Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd [2010] NSWDC 232 reviews the law at the extremities of the tort of malicious prosecution. I must say that I had always assumed that there needed to be a criminal prosecution before the tort of malicious prosecution might be made out, but there is no doubt that that is not the case: an action to bankrupt an individual or wind up a company may also found the tort, along with certain other kinds of actions set out at [20]. But this case required consideration of whether it could be said that malicious prosecution of a civil proceeding which involved no element of the seeking of a penalty could be seen not to found the tort clearly enough to justify summary dismissal of the claim. The answer was no; the suit for summary dismissal failed. (There seems to be more resistance to expanding the law to provide a remedy for maliciously instituted disciplinary proceedings (see Gregory v Portsmouth City Council [2000] 1 AC 419 at 432; Noyce v Robbins [2007] WASC 98).)
NSW’s District Court declined to dismiss the plaintiff’s malicious prosecution of a civil proceeding claim because there has been criticism of the exclusion of civil proceedings from the ambit of the tort and development of the law should not be stifled by summary judgment. More pragmatically, the Court said that summary judgment would not go against the claim for the tort of abuse of process which was also pleaded, and much ground to be traversed by the malicious prosecution claim would have to be traversed anyway at the trial of the abuse of process claim.
That the law might extend to give a remedy for maliciously instituted civil proceedings was demonstrated by dicta in Little v Law Institute of Victoria (No 3) [1990] VR 257. That is a saga which occurred before my time, and which I have always meant to read up on, but never have. According to the District Court:
‘The plaintiff [Little] was a solicitor against whom the Law Institute took out a summons. The summons sought to restrain the solicitor from practising as a solicitor on the ground that he had not entered into a contract of professional insurance. A judge made the order and the secretary of the Law Institute sought to have the plaintiff committed for contempt of court for breach of the order. A judge committed the plaintiff to prison for 21 days. The Full Court subsequently set aside the order on the ground that the regulation fixing the contribution for insurance was invalid. The plaintiff instituted proceedings against the Law Institute alleging that the defendants had been guilty of, amongst other things, “malicious use of civil proceedings.”‘
Judge Bozic summarised the differences between the tort of malicious prosecution and the tort of abuse of process:
’37 The tort of collateral abuse of process differs from the tort of malicious prosecution in that a plaintiff suing for abuse of process does not need to show either that the initial proceeding has terminated in his or her favour or that there was a want of reasonable and probable cause for the institution of the proceedings. The critical element in the tort of abuse of process is that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers: see Williams v Spautz (1992) 174 CLR 509 at 523. It is not sufficient that there be an unworthy or reprehensible motive in bringing the action. What is required is that the purpose of the litigant in bringing the proceedings is outside the scope of the proceedings and improper: see Williams at page 525.’
