JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2020
DATE OF JUDGMENT:	28 September 2020
CASE MAY BE CITED AS:	Setka v Dalton
MEDIUM NEUTRAL CITATION:	[2020] VSC 521

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PRACTICE AND PROCEDURE – Application by the defendants to strike out the plaintiffs’ claim pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether the statement of claim discloses a cause of action – Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186 referred to – Claim for false imprisonment – Whether the defendants could be the proximate cause of imprisonment – Myer Stores Ltd v Soo [1991] 2 VR 597; Coles Myer Ltd v Webster [2009] NSWCA 299; Ruddock v Taylor (2003) 58 NSWLR 269 referred to – Claim for malicious prosecution – Whether the defendants were the effective prosecutors – Whether the defendants could have been actuated by malice – A v NSW (2007) 230 CLR 500 referred to – Strike out application dismissed – Leave to replead granted to clarify aspects of plaintiffs’ claims.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Ms F K Forsyth QC with Mr D K R Kinsey	Maurice Blackburn
For the First Plaintiff	Mr G Kozminsky with Mr A C Roe	Gordon Legal
For the Defendants	Dr M J Collins AM QC with Ms C Currie	Arnold Bloch Leibler

HER HONOUR:

Introduction and background

Mr John Setka is and was at all material times the Secretary of the Victorian-Tasmanian Divisional Branch of the Construction and General Division (‘Branch’) of the Construction, Forestry, Mining and Energy Union (‘CFMEU’).[1] Mr Shaun Reardon was at all material times the Assistant Secretary of the Branch. Mr Setka and Mr Reardon have brought this action against the defendants, who were at all material times senior employees of Boral Ltd (‘Boral’), for false imprisonment and malicious prosecution with respect to events which took place during the course of an industrial dispute.
[1]Now known as the Construction, Forestry, Maritime, Mining and Energy Union.

In 2013, the first defendant (‘Mr Dalton’) was the Executive General Manager (Southern Region) for Boral Construction Materials & Cement. The second defendant (‘Mr Head’) was the General Manager for Boral Concrete and Construction Materials & Cement (Southern Region). At all material times, Mr Head reported to Mr Dalton.

Boral Resources (Vic) Pty Ltd (‘Boral Resources’), a subsidiary of Boral, supplied concrete to Grocon Constructors (Vic) Pty Ltd (‘Grocon’), a member of the Grocon group of companies. From approximately mid-2012, the CFMEU was engaged in an industrial dispute with Grocon concerning Grocon’s enterprise agreement, Grocon’s safety record, and Grocon’s refusal to allow CFMEU shop stewards and health and safety representatives on Grocon’s building sites.

From early 2013, Mr Dalton and Mr Head believed that the CFMEU…

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.

Continue reading Setka v Dalton

Details

AGLC: Setka v Dalton [2020] VSC 521
Case: [2020] VSC 521
Decision Date: 28 September 2020

CaseChat Overview and Summary

In the matter of Setka v Dalton, the defendants sought to strike out the plaintiffs' claims pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The plaintiffs alleged that the defendants had falsely imprisoned them and maliciously prosecuted them. The defendants argued that the statement of claim failed to disclose a cause of action and requested the court to dismiss the claims. The court needed to decide whether the statement of claim disclosed a reasonable cause of action in false imprisonment and malicious prosecution, considering the legal principles from relevant cases.

The court examined the principles of false imprisonment and malicious prosecution. For false imprisonment, it was necessary to determine if the defendants could be the proximate cause of the plaintiffs' imprisonment. The court referred to Uber Australia Pty Ltd v Andrianakis and other cases to understand the legal requirements. Regarding malicious prosecution, the court needed to establish whether the defendants were the effective prosecutors and whether they were actuated by malice. References were made to A v NSW and other cases to guide the court's analysis.

The court held that while the statement of claim was vague and uncertain in some respects, it did disclose a reasonable cause of action in both false imprisonment and malicious prosecution. The court found that the plaintiffs had adequately pleaded the elements of each cause of action, albeit in broad terms. Consequently, the application to strike out the claims was dismissed. However, the court granted leave to replead to allow the plaintiffs to clarify and particularise certain aspects of their claims, ensuring a fair opportunity for the defendants to respond.

The final orders included dismissing the application to strike out the claims and granting leave to replead within 28 days, with a case management conference set to ensure the proceedings continued efficiently. The court emphasised the importance of specificity in the repled statement of claim to avoid further procedural disputes.

Orders