DISTRICT COURT OF QUEENSLAND
CITATION:
Ritson v Ryan [2021] QDC 140
PARTIES:
BRENDAN RITSON
(Plaintiff)v
JONATHAN LAURENCE RYAN
(Defendant)FILE NO:
3442/19
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane District Court
DELIVERED ON:
14 July 2021
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Porter QC DCJ
ORDERS:
The defendant provide further and better particulars of the defence in response to paragraphs 9(a) and (b), 10(a) and (b), 30(a), 31, 32, 52(a) and 53 to 56 of the Request for Further and Better Particulars of the defence dated 3 June 2021
SOLICITORS:
The plaintiff made written submissions in person
Macpherson Kelley Pty Ltd for the defendants
Introduction
The plaintiff was a client of the defendant’s company which provided pilot aptitude training. He alleges he was induced by misrepresentation to pay some $3500 to the company for training. He sued in the Federal Magistrates Court and obtained judgment for the sum paid. The company was subsequently wound up in March 2013.
These facts pleaded in the plaintiff’s amended statement of claim (the ASOC) are seemingly just by way of background because the causes of action advanced by the plaintiff in these proceedings are for damages for the torts of malicious prosecution and abuse of process.
Although the ASOC contains numerous allegations of perjury against the defendant in various civil proceedings between the parties, the central allegations are that the defendant made two groundless applications for personal safety intervention orders against the plaintiff to the Melbourne Magistrates Court: one in mid-2012 and one in late 2016. The plaintiff alleges that the context of each application gave rise either to the tort of malicious prosecution or alternatively to the related tort of abuse of legal process. The plaintiff seeks substantial damages.
The defendant filed his first defence in Response to the ASOC. The plaintiff served a Request for further and better particulars of that defence (the Request). The defendant has responded to the Request (the Response). The plaintiff maintains that the responses to 10 paragraphs of the Request are inadequate. The plaintiff presses for provision of the particulars sought in paragraphs 9(a) to (e), 10(a) to (e), 30, 31, 32, 52, 53, 54, 55 and 56 of the Request.
Paragraphs 9(a) to (e) of the Request
Paragraph 8A of the SOC alleges:
8A.On 4 June 2012, the defendant made a knowingly false complaint about the plaintiff to the NSW Police Force (NSWPF).
Particulars
8A.1 The defendant lodged the complaint via the NSWPF website.
8A.2The defendant knowingly gave false information, namely that the plaintiff made at least six telephone calls to the defendant between 1 April 2012 and 4 June 2012 during which the plaintiff made threats, including threats of violence, to the defendant.
Paragraph 8A of the defence responds:
8A.The Defendant denies the allegation in paragraph 8A of the Further Amended Statement of Claim and says that the allegation is untrue because the Plaintiff did make at least 6 telephone calls to the Defendant during the period 1 April 2012 to 4 April 2012 during which the Plaintiff made threats including threats of violence to the Defendant.
Paragraph 9 of the Request states:
9. As to paragraph 8A:
(a) What was the time and date of each alleged telephone call;
(b) What telephone number was each alleged telephone call made to;
(c) Who was the telecommunications service provider of each telephone number that the alleged telephone calls were made to;
(d) Where was the Defendant when each alleged telephone call was received;
(e) Who was present when each alleged telephone call was received;
(f) What words were used by the Plaintiff to make the alleged threats in each of the alleged telephone calls.
The Response contends that all the Requests in paragraph 9, but paragraph 9(e), comprise Requests for evidence. The Response to paragraph 9(f) gives particulars of threats said to have been made. No complaint is made about these particulars by the plaintiff.
Paragraphs 9(a) to (e) do not comprise requests for evidence. The defence alleges that there were in fact at least six telephone calls where threats were made. Evidence of those calls would be telephone accounts or recordings of calls or other matters which could be used to prove the fact and content of the calls. However, that does not mean that each of paragraphs 9(a) to (e) are proper requests for particulars.
Paragraphs (a) and (b) are proper requests. When the calls alleged in the defence were made and the number to which they were made comprise particulars of the allegation positively made in the defence and assist in defining the issue in respect of those calls for trial. Accordingly, particulars should be given so far as the defendant is able, in response to paragraphs 9(a) and (b) of the Request.
Paragraphs 9(c) to (e), on the other hand, are not necessary to define the issues raised on the pleading or to assist the plaintiff to understand the case he is to meet. They are matters of tangential relevance at best.
Paragraphs 10(a) to (e) of the Request
The above analysis applies equally to the defendant’s Response in relation to paragraphs 10(a) to (e) of the Request. Accordingly, particulars should be given so far as the defendant is able, in response to paragraphs 10(a) and (b) of the Request. No further particulars need be provided in response to paragraphs 10(c) to (e) of the Request.
Paragraphs 30, 31 and 32 of the Request
These Requests are conveniently dealt with together because they relate to the same paragraphs of the pleadings.
Paragraph 19 of the ASOC states:
19.The defendant, in initiating and/or maintaining the proceedings against the plaintiff in the Melbourne Magistrates’ Court, acted maliciously.
Particulars
19.1The defendant initiated and/or maintained the proceedings against the plaintiff for purposes other than the proper invocation of the system of personal safety intervention orders provided for under the Personal Safety Intervention Orders Act 2010 (VIC), namely:
19.1.1Out of personal animus the defendant had towards the plaintiff;
19.1.2Punish the plaintiff for initiating the proceedings against PATS in paragraphs 6, 7 and
to8 above;19.1.3Dissuade the plaintiff from maintaining the proceedings against PATS in paragraphs 6, 7 and
to8 above;19.1.4Discredit the plaintiff in the proceedings against PATS in paragraph 6, 7 and
to8 above;19.1.5Cause the plaintiff economic harm in responding to the proceedings in the Melbourne Magistrates’ Court;
19.1.6Use as a bargaining chip in negotiations with the plaintiff in the proceedings against PATS in paragraphs 6, 7 and
to8 above.19.2The plaintiff relies on the matters in paragraphs 5A, 8A, 8B, 9, 10B, 10C, 10E, 10F, 10G, 10H, 10I, 10J, 10K, 10L, 11, 12D, 12E, 12GA, 12I, 13, 14, 15, 15A, 15AA, 16, 17C, 17D, 17E and 17F
11 and 13 to 16above.Paragraph 19 of the defence relevantly states:
19.The Defendant denies the allegation in paragraph 19 of the Further Amended Statement of Claim the Defendant says that:
(a) The allegation is untrue because his motivation for initating and maintaining the proceedings arose out of:
(i)His belief that the Plaintiff had engaged in and would continue to engage in conduct prohibited by the Personal Safety Intervention Orders Act 2010 (Vic);
(ii)His belief that for his own safety and the safety of his family were in jeopardy; and
(iii)His belief that the safety of his property and in particular, his business, were in jeopardy
(b) ...
Paragraphs 30 to 32 of the Request state:
30. As to paragraph 19(a)(i):
(a) What are the facts, matters and circumstances relied upon in support of the allegation that the Defendant had a belief that the Plaintiff had engaged in and would continue to engage in conduct prohibited by the Personal Safety Intervention Orders Act 2010 (Vic);
(b) Specify the provisions of the Personal Safety Intervention Orders Act 2010 (Vic) prohibiting the alleged conduct.
31.As to paragraph 19(a)(ii), what are the facts, matters and circumstances relied upon in support of the allegation that the Defendant had a belief that for his own safety and the safety of his family were in jeopardy.
32.As to paragraph 19(a)(iii), what are the facts, matters and circumstances relied upon in support of the allegation that the Defendant had a belief that the safety of his property and in particular, his business, were in jeopardy.
Paragraphs 18 to 20 of the Response state:
18. In Response to the Request numbered 30, the Defendant:
(a) And the Request in sub paragraph (a) the Defendant and says that the facts, matters and circumstances on which the Defendant’s belief was founded were the Plaintiff’s conduct which formed the basis of the Defendant’s application the Melbourne Magistrates Court for a Personal Safety Intervention Order on 6 June 2012; and.
(b) And the Request in sub paragraph (b), the conduct is the Prohibited conduct as defined in Section 5 of the Act.
19.In Response to the Request numbered 31, the Defendant says that the facts, matters and circumstances on which the Defendants belief was founded were the Plaintiff’s conduct which formed the basis of the Defendant’s application the Melbourne Magistrates Court for a Personal Safety Intervention Order on 6 June 2012.
20.In Response to the Request numbered 32, the Defendant says that the facts, matters and circumstances on which the Defendants belief was founded were the Plaintiff’s conduct which formed the basis of the Defendant’s application the Melbourne Magistrates Court for a Personal Safety Intervention Order on 6 June 2012.
Paragraphs 30(b) of the Request and 18(b) of the Response
The plaintiff complains that the defendant has not particularised the particular kind or kinds of prohibited behaviour under the Personal Safety Intervention Orders Act 2010 (Vic) (PSIO Act) that the defendant believed the plaintiff had engaged in. I do not think this a proper Request. The issue on the relevant paragraphs of the pleadings is whether the defendant had a bona fide fear which justified seeking an order under the PSIO Act. That will depend on the matters which informed that state of mind, not whether they could be correctly characterised as a matter of law as falling within one or other of the categories of prohibited behaviour. So long as they could fall within one or more of the categories and the defendant bona fide believed that, the defence will be sufficiently made out. And that is likely to be self-evident from the matters relied upon by the defendant.
Paragraphs 30(a), 31 and 32 of the Request and paragraphs 18(a), 19 and 20 of the Response
The plaintiff complains that the defendant has failed properly to particularise the basis of his various beliefs by referring broadly to the conduct which formed the basis of the 6 June 2012 application. I agree. It can be proper to provide particulars by reference to a document or expert report rather than by setting out the specific matters contained in that document. However, that method of providing particulars depends entirely on the form and content of the document or report referred to and whether it clearly identifies the matters relied upon as comprising particulars.
The Response of the defendant does not refer to an identified document or report, however. Rather, it refers in the abstract to the matters which formed the basis of the application. It is not possible to know what they are from that broad assertion. It might be that the defendant intends to refer to evidence filed in the first application for a PSIO, but the particulars do not say as much, nor would that be likely to be sufficient if he did.
It might have been said by the defendant that it was not necessary strictly to particularise the basis for his beliefs pleaded in paragraph 19 of the defence because it does not allege that the belief was based on any specific considerations and does not allege the belief was reasonable. However, the defendant understandably did not adopt that construction of the defence in its Response. A belief without any basis would be a difficult one to defend in an abuse of process proceeding.
The defendant must therefore provide further and better particulars in response to paragraphs 30(a), 31 and 32 of the Request.
Paragraphs 52 to 56 of the Request
These Requests relate to paragraphs 66 to 69 of the defence responding to the same paragraphs of the ASOC. It is unnecessary to set them out in this judgment because the same issues arise as in respect of paragraphs 30, 31 and 32 of the Request dealt with above.
Paragraph 52(b) of the Request and Paragraph 24(b) of the Response
The Request in paragraph 52(b) and the Response in paragraph 24(b) raise the same issue as that which arises in respect of paragraph 18(b) of the Response. For the reasons given in paragraph [18] above, paragraph 52(b) is not a proper Request and need not be answered.
Paragraphs 52(a) and 53 to 56 of the Request and 24(a) and 25 to 28 of the Response
The Responses in paragraphs 24(a) and 25 to 28 again particularise the basis for the belief by reference to the matters which formed the basis of the application for a PSIO on 6 June 2012. For the reasons given in paragraph [19] above, that is not a proper Response.
The defendant must therefore provide further and better particulars in Response to paragraphs 52(a) and 53 to 56 of the Request.