PRACTICE AND PROCEDURE – Statement of Claim – Whether pleading discloses a cause of action – Whether claim has no real prospect of success – Claim for malicious prosecution and injurious falsehood – Malicious prosecution – Elements of the tort – Necessary to allege instigation of judicial process – Whether statement of claim alleges that a prosecution had been instigated – Plaintiff alleges arrest by police – Arrest without warrant or other judicial involvement – Dismissal of cause of action – Civil Procedure Act 2010 (Vic) ss 62-64 – County Court Civil Procedure Rules 2008 (Vic) Order 23.
Witness served in Queensland with a subpoena to give evidence fails to attend. He was paid $140, advised that he could collect his air ticket at the airport, and that he had been booked into a particular hotel for which the party issuing the subpoena would pay. Two letters were provided from a doctor to the effect that he had a medical reason not to attend. Party issuing the subpoena seeks a warrant to have the witness bought to Court. HELD (1) that Pt.37 r.3(1) of the Rules and s.32(1) of the Service & Execution of Process Act require money for expenses to be tendered, but that money need not be tendered for expenses in relation to which appropriate assurance is given that such expenses will not be incurred at all; (2) even if a warrant may be issued under Pt.42 r.7(1) of the Rules where the requirements of s.194(1) of the Evidence Act are not satisfied, in the circumstances of this case it was necessary to satisfy those requirements; and (3) the onus of proving that the non-appearance was without just cause or reasonable excuse had not been satisfied.
Evidence Act 1995 s.194