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District Court 19 April 2023

Burton v Babb

[2023] NSWDC 103

Other
TORTS MALICIOUS PROSECUTION

Citation: Burton v Babb [2023] NSWDC 103
Court: District Court of NSW
Date: 19 April 2023
Judge(s): Weber SC DCJ

Background

The plaintiffs, two self-represented litigants, were charged in late 2017 with offences relating to a breach of a suppression and non-publication order made by the Children's Court on 25 May 2017 (the "25 May Order"). The order had been sought by the Department of Family and Community Services (FACS) and prohibited publication of material that could identify persons connected with proceedings before the Children's Court. After the plaintiffs posted material on Facebook that appeared to breach the order, and then refused requests to remove it, proceedings were brought in the Supreme Court's Equity Division. The court ordered the posts removed and restrained further publication.

Criminal charges followed in December 2017. The plaintiffs unsuccessfully challenged those charges through multiple courts, but ultimately the Court of Appeal found in 2019 that the 25 May Order was not a valid interim order because it lacked a time limitation, rendering it unenforceable. The charges relating to that order were subsequently withdrawn.

The plaintiffs then commenced proceedings in 2020 claiming damages for malicious prosecution against the Director of Public Prosecutions and the Secretary of FACS. Their claim was that the now-withdrawn charges had been brought maliciously and without reasonable and probable cause.

  • Whether the defendants, or either of them, initiated the prosecution against the plaintiffs in relation to the 25 May Order
  • Whether the defendants acted with malice in bringing or maintaining that prosecution
  • Whether the prosecution was brought or maintained without reasonable and probable cause
  • Whether the plaintiffs suffered damage as a result of the alleged malicious prosecution

Decision

Weber SC DCJ applied the four elements of malicious prosecution as settled by the High Court in A v State of New South Wales (2007) 230 CLR 500. The court accepted that the second element, namely that the proceedings terminated in the plaintiffs' favour, was clearly established. Every other element was contested, and the plaintiffs bore the burden of proving each one.

On the question of initiation, malice, and reasonable and probable cause, the court found the plaintiffs' evidence fell far short of what was required. The defendants called no witnesses, but the court noted that this was unsurprising: the evidential deficiencies in the plaintiffs' cases were not mere "gaps" but, as the court described them, "yawning chasms." The plaintiffs' frequent reliance on Jones v Dunkel (1959) 101 CLR 298 to draw adverse inferences from the defendants' silence was rejected. That principle does not require a defendant to fill gaps in a plaintiff's own case.

The plaintiffs further argued that because the charges ultimately failed on a point of law, the prosecution was necessarily one brought without reasonable and probable cause and therefore must have been malicious. The court rejected this reasoning as contrary to both logic and legal principle. The Court of Appeal had itself, in the 2019 judgment on which the plaintiffs relied, stated clearly that proceedings failing on a point of law do not, of themselves, reveal an improper purpose or an absence of reasonable and probable cause.

Separately, neither plaintiff provided any evidence of damage. A schedule of damages was filed, but no evidence was given to support any item within it. Proof of damage is a distinct requirement of the tort, and its complete absence provided a further independent basis for the claims to fail.

Orders Made

  • Judgment and verdict for the defendants against the plaintiffs.

Key Takeaways

  • A prosecution that fails on a point of law is not, without more, a prosecution lacking reasonable and probable cause, nor does such a failure necessarily indicate malice on the part of the prosecuting party.
  • The District Court confirmed that all four elements of malicious prosecution are cumulative: failure to establish any single element is fatal to the claim.
  • Under the principles in Jones v Dunkel, a defendant's decision not to call witnesses does not relieve the plaintiff of proving the elements of their case; that principle cannot be used to fill fundamental evidentiary deficiencies.
  • Proof of actual damage is an independent and essential element of a malicious prosecution claim; a schedule of damages without supporting evidence does not satisfy that requirement.
  • Where criminal charges are withdrawn following a successful appeal on a legal construction point, this does not automatically give rise to a viable malicious prosecution claim, particularly where the legal question was genuinely contestable, as the Court of Appeal itself acknowledged in the earlier proceedings.

Legislation and Cases Referenced

Legislation
- Children and Young Persons (Care and Protection) Act 1998 (NSW)
- Civil Procedure Act 2005 (NSW)
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW)

Cases
- A v State of New South Wales (2007) 230 CLR 500
- Jones v Dunkel (1959) 101 CLR 298
- Burton v Local Court of NSW [2019] NSWSC
- Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120
- Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245
- Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61
- State of NSW v Landini [2010] NSWCA 157
- Bailey v Director General Department of Natural Resources [2014] NSWSC 1012