Dover v Mercantile Mutual Insurance (Australia) Ltd & Ors [2002] QDC 345

DISTRICT COURT OF QUEENSLAND CITATION: Dover v Mercantile Mutual Insurance (Australia) Ltd & Ors [2002] QDC 345 PARTIES: BRIAN JOHN DOVER Plaintiff v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD ACN 000 456 799 First Defendant and GREGORY JAMES McCOSKER Second Defendant and STATE OF QUEENSLAND Third Defendant FILE NO/S: D1004/02; Beenleigh D89/99 DIVISION: PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 20 December 2002 DELIVERED AT: District Court, Beenleigh HEARING DATE: 25 June 2002 JUDGE: McGill DCJ ORDER: Paragraphs 17 and 22 of the Amended Statement of Claim filed 7 May 2002 struck out; applications otherwise dismissed, with costs. Directions given. CATCHWORDS: TORT – Malicious Prosecution – whether defendant was a prosecutor – whether particulars capable of supporting allegations. Balson v State of Queensland & Anor [2002] QSC 419 – followed. Butler v Simmonds, Crowley and Galvin [2000] 2 Qd R 252 – applied. Commercial Union Insurance Co NZ Ltd v Lamont [1989] 3 NZLR 187 – considered. Commonwealth Life Assurance Society Ltd v Brain (1955) 53 -- 1 of 18 -- 2 CLR 343 – applied. Mahon v Rahen (No. 2) [2000] 1 WLR 2150 – considered. Martin v Watson [1996] 1 AC 74 – considered. Pandit Gaya Parshad Tewari v Sardar Bhagat Singh (1908) 24 TLR 884 – followed. COUNSEL: JW Lee for the plaintiff PD Lane for the first defendant KB Varley for the second defendant M Burns for the third defendant SOLICITORS: Goodfellow & Scott for the plaintiff Minter Ellison for the first defendant Ebsworth & Ebsworth for the second defendant Crown Solicitor for the third defendant [1] There are three applications by the three defendants in this action, each seeking that the plaintiff’s Statement of Claim as against that defendant be struck out pursuant to Rule 171 of the Uniform Civil Procedure Rules. Each defendant seeks in the alternative summary judgment under Rule 293, and various relief as to costs. The third defendant seeks in the further alternative that the action against the third defendant be dismissed pursuant to Rule 5 of the UCPR for breach of the implied undertaking to proceed in an expeditious way. [2] The action was commenced by a claim and statement of claim filed on 12 November 1999. Notices of intention to defend were filed by each defendant, the third on 7 February 2000. On 27 November 2000 the first defendant applied for an order that the statement of claim be struck out, and an amended statement of claim was filed on 7 March 2001. However on 17 December 2001 there was another application by the first defendant to strike out the statement of claim and a further application by the first defendant on 28 February 2002, which had the support of the second defendant in an application filed on 5 March 2002 and the third defendant in an application filed 8 March 2002. On 18 April 2002 I ordered that the amended statement of claim filed 7 March 2001 be struck out but gave the plaintiff leave to file and serve a fresh statement of claim within 28 days. Pursuant to that leave a further amended statement of claim was filed on 7 May 2002. At that stage I was not persuaded that any difficulties with the pleading were caused by deficiencies in the plaintiff’s case rather than in the formulation of the pleading. However, after the further amended statement of claim was filed the present applications were filed on behalf of each defendant. I think that at this point I should proceed on the basis that the current pleading alleges everything which can usefully be alleged to assist the plaintiff’s case. I understand that the defendants are concerned in these applications to dispute the substance of the allegations against them, albeit on the pleadings, rather than to raise mere pleading points. That is, I am concerned with whether the pleading indicates that the plaintiff really has a case against any defendant, rather than whether it has been properly pleaded. -- 2 of 18 -- 3 The plaintiff’s case as pleaded [3] According to that pleading, on or about 15 August 1993 the Logan City Shopping Centre was substantially damaged by fire. At that time the owner of that shopping centre was insured against, inter alia, fire by a policy issued by the first defendant, and after the fire a claim was made on that policy. On 26 August 1993 the first defendant paid to the owner $1,150,000 in settlement of that claim. The second defendant was a loss assessor acting on the instruction of the first defendant. On 5 October 1993 he introduced two police officers to T, who it is alleged on 17 November 1993 admitted to involvement in the fire by driving another person B to the shopping centre where B lit the fire. It is further alleged that on the same day the second defendant told the third defendant (presumably a police officer) that T would say that the plaintiff had committed the offence of arson in respect of the shopping centre. [4] On 19 November 1993 T entered into an agreement with the first defendant under which the first defendant agreed to pay him money to assist the police as and when required to further their investigations into the fire, to assist the first defendant, their investigators and their solicitors in respect of the matter, and to give evidence in any criminal or civil proceedings arising out of the fire. The agreement expressly provided that all evidence to be provided by T was true and correct in all respects to the best of his knowledge and belief. [5] It is alleged that on 23 February 1994 the plaintiff, B and C were arrested and charged with various offences in relation to the fire. Following committal proceedings on 26 July 1994 the plaintiff and B were committed for trial to the District Court, but C was discharged. Subsequently the Director of Public Prosecutions presented an indictment against the plaintiff alleging one charge of arson and six charges of wilful destruction of property. The plaintiff went to trial on the indictment of 31 May 1995, when a voir dire was held after which the prosecutor entered a nolle prosequi in respect of the indictment. The pleading then continues: “16. The Second Defendant and the First defendant through the Second defendant played an instrumental role in the institution of the aforesaid criminal proceedings against the Plaintiff. (a) On the 27 th September 1993, Tyrrell gave information about the fire to a police officer employee of the Third Defendant named David John Wilson (“Wilson”); (b) On the 27 th September 1993, the Second Defendant had a discussion with a suspended detective of police named Jim Slade (“Slade”) whereby the Second defendant agreed to pay a sum of money to obtain access to the informant Tyrrell; (c) On the 28 th September 1993, the Second Defendant held a meeting between McKeever and the Second Defendant in the Second Defendant’s Fortitude Valley office, at which meeting the Second -- 3 of 18 -- 4 Defendant told McKeever of Tyrrell, and that Tyrrell knew who was responsible for the fire; (d) In or about September 1993, Tyrrell told the Second Defendant that Tyrrell drove Byrne to the scene to set the fire; (e) On the 29 th September 1993, Tyrrell in the company of Wilson and Slade went to the scene of the fire and gave details of it to them; (f) On the 30 th September 1993, the Second Defendant held a meeting with McKeever and a police officer employee of the Third Defendant named Andrews in the Second Defendant’s Fortitude Valley office. The Second Defendant agreed to be fitted with a sound recording device, and went to the Newnham Hotel where he had a discussion with Tyrrell, which discussion was recorded and made available to the Third Defendant for use in the prosecution of charges against the Plaintiff in relation to the fire; (g) On the 11 th October 1993 the Second Defendant went to Beenleigh and located and spoke to Tyrrell so as to assist the Third Defendant to prosecute the Plaintiff in relation to the fire, after which the Second Defendant passed information on to Andrews; (h) On the 19 th November 1993, the Second Defendant met with Tyrrell in the Second Defendant’s Fortitude Valley office and provided the agreement set out in paragraph 10 above between the First Defendant and Tyrrell for Tyrrell’s signature, so as to encourage Tyrrell to give evidence against the Plaintiff in the Criminal proceedings referred to in paragraph 15 above. 17. The First Defendant and the Second Defendant played an instrumental role in the continuation of the proceedings against the Plaintiff. PARTICULARS (a) Between 16th May 1995 and 23rd May 1995, the Second Defendant became aware that Byrne’s evidence at the trial of the Plaintiff would be that the Plaintiff had no involvement in the fire, however the First Defendant and the Second Defendant failed to inform the Third Defendant of such evidence and failed to withdraw the information referred to in paragraph 9 above prior to the commencement of the trial of the Plaintiff on 31st May 1995. 18. The instituting of the aforesaid Criminal proceedings by the First Defendant and the Second Defendant was without reasonable and probable cause: PARTICULARS (a) The First and Second Defendants did not hold an honest belief in the guilt of the Plaintiff, or in the matters and testimony alleged against the Plaintiff; (b) The First and Second Defendants were purportedly acting on the basis of information provided to them by Tyrrell which they knew or had reason to believe was false; -- 4 of 18 -- 5 (c) The First and Second Defendants invited the Third Defendant to rely upon the evidence of Tyrrell in circumstances where the First and Second Defendants were aware of the facts particularised in paragraph 8(a) above; (d) The First and Second Defendants invited the Third Defendant to rely upon the evidence of Tyrrell in circumstances where the First and Second Defendants knew a significant monetary inducement was made to Tyrrell to provide information implicating the Plaintiff in the fire referred to in paragraph 4 above, as a consequence of which the First and Second Defendants knew or ought to have know(n) that there was a risk that Tyrrell would falsely implicate the Plaintiff for the sole purpose of obtaining the monies contemplated by the agreement; (e) In the premises, the First and Second Defendants knew or ought to have known that Tyrrell’s evidence could not support the charges preferred against the Plaintiff. 19. Further, the instituting of criminal proceedings by the First Defendant and the Second Defendant was in pursuance of an improper purpose, or malice. PARTICULARS (a) The purpose of the criminal proceedings was to secure a conviction against the Plaintiff to assist the First Defendant in civil proceedings against the Plaintiff, being proceedings commenced by Writ issued the 24th day of February 1994 in the Supreme Court of Queensland against the Plaintiff, Byrne, Burnitt and another in relation to the payment referred to in paragraph 6 above; (b) The purpose of the civil proceedings was to enable recovery of the sum referred to in paragraph 6 above from the Plaintiff; (c) That purpose was improper, since the First and/or Second Defendants did not hold an honest belief in the guilt of the Plaintiff, by virtue of the matters pleaded in paragraph 18 above; (d) That purpose was improper, since the First and/or Second Defendants did not hold an honest belief that the Plaintiff caused the fire resulting in the payment referred to in paragraph 6 above, by virtue of the matters pleaded in paragraph 18 above; (e) On or about the 12 th day of October 1995 the First Defendant discontinued such civil proceedings against the Plaintiff; (f) The First and Second Defendants knew or ought to have known that Tyrrell’s evidence could not support the charges preferred against the Plaintiff, however the First and Second defendants failed to so advise the Third Defendant. 20. The Third Defendant through McKeever and Wilson instituted the criminal proceedings against the Plaintiff. 21. The prosecution of the Plaintiff by the Third Defendant for the charges referred to in paragraph 10 hereof was instituted without reasonable and probable cause. -- 5 of 18 -- 6 PARTICULARS (a) The Third Defendant did not hold an honest belief that the matters and testimony alleged against the Plaintiff were sufficient to place him on his trial or obtain a conviction beyond reasonable doubt. (b) The Third Defendant was acting on the basis of information provided to it by Tyrrell which it knew or had reason to believe was false. (c) The Third Defendant knew the Plaintiff had not committed the offence. (d) The Third Defendant knew Tyrrell had committed the offence in conjunction with Byrne. (e) The Third Defendant knew Tyrrell had numerous criminal convictions and in the circumstances was not a trustworthy witness. (f) The Third Defendant knew Tyrrell had reached the agreement referred to in paragraph 10 above with the First Defendant. (g) The Third Defendant knew that Tyrrell asserted that as soon as Dover approached Tyrrell to light the fire, Tyrrell informed the police of Dover’s plans. However, there is no record of the police so being informed, which ought to have placed very serious doubt on Tyrrell’s truthfulness; (h) The Third Defendant failed to give proper consideration to the available evidence against the Plaintiff, and allowed Tyrrell to perform that function, and accepted what Tyrrell said when it was unreasonable so to do; (i) In the premises, the Third Defendant knew or ought to have known that Tyrrell’s evidence could not support the charges preferred against the Plaintiff. 22. The prosecution of the Plaintiff was continued by the Third Defendant without reasonable and probable cause, and in pursuance of an improper purpose, or malice. PARTICULARS (a) By 25th May 1995, the Third Defendant well knew that Byrne’s evidence at the trial of the Plaintiff on 31st May 1995 would be to exonerate the Plaintiff and to implicate Tyrrell, however the Third Defendant failed to act upon that knowledge and cause the charges against the Plaintiff to be withdrawn. 23. The instituting of the proceedings by the Third Defendant was in pursuance of an improper purpose, or malice. (a) The improper purpose was the obtaining of a false conviction against the Plaintiff to gain the benefit of the appearance of having solved the crime; (b) The improper purpose was carried into effect maliciously, such malice to be inferred from the matters referred to in paragraph 21 above.” -- 6 of 18 -- 7 [6] It is then alleged that the plaintiff had been injured in his reputation and had suffered loss and damage. Some particulars of the damage were provided. Exemplary and aggravated damages were sought. Defendants’ Submissions [7] The case for the first and second defendants is essentially that there is nothing in the statement of claim which amounts to an effective allegation that they were the prosecutors. At best they were assisting the police in providing information, but the relevant prosecutors were the police and the Director of Public Prosecutions. It is also not alleged that either defendant had deliberately provided false evidence without which the prosecution would not have been brought. It is further submitted that nothing provided by way of particulars could amount to a continuation of the prosecution by the first or second defendant. There are some other criticisms of the pleading on behalf of the first and second defendants, but these are the crucial issues. [8] The third defendant’s case is essentially that the particulars given were not capable of supporting the material facts pleaded so that in substance they showed that the allegations pleaded were unjustified. In circumstances where the plaintiff had previously submitted that the statement of claim had been particularized as well as it could be particularized, this demonstrated that the plaintiff’s case was not capable of proving essential elements of a cause of action for malicious prosecution, and therefore should fail. [9] The elements of the cause of action for malicious prosecution were laid down by the Court of Appeal in Butler v Simmonds, Crowley and Galvin [2000] 2 Qd R 252 at 258: “1. The prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the criminal courts are competent to inquire; 2. That the proceedings complained of terminated in the plaintiff’s favour; 3. That the defendant instituted or carried on the proceedings maliciously; 4. That there was an absence of reasonable and probable cause for the proceedings; and 5. That the plaintiff has suffered damage;” The first element was the crucial one for the purposes of this argument. Neither the first or the second defendants was the prosecutor in the committal proceedings in the Magistrates Court, or in the trial on indictment in the District Court. However, there are authorities which say that in certain circumstances someone other than the prosecutor in the strict sense can be liable for this tort. -- 7 of 18 -- 8 The authorities [10] The leading Australian authority is Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343. In that case Dixon J said at p 379: “It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority. But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible.” After reference to authorities and the evidence, he continued on page 381: “If Detective Sergeant Lawrence was not acting independently of Inch [the secretary of the appellant] but under his direction or influence, support is not lacking for the jury’s finding that the prosecution was instigated by the appellant company. The detectives were in consultation with the company’s counsel before the prosecution was launched. They had repeatedly seen its solicitors. Subsequently its counsel and solicitors appeared at its expense to prosecute. The action taken by Inch was approved by the directors. … It is true that the detective inspector sanctioned the prosecution. But upon his evidence it was open to the jury to take the view that he did not in the exercise of an independent judgment direct the prosecution, but, upon an account of the matter given to him by Lawrence with a view of obtaining his assent to a course already agreed upon between Lawrence, Clifford and Inch, as Lawrence’s superior officer, he authorised him to proceed.” [11] In that case therefore it is clear that the company through its secretary was very closely involved in the conduct of the prosecution. Indeed, in a joint judgment Evatt and McTiernan JJ said at page 400 that the jury had found in effect that: “the prosecution was in reality a private, and not a police, prosecution. In our opinion, the jury was entitled to find that the responsibility for the arrest and prosecution of the plaintiff is to be imputed to the defendant company, acting through Inch, its agent.” Starke J at page 351 said: “It is not enough to say that the prosecution was instituted and conducted by the police. The mere setting of the law in motion is not the criterion; the conduct of the appellant before and after the charge must also be taken into consideration. A person giving information to the police is by no means necessarily a prosecutor. The question in all cases of this kind must be – who was the prosecutor? and the answer must depend on the whole circumstances of the case. … -- 8 of 18 -- 9 There are two facts which appear to me sufficient in themselves for the consideration of the jury. One is that permission was given to counsel named by or on behalf of the appellant to conduct the prosecution on the express condition that neither the police officer who was the informant nor the Commissioner of Police nor the Crown was to be liable for any costs, charges or expenses whatever; in this way and on these terms the prosecution was conducted.” His Honour also referred to the fact that the Chairman of the appellant company had publicly claimed credit for having done what it had done and having placed its solicitors at the disposal of the police. [12] This decision was considered by the Court of Appeal in New Zealand in Commercial Union Insurance Co NZ Ltd v Lamont [1989] 3 NZLR 187. That was also a case where a person who had been charged with a criminal offence in connection with a claim on an insurance company and acquitted (after ruling that there was no case to answer) brought proceedings against the insurer for malicious prosecution. Richardson J said at page 193: “The common law has not adopted the technical stance that the only person responsible is the person who actually made the charge. … On the other hand, it is not sufficient that the defendant furnished information which was taken into account by the prosecuting authority in initiating proceedings. To incur liability the defendant must have played a sufficient role in the institution of proceedings as to be regarded as setting them in motion. Where, as in the present case, the police undertaking the investigation which leads to the laying of an information by a police officer and the conduct of the resulting proceedings by the police (and in the High Court by the Crown), determining the involvement of the third party in the investigation and judicial process is sufficient to attract potential liability for malicious prosecution is essentially a matter of judgment in balancing considerations of policy and principle. The tension is particularly acute where the defendant has given false and incriminating information to the police who have then exercised their own judgment in deciding to prosecute.” [13] His Honour then considered the earlier authorities and summarized their effect at page 196: “A defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution. Expressions such as “instigate”, “set in motion” and “actively instrumental in putting the law in force”, while evocative do not provide an immediate touchstone for the decision of individual cases. That requires close analysis of the particular circumstances. In the difficult area where the defendant has given false information to the police that in itself is not a sufficient basis in law for treating the defendant as prosecutor. That conduct must at least have influenced the police decision to prosecute”. -- 9 of 18 -- 10 [14] His Honour then considered a number of authorities in other jurisdictions, including Brain (supra), and at p.199 summed up the policy considerations which were relevant, including that: “Members of the community should be secure in the knowledge that in providing the police with information they are not exposing themselves to an allegation of malicious prosecution. So the circumstances in which they are to be regarded as having instigated prosecution should be rare and exceptional. ... It does not follow that there is any call for modifying the test which has been developed in the decisions of this Court for determining whether a third party is responsible in an action for malicious prosecution for criminal proceedings instituted by the police. What is required is a cautious application of that test where the police have conducted an investigation and decided to prosecute. The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution”. [15] McMullin J at p.207-8 summed up the authorities in the following way: “In some cases the person who supplied the information to the police may be regarded as the prosecutor even though the information was not made by him. A person may be regarded as the prosecutor if, inter alia, he puts the police in possession of information which virtually compels an officer to lay an information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withholds information the knowledge of which the police could not prosecute.” [16] Barker J, the third member of the court, appears to have been content to adopt the formulation of Dixon J in Brain at page 379. [17] The issue was considered by the House of Lords in Martin v Watson [1996] 1 AC 74. In that case the defendant had made a complaint to police that the plaintiff had indecently exposed himself to her. As a result police charged the plaintiff with indecent exposure, but at the trial in the Magistrates Court the prosecution offered no evidence and the charge was dismissed. The plaintiff sued for malicious prosecution and was successful in the County Court, but the Court of Appeal by majority held that the plaintiff had not been prosecuted by the defendant. However the House of Lords allowed this appeal and restored the judgment for the plaintiff. [18] Lord Keith of Kinkel with whom all the other members of the House agreed, referred to the statement by Dixon J in Brain (supra), and to the judgments of Richardson J and McMullen J in Lamont. In that case the trial judge had concluded -- 10 of 18 -- 11 that the defendant had been actively instrumental in setting the law in motion against the plaintiff, because she had wanted him prosecuted, the case depended on her word alone, and she must have made such an impression on the police officer concerned to result with applying for a warrant notwithstanding that circumstance. The House of Lords considered those reasons justified that conclusion. [19] More recently the question has been considered by the Court of Appeal in England in Mahon v Rahen (No. 2) [2000] 1 WLR 2150. Brooke LJ with whom the other members of the court agreed referred to Martin v Watson (supra) and to other authorities including Brain and Lamont before saying at page 2206: “In a simple case it may be possible to determine the issue quite easily by asking these questions. (1) Did A design and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgement? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false or by withholding information which he knew to be true, or both? In the more complex case it is likely to be more difficult to apply these tests, but I would adopt the approach suggested by Richardson J in [Lamont at p 199] when he said that the tests should be the same when the police had conducted an investigation and decided to prosecute, but that they should be cautiously applied. The reason, of course, is, as he also took into account, that prosecuting authorities are trained and accustomed to consider the evidence placed before them with an appropriately critical eye. Crown prosecutors, for instance, have to be satisfied that there is enough evidence to provide a realistic prospect of conviction ...”. In that case his Lordship went on to conclude that no-one except the police and the serious fraud officer who had investigated the matter should be regarded as having been the prosecutors. [20] Three recent Australian decisions may be mentioned, in which summary judgment has been given for a defendant. In Cumberland v Clark (1996) 39 NSWLR 514 Levine J said that it was insufficient to make a person a prosecutor if that person had given a statement to investigating police and given evidence in proceedings instituted by the police. In that case the defendant was characterised as no more than a witness. In Emanuele v Hedley (1997) 137 FLR 339 Higgins J said that if the investigator personally hears or sees facts which lead him or her to conclude that a prosecution is warranted, the individual who gave information indicating that some person was guilty of a criminal offence ceased to be causative of the prosecution even if that person had been acting falsely and maliciously. [21] Finally I have been greatly assisted by the decision in Balson v State of Queensland & Anor [2002] QSC 419 where Muir J referred to various authorities and held that a newspaper publisher was not the prosecutor in circumstances where the newspaper -- 11 of 18 -- 12 publisher had merely drawn to the attention of the prosecuting authorities the fact that the plaintiff appeared to be committing a particular criminal offence. The plaintiff was later prosecuted for that offence, but was acquitted. His Honour summarized the position at para [36] as follows: “• No relevant facts were within the applicant’s sole knowledge. • The applicant provided only factual information which seems to have been accurate • The facts were simple and known to the prosecuting authorities • The prosecuting authorities could have been expected to exercise an independent judgment and in fact did so after advice from senior officers of the Crown • There is no evidence that any person who took part in the decision to prosecute or in any decision which led to the institution or maintenance of the prosecution was influence in relation to the making of that decision by the conduct of the applicant or its employees • A formal complaint was made by [someone else] and it is reasonable to suppose that it was this complaint which was acted upon.” [22] In that case His Honour decided the question of whether the plaintiff’s claim for malicious prosecution should be dismissed as a separate issue prior to the trial under Rule 482, but expressly decided on the basis that he was approaching the matter as if it were an application for summary judgment for the defendant under Rule 293(2): para [2]. It is therefore a useful guide as to the approach to be adopted on an application, which is before me, for summary judgment under Rule 293. I should say however that it seems to me that the position of the applicant defendant in that case was much stronger than the position of the applicant defendants in the present case. Position of first and second defendants [23] In the present matter the first and second defendants proceeded on the basis that I should assume that the factual allegations contained in the particulars of the statement of claim were true, and the issue was really whether those facts were capable of establishing that the first or second defendant was liable for malicious prosecution in respect of such prosecution as occurred. It is therefore necessary to consider carefully just what is alleged in those particulars. What is alleged in the pleading is that the second defendant put the police in communication with T who said that he was involved in the fire and that others were also involved in the fire. He told the police on 17 November 1993 that B lit the fire, and on the same day the second defendant told “the third defendant”, presumably the police, that T would say that the plaintiff had committed the offence of arson in respect of the shopping centre: para . 9 – particulars. -- 12 of 18 -- 13 [24] The police had previously been in contact with T: it is alleged in particular (a) of para. 16 that the police officer obtained information about the fire from him as early as 27 September 1993. On 28 September there was a meeting between the second defendant and a different police officer where that police officer was told of T and that T knew who was responsible for the fire. In September T told the second defendant that he had driven B to the scene to set the fire. On 29 September he went to the scene of the fire and gave details of it to two police officers. On 30 September the second defendant was fitted with a sound recording device by police and with this device had a discussion with T at a hotel. The contents of the discussion were made available to the police. On 11 October the second defendant located and spoke to T again “to assist the third defendant to prosecute the plaintiff in relation to the fire, after which the second defendant passed information on to ” a police officer. [25] It is also alleged that on 19 November the second defendant met T and entered into the agreement with him to assist in criminal and civil proceedings in relation to the fire, for reward, as alleged in paragraph 10 of the statement of claim. The inference is that it was this agreement which induced T to say that the plaintiff was involved in the fire. Nothing else is relied upon as showing that the first or second defendant “played an instrumental role in the institution of the criminal proceedings against the plaintiff”. [26] These particulars show that the second defendant assisted in obtaining information from T which was passed on to the police, and acted in a way calculated to encourage T to provide assistance to the police in relation to the prosecution. Nevertheless, it is significant that the second defendant was not putting himself forward as a witness, other than potentially in connection with the recording of the conversation with T, in respect of which all he would have been doing was verifying that the tape recording which was made available to the police was what it purported to be. He may well have assisted the police in obtaining information from T, but the police dealt directly with T and there is nothing in these particulars inconsistent with the proposition that the police made up their own minds about T as a witness. [27] The pleading is somewhat curious in that it does not allege that the only evidence against the plaintiff was evidence obtained from T as a result of the activities of the second defendant. But it appears to proceed on this basis. Assuming that T was the crucial witness against the plaintiff for the purposes of the prosecution, all that is alleged in these particulars is that the second defendant assisted the police in obtaining information from T, and encouraged T to provide information to the police. [28] It is also necessary to take into consideration the facts in the particulars of paragraph 18. These are particulars of the proposition that the institution of the criminal proceedings was without reasonable and probable cause, but it was said in the authorities to which I have referred that the state of mind of the person other than the prosecutor in the strict sense is relevant to determining whether that other person is a prosecutor. The allegations which are contained in these particulars are that the first and second defendants knew (or had reason to believe) that the information -- 13 of 18 -- 14 provided by T was false, and that they ought to have appreciated that there was a risk that T would falsely implicate the plaintiff for the sole purpose of obtaining the payments offered under the agreement entered into with him. It seems to me that there may well be a difference between the position of a person who puts forward to the police a potential witness who is known not to be telling the truth, and a person who puts forward a potential witness who may well not be telling the truth and who has an incentive to give a particular account to the police. [29] This is not a situation where the defendant was himself giving a false account to the police, and one where moreover, because of the significance of the defendant’s evidence, the police had little scope for independent assessment of the evidence; that is to say, it is not a case like Martin v Watson (supra). T was known to the police prior to any involvement by the second defendant, and the pleadings really allege only that the second defendant assisted the police in obtaining information from T. The assessment of T as a potential witness was clearly a matter for the police in such circumstances, and merely entering into an agreement with T to provide evidence for reward does not change that situation. Significantly, the agreement was to provide true evidence. [30] The position would I think be different if the second defendant and T had conspired to provide a false account implicating the plaintiff, or if the second defendant had induced T to provide an account implicating the plaintiff which they knew was false. Is this a case where it is alleged that the first and second defendants knowingly induced T to provide false information? Assuming for the purposes of this exercise that T’s evidence was crucial to the prosecution of the plaintiff, T might be characterised as a prosecutor if he knowingly gave false evidence implicating the plaintiff. It follows that the second and perhaps the first defendant could be also parties to the tort, if they were parties to T’s knowingly giving false evidence against the plaintiff. Merely encouraging someone to tell the truth does not amount to inducing that person to give false evidence even if the circumstances might suggest that statements made by that person as a result of the inducements might not necessarily be entirely reliable. In my opinion it is not enough to show that the second defendant encouraged T to give evidence which T knew to be false to implicate the plaintiff in the fire. [31] There is however an allegation that the first and second defendants actually knew that the crucial information provided by T was false: paragraph 18 – particular (b). Even then in my opinion it would not be a sufficient factual basis for a tort of malicious prosecution merely to establish that the defendant had assisted police to communicate with a potential witness whose evidence was known to be false, in circumstances where it was a matter for the police to make up their own mind as to whether or not the evidence of that potential witness was a proper basis for a prosecution. But if the third defendant went further and induced the crucial witness to give evidence which was known to be false, in my opinion that is potentially actionable for malicious prosecution. The position would be perhaps similar to that in the Privy Council case of Pandit Gaya Parshad Tewari v Sardar Bhagat Singh (1908) 24 TLR 884, where it was held that a person who had misled the police by bringing before them suborned witnesses to support a charge known by that person to be false was liable for malicious prosecution. -- 14 of 18 -- 15 [32] In my opinion if the plaintiff can prove that the first and second defendants induced T to give evidence, which they knew was false, implicating the plaintiff in the fire, and that evidence was crucial to the decision by the police to prosecute the plaintiff, 1 the first and second defendants could be liable for malicious prosecution as the “prosecutors” provided that the other elements of the tort could be made out. [33] The first and second defendants also relied on the allegation in paragraph 21(c) that the third defendant helped the police institute the prosecution in circumstances where the police knew that the plaintiff had not committed the offence. But if a defendant induces a person to give evidence against the plaintiff in criminal proceedings knowing that that person’s evidence is false and the police take up that evidence and prosecute on the basis of it, I do not think it exonerates the defendant to show that the police also knew that that person’s evidence was false, or that the plaintiff had not committed the offence. [34] The allegation that the first and second defendants were involved in the continuation of the proceedings, because the second defendant became aware that a co-accused would at the trial give evidence exonerating the plaintiff, does not seem to me to be of assistance when taken alone. The particular alleged of paragraph 17 is that between 16 and 25 May 1995 the second defendant became aware that B’s evidence at the trial of the plaintiff would be that the plaintiff had no involvement in the fire. However, the first and second defendant failed to inform the third defendant of that knowledge and failed to withdraw the information given earlier about what T would say. This is simply an allegation that the defendants knew that the co-accused would give evidence exonerating the plaintiff and implicating the Crown witness T. I cannot see how that circumstance would be capable of converting what was otherwise a legitimate prosecution for reasonable and probable cause and without malice into an improper one or a malicious one. In my opinion the particular alleged in paragraph 17 is incapable of supporting the allegation in that paragraph, and that paragraph therefore should be struck out. [35] It does not follow however that other facts alleged in the statement of claim are insufficient to establish a sufficient case to survive an application under Rule 293. It was also argued that the various allegations are insufficiently well particularised. That may well be true, but the remedy is to seek further and better particulars, not to strike out the pleading. In the absence of such particulars, for the purpose of this application I have to assume that the various facts or allegations, which at times are drafted in fairly broad terms, can actually be made out. I am also assuming that the relevant events, such as states of mind etc, applied at the relevant times, because there are no particulars alleging to the contrary. For example, I am assuming that at the time when the first and second defendants induced T to provide evidence implicating the plaintiff in the fire they knew that that evidence was false; finding out much later that that evidence was false would not be sufficient, although it might be relevant to an issue of continuing the prosecution, if that was not also known to the police or to the DPP as the case may be depending on the stage that the prosecution reached. However I do not intend to speculate about this. 1 This is not expressly alleged in the pleading, but the pleading appears to proceed on the assumption that this was the situation. -- 15 of 18 -- 16 [36] The present pleading against the first and second defendants is not very satisfactory, because it does not clearly make that case. It is only by gathering together various primary facts from different particulars and different allegations in the pleading that it is possible to identify a potentially valid case that the plaintiff has against the first and second defendants. Much in the particulars is either irrelevant or insufficient to establish such a case. But because of the nature of these proceedings, I do not think that I should either strike out the claim permanently or give summary judgment for the defendants without carefully considering whether the various facts or allegations somewhere in the pleadings might if established be sufficient to support a case of malicious prosecution. [37] I should say that I am not finally deciding whether the plaintiff’s case even at its highest is sufficient to establish liability for malicious prosecution. The position is simply that in light of the authorities the plaintiff’s case at its highest is not one in respect of which it is appropriate either to strike out the claim or to give summary judgment for the defendant. The test in respect of striking out under Rule 171 is that laid down by Dey v Victorian Railway Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125. That is a difficult test to meet, and I am not persuaded it is met here. [38] The test under Rule 293 is somewhat different: It is necessary to show that the plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim, and that there is no need for a trial of the claim or part of the claim. The approach to this test is that laid down by the Court of Appeal in Bernstrom v National Australia Bank Ltd [2002] QCA 231. In applying that test, I am conscious of the fact that the authorities indicate that there is no very clear and definite boundary between those cases where a person will be regarded as a prosecutor for the purposes of being liable for malicious prosecution and those cases where there is no such liability, and that whether a person really is a prosecutor depends on all the circumstances of the case. Even accepting that a person other than the nominal prosecutor may be liable for malicious prosecution only in unusual or exceptional cases, it is difficult to be confident that the plaintiff’s case lies outside such imprecise boundaries in the absence of a full trial where all the circumstances will be known. [39] For present purposes it is sufficient to say that it is not clear to me that the plaintiff has no real prospect of succeeding against the first and second defendants if the plaintiff can prove that the first and second defendants induced T to give evidence against the plaintiff which was crucial to the prosecution of the plaintiff, knowing that that evidence was false. Having reached that conclusion it follows that the action cannot be struck out under Rule 171, nor can summary judgment be given under Rule 293, and it is inappropriate to say anything else about the matter. The first and second defendant’s applications therefore fail. Position of the third defendant. [40] The application of the third defendant is differently based. It could hardly be alleged that the third defendant was not the prosecutor. By reference to the five -- 16 of 18 -- 17 elements identified in Butler (supra), elements 1, 2 and 5 are clearly adequately pleaded. It is also alleged in paragraph 23 that the proceedings were instituted maliciously, and in paragraph 21 that there was an absence of reasonable and probable cause for the proceeding. As to the absence of reasonable and probable cause, one of the particulars alleged is that the third defendant was acting on the basis of the information provided by T which it knew or had reason to believe was false. It is also alleged that the third defendant knew that the plaintiff had not committed the offence. Other particulars are given, some of which could be seen as reasons for being wary about the reliability of the evidence of T. For the purposes of this exercise, I think it is essentially a question of whether the particulars alleged are capable of supporting the allegation. Plainly on their face the particulars of paragraph 21 are. [41] In relation to paragraph 23, the particulars of improper purpose or malice are of obtaining a false conviction against the plaintiff to gain the benefit of the appearance of having solved the crime; in fact what is relied on is the proposition that the third defendant was acting maliciously because of a desire to secure a conviction of someone who had not in fact committed the offence. Again that if proved would in my opinion be capable of supporting that allegation. [42] As to paragraph 22, the particular alleged is that by 25 May 1995 the third defendant well knew that B’s evidence at the trial of the plaintiff on 31 May 1995 would be to exonerate the plaintiff and to implicate T. However, the third defendant failed to act upon that knowledge and caused the charges against the plaintiff to be withdrawn. This is simply an allegation that the third defendant knew that the co- accused would give evidence exonerating the plaintiff and implicating the Crown witness T. I cannot see how that circumstance would be capable of converting what was otherwise a legitimate prosecution for reasonable and probable cause and without malice into an improper one or a malicious one. In my opinion the particulars alleged in paragraph 22 are incapable of supporting the allegation in that paragraph, and that paragraph therefore should be struck out. [43] Apart from that however, the particulars alleged are capable of supporting the allegations and those allegations are capable of establishing the tort of malicious prosecution. The particulars given may be inadequate as particulars but that is not in itself a reason for striking out the claim under Rule 171, or giving summary judgment under Rule 293. I am not satisfied that the third defendant has met the tests required for either of those forms of relief. The complaint is really that the plaintiff has pleaded against the third defendant a cause of action which it cannot in fact prove, and which is inadequately particularized. The former can only really be tested at a trial. As to the latter, it is a matter of seeking further and better particulars, and if they are not forthcoming, obtaining an order for further and better particulars. If that order does not produce proper particulars, at that point the particular allegations could be struck out for failure to comply with the court’s order, and that may ultimately lead to the action being struck out, but that is not something I can do today on the basis of this application. [44] I can understand the frustration of the third defendant about the way in which these proceedings have been conducted, which has been suspiciously tardy and -- 17 of 18 -- 18 unsatisfactory. Nevertheless there has not been sufficient delay to justify dismissing the claim for want of prosecution. In order to discourage further delay, I propose to case manage this action, and will give some directions as to the further conduct of the action. Subject to submissions received, the directions I propose are that: (a) any further amendment to the statement of claim in response to my reasons be filed and served within 28 days (a period which allows for the holiday season). (b) any consequential amendment occur within 14 days thereafter. (c) any request for particulars of the plaintiff’s pleading be delivered within 14 days thereafter. (d) those particulars be provided within 14 days thereafter. I will then list the matter for review approximately 14 days thereafter, in order to determine what further steps are appropriate. [45] Paragraphs 17 and 22 of the Amended Statement of Claim have been struck out, but on the whole the applications have been unsuccessful. It follows that the applications are otherwise dismissed with costs. -- 18 of 18 --