Johnston v ANZ Banking Group Ltd & Ors [2004] NSWSC 1250

Johnston v ANZ Banking Group Ltd & Ors [2004] NSWSC 1250

Leave to file the second further amended statement of claim was refused because the proposed pleading would inevitably be struck out. It did not plead facts establishing an agency relationship by which the Receiver's, Mr Ariff's, Ms White's or Mr Morton's conduct could be attributed to the Bank or to each other; the alleged complaints and the letter of 5 November 1996 could not as a matter of law establish that any defendant procured the police prosecutions, particularly given the independent police discretion disclosed by the COPS entries; the allegations of malice were imprecise and embarrassing; and the plaintiff could not establish absence of reasonable and probable cause. These...

Jurisdiction
Australia
Judgment Date
22 December 2004
Procedural Posture
Malicious Prosecution Claim / Plaintiff's Application for Leave to File and Rely Upon a Second Further Amended Statement of Claim After Previous Statements of Claim Had Been Struck Out; Application Treated in Effect as a Strike Out Application Under Pt 15 R 26 of the Supreme Court Rules.
Outcome
Application to file the second further amended statement of claim refused; action dismissed; costs reserved.
Legal Topics
['malicious Prosecution' 'strike Out Application' 'pleading Defects' 'agency of Receiver' 'instigation or Procurement of Prosecution' 'reasonable and Probable Cause' 'malice']
['torts' 'civil Procedure'] ['malicious Prosecution' 'strike Out Application' 'pleading Defects' 'agency of Receiver' 'instigation or Procurement of Prosecution' 'reasonable and Probable Cause' 'malice']

Case Brief

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Procedural Posture

Malicious Prosecution Claim / Plaintiff's Application for Leave to File and Rely Upon a Second Further Amended Statement of Claim After Previous Statements of Claim Had Been Struck Out; Application Treated in Effect as a Strike Out Application Under Pt 15 R 26 of the Supreme Court Rules.

Legal Issues

  1. 1 ['Whether leave should be granted to the plaintiff to file and rely upon the second further amended statement of claim.' 'Whether the proposed pleading disclosed a reasonable cause of action for malicious prosecution against the defendants.' "Whether facts were pleaded to establish that the Receiver or Mr Ariff were agents of the Bank, or that other persons' conduct was attributable to the defendants." 'Whether the alleged complaints and the letter of 5 November 1996 could establish that the defendants instigated or procured the police prosecutions.' 'Whether malice was pleaded with sufficient precision.' 'Whether the plaintiff could plead and establish absence of reasonable and probable cause.']

Ratio Decidendi

Leave to file the second further amended statement of claim was refused because the proposed pleading would inevitably be struck out. It did not plead facts establishing an agency relationship by which the Receiver's, Mr Ariff's, Ms White's or Mr Morton's conduct could be attributed to the Bank or to each other; the alleged complaints and the letter of 5 November 1996 could not as a matter of law establish that any defendant procured the police prosecutions, particularly given the independent police discretion disclosed by the COPS entries; the allegations of malice were imprecise and embarrassing; and the plaintiff could not establish absence of reasonable and probable cause. These...

Court Disposition

Application to file the second further amended statement of claim refused; action dismissed; costs reserved.

Orders

  • ["The plaintiff's application to file the SFASC is refused." 'The action is dismissed.' "Leave is granted to the parties to restore the matter to the list on 7 days' notice for the purpose of dealing with the defendants' motion in relation to costs and the costs of this application."]