Connors v State of Queensland & Ors [2023] QDC 216

DISTRICT COURT OF QUEENSLAND CITATION: Connors v State of Queensland & Ors [2023] QDC 216 PARTIES: KATHRYN TERESE CONNORS (applicant) v STATE OF QUEENSLAND (first defendant) and RODNEY CARL CRAMP (second defendant) and ORBA PTY LTD (ACN 010 307 865) As trustee for the trustee for the CRAMP FAMILY TRUST t/as EMERLITE ELECTRICAL SERVICES (ABN 92 593 055 848) FILE NO: 658/18 DIVISION: Civil PROCEEDING: Application DELIVERED ON: 29 November 2023 DELIVERED AT: Brisbane HEARING DATE: 8 November 2023 JUDGE: Farr SC, DCJ ORDERS: 1. The application for leave to proceed under Uniform Civil Procedure Rules 1999 (UCPR) rule 389(2) is refused. 2. The parties be heard on costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – GENERALLY - where the applicant seeks the leave of the Court to take a step in the proceeding – where it has been about four years since a step has been taken – where the first defendant neither consents nor opposes the application – where the second defendant opposes the application – where the third defendant was wound up a year prior to the application being filed – where the applicant claimed an unspecified amount of wages for an alleged malicious prosecution – where the applicant worked as both a contractor through her own company and as an employee for the second defendant’s company, the third defendant – where two months after cessation of the employment the second defendant made a complaint to police that the applicant had stolen funds from the third defendant – where the applicant -- 1 of 21 -- participated in a record of interview before being charged with stealing as a servant – where the charge was later dismissed at a committal hearing – where the applicant claims she was maliciously prosecuted by all of the defendants and attacks the bone fides of two police officers – whether the applicant has satisfied the Court to the requisite standard that this is an appropriate matter to exercise the discretion to allow an action to proceed despite the general prohibition against an action continuing in which no step has been taken for two years. LEGISLATION: Uniform Civil Procedure Rules (UCPR) 1999 (Qld), r 5, r 389 CASES: A v New South Wales [2007] 230 CLR 500 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Freeman v National Australia Bank [2006] QCA 329 Hall v RH & CE McColl Pty Ltd [2007] QCA 182 Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372 Oldmeadow v Trevorrow [2023] QSC 38 Rigato Farms Pty Ltd v Ridolfi [2000] QCA 292; [2001] 2 Qd R 455 Tyler v Custom Credit Corporation Limited [2000] QCA 178 Ure v Robertson [2017] QCA 20 COUNSEL: C Duplock for the applicant D Favell for the first defendant R Cameron for the second defendant SOLICITORS: Alex Mandry Legal Group for the applicant Crown Law for the first defendant Hillhouse Legal Partners for the second defendant -- 2 of 21 -- 2 Introduction [1] By way of application filed on 25 September 2023, the applicant seeks the leave of the Court to take a step in the proceeding. The application is necessary by reason of r 389(2) of the Uniform Civil Procedure Rules 1999 (UCPR) and the fact that it has been about four years since a step has been taken.1 [2] The first defendant neither consents nor opposes the application. [3] The second defendant opposes the application. [4] The third defendant was wound up in September 2022 at which time liquidators were appointed.2 Background [5] On 22 February 2018, the plaintiff commenced the proceeding by way of Claim and Statement of Claim.3 An unspecified amount of damages was sought for an alleged malicious prosecution. [6] Between 2003 and 2012, the applicant undertook work for the second defendant’s company, the third defendant. She worked as both a contractor (through her own company) and as an employee. [7] In August 2012, the applicant ceased working for the third defendant. [8] In October 2012, the second defendant made a complaint to the police that the plaintiff had stolen funds from the third defendant. [9] On 25 April 2013, the plaintiff participated in a record of interview before later being charged with stealing as a servant. [10] On 9 December 2014, the charge was dismissed at a committal hearing in the Magistrates Court. 1 On 4 July 2018, the applicant filed a Reply (court document 12) in response to the defence of the second and third defendants. Disclosure then appears to have taken place in 2019 (according to the affidavit material relied upon by the plaintiff). 2 Exhibit RCC-1 to affidavit of Rodney Carl Cramp filed 6 November 2023 (document 20). 3 Court document 1. -- 3 of 21 -- 3 [11] The applicant claims that she was maliciously prosecuted by all of the defendants. In the case of the State, the plaintiff’s claim attacks the bone fides of two police officers: Officers Urquhart and Powell. [12] In order to succeed, the applicant will relevantly need to show that the prosecutor/s (i.e., those who caused the charge to be brought):4 (a) acted maliciously in initiating or maintaining the charge; and (b) acted without reasonable and probable cause. Legal principles [13] Rule 389 of the UCPR provides as follows: “389 Continuation of proceeding after delay (1) If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed. (2) If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice. (3) For this rule, an application in which no order has been made is not taken to be a step.” [14] In Ure v Robertson,5 Bond J (as his Honour then was) (with whom Gotterson and Morrison JJA agreed) said this with respect to r 389: “[38] The evident intention of r 389 is that a stay should be imposed on proceedings in certain circumstances and to require any person who seeks to lift the stay to approach the Court to seek an order. The policy is to ensure that proceedings which are significantly delayed come to the attention of the Court so that they can be dealt with appropriately: see Thompson v Kirk [1995] 1 Qd R 463 at 464 per Derrington J.” [15] In Tyler v Custom Credit Corporation Limited,6 Atkinson J (with whom McMurdo P and McPherson JA agreed) set out a non-exhaustive list of factors to be taken into account for an application seeking leave to take a step: 4 A v New South Wales [2007] 230 CLR 500 at [1]. 5 [2017] QCA 20. 6 [2000] QCA 178. -- 4 of 21 -- 4 “When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules (“UCPR”) r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed. These include: (1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced; (2) how long ago the litigation was commenced or causes of action were added; (3) what prospects the plaintiff has of success in the action; (4) whether or not there has been disobedience of Court orders or directions; (5) whether or not the litigation has been characterised by periods of delay; (6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant; (7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity; (8) whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim; (9) how far the litigation has progressed; (10) whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers; (11) whether there is a satisfactory explanation for the delay; and (12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial. The court’s discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.” (citations omitted) -- 5 of 21 -- 5 [16] The applicant bears the onus of proving that leave ought be granted in the circumstances.7 [17] In Tyler v Custom Credit Corporation Limited at [5], Atkinson J said: “The onus is on the applicant for striking out the plaintiff’s action for want of prosecution to show that the matter should be struck out. On an application for leave to proceed, the applicant for leave must “show that there is good reason for excepting the particular proceedings from the general prohibition” in a case in which three years have elapsed from the time when the last proceeding was taken. The rationale of the rule requiring leave to proceed after a long delay is to prevent abuse of process. The Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay.”8 [citations omitted] [18] In Rigato Farms Pty Ltd v Ridolfi9 at [22], Pincus JA said: “[p]arties do not have an inalienable right to a hearing of all issues on the merits. Rule 5(3), for example, confirms each party’s obligation to proceed expeditiously, or risk sanctions (rule 5(4)) which may include dismissal.” [19] A failure to adduce evidence as to the reasons for the delay or as to the prospects of success may be regarded as fatal to the success of an application for leave under r 389(2). In Hall v RH & CE McColl Pty Ltd10 the Court of Appeal accepted that a “complete absence of any affidavit evidence from the appellant as to reasons for the delay or the prospects of success” was decisive in dismissing the appeal against the trial judge’s order dismissing the proceeding for want of prosecution. There, Jerrard JA with whom McMurdo P and Holmes JA (as her Honour then was) said at [20]: “[20] With regard to the relevant factors described in Tyler, there was no delay before the litigation was commenced, and the plaintiff’s prospects of success are entirely unknown. There has been a prolonged delay for a number of years. The reason is not explained, but it is more likely to be the fault of his solicitors than the appellant’s. The litigation has not progressed far and the delay would have prejudiced both the plaintiff and the defendant in the preparation for trial. A potentially important 7 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd [1999] QSC 372, also accepted in Oldmeadow v Trevorrow [2023] QSC 38 per Freeburn J at [48]. 8 The relevant period of delay for this matter is approximately two years, five months. 9 [2000] QCA 292; [2001] 2 Qd R 455. 10 [2007] QCA 182. -- 6 of 21 -- 6 party was not joined during the limitation period. On this appeal, Mr Lynch was unable to nominate what step the plaintiff might next take, if given leave. Solely because of the complete absence of any affidavit evidence from the appellant as to the reasons for the delay or the prospects of success, I would dismiss the appeal, order that the appellant pay the respondent’s costs assessed on the standard basis, and further order that the appellant’s solicitors promptly furnish the appellant with a copy of these reasons.” [20] I note also that the purpose of the UCPR is “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.”11 (my underlining). Chronology [21] To properly understand and determine this application a chronology of relevant events is necessary: DATE EVENT 3 January 2003 The applicant is a shareholder and sole director of Raiven Pty Ltd providing bookkeeping services (“Raiven”). January 2003 The applicant entered into an agreement with the second defendant whereby the third defendant would retain Raiven for bookkeeping services. (This continued from 2003 to mid-2008). July 2008 The second defendant and the applicant allegedly agreed that the latter would be an employee of the third defendant and work 38 hours per week and paid overtime and also the second defendant allegedly agreed to pay Ravien $250.00 weekly which was to be recorded as Emerlite’s fuel, lease and vehicle expenses. Such agreement allegedly commenced on 2 July 2008. This agreement was oral only. 11 UCPR: r 5(1). -- 7 of 21 -- 7 Early October 2008 The second defendant and applicant allegedly verbally amend the agreement, whereby the overtime pay of the applicant is $35 per hour and paid to Raiven by the third defendant and on a monthly basis. October 2008 The applicant commenced issuing invoices for overtime from Raiven to the third defendant for overtime hours worked. Mid 2009 The second defendant as sole director of the third defendant signed a letter that relevantly: a. confirmed that the applicant had been employed by the third defendant for 6 years; b. confirmed that the applicant was employed for 40 hours per week at a rate of $25.00 per hour plus superannuation; c. confirmed that the applicant’s overtime was invoiced and paid to Raiven; and d. confirmed that the applicant was paid $250.00 per week in relation to fuel, insurance and lease expenses that was paid to Raiven. October 2008 – August 2011 The third defendant paid Raiven $52,876.50 allegedly in accordance with the agreement for payment of same. The applicant allegedly kept records of these invoices and to the third defendant, declared them under Raiven and submitted them in Raiven’s tax returns and books of account. 1 August 2012 The third defendant made the applicant redundant. -- 8 of 21 -- 8 3 August 2012 The applicant lodged an unfair dismissal claim with Fair Work, which was subsequently withdrawn on or around 27 September 2012. 3 October 2012 The second defendant provided a signed statement to police naming the applicant as the accused on a complaint of stealing as a servant. 25 April 2013 The applicant was interviewed by police and charged with stealing by clerks or servants between 2008-2012 when working for the third defendant in the amount of $52,895.50. 9 December 2014 The Magistrate dismissed the charge after a contested committal hearing. 2 May 2016 and 8 July 2016 The applicant instructed Sandra Sinclair of Sinclair Lawyers to correspond about compensation for malicious prosecution. August 2017 The applicant gave instructions for counsel to be briefed to advise. 22 February 2018 Lawrence Sinclair Lawyers files Claim and Statement of Claim against all three defendants. 30 April 2018 Notice of intention to defend and Defence filed by first defendant. 8 May 2018 Conditional notice of intention to defend filed by second and third defendants. 10 May 2018 Application to dismiss proceedings filed by first defendant. 16 May 2018 Applicant files Amended Statement of Claim. -- 9 of 21 -- 9 25 May 2018 First and second defendants file Defence. 4 July 2018 Reply to first and second defendants filed by the applicant. Early 2019 Disclosure completed by the applicant. June 2019 Sandra Sinclair (solicitor) moves to Adelaide. Mid 2019 Disclosure completed. October 2019 Applicant seeks to change solicitors back to Ms Sinclair in Adelaide and does so with a file transfer request in December 2019. 11 March 2020 File transfer to Ms Sinclair is completed. 15 to 17 July 2020 The applicant emailed her solicitor to confirm mediation arrangements with the parties and Mr Morris of counsel included in email exchange. 2 October 2020 The applicant sent an email to her solicitor asking if Mr Morris had been fully briefed. 2 November 2020 The applicant again emailed her solicitor to seek an update on Mr Morris and the mediation. Late 2020/early 2021 The brief in the matter was sent to Mr Morris. The material received from the applicant was voluminous and required consideration, scanning, filing, indexing and categorising which took a considerable time. 7 July 2021 Mr Morris advised Ms Sinclair that he was unable to continue to act on a speculative basis. 14 July 2021 Mr Morris provided Ms Sinclair with the name of another barrister (Ms Yates) who would be prepared to act on a speculative basis up until the conclusion of mediation. -- 10 of 21 -- 10 22 July 2021 Ms Yates emailed Ms Sinclair to advise that she would accept the applicant’s brief and suggested a discussion occur the following day regarding the fee arrangement. 4 August 2021 Ms Yates advised that she would accept the brief on a speculative basis until mediation and thereafter discuss fee arrangements. 1 February 2022 Ms Yates informed Ms Sinclair that she had still not received the full brief. 5 April 2022 Ms Sinclair sent an email to Ms Yates regarding the progress of the matter and attaching a copy of the court documents which had been filed. 6 April 2022 Ms Yates advised that her circumstances had changed and that she could not accept instructions to act in the matter. 12 April 2022 Ms Sinclair emailed Mr Morris asking if he would take the matter on again. June 2022 The applicant advised Ms Sinclair that another barrister (Mr Clutterbuck) may be interested in taking the matter on. 22 June 2022 Ms Sinclair wrote and spoke to Mr Clutterbuck. 28 June 2022 Mr Clutterbuck met the applicant and Ms Sinclair and agreed to be briefed on a speculative basis. 30 June 2022 Ms Sinclair emailed Mr Daubney KC, barrister regarding his availability to conduct a private mediation and to provide details of his fees. 4 July 2022 Ms Sinclair emailed Mr Clutterbuck’s cost disclosure agreement to the applicant. -- 11 of 21 -- 11 5 October 2022 Mr Clutterbuck provided a detailed memorandum of advice to Ms Sinclair. 6 March 2023 Ms Sinclair sent an email to Mr Clutterbuck attaching her draft affidavit setting out the reasons for the delay. 27 June 2023 Ms Sinclair sent an updated draft of her affidavit to Mr Clutterbuck. 10 August 2023 Letters were emailed to the defendants’ legal representatives advising of the applicant’s intention to file an application seeking leave to take a further step in the proceedings. Applicant’s submissions [22] The applicant contends that she was employed by the third defendant on a wage but also received funds (not in the form of wages) from the third defendant for overtime, but billed out from Raiven Pty Ltd and invoiced to the third defendant. [23] She alleges that this arrangement was pursuant to the oral agreement reached between herself and the second defendant in June 2008. [24] She alleges that she validly provided overtime invoices via Raiven, which were all paid pursuant to that oral agreement and that the payments were recorded in ledgers and declared to the Australian Taxation Office for the purpose of taxable income. She argues therefore that monies paid were not stolen by her and that the second defendant was at all times aware of that fact. [25] She submits that the majority of the delay has been due to her lawyer’s actions and should not be sheeted home to her. She further submits that she has consistently been in contact with her solicitor and has frequently attempted to ensure that the matter progresses in a timely way. -- 12 of 21 -- 12 [26] She further submits that she has struggled with the cost of the matter given that she had to pay $24,600 for her legal representation for her criminal proceedings,12 had sporadic employment for some time and was responsible for the full mortgage payments for her home after a relationship breakdown13 until the sale of that property. [27] She further submits that the second defendant would suffer little if any prejudice due to the delay given: (a) much of the evidence would be documentary; (b) a relevant statement would have been prepared in approximately 2013 for the criminal proceedings, which the second defendant could use to refresh his memory; (c) much of the material of relevance would have been prepared for the criminal proceeding; (d) there is little by way of oral narration that would be in contest, such that the effects of the passing of time on memory would be of little relevance; (e) any dispute as to the nature of a verbal agreement would be about a reasonably brief and uncomplicated issue and therefore likely to be the subject of clear memory by the parties; and (f) even though no step in the proceeding has been taken for over two years, the second defendant would not have destroyed evidence knowing that he has not received any advice that the applicant’s claim had been abandoned. [28] As to paragraph (e) above, the applicant contrasts the situation in this matter with the situation in Oldmeadow v Trevorrow where Freeburn J noted: “… the extensive passage of time alone prejudices the possibility of a fair trial;” and “…the insurers will rely on Mr Trevorrow to provide detailed instructions on, among other things, the commercial and other considerations that underpinned the lease and sale transactions he entered into in the period 2014 to 2016, and 12 Which was originally paid by her sister, but the applicant recompensed her sister after the sale of her home. 13 Affidavit of applicant filed 9 September 2023, para [107]. -- 13 of 21 -- 13 the decisions made as to distribution of the proceeds. That is not likely to be an easy task. The nuances of those business decisions are likely to be difficult to re-construct, as is the alleged involvement of the staff of the Public Trustee.”14 [29] Furthermore, the applicant submits that the agreement as amended in 2009, which would also constitute evidence of the original 2008 oral agreement, was in writing and is therefore not a “matter of memory”, but rather, would be the subject of expert handwriting evidence as to the second defendant’s signature. It is submitted that this letter demonstrates that the second defendant knew the relevant payments were not “stolen payments” and that the second defendant lied to police in his complaint. [30] As to the delay in commencing the proceeding from the time the criminal prosecution ended on 9 December 2014 to the filing of the claim on 22 February 2018, it is explained as an understandable period of time needed by the applicant to overcome the difficult process of being prosecuted. [31] Insofar as the first defendant is concerned, the applicant submits that the documentary records provide evidence of the falsity of the second defendant’s complaint and that the actions of the two investigating police officers constitutes a misuse of power such as to bring the first defendant within the parameters of a malicious prosecution. [32] Ultimately, it is submitted that: (a) the delay has been explained such that little fault can be attributed to the applicant; (b) the applicant has been proactive in progressing the matter; (c) the applicant has struggled to pay counsel; (d) part of the delay was due to the changing of solicitors and barristers and the voluminous nature of the material that had to be considered; (e) this all occurred during the COVID-19 pandemic which may have added to the delay; (f) little prejudice has been occasioned by the delay; and 14 [2023] QSC 38, [92] – [93]. -- 14 of 21 -- 14 (g) the nature of the matter is so serious that there is a public interest in it proceeding. Second defendant’s submissions [33] The second defendant has emphasised that the applicant’s case has its origins in events that are alleged to have occurred 14 to 15 or more years ago. [34] He submits that the alleged verbal agreement between he and the applicant in 2008 as to the terms of her employment and remuneration would constitute a crucial piece of evidence and that the malicious prosecution allegation would fail if that alleged agreement could not be proved. Therefore, the accuracy of the memory of the alleged parties to the agreement would be crucial. [35] In the second defendant’s affidavit, he attests however that as he has aged his memory has declined.15 He is currently 75 years old.16 Furthermore, he has stated that until the application was filed he had not turned his mind to this matter for approximately four and a half years as he had formed the belief that the applicant had abandoned the litigation.17 [36] The second defendant also denies that he signed a letter in his capacity as a director of the third defendant in mid-2009 confirming and evidencing the fact and terms of the applicant’s employment by the third defendant. He notes that the applicant has produced no evidence that the original document exists which, it is submitted, is a significant impediment to the success of this application given the potential evidentiary significance of such a document and the fact that if it cannot be produced, the respective memories of the parties will take on immense significance. [37] It is submitted that must all be considered in light of the nature of the allegations. The applicant’s case could be characterised as one where the second and third defendants were the real instigators of the criminal prosecution and that to succeed on such a claim, the applicant would have to prove that the second and third defendants made a false complaint to police and that they “virtually” drove the prosecution. [38] Ultimately, the second defendant submits that the application must fail because: 15 Affidavit of Rodney Carl Cramp (court document 20) at para 16. 16 Affidavit of Rodney Carl Cramp (court document 20) at para 1. 17 Affidavit of Rodney Carl Cramp (court document 20) at para 10. -- 15 of 21 -- 15 (a) the evidence does not demonstrate that the applicant has reasonable prospects of success; (b) the applicant has not adequately explained the delay; and (c) the delay has resulted in prejudice to him, such prejudice being: (i) his memory has declined due to the passage of time and his advancing years; (ii) there is a risk that an alleged important relevant document no longer exists and therefore forensic examination could not occur or that the second defendant’s evidence that he has no recollection of ever signing such a document would be unpersuasive due to his admitted deterioration of memory; and (iii) as a consequence of the delay, the second defendant would be likely to incur additional costs in defending the matter in excess of $35,000 compared to the costs that would have been incurred had the matter progressed to trial in a timely way because: (a) of an increase in lawyers’ rates during the delay period; and (b) the requirement for the lawyers to have to re-read and reconsider the material.18 Malicious prosecution [39] In relation to the matters that must be established in a case of malicious prosecution, for a prosecution brought by an independent prosecutorial authority such as the police, to found liability on the part of a third party providing information which gave rise to the police investigation, Jerrard JA said in Freeman v National Australia Bank19 at [33] and [34]: “[33] To establish the complaint of malicious prosecution Mr Freeman had to prove, apart from damage, that he had been prosecuted, the proceedings brought against him had terminated in his favour, that the prosecution was instituted without reasonable and probable cause, and that it was instituted or continued maliciously. To establish the absence of reasonable 18 Affidavit of Iain Campbell Marshall filed 3 November 2023 (court document 19). 19 [2006] QCA 329. -- 16 of 21 -- 16 and probable cause he had to prove the absence of any honest belief in the (real) complainant – be that the NAB, the receiver, or Detective Tomlin – that there was a proper case against Mr Freeman on which to bring him before the court, or else to establish the absence of sufficient grounds for that belief to be reasonable on the facts available to the complainant after sufficient inquiry. To prove the existence of malice Mr Freeman had to establish that the complaint against him came from a motive or desire other than to do what the complainant bona fide believed to be right in the interest of justice, or that it was an indirect or improper motive and not one in furtherance of justice. [34] Where, as here, Mr Freeman’s case was that a third party, the NAB, was the real instigator of the prosecution conducted at its behest by the police, Mr Freeman had to establish that absence of reasonable and probable cause, and the presence of malice, in the NAB, and that the NAB, because of information it supplied to the police, had such a real role in inducing Detective Tomlin to begin the prosecution that the NAB must virtually have driven it. Expressing the conclusion that way accords with the judgment of this Court, relevantly given by Holmes JA, in Seabrook v Asher [2006] QCA 238. Holmes JA reviewed a number of authorities on malicious prosecution instituted by a third party, before expressing the matter as I have described. Her Honour examined the law applicable where the claim made is that a third party, by false information, has influenced a prosecuting authority with an independent discretion to bring and pursue criminal proceedings. She held that what those authorities establish is that the false information must have had some real role in inducing a police officer to commence a prosecution, so much so that the informant must “virtually” have driven the prosecution. [Citations omitted] [40] So the task confronting the applicant is not easy. [41] To establish her complaint, the applicant must prove inter alia that the prosecution of her was instituted without reasonable and probable cause and that it was instituted and/or continued maliciously. That is, she must prove the absence of any honest belief in the first and second defendants that there was a proper case to be brought against her or establish the absence of sufficient grounds for that belief to be reasonable on the facts available after sufficient inquiry. To prove the existence of malice in the second defendant, the applicant will need to establish that the complaint by the second defendant came from a motive or desire other than to do what the second defendant bona fide believed to be right in the interests of justice, or that it -- 17 of 21 -- 17 was an indirect or improper motive and not one in furtherance of justice. Similar tests apply in relation to the first defendant. Determination [42] A convenient starting point for the determination of this application is to assess the relevance of the matters listed by Atkinson J in Tyler v Custom Credit Corporation Pty Ltd: (a) the parties agree that the cause of action arose on the date that the Magistrate dismissed the charge at committal i.e., 9 December 2014. That of course is now some nine years ago. The Statement of Claim however refers to relevant events that occurred up to 15 years ago. That is a very long time ago. Furthermore, the applicant did not commence this litigation until 22 February 2018, some three years two months after the cause of action arose. That delay has not been adequately explained. I do not accept the applicant’s submission that such a delay is understandable given that “it is a difficult process to be prosecuted and no blame for instructing her solicitors until mid- 2016 to seek compensation should be taken”; (b) there is little by way of evidence before the Court to allow an assessment of the applicant’s prospects of success. As I have already indicated, proving a claim of malicious prosecution is a difficult task. It seems to me that much would depend on whether the court was persuaded that the verbal agreement between the second defendant and the applicant in 2008 occurred in the terms alleged. That issue would appear to involve a straight up contest of credibility. If the alleged 2009 documentary amendment to the 2008 agreement was produced in evidence, that would undoubtedly improve the applicant’s prospects of success provided it proved to be genuine. Unfortunately for the applicant however, there is no evidence before the court that such document is still in existence (if it ever was) and can be produced to the Court. The consequence of the absence of that document is that the accuracy of the memories of the second defendant and the applicant will be a crucial issue for determination at trial; (c) the delay in this matter is in no way attributable to the defendants; (d) there has been no disobedience of court orders or directions; -- 18 of 21 -- 18 (e) there has been some reference to the applicant’s difficulty in being able to fund the litigation, including a reference to the quantum of legal fees she had to pay to fund her defence of the criminal prosecution. However, there is very little evidence linking this issue of her funding problems with the delay. I note in fact that the applicant’s sister originally paid that sum of $24,600 for legal expenses on behalf of the applicant and that the applicant only reimbursed her sister after the sale of a property; (f) given the extensive time delay in this matter, if this application fails the litigation would be concluded as the statutory time limit has long passed. Additionally, and of some relevance, is the fact that the litigation has not progressed very far to the present time; (g) the affidavit material demonstrates that the delay since the last step in the proceeding has been due, in part, to the changing of solicitors and from the engagement and subsequent withdrawal of three barristers. There is no evidence that the applicant was responsible for the withdrawal of the barristers and her desire to have the original solicitor reengaged after that solicitor moved to South Australia is reasonable and understandable. Having said that, the history of this matter since the last step was taken is littered with extended periods of inactivity that have not been explained. Perhaps the most significant was from 5 October 2022 when Mr Clutterbuck provided an advice to 19 June 2023 when the applicant prepared instructions to prepare an affidavit detailing the reasons for the delay as well as the three and a half months that followed until this application was filed.20 No explanation has been provided as to why it took almost a year from then to file this application. A further lengthy period of inactivity occurred between July 2021 when Ms Yates advised she would accept the brief and April 2022 when Ms Yates advised that she could no longer act in the matter. No satisfactory explanation for that period of inactivity has been provided. Whilst that delay may be in part due to the inactity of the lawyers themselves, I note that the applicant has attested that in mid 2021 she was advised that Ms Yates was available to be briefed in the matter, yet her next contact with her solicitor wasn’t until January 2022. The 20 This application was filed on 25 September 2023. -- 19 of 21 -- 19 applicant then emailed her solicitor on 31 March 2022 to ‘arrange a time to collect my files from their office’. It was only after this that Ms Yates advised that she could no longer act in the matter.21 (h) the second defendant has attested that given he is 75 years of age, his memory is not as it once was and whilst he was confident in the instructions he gave his solicitors in 2018, he no longer has the same degree of confidence. He submits therefore that the trial would be unfair as it would involve the court assessing the quality of the memories of each of the second defendant and the applicant. The second defendant also alleges that due to the delay in this matter, he has not turned his mind to this matter for some years, which in turn may further adversely impact his memory. On this point I do not accept the applicant’s submission that the outcome of the trial would depend largely on documentary evidence with only minimal contest as to oral agreements. On the material before the Court, the applicant’s prospects of success would depend heavily on the Court accepting the applicant’s evidence that a verbal agreement in the terms she alleges was reached between her and the second defendant in 2008 and then amended, as explained by the applicant, relatively shortly thereafter. Notwithstanding that the applicant attests that the amended agreement was in writing and signed by the second defendant (a fact denied by the second defendant) she has produced no evidence to suggest that the document still exists. It can therefore not be the subject of any forensic examination. On the material before the court, the 2008 verbal agreement and the 2009 amendment would appear to be extremely important if not crucial pieces of evidence on the applicant’s case. Given that acceptance of such agreements could only (as things presently stand) occur if the court accepted the accuracy of the applicant’s memory notwithstanding the first defendant’s evidence to the contrary, I am not persuaded that the applicant’s case has reasonable prospects of success. 21 Affidavit of applicant filed 9 September 2023 at paras [83] – [90]. -- 20 of 21 -- 20 Furthermore, given the extraordinarily lengthy period of time that has passed since relevant events, another issue arises which in my view also potentially impacts on the fairness of any trial. The second defendant’s position is that he did not act with malice when he made a complaint to police. To overcome that evidence, the applicant would also have to persuade the Court that the second defendant had not simply forgotten about the verbal agreement made approximately six years prior to his complaint to police. That in turn means that the second defendant would be required to remember, at trial, what he remembered at the time he made the complaint. That is a function of memory which undoubtedly becomes more difficult as time passes; and (i) I accept the second defendant’s submission that the delay in this matter will have significant cost consequences for him if it was to proceed. Conclusion [43] Upon consideration of those matters, the applicant has failed to satisfy the Court to the standard required that this is an appropriate matter to exercise the discretion in her favour and to allow an action to proceed despite the general prohibition against an action continuing in which no step has been taken for two years, because she has failed to: (a) provide a satisfactory explanation for the delay; (b) persuade the Court that the delay will not result in prejudice to the second defendant leading to an inability to ensure a fair trial; and (c) persuade the Court that her case has reasonable prospects of success. Orders 1. The application for leave to proceed under Uniform Civil Procedure Rules 1999 (UCPR) rule 389(2) is refused. 2. The parties be heard on costs. -- 21 of 21 --