Monthly Archive September 2005

Law Society of NSW v William John Whiting (2005) NSWADT 150

In this matter Greg Walsh acted for Mr Whiting, a Solicitor who was the subject of a complaint of professional misconduct. The solicitor had procured his wife to affix a signature to wills as witness, falsely asserting that she was present when the testators and the solicitor signed them. The Solicitor conceded the grounds of the complaint and was ultimately fined $5,000.

Eijkmann v Magann; McGloin v Magann; Trustees of the Roman Catholic Church of the Diocese of Parramatta v Magann [2005] NSWCA 358

In this matter Greg Walsh acted for Henk Eijkman in respect of an appeal from a decision of Sorby DCJ in granting leave for the respondent to commence proceedings out of time, inter alia, against Eijkman, McGloin and Trustees of the Roman Catholic Church of the Diocese of Parramatta.

The New South Wales Court of Criminal Appeal (Giles JA, Hodgson JA and Hunt AJA) upheld the appeal and set aside the orders made by Sorby DCJ. Giles JA observed at [81]:

“In some cases telling a person that he a psychiatric injury will make him aware of an additional extent of his injury, or put more accurately, diagnosis of a psychiatric injury will reveal an extent of injury of which the person was not previously aware. Thus, in Cranbrook School v Stanley [2002] NSWCA 290 Heydon JA distinguished at [68] between perceived emotional disturbance as symptoms of an illness or only “signs of some “personal weakness or illness falling short of an illness”, and referred to awareness of “signs and symptoms in his condition, but not that they reveal any personal injury”.

Giles JA at [82] found that the respondent as long ago as 1994 must have known that his emotional disturbance amounted to a psychiatric condition. Significantly, the respondent was disbelieved in respect of his assertions of not having been treated by a certain medical practitioner and at a hospital. Giles JA further found at [120] that the respondent knew in 1994 that he could sue the appellants in order to obtain compensation for the consequences of the sexual abuse he alleged he had suffered. His Honour went on to find that the respondent’s explanation of not seeing them was not a particularly strong one.

The Court unanimously found that it would not be just and reasonable to grant an extension of the limitation periods to the respondent.

A v State of NSW & Ors; Foros v A; State of NSW v A [2005] NSWCA 292

In this matter, Greg Walsh represented A in respect of proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the State of New South Wales and a police officer. The District Court had found for the plaintiff in respect of his claim for malicious prosecution, however the remainder of the plaintiff’s claims were dismissed.

In determining whether the respondents had acted without reasonable and probably cause in laying the charges, the trial Judge applied the test stated by Jordan CJ and Mitchell v John Hine and Son Ltd [1978] 38 SRNSW 466. The Court per Beazley JA (Mason, Pearlman AJA agreeing) held that:

i. To succeed in action for malicious prosecution, the accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause; Sharp v Biggs (1932) 48 CLR 1;

ii. A prosecutor will act without reasonable and probably cause where an accused can show that a prosecutor lacked an honest and reasonable belief that the laying of a charge against an accused was justified. Sharp v Biggs (1932) 48 CLR 81; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 (approved); Mitchell v John Hine & Son Ltd (1938) 38 SR (NSW) 466 not followed.

iii. A prosecutor will “honestly and reasonably believe” that the laying of a charge is justified where upon the material available to the prosecutor forms a genuine belief that upon general grounds of justice a charge against the accused is warranted; and where the evidence would lead a person of ordinary caution and prudence to conclude that the laying of the charge was warranted; Sharp v Biggs (1932) 48 CLR 81;

iv. A prosecutor need not believe that the accused was guilty of the offence charged in the sense than an accused will be convicted. It is sufficient that a prosecutor honesty and reasonably believed that upon the available evidence, there was a proper case to lay before the Court; Sharp v Biggs (1932) 48 CLR 81

v. It is not appropriate for a prosecutor to rely upon irrelevant or inadmissible material, unless there is some proper purpose in doing so, for example, to assist in an assessment of the credibility of other material.

vi. Although much of the material considered by the second respondent was inconsistent and inadmissible, there was sufficient material in his possession such that a reasonable and prudent person would consider that the charges were warranted.

vii. Although there was pressure on the second respondent from his superiors it was pressure to lay the charge if there was a “prima facie” case.

viii. The second respondent believed, on the material he considered that the charges were warranted.

ix. Malice will be proved where an accused can show that, in laying a charge, a prosecutor was actuated by either spite or ill-will towards the accused or improper motives, namely motives other than a desire to bring the accused to justice. Hicks v Faulkner (1878) 8 QB 167; Trobridge v Hardy (1955) 94 CLR 147; Glinski v McIver [1962] AC 726;

x. An improper motive in charging an accused with an offence, such as succumbing to pressure from bureaucratic superiors to lay a charge may, in some cases, support a finding of malice. In this case, however, the pressure was to lay a charge if there was a “prima facie” case.

A has sought leave to appeal to the High Court of Australia.

AW and Ors v State of NSW [2005] NSWSC 1173

In this matter Greg Walsh acted for AW and others in respect of an application for costs arising from an action for malicious prosecution, wrongful arrest and false imprisonment. Bell J had entered verdicts in favour of the second and third plaintiffs in AW & Ors v State of New South Wales [2005] NSWSC 543.

The application for costs was complicated having regard to the fact that the first plaintiff was unsuccessful in his claim based upon malicious prosecution.

The State of New South Wales submitted that the second and third plaintiffs ought not to obtain an order costs. It was contended that the proceedings fell within the jurisdictional limit of the District Court and that the plaintiffs had not established that there was sufficient reasons for commencing or continuing them in the Supreme Court. The Uniform Civil Procedure Rules 2005 did not contain a similar provision to the part 52A r33 of the Supreme Court Rules.

Bell J considered that this was an important discretionary matter to be taken into account and her Honour held that there was sufficient reason for commencing and continuing the claims in the Supreme Court. The allegations made in support of the claims were of a most serious character and each was entitled to seek vindication in the Supreme Court: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291; Vignoli v Sydney Harbour Casino Pty Ltd [1999] NSWSC 1227.

Bell J ultimately ordered that the first plaintiff was to pay 20% of the defendants costs of the proceedings not previously dealt with. The defendant was to pay the second and third plaintiffs their costs of the proceedings, not otherwise dealt with.