Citation: Yao v State of New South Wales; Chen v State of New South Wales [2025] NSWSC 1485
Court: Supreme Court of New South Wales
Date: 12 December 2025
Judge: Harrison CJ at CL
Background
A married couple commenced proceedings in May 2025 against the State of New South Wales, alleging they were wrongfully arrested, detained and charged with multiple criminal offences in February 2021. All charges against the husband were withdrawn by the Office of the Director of Public Prosecutions in October 2021, and all charges against the wife were withdrawn in February 2022. The plaintiffs claim their prosecution was malicious, constituted misfeasance in public office, and amounted to a collateral abuse of power.
The plaintiffs are self-represented and not legally trained. Earlier in the proceedings, they unsuccessfully sought to set aside a Registrar's decision granting the defendant an extension of time to file its defence. The court confirmed that extension in July 2025 and gave directions for the further conduct of the matter.
After the defendant disputed a notice to admit facts served by the plaintiffs, the plaintiffs filed further motions in October 2025 seeking summary judgment on liability, with damages to be assessed separately. They relied on affidavits expressing a belief that the defendant had no defence, supported by what were in substance their own written submissions.
Legal Issues
- Whether the plaintiffs were entitled to summary judgment under UCPR rr 13.1 or 17.7 on the basis that the defendant had no real defence on liability
- Whether the defendant's dispute of the plaintiffs' notice to admit facts was sufficient to establish that there were no genuine conflicts of material fact
- Whether the defendant's response to the notice to admit facts itself amounted to an abuse of process
Decision
The court dismissed both motions, finding them entirely without merit. Harrison CJ at CL explained that summary judgment is available only where there is no real defence arising from the pleadings and no serious conflict as to material facts or important matters. Applying the test from General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Spellson v George (1992) 26 NSWLR 666, the court found that standard was far from met here.
The court observed that to succeed in malicious prosecution, the plaintiffs will need to prove that the prosecution was instituted without reasonable and probable cause and that it was commenced or maintained maliciously. In the court's experience, claims of this kind are not amenable to summary disposal. These are precisely the kinds of factual and technical matters that require a contested hearing, potentially involving credit issues.
The defendant had filed a defence putting malice, absence of reasonable and probable cause, misfeasance in public office, and abuse of process all in issue. The court found it could not be established at this stage that the defendant had no real defence or that there were no serious conflicts as to material facts. The fact that the defendant disputed the notice to admit facts did not, of itself, demonstrate an entitlement to judgment.
The court noted, without deciding the point, that the defendant's submission that the notice to admit facts may itself have amounted to an abuse of process raised a separate question not requiring resolution at this stage. The motions were dismissed with costs, though the court made clear this outcome was entirely separate from any assessment of the plaintiffs' prospects at a contested hearing.
Orders Made
- The plaintiffs' motions for summary judgment dismissed
- Costs ordered against the plaintiffs
Key Takeaways
- Malicious prosecution claims are not, as a general matter, amenable to summary disposal, given the technical and factual complexity of establishing lack of reasonable and probable cause and malice.
- A defendant's dispute of a notice to admit facts does not, without more, entitle a plaintiff to summary judgment or establish that there are no serious conflicts as to material facts.
- Under UCPR rr 13.1 and 17.7, summary judgment requires demonstration that the defendant has no real defence arising from the pleadings and that there are no serious conflicts on material facts or issues where credibility may be in question.
- Affidavits supporting a summary judgment application must do more than express a belief grounded in the applicant's own written submissions; the belief must be supported by a proper evidentiary basis.
- The Supreme Court confirmed that dismissal of a premature or meritless summary judgment motion says nothing about the ultimate merits of the underlying claims, which remain to be determined at a contested hearing.
Legislation and Cases Referenced
Legislation
- Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 14.3, 17.7, 49.20
Cases
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
- Spellson v George (1992) 26 NSWLR 666