ON APPEAL FROM THE SUPREME COURT OF Malicious arrest-Arrest under process of foreign Court-Termination of proceed.
ings in favor of plaintiff before action brought-Setting aside of order to hold to bail and writ of ca. re.-Reasonable and probable cause-Fraud-Abuse of process of Court-Conduct of trial-Arrest on Mesne Process Act 1902 (N.S. W.) MELBOURNE, (No. 24 of 1902), secs. 5, 6.
The respondents had commenced an action in the Supreme Court of New 13, 25. South Wales against the appellant for breach of an alleged contract for the sale of a ship by the respondents to the appellant, and on the same day had procured from a Judge of that Supreme Court, under sec. 5 of the Arrest on Mesne Process Act 1902 (N.S. W.), an order directing that the appellant should be held to bail for a certain sum. A writ of capias had been accord- ingly issued and under it the appellant had been arrested and imprisoned and held to bail. Final judgment in the action was subsequently obtained by the appellant against the respondents. Before final judgment was obtained the appellant brought an action in the Supreme Court of Victoria against the respondents, and in the statement of claim, which was served after such final judgment, the appellant alleged in addition to the above facts, that the proceedings in respect of the capias were taken, not for the purpose of securing payment of money which the respondents believed to be due to them by the appellant, but for the purpose of terrifying the appellant and forcing him to pay money to which the respondents did not in good faith believe themselves entitled, and to which they were not in fact entitled, and that such proceed- ings were an abuse of the process of the Court that the order to hold to bail was procured by means of affidavits containing statements which were false to the knowledge of the respondents and that the respondents falsely and
maliciously and without reasonable and probable cause caused the appellant to be arrested and imprisoned and held to bail. The appellant claimed damages accordingly. By their defence the respondents (inter alia) objected that the statement of claim disclosed no cause of action inasmuch as it was not alleged that the order to hold to bail and the writ of capias were set aside or determined in the appellant's favour.
Held, that the respondents were entitled to judgment. By Griffith C.J. and O'Connor J., on the ground that the appellant had failed to establish the want of reasonable and probable cause. By Isaacs J. on the ground that the appellant's action was premature.
Semble, per Griffith C.J., that neither the fact that the previous action in the Supreme Court of New South Wales was not determined when the appel- lant brought his action, nor the existence of the order to hold to bail nor of the writ of capias was a bar…
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.
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Varawa v Howard Smith Co Ltd [1911] HCA 46
Case
[1911] HCA 46
Decision Date
CaseChat Overview and Summary
The case of *Varawa v Howard Smith Co Ltd* involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, Mr Varawa, had sued the respondents, Howard Smith Co Ltd, for damages arising from his arrest and imprisonment under a writ of capias issued in New South Wales. The respondents had initiated proceedings in New South Wales for alleged breach of contract concerning the sale of a ship, and subsequently obtained the order to hold Mr Varawa to bail. Mr Varawa contended that these proceedings were not for the genuine purpose of recovering a debt but were intended to intimidate him into paying money to which the respondents were not entitled, constituting an abuse of process, and that the order was procured by false affidavits.
The central legal issues before the High Court were whether Mr Varawa had established a valid cause of action for malicious arrest and abuse of process, and crucially, whether his action was maintainable given that the New South Wales proceedings had not been formally set aside in his favour prior to the commencement of his Victorian action. The respondents argued that such a termination was a prerequisite for any claim of malicious arrest or abuse of process.
The High Court, by majority, dismissed the appeal. Griffith CJ and O'Connor J held that Mr Varawa had failed to prove the absence of reasonable and probable cause for the original proceedings, which is a necessary element for a claim of malicious arrest. Isaacs J, however, reached the same conclusion on the ground that Mr Varawa's action was premature. Isaacs J articulated the principle that an action for the malicious use of legal process cannot be brought until that process has been terminated in the plaintiff's favour, where such a termination is legally possible. While the Supreme Court of Victoria had entered judgment for the respondents, the High Court affirmed this outcome but on different reasoning.