Johnston v ANZ Bank Ltd & 2 Ors [2001] NSWSC 238

Johnston v ANZ Bank Ltd & 2 Ors [2001] NSWSC 238

Summary dismissal under Part 13 was unavailable because the malicious prosecution claim fell within s 88 of the Supreme Court Act 1970. The malicious prosecution and abuse of process claims were inadequately pleaded, particularly as to how the defendants misled police, how alleged untruths were material to the prosecutions, want of reasonable and probable cause, and the particulars of an ulterior purpose. However, the claims were not hopeless: it was arguable that the defendants were actively instrumental in the police proceedings, that the apprehended violence order proceedings terminated in the plaintiff's favour, and that the alleged purpose of preventing the plaintiff from gaining...

Jurisdiction
Australia
Judgment Date
06 April 2001
Procedural Posture
Common Law Claim for Malicious Prosecution and Abuse of Process / Defendants' Interlocutory Motion for Dismissal Under Part 13 R 5 of the Supreme Court Rules and Strike Out Under Part 15 R 26 of the Supreme Court Rules
Outcome
Statement of claim struck out with leave to file and serve an amended statement of claim within 28 days; plaintiff ordered to pay the defendants' costs.
Legal Topics
['malicious Prosecution' 'abuse of Process' 'summary Judgment' 'strike Out of Pleadings' 'inclosed Lands Protection Act Prosecution' 'apprehended Violence Orders']
['tort Law' 'civil Procedure'] ['malicious Prosecution' 'abuse of Process' 'summary Judgment' 'strike Out of Pleadings' 'inclosed Lands Protection Act Prosecution' 'apprehended Violence Orders']

Case Brief

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Procedural Posture

Common Law Claim for Malicious Prosecution and Abuse of Process / Defendants' Interlocutory Motion for Dismissal Under Part 13 R 5 of the Supreme Court Rules and Strike Out Under Part 15 R 26 of the Supreme Court Rules

Legal Issues

  1. 1 ["Whether the plaintiff's malicious prosecution and abuse of process proceedings could be summarily dismissed under Part 13 of the Supreme Court Rules despite s 88 of the Supreme Court Act 1970." 'Whether the statement of claim adequately pleaded malicious prosecution arising from police proceedings under the Inclosed Lands Protection Act 1901.' 'Whether the statement of claim adequately pleaded malicious prosecution arising from apprehended violence order proceedings.' 'Whether the statement of claim adequately pleaded abuse of process in relation to the police proceedings and apprehended violence orders.' 'Whether the deficient statement of claim should be struck out with leave to replead rather than the proceedings dismissed.']

Ratio Decidendi

Summary dismissal under Part 13 was unavailable because the malicious prosecution claim fell within s 88 of the Supreme Court Act 1970. The malicious prosecution and abuse of process claims were inadequately pleaded, particularly as to how the defendants misled police, how alleged untruths were material to the prosecutions, want of reasonable and probable cause, and the particulars of an ulterior purpose. However, the claims were not hopeless: it was arguable that the defendants were actively instrumental in the police proceedings, that the apprehended violence order proceedings terminated in the plaintiff's favour, and that the alleged purpose of preventing the plaintiff from gaining...

Court Disposition

Statement of claim struck out with leave to file and serve an amended statement of claim within 28 days; plaintiff ordered to pay the defendants' costs.

Orders

  • ['The statement of claim is struck out.' 'The plaintiff is to file and serve an amended statement of claim within 28 days.' "The plaintiff is to pay the defendants' costs."]