on 4 March 2004, that the plaintiff provide further particulars of the allegation that the statements allegedly made by the fourth defendant constituted one of the main reasons for the institution of the prosecution against the plaintiff and amend para 41A to identify the particulars that relate to the respective allegations in para 41A.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – application to strike out parts of the statement of claim pursuant to rule 171 Uniform Civil Procedure Rules 1999 (Q) – further particulars ordered – elements of the tort of malicious prosecution where defendant is alleged to have counselled or procured the prosecution – whether particulars of claim for aggravated damages sufficient

UCPR. r 155(4)

Bayliss v Cassidy [1998] QSC 186 (18 September 1998)

COUNSEL:

AJ Glynn SC and PJ Favell for the plaintiff/respondent
R Perry for the fourth defendant/applicant

SOLICITORS:

Hemming & Hart for the plaintiff/respondent
Thynne & Macartney for the fourth defendant/applicant

1. MULLINS J:  In this proceeding the plaintiff is suing the first, second and third defendants (who appear by one firm of solicitors) and the fourth defendant (who is represented by another firm of solicitors) for damages for malicious prosecution.  The proceeding is brought on the basis that the first, second and third defendants and/or the fourth defendant procured the police to charge the plaintiff with arson and false pretences and to continue with the prosecution until it was found by the Magistrate at the committal hearing that there was no case for the plaintiff to answer.  The plaintiff does not make a claim against the police for malicious prosecution in respect of the charges.

1. This application filed by the fourth respondent on 7 April 2004 seeks relief in respect of paras 41A, 45B and 51(c)(iii) of the plaintiff’s further amended statement of claim filed on 4 March 2004. 

Para 41A

1. The complaint of the fourth respondent is that the additional sentence which has been inserted in para 41A to meet the criticism of an earlier version of this paragraph made in my ruling in this matter given on 17 February 2004 should be pleaded as a separate allegation and should be particularised.  The relevant sentence provides:

“One of the main reasons for the decision of the Police to charge Seabrook was the belief gained from acts or omissions of the fourth defendant referred to herein that Seabrook wanted $500,000 pursuant to the insurance policy.”

1. Mr Perry of counsel on behalf of the fourth respondent contends, correctly, that the particulars that are presently provided of para 41A relate to the first sentence of para 41A.  The fourth defendant’s complaint about the new second sentence in para 41A is not directed to its terms which had their genesis in para 3(c) of the reply of the plaintiff to the further amended defence of the fourth defendant filed on 31 July 2003. 

1. The plaintiff has provided particulars of the allegation in the new sentence of para 41A to the first to third defendants.  Mr Perry also submitted that those particulars were deficient in that, to the extent that they relied on the evidence of Constable Lawrence given at the committal, the evidence must be referred to with specificity. 

1. It is awkward the way that para 41A is presently structured, in that it is not apparent that the particulars that are provided of para 41A relate only to the first sentence of para 41A.  It is not strictly necessary, however, for the second sentence in para 41A to be placed in a separate paragraph, provided the second sentence is properly particularised and it is clear which particulars given in respect of para 41A relate to which sentence.  If the particulars of the second sentence are to include reference to Constable Lawrence’s evidence at the committal, the evidence must be identified by reference to specific passages in the transcript. 

1. I therefore would not accede to the fourth defendant’s application to strike out para 41A, but would order that, with respect to para 41A, the plaintiff provide further particulars of the allegation that the statements made by the fourth defendant constituted one of the main reasons for the institution of the prosecution against the plaintiff and amend para 41A to identify which particulars relate to the respective allegations in para 41A.

Para 45B

1. Para 45B alleges that the fourth defendant had no reasonable or probable cause for the prosecution of Seabrook on the charges.

1. Mr Perry argues that because there is no allegation that the police prosecutor had formed anything other than bona fide belief about the probable guilt of the plaintiff in bringing the charges, it is not an essential element of the cause of action against the fourth defendant for the plaintiff to prove that the fourth defendant had no reasonable or probable cause for the prosecution of Seabrook on the charges.

1. It is common ground that one of the usual elements of the tort of malicious prosecution is that the prosecution was instituted without any reasonable and probable cause.  It is also common ground that it is not necessary for the police prosecutor to be the defendant in the action for damages for malicious prosecution, but the action can be brought against a person who counsels or procures the prosecuting authority to institute proceedings by dishonestly prejudicing the police prosecutor’s judgment or by making a complaint which is false, to the knowledge of the person, or by influencing the prosecutor to assist in bringing about the trial of an innocent person.  Such a person who has counselled or procured the prosecutor to bring the charge is treated in substance as the prosecutor for the purpose of the action. 

1. Mr Perry had no authority for his submission, but relied on the discussion of the circumstances in which a person other than the arresting officer or prosecutor may be liable for the tort of malicious prosecution in Bayliss v Cassidy [1998] QSC 186 (18 September 1998). I can find nothing referred to in the authorities in that discussion which supports dispensing with the traditional element of the cause of action that the prosecution was instituted without any reasonable and probable cause where the action is brought against a person who is in substance the prosecutor, by their conduct in counselling or procuring the prosecution. As was submitted on behalf of the plaintiff, it is relevant and necessary for the plaintiff to prove that the fourth defendant had no reasonable or probable cause for the prosecution, because it was the cause for the fourth defendant in counselling or procuring the prosecution which remains relevant, not that of the police prosecutor against whom no claim is made.

1. A subsidiary point raised by the fourth respondent was that the second sentence of the particulars contained in para 45B(c) should be struck out, in any event.  Although I was supportive of that submission during argument, on reflection I have decided that there is no inconsistency by allowing the sentence to remain.  It relates to the evidence available to the fourth defendant to form the belief about the truth of the information it is alleged that he conveyed to the police.

Para 51(c)(iii)

1. In my ruling given on 17 February 2004, I dealt with the deficiencies in that version of the statement of claim in the claim that was made for aggravated damages.  On page 13 of the ruling I stated:

“The aggravating features about the defendant’s conduct which are relied on to support the claim for aggravated damages must be identified with particularity having regard to the ambit of the general damages which can be awarded for the heads of damages that are claimed for malicious prosecution.
…
Particularly as this is a jury trial the plaintiff must be able to formulate with precision what aspect of the defendant’s conduct is relied on to support the claim for aggravated damages.  No jury can be expected to return an answer in relation to whether aggravated damages should be awarded unless the claim and the proceeding is conducted on the basis of the aggravating feature of the defendant’s conduct that is relied on by the plaintiff to make the claim.”

1. In para 51(b) of the further amended statement of claim the amount of $400,000 is claimed for general damages and is described as being “calculated on a global basis because of the hurt and suffering of Seabrook and mental anguish suffered as a result of the matters referred to in the Further Amended Statement of Claim”.  The amount claimed for aggravated damages is $200,000 and para 51(c)(iii) claims that amount against the fourth defendant on the basis that it is calculated on a global basis taking into account “the additional hurt and suffering and mental anguish suffered by Seabrook because of the conduct of Asher set out and particularised in paragraphs 18, 20, 40, 41A, 42, 43B, 45B, 45D, 47 and 48 of the Further Amended Statement of Claim”. 

1. It appears that one aspect of the additional hurt and suffering and mental anguish is identified in para 51(c)(iv) as arising, because the plaintiff knew that criminal proceedings against him were publicised or were likely to be published.

1. I made it clear in my earlier ruling what I considered to be necessary to be pleaded in order to alert the defendants as to the basis on which the aggravated damages were to be claimed against them.  This is consistent with the requirement of r 155(4) of the UCPR that a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise. 

1. The substance of what has been pleaded in para 51(c)(iii) is that all the material allegations in the statement of claim against the fourth defendant are relied upon to support the claim for aggravated damages.  Although I had anticipated that what the plaintiff would endeavour to do was to select those aspects of the manner in which it is alleged that the tort was committed by the fourth defendant which he considered would lead to aggravation of the damages, the plaintiff has elected to choose all aspects of the conduct pleaded against the fourth defendant.  It is for the plaintiff to decide how it conducts its case.  The fact that the plaintiff does not wish to be selective in his pleading in pointing out the aggravating features of the fourth defendant’s conduct limits the plaintiff in what he can point to at the trial as the aggravating feature of the fourth defendant’s conduct.  It does not make the pleading vulnerable to strike out.  It is unnecessary for any further particulars to be provided of para 51(c)(iii), in view of the course the plaintiff has adopted. 

Orders

1. I make the following order:

With respect to para 41A of the further amended statement of claim filed on 4 March 2004, that the plaintiff provide further particulars of the allegation that the statements allegedly made by the fourth defendant constituted one of the main reasons for the institution of the prosecution against the plaintiff and amend para 41A to identify the particulars that relate to the respective allegations in para 41A.

1. I will hear submissions on the question of the costs of the application.