Bailey v Director-General, Department of Natural Resources NSW

The appeal in *Bailey v Director-General, Department of Natural Resources NSW* concerned a claim for malicious prosecution brought by the first appellant against the respondent. The dispute arose from the appellant's prosecution for clearing native vegetation without consent, an act the respondent alleged contravened the *Native Vegetation Conservation Act 1997* (NSW). The proceedings were heard in the Court of Appeal of New South Wales before Basten, Gleeson and Leeming JJA.

The central legal issues before the Court of Appeal were whether the prosecution had been instituted and maintained without reasonable and probable cause, and whether it had been commenced for an improper purpose. Relatedly, the court had to consider whether the prosecutor lacked a reasonable belief in the guilt of the appellant. The appeal also involved the interpretation of exemptions under the *Native Vegetation Conservation Act 1997* (NSW), specifically whether an exemption for "rural structures" such as "farm dams" extended to a 90-hectare reservoir, and whether such an exemption was contingent on the development otherwise being lawful. Finally, the appeal addressed the respondents' entitlement to indemnity costs based on an offer of compromise.

The Court of Appeal dismissed the appeal concerning the malicious prosecution claim, finding that the elements of the tort were not established. The court reasoned that the prosecutor had a reasonable belief in the guilt of the appellant, and that the proceedings were not instituted for an improper purpose. The court also found that the exemption for "rural structures" did not apply to the reservoir in question, as it was not a "farm dam" and the exemption was not intended to cover such a large-scale development. The court further dismissed the appeal regarding the costs of the trial, upholding the trial judge's decision to award costs on an indemnity basis, finding the offer of compromise to be compliant with the *Uniform Civil Procedure Rules 2005* (NSW).

Consequently, the Court of Appeal ordered that the appeal with respect to the dismissal of the malicious prosecution claim be dismissed. The appellants were ordered to pay the respondents’ costs of the appeal on liability and with respect to the costs of the trial. The appellants’ appeal from the orders made by the trial judge as to the costs of the trial was also dismissed.