JOHNSTON v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD & ORS [2006] NSWCA 218

JOHNSTON v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD & ORS [2006] NSWCA 218

The primary judge erred in dismissing the proceedings as incapable of correction. The proposed pleading alleged facts from which it might reasonably be inferred that the Respondents' conduct, including the solicitor's letter and alleged omissions concerning the s.57 notice and lawful excuse, materially influenced the decision to lay charges, so that a tenable malicious prosecution claim was available. Although paragraphs 40 and 41 were defective and rolled up allegations against multiple defendants, those defects could be cured by amendment separating the allegations against each defendant and identifying any agency relied upon.

Jurisdiction
Australia
Judgment Date
07 August 2006
Procedural Posture
Appeal in Malicious Prosecution Proceedings / Appeal From Order Striking Out a Second Further Amended Statement of Claim and Dismissing the Proceedings
Outcome
Appeal allowed.
Legal Topics
['malicious Prosecution' 'pleadings' 'reasonable and Probable Cause' 'malice' 'independent Exercise of Prosecutorial Discretion' 'leave to Amend' 'striking Out Pleadings']
['torts' 'civil Procedure' 'criminal Procedure'] ['malicious Prosecution' 'pleadings' 'reasonable and Probable Cause' 'malice' 'independent Exercise of Prosecutorial Discretion' 'leave to Amend' 'striking Out Pleadings']

Case Brief

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Procedural Posture

Appeal in Malicious Prosecution Proceedings / Appeal From Order Striking Out a Second Further Amended Statement of Claim and Dismissing the Proceedings

Legal Issues

  1. 1 ['What are the elements of the tort of malicious prosecution.' 'Whether a person who was not the formal police informant could be liable for malicious prosecution by actively putting the criminal process in motion.' 'Whether the primary judge erred in concluding that defects in the pleading were incapable of correction by further pleading.' 'Whether the Court should grant leave to file a further amended statement of claim.' 'Whether the proposed pleading was embarrassing because it made rolled-up allegations against all respondents.']

Ratio Decidendi

The primary judge erred in dismissing the proceedings as incapable of correction. The proposed pleading alleged facts from which it might reasonably be inferred that the Respondents' conduct, including the solicitor's letter and alleged omissions concerning the s.57 notice and lawful excuse, materially influenced the decision to lay charges, so that a tenable malicious prosecution claim was available. Although paragraphs 40 and 41 were defective and rolled up allegations against multiple defendants, those defects could be cured by amendment separating the allegations against each defendant and identifying any agency relied upon.

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' 'Order of primary judge dismissing the proceedings be set aside.' 'Orders of the primary judge with respect to the costs of the application before him be set aside.' 'In lieu thereof, grant leave to the Appellant to file a further amended statement of claim in the form in which it was provided to...