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District Court 30 July 2024

Burton v State of New South Wales

[2024] NSWDC 314

Other
TORTS CIVIL PROCEDURE RES JUDICATA ANSHUM ESTOPPEL

Citation: Burton v State of New South Wales [2024] NSWDC 314
Court: District Court of New South Wales
Date: 30 July 2024
Judge(s): Acting Judge Levy SC

Background

The self-represented plaintiff brought proceedings against the State of New South Wales claiming damages for malicious prosecution. The claim arose from his prosecution for an alleged breach of a suppression order made in earlier care proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW). That prosecution was ultimately discontinued after a court determined, on a construction point, that the relevant suppression order was deficient because it lacked appropriate time and geographic limitations.

Following that discontinuance, the plaintiff commenced a series of malicious prosecution actions across multiple courts and jurisdictions over several years. The present proceedings, filed in December 2023, named the State of New South Wales as the defendant. Earlier, closely related proceedings had named individual officers (Mr Babb and Mr Coutts-Trotter) as defendants and had been dismissed in April 2023 in Burton v Babb [2023] NSWDC 103.

Two notices of motion were before the court: the defendant sought dismissal or strike-out of the proceedings under UCPR rr 13.4 and 14.28, while the plaintiff sought leave to file an amended statement of claim. The parties agreed that the defendant's motion should be determined first, and that the arguments on dismissal also applied to the proposed amended pleading.

  • Whether res judicata estoppel or Anshun estoppel (the doctrine from Melbourne Port Authority v Anshun Pty Ltd (1981) 147 CLR 589, which prevents a party from raising a claim or argument that should have been raised in earlier proceedings) barred the plaintiff from advancing his claims in either their original or amended form.
  • Whether the proceedings, in either form, constituted an abuse of process that would bring the administration of justice into disrepute if permitted to continue.
  • Whether the change in named defendant (from individual officers to the State of New South Wales) was sufficient to defeat the estoppel and abuse of process arguments.
  • Whether the plaintiff's pleadings, as filed or as proposed to be amended, disclosed a viable cause of action in malicious prosecution, including the essential elements of absence of reasonable and probable cause and improper purpose.

Decision

Acting Judge Levy SC held that the essential elements of the malicious prosecution claim, particularly the absence of reasonable and probable cause and the existence of malice (meaning a purpose other than the proper invocation of the criminal law), had already been determined against the plaintiff in Burton v Babb [2023] NSWDC 103. The court found that the change in the named defendant did not defeat the res judicata and Anshun estoppel arguments, relying on the principles in Anshun and Henderson v Henderson (1843).

The court also found that the proceedings constituted an abuse of process independently of any estoppel. Even where a strict estoppel might not arise, permitting the continuation of proceedings that seek to re-litigate a case already disposed of by earlier proceedings would be unjustifiably vexatious and oppressive, and would bring the proper administration of justice into disrepute.

On the pleading itself, the court found an additional and separate deficiency. The plaintiff's argument that the prosecution amounted to a collateral abuse of process because it lacked reasonable and probable cause was described as plainly wrong in law. A claim of collateral abuse of process requires pleading both an improper purpose and that the legal process was misused to obtain a collateral advantage outside what the invoked process properly affords. Neither element was pleaded. The court noted that these deficiencies had previously been identified by Bell P (as his Honour then was) in Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245.

Because the proceedings were "terminally afflicted" at multiple levels, the court dismissed them under UCPR r 13.4 rather than applying the strike-out provisions of r 14.28. The plaintiff's application for leave to file an amended statement of claim was also rejected, as granting it would risk inconsistent judgments and constitute a further abuse of process.

Orders Made

  • The plaintiff's proceedings are dismissed pursuant to UCPR r 13.4.
  • The plaintiff is to pay the defendant's costs of the dismissed proceedings on the ordinary basis, unless otherwise ordered.
  • Liberty to apply on 7 days' notice if further or other orders are required.

Key Takeaways

  • The District Court confirmed that a change in the named defendant, from individual officers to the State of New South Wales, does not automatically defeat res judicata or Anshun estoppel arguments where the essential issues in dispute have already been determined in prior proceedings.
  • Anshun estoppel operates to prevent re-litigation of issues that were, or ought to have been, raised and resolved in earlier proceedings, even when the parties are not formally identical across proceedings.
  • A claim of malicious prosecution requires distinct pleading of both the absence of reasonable and probable cause and of improper purpose (malice). The absence of one is not a substitute for the other, and the failure to plead improper purpose is a fundamental deficiency.
  • Proceedings may be dismissed as an abuse of process under UCPR r 13.4 where their continuation would be unjustifiably vexatious and oppressive, even in circumstances falling short of a strict estoppel.
  • Refusal of leave to amend a statement of claim is appropriate where granting the amendment would create a risk of inconsistent judgments with earlier, finally determined proceedings, and would itself constitute an abuse of process.

Legislation and Cases Referenced

Legislation:
- Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 11
- Crown Proceedings Act 1988 (NSW), s 5
- Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases:
- A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
- Melbourne Port Authority v Anshun Pty Ltd (1981) 147 CLR 589
- Henderson v Henderson (1843) 3 Hare 115
- Rippon v Chilcotin Pty Ltd [2001] NSWCA 142
- Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
- Reichel v McGrath (1899) 14 AC 665
- Burton v Babb [2023] NSWDC 103
- Burton v Babb [2023] NSWCA 242
- Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245
- Burton v Office of the Director of Public Prosecutions [2019] NSWDC 120
- Burton v Local Court of New South Wales [2019] NSWSC 191
- Burton v Director of Public Prosecutions [2024] NSWSC 863
- Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285
- Re Christoper [2017] NSWSC 318