Butler v Simmonds Crowley & Galvin [1999] QCA 475 [2000] 2 Qd R 252

SUPREME COURT OF QUEENSLAND CITATION: Butler v Simmonds Crowley & Galvin [1999] QCA 475 PARTIES: CLIVE GEORGE BUTLER & MARGARET ANN BUTLER (Plaintiffs/appellants) v SIMMONDS CROWLEY & GALVIN (Defendant/respondent) FILE NO/S: Appeal No 10337 of 1998 SC No 4227 of 1997 DIVISION: Court of Appeal PROCEEDING: Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 12 November 1999 DELIVERED AT: Brisbane HEARING DATE: 27 August 1999 JUDGES: McMurdo P, Pincus and Thomas JJA ORDER: Appeal dismissed with costs CATCHWORDS: TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – MALICIOUS CRIMINAL AND CIVIL PROCEEDINGS – GENERAL MATTERS – appeal against striking out of statement of claim in action against former solicitors for malicious prosecution – elements of cause of action of tort of malicious prosecution – plaintiff's allegations incapable of sustaining claim TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – ABUSE OF PROCESS – appeal against striking out of statement of claim in action against former solicitors for malicious prosecution – whether statement of claim might be identified as containing a supportable claim of collateral abuse of process – elements of cause of action of tort of collateral abuse of process considered – Williams v Spautz (1992) 174 CLR 509, Spautz v Gibbs (1990) 21 NSWLR 230 discussed – whether an overt act pursuant to the alleged improper purpose is an essential element of the tort – United States, Canadian and New South Wales -- 1 of 15 -- 2 authorities discussed SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – GENERALLY – STRIKING OUT – STATEMENT OF CLAIM – appeal against striking out of statement of claim in action against former solicitors for malicious prosecution – plaintiff's allegations incapable of sustaining claim – whether statement of claim might be identified as containing a supportable claim of collateral abuse of process SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – GENERALLY – STRIKING OUT – VEXATIOUS PROCEEDINGS – appeal against striking out of statement of claim in action against former solicitors for malicious prosecution – plaintiff's allegations incapable of sustaining claim – whether statement of claim might be identified as containing a supportable claim of collateral abuse of process Atland Containers Ltd v Macs Corp Ltd (1974) 54 DLR (3d) 363, considered Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509, considered Grainger v Hill (1838) 4 Bing (NC) 212, 132 ER 769, 7 LJCP 85, considered Hanrahan v Ainsworth (1990) 22 NSWLR 73, considered Spautz v Gibbs (1990) 21 NSWLR 230, considered Teledata Communications Inc v Westburne Industrial Enterprises Ltd (1990) 65 DLR (4th) 636, considered Williams v Spautz (1992) 174 CLR 509, considered COUNSEL: The appellants appeared on their own behalf Mr R M Derrington for the respondent SOLICITORS: The appellants appeared on their own behalf Minter Ellison for the respondent [1] THE COURT: This is an appeal by two appellants in person against the striking out of their statement of claim. Their cause of action was initially said to be malicious prosecution. [2] The respondents are solicitors who acted for the male appellant in a number of civil matters. The basis of the "prosecution" on which the claim is founded is a civil action in the Magistrates Court in which the respondent solicitors sued the appellants for fees and obtained judgment by default on 12 September 1991. That judgment still stands. Although the appellants were notified of the -- 2 of 15 -- 3 judgment not long after it was obtained, proceedings were not brought to set it aside until the appellants issued a summons before Fryberg J in December 1997. His Honour, although in doubt as to the basis of his jurisdiction, heard the application on its merits and dismissed it. [3] By that time, December 1997, the male appellant had already brought two actions in the Supreme Court, respectively against Crowley & Greenhalgh (action 6521 of 1996) and Simmonds Crowley & Galvin (action 9292 of 1996) based upon alleged conduct of the solicitors in relation to matters in which they had acted on his behalf at various times between 1986 and 1993. The second action contains claims centring around allegations of negligence and breach of duty as solicitors although the language describing the breaches tends to be fulminatory and repetitious. The statement of claim in that action consists of 50 pages describing the solicitors' acts or omissions in terms of "wilful and reckless negligence", "breach of trust", "undue delay", "misrepresentation in relation to another matter during this period", "deceit", "false pretences" and the like. It also claims "relief in excess of $1 million for special damages" and "punitive and exemplary" damages. However we need not further mention that action as it is still pending, and despite its embarrassing form, it contains identifiable causes of action. [4] The present action for damages for malicious prosecution was commenced on 13 May 1997, and the statement of claim which is in issue in this appeal was delivered on 14 July 1998. A summons to strike it out was filed on 28 August 1998 and the order the subject of this appeal was made on 8 October 1998. [5] The appeal, like the application, must stand or fall upon a point of pleading. The primary issue is whether the statement of claim discloses a cause of action. [6] The appellants, both of whom appeared in person on the appeal, made wide-ranging submissions and presented voluminous material on irrelevant matters including their complaints concerning the failure of the chamber judge to order that the solicitors for the respondents cease acting for them. There were also unsubstantiated allegations of bias on the part of the learned chamber judge, of "faked" and "forged" documents on the part of other persons and many other matters. This has been mentioned merely to place on record the unsuccessful attempt of the appellants to induce this court to act upon such allegations. We propose to confine attention to the validity or otherwise of the pleading, and will also advert to the possible viability of an amended pleading upon any additional matter that the appellants said in argument they would rely on if they had a further opportunity to amend and re-deliver the statement of claim. The statement of claim [7] It is difficult to present a concise summary of the document. It contains 37 pages divided into 25 paragraphs, the last four of which assert various claims to damages. These include an allegation that the appellants "are entitled to compensation for the indignity they have suffered and for the injury to their fame and/or credit caused by the prosecution", a claim by the first appellant for damages "to his health, his life and life expectancy", a claim by the second appellant for damages to her health resulting in her inability to continue in her chosen profession, claims for -- 3 of 15 -- 4 "damages to and losses of their property and assets, as they were forced to expend their money and realise their assets to undertake costs and activities in their attempts [to] relieve themselves of the tainted judgments obtained against them and to redress scandals which ensued thereby", claims to exemplary damages, and a claim "in excess of $1,000,000.00 for the damages caused to them by the actions of the defendant". [8] The statement of claim alleges that the defendant is a solicitor and that the first appellant made contact with Mr Johnstone of the defendant firm on 30 April 1989; that he "in the company of the second plaintiff, his wife, Margaret Ann Butler, consulted Mr Johnstone ... to establish whether or not, the defendant would or could, advise" the first appellant on a building matter at that stage "purportedly being attended to" by Crowley and Greenhalgh; that the matter involved an action to recover monies owed to the first appellant by a company "Tomik"; that "the defendant agreed that his fees would be reasonable, and that he would not press the first plaintiff for payment until the expected, eventual, successful outcome of the Tomik matter". There are allegations that Lyn Crowley & Co had commenced acting in the Tomik matter in 1986 and that at various times in 1990 the defendant also advised the first plaintiff/appellant in relation to other matters "namely Maroochy Shire Council, Bank matters, as well as various other building matters, including the Spicer matter". It is further alleged that at various times in 1990 the defendant/respondent rendered accounts with respect to such matters and that in September 1990 the first plaintiff/appellant "in the misguided belief that the defendant had rendered the services for which he had been retained, paid $2,000.00 ... in part payment of the various matters"; that in late 1990 the accounts were re-drawn with increased amounts which were rendered in the names of both plaintiffs/appellants; and that in about March 1991 the defendant/respondent "instigated a prosecution in the Magistrates Court". [9] Paragraph 12 of the statement of claim asserts that that prosecution "was malicious as: Χ it was instituted without reasonable and probable cause; Χ the defendant lacked honest belief that the proceedings were justified Χ the defendant lacked honest belief in the liability of each and both plaintiffs. (sic) Χ it was instituted for an improper purpose". [10] A series of allegations then ensue such as "the defendant deceived the first plaintiff by claiming, and/or purporting, to act properly and professionally on his behalf, in investigating the Tomik matter in 1989 and 1990, when in fact the defendant either failed to investigate as promised and/or failed to inform his client honestly and/or concealed information about the true status of the Tomik matter". Various glosses and commentaries are added to the above statement, which it may be noted itself consists of rather broad assertions. For example, additional allegations appear such as: "In knowingly claiming fees for advices which were dishonestly given, for services which were never undertaken, and for an agreement which was abandoned from the outset and hence was never fulfilled, the defendant misrepresented to his client, from the very commencement of his retainer, that he was acting in his best interests, and thereby seemingly legitimised his deception of his client". -- 4 of 15 -- 5 [11] The statement of claim is studded with allegations such as that the defendant/respondent "did so maliciously, improperly, without an honest belief that such fees were warranted and/or justified from either and/or both plaintiffs; for the improper purposes of concealing the misconduct of Lyn Crowley and Co. in the Tomik matter; concealing his own deceptive conduct on that and other matters" and so on. There is an allegation that the defendant stated in writing his intention to join in the issue of bankruptcy proceedings "against his client". The allegations include that "the defendant maintained the deception that Tomik, not Crowley, was the sole source of the delay". Without multiplying the examples, there are many allegations containing the appellants' adverse interpretations of day to day action or inaction on the part of the respondent solicitors in the handling of the various matters upon which they were retained. In the course of such allegations adjectives such as "dishonest”, “deceptive” and “malicious" and many others frequently appear. Additional allegations are made in relation to a further matter involving the small debt owed by the first appellant to a company (Boral) - for which the second appellant had provided a guarantee (see para 14). A further allegation is made that the: "... redrawing, increasing and renaming of the original accounts in the names of both plaintiffs was improper and malicious, particularly against the second plaintiff, and undertaken to cause further damage to the trading credibility and reputation of the first plaintiff, to cause damage to the then untainted credibility and reputation of the second plaintiff and to exacerbate the damages already accruing to the first plaintiff and his family". [12] Paragraph 16 asserts inter alia that "the unjustified prosecution ... was directly related to: Χ the defendant's deception of the first plaintiff in the Tomik and other matters, Χ the defendant's concealment from his client of Crowley's misconduct and unprofessional conduct in the Tomik matter Χ the defendant's involvement in the malicious prosecution of the Vize matter against his client, during 1989 and 1990 which he adopted, carried on, and/or failed to halt". It may be noted in passing that the Vize matter features heavily in the pending action for damages which the male appellant has brought against the solicitors in pending action No 9292 of 1996. The present statement of claim further asserts that the Vize "prosecution" (which was a civil claim for debt or damages) was also a malicious prosecution. One of the allegations against the solicitors is that they failed to halt it, and that they failed at many steps in preparation for trial, and at trial including: Χ "Failing to object to amendments by Ms Vize['s] counsel, during the first session of the first day of hearing, which altered the alleged cause of the action; the basis of the case to be met and the particulars of the case to be met ... Χ Failing to insist that after such amendments the matter be adjourned to allow his client be the (sic) opportunity to discover the case to be met, as amended and the amended particulars of the case to be met. Χ Failing to insist that, when after lunch on the first day of hearing, the Magistrate's Court File was found to be in the possession of Ms Vize and had been so during the luncheon break, the proceedings be declared a mistrial. [and] -- 5 of 15 -- 6 Χ Failing to insist that, [when] after Ms Vize['s] possession of the court file a document was missing, the proceedings be declared a mistrial". [13] Paragraph 17 claims that the fees rendered were exorbitant and continues: "The plaintiffs also allege that such fees were rendered without reasonable and probable cause and for an improper purpose, namely to hinder the appeal, to ensure that the client was unable to obtain the file, and to ensure that the threatened bankruptcy of the first plaintiff was realised ... (a) The first plaintiff claims that such excessive fees were willfully (sic) knowingly and recklessly claimed by the defendant so as to: Χ preclude his client from appealing the Vize matter as evidenced in correspondence to his client of 12/11/90. Χ to ensure that on judgement the immediate threat - albeit false in the first instance - of Vize to bankrupt the defendant succeeded without further impediment; resulting in impunity for the defendant from further investigation and/or scrutiny of his actions and conduct in the purported defence of the matter." [14] The statement of claim then alleges that another solicitor (Mr Fisher) was instructed to defend the Magistrates Court action brought by Simmonds Crowley & Galvin. It further alleges that Mr Fisher failed to enter an appearance or defend the proceedings. Paragraph 18 alleges that the relevant Magistrates Court proceedings claimed a "false amount" and repeats again the allegations of absence of reasonable and probable cause and of instigation for improper purposes. It implies that the amount claimed in the action was $5,327.16, that it exceeded the amount owing, and that it failed to give proper credit for the $2,000 that had been paid and that "if, which they deny, both plaintiffs and/or the first plaintiff owed the defendant the amount of $5,327.16 at any time and/or at all, the plaint ought to have been issued on an amount of $3257.16". There is a further complaint that "the defendant maliciously issued, served and obtained judgment on Plaint 6513 of 1991, as though part payment of the original accounts had not occurred". [15] Paragraph 19 makes a further complaint that credit of $1932.16 was allowed to the appellants in the solicitor's "affidavit and request for judgment" of 13 May 1991. Reading paragraphs 18 and 19 together, the complaint in this area seems to be that instead of crediting $2,000 as having been paid in September 1990 the solicitors eventually credited the plaintiffs with $1,932.16 as a credit that arose between 14 March 1991 and 13 May 1991. There ensues an allegation that "the defendant lacked an honest belief in the integrity of the Affidavit and Request for Judgment". [16] Paragraph 20 alleges that at the time of hearing it was not legally possible to achieve a successful termination of the relevant proceedings, claiming that they gave information to their solicitor Mr Fisher that the plaint and summons had been served irregularly. They further allege that a successful defence could have been mounted against the action "if they had not been deceived [presumably by Mr Fisher], and if they had been allowed the opportunity to defend those claims". It is further alleged that the defendants gave instructions to execute the judgment that was -- 6 of 15 -- 7 obtained and that such execution "is known to have been attempted during December 1997 and into 1998". It finally alleges: "The plaintiff's claim that the proceedings instigated by the defendant were undertaken with the intent to damage the reputations of both plaintiffs and to cause further financial damage, to both, which was intended to result in bankruptcy of at least the first plaintiff, and the destruction of the second plaintiff's name with her employers and others". Paragraphs 22 to 25 then make the various claims for damages that are mentioned in paragraph 7 of these reasons. Malicious prosecution [17] The claim in the writ is "unspecified damages resulting from malicious prosecution by the defendant". The elements of the cause of action known as the tort of malicious prosecution are conveniently set out in Halsbury's Laws of England1 and may be conveniently summarised as requiring proof that: "(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." [18] The same components are identified in leading texts on the subject2. [19] Plainly the allegations of the appellants are incapable of sustaining such a claim. In the first place the respondent solicitors at no stage brought any criminal proceedings against the appellants. To overcome this the appellants submitted that there existed the potential of a warrant of apprehension and imprisonment if the male appellant did not present himself to be orally examined. Apart from the remoteness of any connection between the respondents and such a possible event, the relevant process with which the relevant parties were involved was at all times civil. The claim based upon malicious prosecution must fail on this fundamental point. It may be noted that there are some recognised forms of process beyond the strictly criminal which may found a civil claim, notably through misuse of the bankruptcy or insolvency process. In our view such claims are more appropriately seen as examples of the tort of collateral abuse of process than as exceptional cases of malicious prosecution. In any event the burden of the appellants' claim is the malicious prosecution of a civil claim in the Magistrates Court, and there is no allegation that the respondent ever instituted bankruptcy proceedings against the appellants. 1 4th Edn vol 45 para 1348 and 1368. 2 Including Fleming Law of Torts, 9th Edn p 673 et seq; Salmond & Heuston, The Law of Torts, 21st Edn p 390 et seq; Balkin & Davis, Law of Torts, 2nd Edn p 710 et seq. -- 7 of 15 -- 8 [20] A further fundamental deficiency lies in the need to allege and prove that the proceedings founding the claim have been concluded in favour of the party bringing the action for malicious prosecution. This is not alleged to have happened, and indeed it is common ground that the judgment stands. [21] Without canvassing other deficiencies, the statement of claim, in so far as it is based upon a claim of malicious prosecution is incapable of succeeding and ought to be struck out. Collateral abuse of process [22] Although the argument below seems to have concentrated upon malicious prosecution, upon appeal the appellants submitted that the statement of claim might be identified as containing a supportable claim of malicious or collateral abuse of process. [23] Such a tort has been recognised at least since Grainger v Hill3. It was discussed by the High Court in Williams v Spautz4. That case was directly concerned with the validity of orders that stayed certain proceedings because they were an abuse of process. However the court saw fit to discuss wider issues including the nature of the tort of collateral abuse of process5. [24] In order to succeed in an action for collateral abuse of process it is not necessary to allege or prove that the initial proceeding has terminated in favour of the plaintiff, or that there was no reasonable and probable cause for instituting the initial proceeding6. It is however essential for a plaintiff to show that the defendant instituted proceedings for a purpose or to effect an object beyond that which the legal process offered. Such a purpose of the defendant in instituting the earlier proceedings is of crucial importance7. It is not sufficient to assert that the proceedings were instituted with an improper motive. The ulterior objective needs to be identified, and it also needs to be able to be seen as the predominant purpose of those proceedings and as outweighing any legitimate purpose that they might otherwise have. In Williams v Spautz Deane J8 and Gaudron J9 would have imposed additional requirements before a party could obtain an order staying a proceeding for abuse of process. Deane J considered it necessary to show some improper act in the prosecution of the process. Gaudron J observed: "there is no basis for characterizing a purpose as improper unless it involves a demand made without right or claim of right, or unless it entails some consequence which is unrelated to or is not proportionate with the right, interest or wrong asserted in the proceedings or by the process which is said to have been abused"10. 3 (1838) 4 Bing (NC) 212, 132 ER 769. 4 (1992) 174 CLR 509. 5 Ibid at 520 et seq, 539, 551-552, and 553. 6 Ibid at 523. 7 Ibid at 523-524. 8 Ibid at 551-552. 9 Ibid at 555-556. 10 Ibid at 555. -- 8 of 15 -- 9 [25] Plainly the statement of claim in the present case would not meet these requirements. However as those judges were in dissent, we shall principally confine attention to the views expressed by the other five members of the court11. We foreshadow that while those five judges thought this additional factor unnecessary in order to obtain a stay of process, their discussion leaves open whether it is necessary to prove such an additional factor (an improper act other than the conduct of the litigation itself which occasions damage to the plaintiff) to sustain a tort action12. Their Honours also would seem to have recognised that the balance of authority, including that in the United States, favours the view that some such additional component is necessary in the tort cases13. [26] Examples of what may amount to a sufficient collateral purpose can be found in the cases. These include the intention to coerce the plaintiff into paying the defendant monies which the defendant knew it was not entitled to14; the bringing of proceedings against various persons as a threat to induce them to cause a third party (the University) to secure the plaintiff's reinstatement15; and the bringing of proceedings with the object of obtaining by duress certain property (a ship's register) to which the defendants had no right16. In a review of the only cases in which this cause of action has succeeded, Gaudron J drew attention not only to their rarity but to the existence of demand or overt coercion associated with the legal process against which complaint is made17. [27] Even in the context of proceedings to stay an abuse of process, the existence of a collateral improper purpose in bringing the proceedings is not of itself enough. In the judgment of the majority their Honours posited a case of mixed legitimate purpose and the collateral purpose of disqualifying an opponent from office. Their Honours observed: "The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour. It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers"18. 11 Mason CJ, Dawson J, Toohey J, McHugh J (joint judgment) and Brennan J (separate judgment). 12 (1992) 174 CLR 509 at 528; and see hereunder at par 30 and par 31. 13 Ibid at 528 and 529. Compare Deane J at 552 and Gaudron J at 555-556. 14 Varawa v Howard Smith Company Ltd (1911) 13 CLR 35. 15 Williams v Spautz (1992) 174 CLR 509, although this was not a tort case. 16 Grainger v Hill (1838) 4 Bing (NC) 212, 132 ER 769. 17 (1992) 174 CLR 509 at 553-555. 18 Ibid at 526-527. -- 9 of 15 -- 10 [28] Their Honours then referred to Dowling v Colonial Mutual Life Assurance Society Ltd19, a case where a society brought sequestration proceedings against the plaintiff with the motive of inducing him to provide it with the names of persons who had published defamatory comments concerning the society. However the society at no stage threatened to proceed to sequestration unless he provided such names. The absence of demand or of some overt action such as an offer to withdraw the proceedings in exchange for the desired information would seem to have been crucial to the result in Dowling20. [29] The judgment of the majority in Williams v Spautz expressly considered the question whether it was essential to the exercise of the jurisdiction (to stay process as an abuse) that there should be an improper act as well as an improper purpose. In the Court of Appeal below, Priestley JA had considered the existence of a predominant improper purpose to be insufficient, and considered that something more must be shown21. His Honour also considered that to establish a tort it was necessary to show actual improper use of the process. The majority observed that Priestley JA had drawn heavily on the law relating to the tort of collateral abuse of process, and observed that: "In that context, it is perhaps understandable that emphasis has been given to the need for an improper act which occasions damage to the plaintiff. At least in the United States, as the judgment in Rosemont Enterprises Inc. v Random House Inc. pointed out "[t]he gist of the action for abuse of process lies in the improper use of process after it is issued" (emphasis added). But it by no means follows that a court needs to be satisfied of the commission of such an act when the court is called upon to protect its own process from abuse"22. [30] It seems to us that the High Court held it unnecessary to prove commission of an improper act in the prosecution of the process in order to justify exercise of the court's jurisdiction to stay, but expressly left open the question whether it is a necessary component of the tort of collateral abuse of process. The court further recognised, with respect to the jurisdiction to stay, that: "it is more satisfactory to base an exercise of the jurisdiction in cases of improper purpose upon a use or threatened use of the proceedings for such a purpose. Then the conclusion which the court reaches is more likely to be founded upon objective evidence rather than subjective evidence of intention”23. [31] It may be noted that in Williams v Spautz adequate objective evidence existed of threats by Dr Spautz to bring proceedings and to maintain them as a means of securing his reinstatement. [32] Brennan J, consistently with the view of the majority, observed: 19 (1915) 20 CLR 509. 20 See Williams v Spautz (1992) 174 CLR 509 at 527; this is discussed further below at par 40. It may be noted that the allegations in the present statement of claim do not in this respect appear to go beyond the case upon which Mr Dowling failed. 21 Spautz v Gibbs (1990) 21 NSWLR 230, 244, 245, 250, 270-280. 22 (1992) 174 CLR 509 at 528. 23 Ibid at 529. -- 10 of 15 -- 11 "There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce”24. His Honour continued: "I would formulate the test in this way: if there be a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in the proceeding, there is no abuse of process. If there be mixed purposes - some legitimate, some collateral - I would restate his Lordship's test that "but for his ulterior purpose, [the plaintiff] would not have commenced proceedings at all". So expressed, the test casts on the other party an onus of proving what the plaintiff would not have done if he had not formed the intention of obtaining a collateral advantage. That onus may be impossible to discharge. If that onus were discharged, the other party would establish that the plaintiff had not commenced or maintained the proceeding for any substantial legitimate purpose. The gravamen of the test, I apprehend, is that the plaintiff did not commence or maintain the proceeding for any substantial legitimate purpose"25. His Honour considered that an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage that is not reasonably related to an order that might be made in the proceeding. [33] Brennan J did not find it necessary to consider the elements of the tort of abuse of process, but expressed his general concurrence with the observations of the majority on that subject26. In any event, his Honour's view requires the moving party to prove that the only substantial intention of the plaintiff in bringing and maintaining the proceedings was the collateral purpose. Even more importantly, on this view a plaintiff must be able to show that but for that purpose the other party would not have brought the proceedings. [34] Again the statement of claim in this matter does not satisfy that test. Nor would it be sufficient if, with the benefit of these statements of legal principle, the appellants were now to reframe their statement of claim so as to impute to the respondent an intention in those precise terms. Plainly an action for a debt is a legitimate claim. It is the logical and only lawful way of compelling payment of unpaid fees. The judgment currently estops the appellants from alleging that the debt was not lawfully owed. An allegation that the respondent had no legitimate purpose in bringing such proceedings would seem repugnant to the facts on which it is brought. 24 Ibid at 535. 25 Ibid at 537. 26 Ibid at 539. -- 11 of 15 -- 12 [35] In the United States and Canada an overt act pursuant to the alleged improper purpose has long been considered an essential element of the tort of collateral abuse of process. There is however no decision in Australia of a court of high authority to that effect, although a number of decisions in New South Wales including the persuasive judgment of Clarke JA in Hanrahan v Ainsworth27 favour the proposition28 . [36] In American Jurisprudence (2d), it is stated that there are two fundamental elements that constitute the basis of the tort of abuse of process: (1) a wilful act in the use of legal process after its issuance that is not proper in the regular conduct of the proceeding, and (2) an ulterior motive or purpose on the part of the person causing the process to issue. “Since the gist of the tort of abuse of process is the misuse of the court's power, some definite act or threat in furtherance of such an improper purpose is required"29. Similarly, in Restatement of the Law (2d), the general principle of abuse of process is stated to be that "[o]ne who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process"30. The commentary goes on to say that it is "[t]he subsequent misuse of the process, though properly obtained, [that] constitutes the misconduct for which the liability is imposed ..."31. Canadian courts have been equally explicit in requiring an overt act before an allegation of abuse of process will be upheld. For example, in Atland Containers Ltd v Macs Corp Ltd32 Parker J stated that the law in relation to the abuse of process is very narrow 27 (1990) 22 NSWLR 73, 108-125. 28 Compare the view of Priestley and Meagher JJA in Spautz v Gibbs (1990) 21 NSWLR 230 which the High Court neither accepted nor rejected in Williams v Spautz (1992) 174 CLR 509. In Spautz v Gibbs Mahoney JA, who dissented, noted the distinction between restraint by a court of an abuse of process and the granting of damages for a tort: "To deal with a proceeding with an unacceptable object as an abuse of process is one thing: to go beyond that and grant damages for what has been done is another, and legitimately may warrant other justifications" – (1990) 21 NSWLR 230 at 234. Compare Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92, 93; Malter v Procopets, Smith J (Supreme Court of Victoria), 28 September 1998, [1998] VSC 79. Contrast Liquorland (Australia) Pty Ltd v GYG Holdings Pty Ltd, McLaughlin M (Equity Division NSW), 11 November 1996, in which the additional requirement was considered unnecessary, although in our respectful view, this decision was based upon an inappropriate application of Williams v Spautz; and QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 where Macrossan J apparently regarded such a requirement as unnecessary. However that decision has been questioned by commentators (eg in Balkin & Davis, Law of Torts 2nd Edn, p 725). 29 1 Am Jur 2d, Abuse of Process, #5, pp 413-414. 30 Ch 31, Torts 2d, #682, p 474. 31 These formulations requiring an overt act are supported by cases including Hauser v Bartrow 7 NE (2d) 268 (1937) (Court of Appeals New York); Ellis v Wellons 29 SE 2d 884 (1944) (Supreme Court of North Carolina); Lader v Benkowitz 66 NYS 2d 713 (1946) (Supreme Court, Special Term, New York County); Rosemont Enterprises Inc v Random House Inc 261 F Supp 691 (1966) (US District Court, Massachusetts); and Curiano v Suozzi 469 NE 2d 1324 (NY 1984) (Court of Appeals, New York). 32 (1974) 54 DLR (3d) 363 at 365-366 (Ontario High Court). -- 12 of 15 -- 13 in scope and was available "only where the process of the Court is used for an improper purpose and where there is a definite act or threat in furtherance of such a purpose. No such act or threat is pleaded in this case". Similarly, in Teledata Communications Inc v Westburne Industrial Enterprises Ltd33, Eberle J stated that what lies at the heart of the cause of action "is an act, or threat of an act, outside the ambit of the action. The essence of the action therefore is the use of legal process to gain an end which the legal process does not entitle the plaintiff to obtain". [37] In Hanrahan v Ainsworth34 Clarke JA concluded that the institution of proceedings with an ulterior motive is not sufficient to establish the tort, but rather proof of the misuse, or attempted misuse, of the process is necessary. "Proof only of intention to issue proceedings to gain an end not within the lawful scope of the process is not enough. That intention must be accompanied by actions showing that the intention is being carried out"35. His Honour approved the American authorities in this context. The other two members of the court, Kirby P and Mahoney JA, did not find it necessary to express any concluded view on this point. [38] Our primary view then is that an improper act in the prosecution of the process is a necessary element in establishing a right to damages for the tort of collateral abuse of process. Priestley and Meagher JJA in Spautz v Gibbs36, although held to be incorrect in treating this as an element necessary for obtaining a stay of proceedings, were in our respectful view correct in identifying such a requirement in the tort cases. Such an act will usually be found, as Gaudron J's analysis suggests, in the form of an overt act such as a demand which identifies the true collateral purpose. No such allegation is made by the appellants, and none is foreshadowed despite adequate opportunity extended to the appellants to indicate any additional facts upon which they might wish to rely. In the absence of some concrete additional factor of this kind, any disgruntled unsuccessful litigant could proliferate litigation by proceeding to sue the successful adversary, basing the claim on mere occurrence of the earlier litigation with an added assertion of improper motive or absence of legitimate purpose in bringing or defending the proceedings. There is much to be said for recognising a rule that a plaintiff wishing to obtain damages by reason of someone else's successful pursuit of proceedings should be required to allege and show something more substantial than a predominant collateral purpose. [39] In this statement of claim there is no suggestion that the proceedings were put to any improper purpose, or that there was at any time any act on the part of the respondent designed to induce the appellants to withdraw any claims they might make against the solicitors or to act in any other way than they chose to act. No act of coercion, demand or act of misuse is alleged. The complaint is that the solicitors brought an action which on the face of it they were entitled to bring, and on which they succeeded. In the absence of some extraneous action on the part of the solicitors to obtain some advantage other than the recovery of fees which on the face of the subsisting judgment they were entitled to be paid, there is in our view no basis for any claim of 33 (1990) 65 DLR (4th) 636 at 639. Also see Tsiopoulos v Commercial Union Assurance Co (1986) 32 DLR (4th) 614; Guilford Industries Ltd v Hankinson Management Services Ltd (1973) 40 DLR (3d) 398. 34 (1990) 22 NSWLR 73. 35 Ibid at 119; further see pp 119-124. 36 (1990) 21 NSWLR 230. -- 13 of 15 -- 14 malicious prosecution or of collateral abuse of process. The "collateral" element of the present claim is limited to allegations of wicked motive in most of the acts which the respondent is said to have performed. But in the absence of some overt activity or pressure on the respondent's part or of some overt fact that makes the allegation of collateral improper purpose something more than a figment of a suspicious imagination, there is no proper basis upon which such an action could succeed. [40] If we are incorrect in this primary view, we would hold that the present statement of claim does not satisfy the requirements expressed by the majority in Williams v Spautz to be necessary for the imposition of a stay. It alleges no more than Mr Dowling proved in Dowling v Colonial Mutual Life Assurance Society Ltd37. The majority view, notably that of Isaacs J38, was referred to with apparent approval in Williams v Spautz where the majority observed: "So, in Dowling, Isaacs J. pointed out that "if, for instance, it had been shown that the Society had simply threatened Dowling that unless he did what they had no right to demand from him, namely, give up certain names, they would proceed to sequestration, and they had proceeded accordingly, there would have been in law an abuse of the process". However, because the Society wished to use the process for the very purpose for which it was designed, there was no abuse of process".39 Similarly the appellants do not and in our view cannot allege, in the words of the majority referred to in paragraph 27 above, that the purpose of the proceedings was "not to prosecute them to a conclusion". The proceedings were prosecuted to a conclusion, namely judgment. If such an allegation were made it should be regarded as one that cannot succeed. [41] The submissions below were mainly directed to the question of malicious prosecution. However during the appeal the appellants sought principally to justify their claim on the basis of collateral abuse of process. They placed some emphasis on the submission that the respondents pursued the female appellant for fees when they knew they had no claim against her. The appellants also referred to a considerable number of the relevant cases in their outline, including Williams v Spautz. Although adequate earlier opportunities existed for amendment of the statement of claim the appellants were given a further opportunity to indicate any further facts that they would desire to allege or amendments they would wish to make to the statement of claim in order to support the cause of action upon which they now seek to rely. Beyond suggesting that they would "add more emphasis" to existing allegations and that they might "tidy up particulars" there was no indication of any additional fact. The second appellant however made a statement which could be interpreted as the allegation of an additional motive or purpose on the part of the respondent. She suggested that Mr Johnstone pursued the remedy when it "wasn't only for money that he was pursuing us. I think it was to ... close our mouths so that we couldn't take any further action about what had preceded these actions". Otherwise the submissions were essentially a 37 (1915) 20 CLR 509. 38 Ibid at 524. 39 (1992) 174 CLR 509 at 527. -- 14 of 15 -- 15 reassertion of paragraphs 12 to 20 of the statement of claim with the submission that these already were sufficient to disclose a cause of action. In the course of those submissions further emphasis was laid upon Mr Johnstone's alleged failure to have "stopped" the allegedly malicious prosecution of the appellants by Ms Vize which they asserted he could have done by appealing the matter. The submission continued that he was "really duty bound to the court to do something about getting that matter thrown out, overturned or something done about it; that he should have known it was a fraudulent action" and that "maybe we would add more emphasis on that". [42] If the statement of claim were to be enlarged by the above additions, it would in our view still fail to contain the necessary foundation for a successful claim based upon the tort of collateral abuse of process. Estoppel or res judicata [43] It was submitted on behalf of the respondent that any issue as to whether or not the debt the subject of the Magistrates Court action is owing by the appellants has been decided between the parties and that the matter is now res judicata. While the present judgment stands it must be taken as between these parties that the debt was owed and that the respondent remains entitled to payment of it. On this basis the appellants' claim is at least premature unless and until the judgment is no longer standing. These submissions support the right of the respondent to have the statement of claim and the action dismissed at this stage. Vexatious and embarrassing [44] Many of the allegations in this statement of claim repeat allegations that are already made in other statements of claim in pending actions brought by the male appellant against the respondent or against Crowley and Greenhalgh. It was not suggested that the statement of claim could be saved by being identified as disclosing a cause of action such as negligence or some other cause of action. Indeed to the extent to which such claims are already made in pending actions, the bringing of a further claim of the same kind would be vexatious. [45] The respondent submitted that, irrespective of whether the necessary elements of a cause of action based upon collateral abuse of process can be identified within the pleading, it offends many of the fundamental rules of pleading including the necessity to confine the pleading to material facts. There is no doubt that this statement of claim would prejudice and embarrass the fair trial of the action. To permit an action to proceed to trial upon this document as the primary statement of the issues would lead to anything but a fair trial. We do not doubt that the appellants have expended considerable effort in the production of this statement of claim. But having regard to the history of the action and the unlikelihood of the appellants engaging a legally qualified person to act for them there is no realistic basis for thinking that any further addition to or amendment of the statement of claim might overcome the present difficulties. In our view it would also have been appropriate to strike out the statement of claim as embarrassing. [46] The appeal should be dismissed with costs. -- 15 of 15 --