Butler & Butler v Simmonds, Crowley & Galvin [1998] QSC 300

0 ,,--, o (J o State 35\?3 . , Reporting Bureau 3( 98/30pI TRANSCRIPT OF PROCEEDiNGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CHESTERMAN J Writ No 4227 of 1997 CLIVE GEORGE & MARGARET ANN BUTLER and SIMMONDS CROWLEY & GALVIN BRISBANE .. DATE 08/10/98 JUDGMENT 1 REV~ED COPfES lS$UED State Reporting Bureau Date Plaintiffs Defendants I. I·!., .... '1'1 ... I ,"u (· ..... ·'e r: .. , .. ·.. ,. <:;1'·.·.·1 1t"i~I,,",,· () ..111111\ 1',", •• "1.",,,.· 1117\ 1 'J7 J 1(,1l I'-·,v· 11\7\ 1'J7 c;::; \' -- 1 of 8 -- 081098 T07-8/AW/16 M/T 3047/98 (Chesterman J) HIS ,HONOUR: By writ of summons dated 13 May 1997 the plaintiffs, Mr & Mrs Butler, seek against the defendant, Messrs Simmonds Crowley & Galvin, "unspecified damages resulting from malicious prosecution by the defendant". A statement of claim was delivered on 14 July 1998. It runs to 25 paragraphs and some 37 pages. It is not entirely easy to comprehend nor to follow but it does seem to involve a claim for damages for malicious prosecution and nothing more. 10 The action which was said to have been prosecuted maliciously was a claim brought against the plaintiffs, Mr & Mrs Butler, by the defendant, Simmonds Crowley & Galvin, in the Magistrates Court in its civil jurisdiction claiming a debt being fees allegedly due by the plaintiffs to the defendant firm. 20 0 The plaint was issued out of the Magistrates Court at Brisbane on 14 March 1991. Judgment by default was entered in the Magistrates Court on 12 September 1991 for a total amount of $4,110.78. Nothing happened it seems in relation to that judgment until December last year when the plaintiffs issued a summons in 30 40 this Court seeking to have the Magistrates Court judgment set 50 aside. That application came before Justice Fryberg on 9 January 1998. His Honour dealt with the matter not on a point of procedure but allowed the application to be argued on its merits. His 60 2 JUDGMENT o o o -- 2 of 8 -- 081098 T07-8/AW/16 M/T 3047/98 (Chesterman J) Honour then dismissed it with costs. The statement of claim, as far as I can make it out, alleges that the institution of proceedings for the debt claimed by Messrs Simmonds Crowley & Galvin was malicious and perhaps more. The defendant has applied to have the statement of claim and, indeed, the action, struck out on the ground that the statement of claim discloses no cause of action. I think that c=) is right. Two points occur immediately. The first is that an C) o o action for malicious prosecution rather depends upon there having been the prosecution -of criminal proceedings. That at least is the view of Dr Fleming in the ninth edition of his work The Law of Torts at page 674. The author describes the four elements of the cause of· action for malicious prosecution as being: "1. Institution of criminal proceedings by the defendant. 2. Termination of the proceedings in favour of the plaintiff if from their nature they are capable of so terminating. 3. Absence of reasonable and probable cause; and 4. Malice or the primary purpose other than that of carrying the law into effect." For present purposes I can disregard the third and fourth elements. A similar view is taken by Professor Heuston and Mr Chambers in Salmon and Heuston on the Law of Torts, the 18th edition. 10 20 30 40 50 They say at page 389 under the heading "Malicious Criminal 60 3 JUDGMENT -- 3 of 8 -- 081098 T07-8/AW/16 M/T 3047/98 (Chesterman J) Prosecution": "It is the wrong known as malicious prosecution to institute criminal proceedings against anyone if the prosecution is inspired by malice and is destitute of any reasonable cause." The treatment goes on. The authors, though, note on the same page that there is a similar liability attaching to a limited class of civil proceedings, that is bankruptcy and petitions to wind up companies on the ground that they are insolvent. The rationale for the exception in those two classes of civil case appears to be that the proceedings involved publication and therefore the potential that damage to the recipient of the notice or the winding-up petition will flow from it, being alleged publicly that they are insolvent. That also seems to be the view of the authors of Laws of Australia 33.8 para.114, which says: "That actionable proceedings grounding the action for malicious prosecution are not limited to criminal prosecutions but extend to a limited range of recognised civil proceedings." The footnote for that exception refers to the two categories of exception I have mentioned, bankruptcy and winding up. There are some instances where the distinction has not been observed. The case of Jervois Sulphates v. Petrocarb (1974) 5 A.L.R. 1 at 23 is a 'case in which damages were sought for the institution of injunction proceedings but the point presently under consideration does not seem to have been adverted to. That case as far as I can see has not been 4 JUDGMENT 10 20 0 o 30 o 40 o 50 60 -- 4 of 8 -- 081098 T07-8/AW/16 M/T 3047/98 (Chesterman J) followed. There is also a decision of the Full Court of the Supreme Court of Victoria, Little v. The Royal Institute of Victoria [1990] Victorian Reports 247. The case involved disciplinary proceedings against a solicitor and obiter Justices Kaye and Beach said at 261 referring to the pleading in question, "The cause of action malicious abuse tif civil proceedings is pleaded." c=) Their Honours then on page 262 set out the elements of the claim of malicious abuse of proceedings in terms identical to 10 20 c=) those identified by Professol;_Fleming for malicious prosecution. On page 265 their Honours again refer to the appellant's cause of action for ,'.:malicious abuse of civil proceedings" and referred 30 to Quartz Hill Consolidated Goldmining Co v. Eyre (1883) 11 Queen's Bench Division 674 at 682. c=) Quartz Hill, though, is the case involving a maliciously presented winding-up petition and is authority for one of the '\() recognised exceptions to the rule or to the limitation that 0 the proceedings which found the tort must be criminal. I will come back to Little in a moment but it seems to me that it may, with respect, confuse the tort of abuse of process :"iIJ with that of malicious prosecution. It is to be noted that the description of the cause of action given by Their Honours is not malicious prosecution but malicious abuse of civil proceedings. 5 JUDGMENT -- 5 of 8 -- 081098 T07-8/AW/16 M/T 3047/98 (Chesterman J) I was referred also to an unreported case Chan Kin Wan v. Sweetman, a decision of Mr Justice Parker in the Supreme Court of Western Australia given on 22 January 1998. His Honour dismissed the proceedings but in doing so discussed at least the possibility that a civil suit may be a sufficient foundation for an action for damages for malicious prosecution. The point was clearly obiter. The action failed for other reasons. It seems to me that the orthodox view is that with two exceptions, for there to be a cause of action for malicious prosecution there must be the institution or the continuation of criminal proceedings~ The action in question here, the suit by Simmonds Crowley & Galvin, was a civil suit for a debt. It is not possible to categorise it in any way as a prosecution. It seems to me therefore that that essential element, the first in the tort, which is the plaintiff's cause of action is not made out. The second element that the proceedings terminate in favour of the plaintiffs is also missing. The Magistrates Court proceeding went to judgment against the plaintiffs. They did not defend it. They waited seven years to bring an application to set the judgment aside and they failed. So there is a judgment standing against the plaintiffs as a result of the suit brought against them. Those two matters it seemed to me are fatal to the plaintiffs claim. 6 JUDGMENT 10 o 30 o 40 o 50 60 -- 6 of 8 -- o o o o 081098 T07-8/AW/16 M/T 3047/98 (Chesterman J) I wondered whether the statement of claim might be read as raising or containing a cause of action for abuse of process. It is not easy to find it in the interstices of the pleading but in any event it would seem to me that it would fail. The essential element of the tort of abuse of process is that the process complained of being instituted for some improper or collateral motive. In Williams v. Spautz (1991-92) 174 C.L.R. 509 at 523 in the joint judgment of Chief Justice Mason and Justices Dawson, Toohey and McHugh the Court said: "Central to the tort of abuse of process is the requirement that the party who has instituted the proceedings has done so for a purpose or to effect an object beyond that which the legal process offers~ The centrality of this eleme_nt in the tort was recognised in the case which is generally recognised as having established the tort of abuse of process Granger v. Hill." At 526-7, cheir Honours said: "The existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result 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 a~e not designed or for some collateral advantage beyond what the law offers." This being the centrality of the tort of abuse of process it seems to me the plaintiffs cannot in the present circumstances allege such a case. The suit instituted against them in the Magistrates Court was for a debt said to be due. The proceedings were instituted to recover judgment for that debt. That is the very purpose for which the law allows the action for debt. The Magistrates 7 JUDGMENT 10 20 30 -- 7 of 8 -- 081098 T07-8/AW/16 M/T 3047/98 (Chesterman J) Court action was not brought to obtain any ulterior or collateral advantage. Williams was decided after Little. The High Court has authoritatively laid down the essence of the tort of abuse of process. It may be that the remarks in Little have to be understood as referring to that tort and not malicious prosecution, and the description of the tort of abuse of process has been superseded by Williams. Therefore it seems to me that the statement of claim discloses no cause of action and I order that it and the action be struck out. I order the respondents/plaintiffs to pay the defendant/applicant's costs of and incidental to the application and the action. 8 JUDGMENT 10 o 30 o 40 o 50 60 -- 8 of 8 --