DISTRICT COURT OF QUEENSLAND

1. [1]
   The first and second defendants (’the applicants’) brought an application to strike out the claim of the Respondent pursuant to s 280 of the Uniform Civil Procedure Rules 1999 [“UCPR”] and in the alternative application pursuant to r 5 of the UCPR. 

2. [2]
   On the morning of the hearing, the applicants amended their application to an application pursuant to s 85(2) of the Supreme Court of Queensland Act 1991 to dismiss the action for want of prosecution asserting that there had been a delay in excess two years since the last step was taken in the proceeding.

Background

3. [3]
   Graham Ernest Pointing (‘the respondent’) was charged with offences under the Weapons Act 1996 after Graham Arthur Hedges (‘the First defendant’) a Police Officer laid “an information” in the Magistrates Court Brisbane on or about 17 February 1999.

4. [4]
   The respondent was a firearms dealer and armourer. The charges arose out of his taking possession of a mortar and and a number of live mortar rounds from a military historical society.

5. [5]
   On 19 October 1999, the charges were dismissed after the police prosecutor offered no evidence (“NETO”) in the Magistrates Court at Chinchilla.

6. [6]
   On 22 December 1999 a claim was filed in the District Court Registry at Brisbane claiming damages for malicious prosecution against the applicants.

7. [7]
   The applicants have filed notices of an intention to defend.

8. [8]
   The respondent claims compensatory damages, exemplary damages and aggravated damages.

9. [9]
   In Butler v Simmonds Crowley & Galvin [1999] QCA 475 the Court of Appeal identified the elements which need to be proven in an action for malicious prosecution:

[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)that the proceedings complained of terminated in the plaintiff's favour;

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

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

(5)that the plaintiff has suffered damage."

10. [10]
    Chronology

• 17 February 1999 – charges laid.
• 19 October 1999 – Charges dismissed in the Chinchilla Magistrates Court after the Police prosecutor offered no evidence.
• 22 December 1999 - Claim and Statement of Claim filed.
• 22 February 2000 – A notice of Change of Solicitors is filed for the first applicant resulting in the Crown Solicitor acting for both defendants.
• 21 December 2000 – First applicant files a notice of intention to defend.
• 9 January 2001 – Second applicant files a notice of intention to defend.
• 6 February 2001 -  Crown Law requests copies of documents from a list of documents.
• 26 July 2001-the request of 6 February 2001 renewed.
• 14 March 2002- a letter was sent to the plaintiff’s solicitor pursuant to rule 444 of the UCPR requesting copies of the documents requested on 6 February 2001.
• 3 May 2002 - That request was renewed by way of a further rule 444 letter.
• 8 May 2002 - Crown Law received a letter enclosing previously requested documents.
• 8 October 2002, the plaintiff’s solicitors forwarded to Crown Law an unsigned Request for Trial Date.
• 28 January 2003- Crown Law returned the unsigned Request for Trial Date and requested further and better particulars to the Statement of Claim.
• 26 September 2003-  Crown Law send a rule 444 letter again seeking the further and better particulars requested on 26 September 2003.
• 28 October 2003- the plaintiff’s solicitors sought an extension until 7 November to provide particulars.
• 15 July 2004- Crown again requests particulars.
• 11 February 2005- the plaintiff’s solicitors indicated they would provide the further and better particulars in one week.
• 30 June 2006- Crown Law requests that the plaintiff apply for leave to proceed.
• 18 July 2006- Crown Law requested the plaintiff indicate his intention about applying for leave to proceed and again sought provision of the requested particulars.
• 11 September 2006- Crown Law requested the plaintiff indicate its intention about applying for leave to proceed and sought provision for the requested particulars.

11. [11]
    The respondent has sworn an affidavit in these proceedings in which he states at paragraph 13:

[13] “At the time I was living with my wife on my property, ‘Wattlevale’, about 20km from Chinchilla and I continued to instruct the solicitor who would handled the case the police had brought against me, Mr Bradley Munt of Bradley Munt & Co Solicitors of Redbank Plains.  Although Mr Munt was some distance away, modern communication had allowed us to correspond quickly and effectively.”

12. [12]
    He goes on to say at paragraph 15:

“[15] I did telephone regularly and believed that the case was progressing normally.  I had never been involved in litigation before and had no idea of the speed at which things happen.  I had read reports of the slowness of litigation and because the government was involved, I thought things would move even more slowly.

[16] To compound matters, my relationship with my wife of eighteen years deteriorated to such an extent that she left with my nine year old son in November 2006 to live in Victoria.  I continued to reside in Queensland although we remained in telephone contact nearly every day for the next eighteen months.  I was and remain very stressed by our separation.

[17] Imagining that the “cogs were turning” I did not hear from him, unaware of any problems with my case.

13. [13]
    The Solicitor Mr Munt has provided an affidavit in the proceedings. At paragraph 8 he says:

[8] “Graham Pointing had been my client for many years.  I do say that during the past two years or so in my conduct of this matter, he has been difficult to contact.  I do not recall being advised of his change of residence or telephone contact numbers and there appears to be no notes to this effect in the file should he have so informed my office. 

[9] I acknowledge that I was not a (sic) diligent as I could have been in my management of the case but say that such management has been compromised with the difficulties I routinely encountered in obtaining instructions.  At he (sic) time, I believed that Mr Pointing’s determination to seek compensation for the wrongs the (sic) he believed he had suffered may have wavered.  I have since discovered this was never the case.”

14. [14]
    Mr. Munt goes on to say at paragraph 10 that he has been informed by Dr Jean O'Brien, the respondent’s estranged wife that the plaintiff had suffered from a medical condition of which he was unaware.

15. [15]
    Mr. Munt swore a further affidavit on 19 September 2008 attaching a letter from Dr O'Brien which indicates:

“The past few years have been times of emotional stress for Graham.  His health has not been the best since he suffered a severe case of glandular fever years ago, and emotional worries have pulled him down physically as well. 

The circumstances that have faced him have been time consuming and upsetting to his routine.  This means that he has been unable to focus on anything other than the most immediate and pressing problems and has been unable to give his full attention to his court case.”

16. [16]
    The applicants rely upon the significant delay in the present action and they point to a significant delay in answering the rule 444 letters, the fact that further and better particulars of the Statement of Claim were sought on 20 January 2003 and that those particulars have still not been provided and indicate that the last step in the proceedings was the defendant’s notice of intention to proceed on 15 July 2004. The applicants have on occasion written to the plaintiff’s solicitors indicating that the plaintiff required leave to proceed and inquiring of the plaintiff’s intentions.

17. [17]
    The issue before me is whether the action of the plaintiff should be brought to an early end because of this delay. In Tyler v Custom Credit Corporation Limited & Ors [2000] QCA 178 Atkinson J set out the factors a court needs to take into account in determining whether the interest of justice required that a case be dismissed.

18. [18]
    The charges were dismissed in October 1999 and the Claim and Statement of Claim were filed in December 1999. The events occurred almost ten years ago but the action was commenced promptly and there has been no amendment to the original claim and statement of claim.

19. [19]
    The events which give rise to the action involve a police investigation and it is reasonable to anticipate that the applicants will have access to thorough documentation and notes.

20. [20]
    It is difficult to accurately ascertain the respondent’s prospects of success. The applicants have not sought summary judgement, however, their requests for further and better particulars remain unanswered and it maybe that such an application may be made when those particulars are provided.

21. [21]
    At paragraph 9 above the matters to be proven by the plaintiff are set out. Assuming that a prosecution which was discontinued after no evidence was offered is sufficient to amount to “a prosecution terminated in the plaintiff’s favour”, the respondent still needs to prove that the applicants carried out the prosecution maliciously and that there was an absence of reasonable and probable cause.

22. [22]
    In his affidavit the respondent indicates that he has a tape recording of a conversation between himself and a commissioned officer of police who indicates that the respondent “had been set up”. While it is not possible to make any thorough assessment of the meaning of those words put at its highest, this evidence might lend some weight to the respondent’s claim.

23. [23]
    On balance I am of the view that the case is an ambitious one with far from strong prospects of success.

24. [24]
    There have been numerous attempts by the applicants to engage the attention of the respondent by way of Rule 444 letters but there have been no earlier applications to the court and it cannot be said that Court orders have been ignored or disobeyed.

25. [25]
    There has been significant delay.

26. [26]
    There is nothing on the material to support the submission made by the respondent’s Counsel that the applicants are to blame for the delay.

27. [27]
    There is limited material before me to support the assertion that the delays are due to the respondent being impecunious. The only material is in Dr O'Brien’s letter attached to the affidavit of Mr. Munt. I place little significance upon that assertion.

28. [28]
    Should the claim be struck out the matter would be at an end.

29. [29]
    Mr Munt has confessed that he could have been more diligent in pursuing this matter. On my reading of the material, it seems that there is a body of evidence which would seem to suggest that Mr Munt has been responsible significantly for the delays in the case.

30. [30]
    My view is that the preponderance of the blame for the delay lies with Mr. Munt.

31. [31]
    The respondent has a duty to actively pursue his claim.

32. [32]
    Judge Wall QC in Boyd –v- State of Queensland & Anor. [2008] QDC 208 dismissed an application to proceed where there had been a significant delay. In that case the Plaintiff/respondent did not file any material to support the application.

33. [33]
    In the present case reasons have been provided to explain the respondent’s failure to pursue this matter which I accept arises largely out of the break down of his marriage.

34. [34]
    In the case of Page –v- The Central Queensland University [2006] QCA 478, Keane JA made the following comment at paragraph 24:

“The appellant’s case puts an issue the process of scrutiny and evaluation of his application by officers of the respondent.  This process occurred 15 years ago.  The appellant’s case will inevitably involve, to some considerable extent, oral evidence of discussions involving the respondent’s officers and other persons, including the appellant.  The learned primary judge was entitled to conclude, by reason of these circumstances alone that the prospects of a fair trial of the appellant’s case lay in the realm of pious hope rather than reasonable expectations.  While it is true to say that the court would be reluctant to deny a litigant with an arguable case the opportunity for fair trial of his or her claim, it must be emphasised that the opportunity in question is the opportunity for a fair trial. The court is not in the business of preserving the opportunity to conduct solemn farces, in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared.  Such a trial would not be fair to either party.”

35. [35]
    The present litigation depends upon an assertion made by the plaintiff that the prosecution which is brought against him was a malicious one. The prosecution arose out of an attempt by the respondent to assist a military museum.

36. [36]
    The present case can be distinguished from that of Page –v- the Central Queensland University in that the case does not seem to rely fundamentally upon the recollections of persons concerning incidents alleged to have occurred in the distant past.  The action arises out of a police investigation in which one would expect that the applicants have the opportunity of relying upon the documents which have formed the basis of the prosecution against the respondent.  The action was brought within two months of the prosecution being discontinued.  It is not the case where the action was commenced many years after the alleged incident had occurred.  It was commenced in a timely way. 

37. [37]
    Any forensic disadvantage arising out of delay is likely to affect the respondent and Keane JA’s concern about a fair trial may not have the same significance in the present case.

38. [38]
    The applicants do not strongly pursue the argument that they have been denied the opportunity to defend their case. However, in fairness to the applicant, they may not be in a position to properly articulate such a point because the request for further and better particulars has been ignored.

39. [39]
    It is common ground that I must exercise a discretion and the relevant principles to be applied are succinctly stated by Atkinson J in Tyler v Custom Credit Corporation Limited [2000] QCA 178.  Those principles have been restated on numerous occasions.

40. [40]
    In final analysis, matters of greatest importance include the fact that Mr. Munt has admitted that he has not been as diligent as he could have been in pursuing this matter and the fact that were the application to succeed the matter would be ended.

41. [41]
    Mr.Munt asserts that there have been certain difficulties in obtaining instructions from his client. The respondent has gone through a marriage break-up and it would seem the failure of his business.

42. [42]
    Whilst the evidence supporting the assertion that the applicant might be suffering some psychological disorder is extremely weak, the views of Dr. O'Brien cannot be ignored.

43. [43]
    There has not been any disregard for court orders in the present case.

44. [44]
    In my view the matter is finely balanced but in all the circumstances it is not appropriate to exercise my discretion in favour of the applicants.

45. [45]
    I dismiss the application.

46. [46]
    I will hear submissions as to costs.