Edwards v Cornock[2005] QDC 271

HIS HONOUR:  The principal application before the Court is the plaintiff's, seeking the striking out of the defendant's counterclaim as not disclosing a cause of action known to law in reliance on rule 171.  There is an alternative, claim to relief under rule 162 for the striking out of paragraphs 5, 7 and 8 of the counterclaim.

Well, it is really about 5, 6 and 7, is it not?  I think it is.

MR HACKETT:  Oh, I did not trouble your Honour with 8, but‑‑‑‑‑

HIS HONOUR:  I know, but that is what the amended application I am looking at says.  But it is 5, 6 and 7.

MR HACKETT:  5, 6 and 7 deals with the malicious prosecution but 8 - I do not know what it is a claim for.  It seems to be a claim for costs.

HIS HONOUR:  Costs, yes.  But I am reading from your document.

MR HACKETT:  I know.  That is what it says.  It should be - for the malicious prosecution, should be 5, 6 and 7.

HIS HONOUR:  5, 6 and 7 of the counterclaim, which I will not read out here. 

By an amended application handed up during the hearing of which, I think, some notice was given, Mr Hackett, for the plaintiff, seeks an order for disclosure of documents relating to the defendant's appointment as a bailiff of the Magistrates Court and relating to the warrant under which he purported to act on 4th December 2004, and also provision of copies of "each other document disclosed in the respondent's list of documents".  The wide requirement of the last-mentioned part of the application has been refined in a way that protects the defendant in respect of costs of providing copies. 

So far as the documents of which disclosure is sought are concerned, as I understand it it is accepted that disclosure has been made of documents relating to the warrant.

That is so, is it not, Mr Hackett?

MR HACKETT:  Yes, your Honour.

HIS HONOUR:  And in the course of the hearing today Mr Cornock made available for photocopying the identity card which establishes, for practical purposes, his authority to act as a bailiff.  The copy has been made available to the plaintiff.  The issue of that appointment as bailiff is somewhat technical, as the plaintiff himself pleaded that the defendant was a deputy bailiff, attracting in the defence the assertion that he was a bailiff.

The defendant took advantage of the day in court to bring an application for security for costs against the plaintiff.  That was an efficient means of proceeding which almost certainly has saved considerable costs.  While the matter was stood down awaiting its place in the list, it was possible for the plaintiff's solicitor to prepare an affidavit responding to the security application, allowing it to be dealt with rather than being adjourned. 

The affidavit mentioned suggests the plaintiff is a person of means.  In any event, it is unusual in the extreme for security to be ordered against a plaintiff who is a natural person.  See Schokman-v-Hogg [2004] QCA 38 the provision Mr Cremin for the defendant relies on is a catchall in Rule 671: "(h) the justice of the case requires the making of the order".  The application certainly does not come within any of the preceding seven paragraphs. 

There seems to be very little law about (h).  An instance of security being ordered, by reference to it is Maggbury Pty Ltd v. Hafele Australia Pty Ltd [2000] QSC 220, in which a substantial provision of $48,000 was required to be made within 21 days of the order, failing which, the contempt proceedings which were being pursued by the plaintiff were to be stayed.  It was the nature of the proceedings , in the particular circumstances, which led her Honour to make the order.  Of course, the plaintiffs were companies.

I am willing to accept that there may be cases, say where existing authority precludes a particular claim and a natural plaintiff is intent on prosecuting it to the High Court, if necessary, to obtain a change in the law, in which security for costs might be ordered for the protection of the defendant.  The point Mr Cremin makes, as I understand it, is that the plaintiff's claim arises out of an altercation that happened when the defendant, acting as a bailiff, was seeking to serve a warrant on a Ms Mair at the plaintiff's premises.  The altercation developed between the plaintiff as the relevant householder and the defendant, as bailiff, attempting to serve a warrant for the purpose of bringing Ms Mair before the Magistrates Court to attend the modern equivalent of an oral examination in proceedings for enforcement of a Magistrates Court judgment.

The plaintiff required the defendant to leave his home.  It is from that point that the defendant may have become a trespasser and then in more than one separate incident assaulted the plaintiff by touching with or without documents.  The last assault occurred on the footpath when the defendant is said to have been driving off in his vehicle and the side mirror allegedly struck the plaintiff.

I understand Mr Cremin to be saying that the claim is so special in that it brought against the Magistrates Court's Officer that security for costs ought to be ordered.  Any assertion that the plaintiff is not to be trusted to pay his debts for costs or otherwise (of which kind of assertion the court heard many) is, I think, beside the point.  I am not persuaded that the nature of the case justifies making an order for security for costs.  I think the sound approach is that a Court Bailiff is no more entitled to assault a person by poking him in the chest with documents or in any other way than anyone else in the community. 

The application by the plaintiff for striking out of the counter-claim, as not disclosing a cause of action, goes too far, in my opinion, in that the counter-claim contains clear allegations of assault by the defendant against the plaintiff.  The first was allegedly by throwing at him a copy of the Uniform Civil Procedure Rules and Magistrate Court Rules (sic) which hit the plaintiff on the feet "causing him much discomfort".  That was followed by further alleged pushes, one to the chest with the palm of a hand, the next in the back of the defendant as he was on his way out of the premises. 

Mr Hackett points out that any claim for damages for assault in paragraph 7 is bound up with the other claim for malicious prosecution, although I would read paragraph 7 distributively.

There is a technical objection that the counter-claim refers to no monetary amount. 

The decision was arrived at during the argument that the defendant should insert in paragraph 7 "within the limit of the monetary jurisdiction of the Court" to overcome any technical deficiency that may exist along these lines.

Given that the counter-claim is not to be struck out in full, the court must look at the impugned parts of it which relate to the claim for malicious prosecution.  Paragraphs 5, 6 and 7 are:

"5. The Defendant says that the Claim by the Plaintiff for the relief sought in paragraph 26 of the Statement of Claim contained, based on the facts alleged in the Statement of Claim are false and without foundation, and therefore the prosecution of the Claim is in all the circumstances malicious and vexatious, and therefore has caused the Defendant loss and damage by causing him trauma and mental anguish, by causing him to be apprehensive about carrying out his lawful duties a servant of the Magistrates Court.

6. The Defendant has suffered loss of income and damages as a result of the time lost to carrying out his duties as Magistrates Court Bailiff, as his remuneration is derived from fees received from service and execution of process issued from the Courts.

7. The Defendant counter claims against the Plaintiff for such amount of damages as this Honourable Court so deems meet for assault on the Defendant and for false and malicious prosecution of process as set out in the Statement of Claim contained, and the facts set out in the Defence above contained."

The claim is available only in the circumstances identified by the Court of Appeal in Butler v. Simmonds, Crowley and Galvin [1999] QCA 475 at paragraph [17] where the Court of Appeal said:

"[17]The claim in the writ is 'unspecified damages resulting from malicious prosecution by the defendant'.  The elements of the cause of action known as the tort of malicious prosecution are conveniently set out in Halsbury's Laws of England and may be conveniently summarised as requiring proof that:

    '(1)the prosecution by the defendant of a criminal charge against the plaintiff

before a tribunal into whose proceedings the criminal courts are competent to inquire;

2. (2)
   that the proceedings complained of terminated in the plaintiff's favour;

3. (3)
   that the defendant instituted or carried on the proceedings maliciously;

4. (4)
   that there was an absence of reasonable and probable cause for the proceedings; and

(5)that the plaintiff has suffered damage.'",

adding that "the same components are identified in leading texts on the subject", those texts being listed in the footnote. 

Another helpful decision is that of the High Court in Williams v. Spautz (1992) 174 CLR 592.  There the malicious proceedings were various prosecutions instigated by a plaintiff, presumably because he thought they might assist his civil claim against his former employer for wrongful dismissal.  Those proceedings were stayed.  Of course, the civil claim continued.

The defendant faces no criminal prosecution and therefore any claim for malicious prosecution is without foundation.  I am also intrigued by the claim which is made for "trauma and mental anguish" by facing the current proceeding.  I willingly accept that any defendant is likely to suffer anguish in greater or lesser degree from facing proceedings, but no authority has been placed before the court indicating that a counterclaim may be pursued in those same proceedings seeking compensatory damages.

The other aspect of which the defendant complains in paragraph 6 of the counter-claim is that he has lost income from his usual work.  This aspect is complicated by the events that have happened immediately leading up to the drama of December the 4th last year and by related events since. 

My understanding is that the defendant was acting in relation to a judgment which had been obtained against not only Ms Mair, but the plaintiff too, by the Lutheran Church.  At some point after 4 December, Judge Griffin SC, in this court, set aside enforcement processes in the Magistrates Court.  Mr Cremin has made assertions that his Honour was asked to and did do that, on untrue claims that the judgment had been comprised.  It is quite inappropriate for the court to examine those issues to which there has also been reference by Mr Cremin.  He is saying that his client feels that his difficulties with the plaintiff have led to his becoming aware of decisions such as Plenty -v- Dillon (1991) 171 CLR page 635.  This seems to mean that the defendant is inhibited or fearful in carrying on his occupation to the extent of earning less from it.

That decision has been available for the edification of police officers and process servers and the like for a long time.  I do not see how the present plaintiff can be blamed for any complications or difficulties the defendant faces from having been made aware of it and of the rather complicated and torturous legal environment that he may have to operate in from time to time.  It is not shown that a cause of action exists.

The Court should order, and does, that paragraphs 5 and 6 be struck out of the counterclaim and that from paragraph 7 the words, "and for malicious prosecution of the process" be struck out, that paragraph being treated as if the words struck out were replaced with "within the limit of the monetary jurisdiction of the Court", for reasons already mentioned.

In addition, the court orders that the respondent provide to the applicant, within seven days, a copy of each of the documents disclosed in his list of documents dated 14th of July 2005 requested by letter dated 15th July 2005 subject to prior payment by the applicant's solicitors of the reasonable costs of providing such copies.

It is also appropriate to make an order that the plaintiff file a notice of the changed address for service occasioned by the change in address of his solicitors.  Mr Hackett has boldly asserted that Rule 17(5) is satisfied by the firm's provision in the footer of the next document filed of details of the new address.  The footers in filed documents, indeed, have changed already.  I am satisfied that such an approach is totally inadequate, a footer lacking the requisite prominence.  For one thing, I think anyone interested ought to be able to consult the Index in the Court file and discover from it that a notice of change of address has been filed; the notice also should be served, of course.  Form 90 is the appropriate one.

The last issue for the court is costs which the plaintiff seeks on an indemnity basis given that the argument which has succeeded today in relation to striking out parts of the counter-claim was effectively spelled out in a solicitor's letter sent before the application was made.  The letter is effectively a quotation of the Butler case but without attribution to the Court of Appeal.

I am not persuaded that the persistence in the counter-claim (which was somewhat faint this afternoon in the hearing) is sufficiently concerning to merit a punitive costs order.

The plaintiff failed to enjoy complete success in that the counter-claim will remain on foot, at least in part.  The appropriate costs order on the plaintiff's application is that his costs be his costs in the cause.  On the defendant's application for security, I think the plaintiff ought to have his costs to be assessed, but that assessment ought to take place with the assessment of costs in the proceeding generally or pursuant to some separate order for it.

HIS HONOUR:  Does that cover everything?

MR CREMIN:  1 and 2.

MR HACKETT:  I'm sorry, I'm loath to cavil with your Honour's order that the costs of my application be costs in the proceeding.  That leads to the unusual result that if my client were to fail in the proceeding an application he'd brought on notice and succeeded on, he wouldn't get the costs of.

HIS HONOUR:  Yes.

MR HACKETT:  But in my submission, an unusual circumstance is the whole purpose of rule 444 letters, even though it doesn't encapsulate section 171.  But for example, that part of the counter-claim will never be argued at trial because the malicious prosecution claim is gone.

HIS HONOUR:  Well, you don't want them to be your costs in the counter-claim.  That's worse.

MR HACKETT:  No. 

HIS HONOUR:  Isn't it?

MR HACKETT:  In my submission, the order your Honour has made in respect of the defendant's application I wouldn't cavil with as against, in our application, that we have them, that the assessment be deferred till the - it's just got no further part in the proceedings, that part of our application.

HIS HONOUR:  Yes.

MR HACKETT:  That's all I wish to raise, your Honour.

MR CREMIN:  Two things, your Honour, if I might just answer that.  The plaintiff has incurred no cost in anything.

HIS HONOUR:  Sorry, yes, I'm going to say something about that.  I'm going to say something about that.

MR CREMIN:  Certainly, your Honour, it is one - two small points I pick your Honour up and these no doubt will be read.  One, you said, the transposed plaintiff and defendant in the UCPR.  It was the plaintiff who threw it, not the defendant, not the other way around.

HIS HONOUR:  Well, that's what I meant to say, so I'll be on the lookout for that and fix it up.

MR CREMIN:  Thank you, your Honour.  The first one, your Honour, is that in relation to the warrant issued by - I have to say it was taken by Cornock, it wasn't to enforce the - Mair to answer questions, it was a warrant of arrest to answer why she didn't appear before the Court as a punitive‑‑‑‑‑

HIS HONOUR:  All right.

MR CREMIN:  Not to - not to ask her - these questions had nothing to do with it.

HIS HONOUR:  All right.  Well, that - all right, well, that will - the transcript will go as far as this and incorporate your correction.  I'm grateful for that.

MR CREMIN:  May it please the Court.

HIS HONOUR:  Yes.  So I think there's some point in‑‑‑‑‑

MR CREMIN:  I should make one other point, your Honour, in what you're about to say.  There is nowhere in the pleadings, now there's been a claim, a counter-claim, there's been a reply, and a reply and answer.  Nowhere in those pleadings did the plaintiff ever take issue with the matter he takes issue with now.  Now he had an opportunity well before this to plead that that the pleading was incompetent and then bring an application not to plead to it, but he didn't do that.  He pleaded it on the basis that it was intact.

HIS HONOUR:  They didn't plead but they wrote you a letter about it.

MR CREMIN:  Yes, but they still didn't - they still pleaded.  The reply and answer still went down the track of accepting that the pleading was - I was correct, your Honour.

HIS HONOUR:  Yes.  I think there is some force in what Mr Hackett said so I will make the same costs order on the plaintiff's application as well.  So, the taxation will be deferred, the assessment will be deferred. 

I also want to record that one of Mr Cremin's arguments was that the costs orders oughtn't be made in favour of the plaintiff because there are not any costs that the plaintiff would be entitled to get.

There is some basis in documents which the transcript would show Mr Cremin identifying for thinking that a good deal of the work which has been done on the plaintiff's side has been done by Mr Edwards personally or by a company‑‑‑‑‑

MR CREMIN:  Jacqdar, your Honour.

HIS HONOUR:  ‑‑‑‑‑called - what paragraph is that in?

MR HACKETT:  Twelve, I think, your Honour.

HIS HONOUR:  Called Jacqdar, J-A-C-Q-D-A-R, Consulting which is a company or business name called Jacqdar Consulting which is identified in paragraph 12 of the plaintiff's affidavit sworn today.  That affidavit is deficient in saying nothing in the introduction as to his occupation, which appears to be a requirement of form 46 and rule 431.

Mr Cremin is suggesting that Mr Edwards has improperly described himself as a solicitor.  I think he takes too much from paragraph 21(c) of the affidavit.  As it happens, in paragraph 12 Mr Edwards is fairly specific about his occupation as someone regularly appearing "as an agent" in the Queensland Building Tribunal since about 1991.

So it may well become appropriate for the Registrar assessing costs to consider whether there are special considerations regarding work done by Mr Edwards rather than his solicitors on the record, but I'm not expressing any view about it myself.