Seabrook v Asher

[2006] QCA 238

SUPREME COURT OF QUEENSLAND

CITATION:

Seabrook v Asher [2006] QCA 238

PARTIES:

MARK LEONARD SEABROOK
(plaintiff/appellant)
v
ALLIANZ AUSTRALIA INSURANCE LIMITED
(first defendant)
CLUB MARINE LTD ACN 007 588 347
(second defendant)
TROY ERIN LUCK
(third defendant)
BRIAN ERNEST ASHER
(fourth defendant/respondent)

FILE NO/S:

Appeal No 10732 of 2005
SC No 9379 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2006

JUDGES:

de Jersey CJ, Holmes JA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs against the appellant

CATCHWORDS:

TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – MALICIOUS CRIMINAL AND CIVIL PROCEEDINGS – ESSENTIALS OF CAUSE OF ACTION GENERALLY – INSTITUTION OR CONTINUANCE OF PROCEEDINGS BY DEFENDANT – DEFENDANT PROSECUTOR OR INSTIGATOR OF PROSECUTION –
where charges of arson and false pretence against plaintiff were dismissed at committal proceedings – where plaintiff subsequently brought action for malicious prosecution against the four defendants for their influence on investigating police officer’s discretion to charge – where fourth defendant obtained summary judgment against the plaintiff – whether appeal against summary judgment should be allowed

Uniform Civil Procedure Rules 1999 (Qld), r 293

Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187, applied
Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343, applied
Davis v Gell (1924) 35 CLR 275, applied
Mahon v Rahn(No. 2) [2000] 1 WLR 2150, considered
Martin v Watson [1996] 1 AC 74, considered

COUNSEL:

P J Favell for the appellant
R A Perry SC for the respondent

SOLICITORS:

Hemming & Hart Lawyers for the appellant
Thynne & Macartney for the respondent

1. JERSEY CJ:de  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the orders proposed by Her Honour, and with her reasons.

1. HOLMES JA: The fourth defendant, now the respondent to this appeal, was successful in obtaining summary judgment against the plaintiff under r 293 of the Uniform Civil Procedure Rules 1999 (Qld). The action was one for malicious prosecution; the plaintiff had been charged with arson and attempted false pretence in respect of fire damage to a boat he owned and his ensuing insurance claim. Those charges were dismissed at committal. The first, second and third defendants were respectively the boat’s insurer, its agent and an employee of the agent. The fourth defendant was a loss adjuster appointed by the first and second defendants to investigate the fire. It was alleged that all four defendants had maliciously counselled and persuaded or procured the investigating police officer, Constable Lawrence, to bring the charges or had misled her prosecutorial discretion or dishonestly prejudiced her judgment. The question on the summary judgment application was whether the plaintiff had any prospect of establishing at trial that the fourth defendant was, on any of those bases,…