Johnston v. Australia and New Zealand Banking Group Ltd. & Ors. [2005] NSWCA 383

Johnston v. Australia and New Zealand Banking Group Ltd. & Ors. [2005] NSWCA 383

Leave to appeal was not justified on the procedural fairness grounds because the circumstances gave sufficient notice that dismissal was under contemplation and the prospects of appellate intervention concerning the time allowed or refusal of an adjournment were minimal. However, there was sufficient doubt about the primary judge's conclusion that the pleading disclosed no reasonable cause of action incapable of correction, particularly on the arguable issues of institution of the prosecution, reasonable and probable cause, agency, and malice, to justify a limited grant of leave to appeal.

Jurisdiction
Australia
Judgment Date
07 November 2005
Procedural Posture
Application for Leave to Appeal / Court of Appeal Leave Application From Orders Refusing Leave to File a Further Amended Statement of Claim, Dismissing the Proceedings, and Awarding Costs
Outcome
Leave to appeal granted on a limited basis; costs of the leave application to be costs in the appeal.
Legal Topics
['leave to Appeal' 'pleadings' 'no Reasonable Cause of Action' 'procedural Fairness' 'malicious Prosecution' 'reasonable and Probable Cause' 'lawful Excuse Under the Inclosed Lands Protection Act 1901']
['civil Procedure' 'torts'] ['leave to Appeal' 'pleadings' 'no Reasonable Cause of Action' 'procedural Fairness' 'malicious Prosecution' 'reasonable and Probable Cause' 'lawful Excuse Under the Inclosed Lands Protection Act 1901']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Leave Application From Orders Refusing Leave to File a Further Amended Statement of Claim, Dismissing the Proceedings, and Awarding Costs

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the dismissal of the proceedings and costs order.' 'Whether the claimant was denied procedural fairness by the short time allowed and by dismissal of the proceedings when the primary judge was dealing with an application to file an amended pleading.' 'Whether the primary judge erred in determining that the pleading disclosed no reasonable cause of action and that the defect was incapable of correction.' 'Whether it was arguable that the opponents instituted or procured the criminal proceedings for malicious prosecution purposes.' 'Whether it was arguable that the prosecution was brought without reasonable and probable cause and with malice.']

Ratio Decidendi

Leave to appeal was not justified on the procedural fairness grounds because the circumstances gave sufficient notice that dismissal was under contemplation and the prospects of appellate intervention concerning the time allowed or refusal of an adjournment were minimal. However, there was sufficient doubt about the primary judge's conclusion that the pleading disclosed no reasonable cause of action incapable of correction, particularly on the arguable issues of institution of the prosecution, reasonable and probable cause, agency, and malice, to justify a limited grant of leave to appeal.

Court Disposition

Leave to appeal granted on a limited basis; costs of the leave application to be costs in the appeal.

Orders

  • ['Leave to appeal granted, limited to the question of whether the primary judge erred in determining that the pleading disclosed no reasonable cause of action and the defect was incapable of correction, on condition that the issues to be argued are limited to those identified in pars.[37] to [48] of this judgment.'...