Burton v Babb

[2023] NSWCA 242

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Burton v Babb [2023] NSWCA 242

Hearing dates:

27 September 2023

Decision date:

12 October 2023

Before:

Adamson JA at [1]; Simpson AJA at [60]

Decision:

(1)   Refuse leave to appeal.

(2)   Order the applicant to pay the respondents’ costs of the application.

Catchwords:

LEAVE TO APPEAL — TORTS — applicant charged in Local Court for posting material in apparent breach of suppression order — charges withdrawn as order unenforceable — proceedings commenced against respondents for damages for malicious prosecution — elements of tort not made out — alleged failure of District Court judge to provide reasons, in ignoring essential evidence and finding no proof of damages — whether respondents prosecutors for purposes of tort — applicant failed to identify any issue of principle, question of public importance or reasonably clear injustice

COSTS — applicant alleged error in costs order in circumstances where no costs personally incurred by defendants — whether CSO acting without instructions of named defendants — no evidence adduced to challenge retainer — defendants covered individuals for purposes of State of NSW self-insurance arrangement — State entitled to conduct proceedings on behalf of defendants subject to duty of good faith

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Court Suppression and Non-publication Orders Act 2010 (NSW)

District Court Act 1973 (NSW), s 8

Director of Public Prosecutions Act 1986 (NSW), s 9

Law Reform (Vicarious Liability) Act 1983 (NSW), s 8

Legal Profession Uniform Law Application Act 2014 (NSW), s 44

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Burton v Babb (District Court (NSW), Weber SC DCJ, 23 May 2023, unrep)

Burton v Babb [2020] NSWCA 331

Burton v Local Court of New South Wales [2019] NSWSC 191

Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245

Davis v Gell (1924) 35 CLR 275; [1924] HCA 56

Doulaveras v Daher [2009] NSWCA 58

Hawksford vHawksford [2005] NSWSC 463; (2005) 191 FLR 173

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Pettitt vDunkley (1971) 1 NSWLR 376

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

State of New South Wales v Landini [2010] NSWCA 157

State of New South Wales v Spedding [2023] NSWCA 180

Category:

Principal judgment

Parties:

Paul Robert Burton (Applicant)
Lloyd Babb (First Respondent)
Michael Coutts-Trotter (Second Respondent)

Representation:

Counsel:
Applicant (self-represented)
G Bateman (Respondents)

Solicitors:
Not applicable (Applicant)
Crown Solicitor’s Office (Respondents)

File Number(s):

2023/144234

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

Burton v Babb [2023] NSWDC 103

Date of Decision:

19 April 2023

Before:

Weber SC DCJ

File Number(s):

2020/191681

HEADNOTE

[This headnote is not to be read as part of the judgment]

In May 2017, an order was made by the Children’s Court prohibiting the publication of information that would tend to identify individuals connected with proceedings which involved a child being removed from premises in Newcastle and placed into the care of Family and Community Services (FACS). Paul Burton (the applicant) and Andrew Katelaris (together, the plaintiffs) posted material on Facebook which appeared to breach the order. Both were charged by Court Attendance Notice for this breach. The plaintiffs were also ordered to remove the Facebook posts in proceedings in the Equity division commenced by the then Secretary of FACS. The plaintiffs were subsequently successful in an appeal to this Court which found that the order was unenforceable and the criminal charges were withdrawn.

In June 2020, the plaintiffs commenced proceedings against Lloyd Babb, who at the relevant times was the Director of Public Prosecutions (NSW), and Michael Coutts-Trotter, who at the relevant times was the Secretary of FACS (together, the defendants), for malicious prosecution. In April 2023, Weber SC DCJ entered judgment against the plaintiffs in favour of the defendants on the basis that the plaintiffs had not established any of the elements of the tort of malicious prosecution apart from the element that the criminal proceedings terminated in their favour. Paul Burton (the applicant) sought leave to appeal against this decision.

There were a number of draft grounds of appeal including that the primary judge erred by: failing to keep a full record of the proceedings, not providing adequate reasons, ignoring essential evidence of the applicant, finding that the respondents had no personal involvement in the prosecution, ruling that he would not look into whether the removal of the child was unlawful, failing to find that the action was malicious as a result of there being no reasonable and probable cause and finding that the applicant did not prove damages. The applicant also argued that the primary judge erred by making an order as to costs when no costs were incurred by the defendants personally and that the Crown Solicitor’s Office (CSO) was operating without instructions from either defendant or, in the alternative, that the defendants were misusing state resources.

The Court held (Adamson JA, Simpson AJA agreeing) dismissing the appeal:

1. None of the proposed grounds of appeal raises an issue of principle or give rise to an injustice which is “reasonably clear”, rather than merely arguable. None of the grounds raises a real question as to the correctness of either the judgment in favour of the defendants or the order for costs in their favour: [58].

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206, applied.

1. The applicant’s contention that the CSO never had instructions to act on behalf of the defendants cannot be made out in circumstances where the applicant has not adduced any evidence to discharge the onus of proving that the legal practitioner has not been retained and communications between the CSO, the defendants and the State of NSW are protected by client legal privilege which has not been waived. Inferences to the contrary are available in light of the State’s vicarious liability for any liability established against either of the defendants, and the fact that it is the self-insurer of this liability: [55]-[56].

JUDGMENT

1. ADAMSON JA: Paul Burton (the applicant) seeks leave to appeal against the judgment entered against him and Andrew Katelaris (together, the plaintiffs) by Weber SC DCJ (the primary judge) in the District Court (the Court below) on 19 April 2023. The respondents in this Court are Lloyd Babb, who was at relevant times the Director of Public Prosecutions (NSW), the first defendant in the Court below, and Michael Coutts-Trotter, at relevant times the Secretary of the Department of Family and Community Services (FACS), the second defendant in the Court below.

Background to the proceedings

2. The background to the proceedings in the Court below can be shortly summarised.

Proceedings in the Children’s Court

3. In May 2017, a child suffering from significant health conditions was removed from premises in Newcastle and placed into the care of FACS at a hospital where the child was examined. Care proceedings were brought in respect of the child in the Children’s Court.

4. On 25 May 2017, the Children’s Court made an order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), which was expressed to be an interim order, prohibiting the publication of information that would tend to identify individuals connected with proceedings in that court (the 25 May order). Another order under the Act was made on 31 May 2017.

Posting of material in apparent breach of the 25 May order

5. The plaintiffs posted material on Facebook which appeared to breach the 25 May order. The plaintiffs refused to remove the posts notwithstanding a request by a representative of FACS.

Proceedings in the Equity Division for injunctive relief against the plaintiffs

6. In July 2017, the second defendant, who was then the Secretary of FACS, brought proceedings in the Equity Division of the Supreme Court, seeking orders against the plaintiffs to require them to remove the Facebook posts. Orders to that effect were made by Rein J on 18 July 2017.

The prosecution of the plaintiffs in the Local Court

7. On 21 December 2017, both plaintiffs were charged by Court Attendance Notice (CAN) with breach of the 25 May order. Each plaintiff’s challenge to his CAN was dismissed by Magistrate Stone on 30 April 2018.

The proceedings for judicial review in the Common Law Division of the Supreme Court

8. In 2018, the plaintiffs commenced proceedings in the Common Law Division of the Supreme Court for judicial review of the dismissal. The basis of their challenge was that the 25 May order did not include a time specification for the duration of the order, as required by s 12 of the Act. On 8 March 2019, Harrison AsJ dismissed their summons, holding that the 25 May order was an interim order and therefore did not require its duration to be stated: Burton v Local Court of New South Wales [2019] NSWSC 191. The plaintiffs’ appeal to this Court against that dismissal was upheld: Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245 (Bell P, White and McCallum JJA) (Burton CA). This Court found that the 25 May order was not an interim order and, as the duration of the order was not stipulated, it was unenforceable. As a consequence, the charges against the plaintiffs for breach of the 25 May order were withdrawn.

The proceedings in the Court below

9. On 29 June 2020, the plaintiffs commenced proceedings against the defendants in the District Court for damages for malicious prosecution. The primary judge heard the proceedings on 13 and 14 February and 5 April 2023. The defendants called no witnesses. At the conclusion of the evidence on 14 February 2023, the primary judge ordered the parties to file and serve written submissions, to which they would have an opportunity to speak on 5 April 2023.

10. On 5 April 2023, the applicant began his oral submissions. At some stage, it was discovered that the court recording system was not functioning. This led to the court moving to another courtroom where the applicant resumed his oral address, which was recorded.

The judgment of the Court below

11. On 19 April 2023, the primary judge entered judgment against the plaintiffs in favour of the defendants on the basis that the plaintiffs had not established any of the elements of the tort of malicious prosecution apart from the element that the criminal proceedings terminated in their favour.

12. The primary judge identified the elements of the cause of action for malicious prosecution and what was in contention as follows:

“The Elements in the Cause of Action

18   The elements of the cause of action in malicious prosecution are well-known. They are:

‘(1)  that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2)  that the proceedings terminated in favour of the plaintiff;

(3)  that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4)  that the defendant acted without reasonable and probable cause.’

(A v State of New South Wales (2007) 230 CLR 500 at [1])

19   Of these five elements of the cause of action, the plaintiffs have clearly established the second element.

The Contentious Elements

20   The contentious issues in these proceedings are therefore as follows:

(1)   Did the Defendants or either of them initiate the prosecution of the Plaintiffs for contravention of the 25 May Order?

(2)   Did the Defendants or either of them act with malice in bringing or maintaining the prosecution?

(3)   Was the prosecution brought or maintained without reasonable and probable cause?

(4)   Have the plaintiffs proved that they have suffered damage as a result of such malicious prosecution?

In order for the plaintiffs to succeed in the proceedings they must establish each of these matters, that is to say the elements are cumulative, such that a failure on any of them is fatal to the plaintiffs’ cases.”

13. The primary judge found that the defendants’ forensic decision to call no witnesses could be “readily anticipated” ([22]) and the defendants were not obliged to adduce evidence to prove the plaintiffs’ cases.

14. The primary judge said:

“25   In these proceedings, the defendants were not confronted with ‘gaps’ in the proof of the plaintiffs’ cases. In my opinion, to call the evidentiary deficiencies in the plaintiffs’ cases mere ‘gaps’ would be to understate them, ‘yawning chasms’ would be a better description.

…

33 As a consequence of what I consider to be the manifest problems with the plaintiffs’ cases I shall deal with the contentious elements of the cause of action as briefly as I can, a course which I consider to be appropriate given the Overriding Purpose set out in s 56 of the Civil Procedure Act 2005.”

15. When addressing the element of malice (which is relevant to proposed ground 3), the primary judge said:

“Malice

52   To constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique motive” (A v State of NSW [91]). The improper purpose must be the sole or dominant purpose actuating the prosecutor.

53   The Plaintiffs’ have submitted that the purpose for bringing the prosecution against them was to punish them for revealing the “illegal” seizure of a child by FACS which the Defendants, in particular the second defendant, wished to hide.

54   There are obvious problems with this contention, for example that:

(a)   The state of knowledge of either of the Defendants as to the legality or otherwise of the seizure of the child has not been established, and

(b)   It has not been proven, in any event, that the taking of the child by FACS was illegal or improper; and

(c)   Further, the prosecution, the subject of these proceedings, did not concern the underlying facts of the childcare matter in the Children’s Court. On the contrary, the proceedings concerned an alleged breach of an adjectival order of the Children’s Court, designed to protect the identities of various persons concerned with the underlying facts of the childcare case.

55   The Plaintiffs submit that further evidence of malice is demonstrated by the fact that Channel 7 broadcast a television program concerning the child concerned in the underlying proceedings (PX16). The plaintiffs say that this broadcast breached section 105 of the Children and Young Persons (Control and Protection) Act. This they contend occurred to the knowledge of the Second Defendant. They then go on to submit that no action was taken against Channel 7.

56   The failure to take action against Channel 7 the plaintiffs contend, proves malice in the prosecution of the plaintiffs.

57   The first difficulty with this submission is that there is no evidence that the second defendant had any relevant knowledge of the Channel 7 broadcast.

58   Secondly and in my view more fundamentally, is that fact that even if it is assumed that others have breached the legislation, and yet no action has been taken to prosecute them, malice on the part of the defendants towards the Plaintiffs is not proved. Put another way, in my opinion, inaction in taking proceedings against party A does not result in the proposition that the prosecution of party B is malicious.

59   The plaintiffs have not established malice.”

16. The primary judge addressed the element that the proceedings be brought or maintained without reasonable or probable cause as follows:

“Absence of reasonable and probable cause

60   In my view, the Plaintiffs also face an insurmountable task in proving that the prosecutions were made without reasonable and probable cause.

61   As I trust is clear from the course of litigation, to which I have earlier referred, the Plaintiffs’ success in the Court of Appeal in relation to five of the thirteen charges brought against them, depended upon an issue of the correct interpretation of the 25 May Order.

62   This issue of interpretation of the order was ventilated by the plaintiffs in various courts, but not resolved in their favour until the matter came to the Court of Appeal on 11 October 2019.

63   The issue of construction therefore was clearly an issue upon which reasonable minds could differ.

64   The plaintiffs in their submissions suggest that as a consequence of their success on the interpretation argument, the proceedings were doomed to fail from the outlet. They then argue that as a consequence, the prosecution lacked reasonable and probable cause.

65   The plaintiffs then seek to elide the issue of reasonable and probable cause with malice to say that as the proceedings were doomed from the outlet, they must necessarily have been actuated by malice (see First Plaintiffs written submissions at P24.30)

66   These arguments, to my mind are contrary to both logic, and to legal principle. The proposition that a prosecution which fails on a point of law is necessarily one lacking reasonable and probable cause, to my mind only needs to be stated to be rejected. The argument was in any event, an argument that was not favoured by the Court of Appeal in the judgment upon which the plaintiffs rely.

67   In the Court’s judgment in that case, Bell P (as his Honour the Chief Justice then was) at [11] observed that:

‘Whether or not the institution of proceedings that may fail, or indeed that are bound to fail, means that the purpose of the party initiating those proceedings was in some way improper, however, does not follow.’

68   To similar effect, McCallum JA at [121] said:

‘It is clear that different views have been taken as to the construction and operation of the Court Suppression and Non- Publication Orders Act. It could not be said that maintaining a contestable view as to the operation of the Act of itself reveals an absence of any proper purpose for maintaining the criminal proceedings.’

69   As such the plaintiffs have failed to establish this element of their cause of action.”

17. The primary judge addressed the element of damages (which is relevant to proposed ground 8) as follows:

“Damages

70   Proof of damage is a further requirement in proceedings for malicious prosecution. (State of NSW v Landini [2010] NSWCA 157 at [20]).

71   Neither Plaintiff has given any evidence as to damage occasioned by the proceedings brought against them. Whilst a ‘Schedule of Damages’ was prepared by the Plaintiffs, no evidence has been given as to any item referred to in that schedule.”

18. In conclusion, the primary judge found that the plaintiffs had not established that:

1. either of the first or the second defendants was a prosecutor for the purposes of the tort; or

2. their dominant purpose in bringing the prosecution by filing the CANs was other than the proper invocation of the criminal law; or

3. the prosecutions were brought or maintained without reasonable or probable cause; or

4. the damage which they alleged they had suffered.

The costs of the proceedings in the Court below

19. In the Court below, the plaintiffs submitted that there ought be no order for costs. The defendants sought an order that the plaintiffs pay their costs of the proceedings, as well as an order, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that they be paid in a gross sum. The primary judge determined these applications on the papers.

20. On 23 May 2023, the primary judge rejected both the plaintiffs’ application that there be no order as to costs and the defendants’ application that the costs be paid in a gross sum. His Honour acceded to the defendants’ application that the plaintiffs be ordered to pay their costs of the proceedings: Burton v Babb (District Court (NSW), Weber SC DCJ, 23 May 2023, unrep) (the Costs Judgment).

19. The primary judge gave the following reasons for rejecting the applicant’s submission that there ought be no order as to costs:

“16   The first plaintiff put on written submissions dated 4 May 2023, which are directed to the proposition that I should make no costs order in the proceedings.

17   These submissions, in my view, were misconceived insofar as they proceed from the proposition that the defendants incurred no costs This result it was said, arose from the fact that the defendants were indemnified by the insurer for the State of New South Wales, and neither the State of New South Wales nor its insurers were parties to the proceedings.

18   As the defendants point out, they were "Covered Individuals" for the purposes of the State Government's internal self-insurance arrangements, and that the insurer has a right of recovery of the costs incurred for the benefit of the Treasury Managed Fund, pursuant to the relevant Statements of Cover.

19   I would also have thought that the same result would flow from an orthodox application of the equitable doctrine of subrogation.

20   Accordingly, I reject the first plaintiffs submission that I should make no order as to costs.”

22. The primary judge, accordingly, found that there was no reason not to order the plaintiffs to pay the defendants’ costs of the proceedings in accordance with the general rule that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

The application for leave to appeal

23. The application for leave in this Court was listed to be determined in advance of any hearing of the appeal. Although the applicant argued in both his written and oral submissions that he had a right of appeal, the only application before this Court is his summons for leave to appeal. The summons would appear to have been filed on the basis of s 101(r) of the Supreme Court Act 1970 (NSW) (namely, that the applicant has not established that the appeal “involves a matter at issue amounting to or of the value of $100,000 or more”).

24. The principles which apply to a grant of leave are as follows. Leave to appeal will generally only be granted when the appeal involves an issue of principle, a question of public importance or a reasonably clear injustice: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; see also, Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46].

25. The applicant’s draft grounds of appeal are as follows:

“1   The Court erred by failing to keep a full record of the proceedings.

2   His Honour erred by not providing adequate reasons.

3   His Honour erred by ignoring essential evidence provided by the Appellant.

4   His Honour erred by finding that Lloyd Babb (The Director of Public Prosecutions) and Michael Coutts-Trotter (The Secretary of FACS) had no personal involvement in the prosecution despite The Director and The Secretary being the identified initiators and maintainers of the proceedings against the Appellant in the relevant court jurisdictions, and despite finding that at all relevant times Lloyd Babb was the Director of Public Prosecutions and Michael Coutts-Troller was the Secretary of FACS.

5   His Honour erred by ruling that the Appellant gave no evidence that the child was removed unlawfully when evidence of the child being removed unlawfully was provided by the Appellant and tendered and accepted by the court and His Honour then ruled that he would not look into whether the removal was unlawful.

6   His Honour erred by failing to find that there was no reasonable and probable cause because the orders contained neither the element of time (when they were in force) and space (where they were in force).

7   His Honour erred by failing to find as a matter of law that the action was malicious as a result of there being no reasonable and probable cause and that therefore the charges must have been laid for an improper purpose and maintained for an improper purpose.

8   His Honour erred by finding the Appellant did not prove damages.

9   His Honour erred by making an order as to costs when no costs were incurred by the Defendants in person.

10   His Honour erred by allowing the case to continue when it was brought to his attention that Counsel for the Defendants were operating without instructions from either Defendant in person or in the alternative the Defendants were misusing State resources.”

Consideration

Proposed ground 1: alleged error occasioned by incomplete recording of plaintiffs’ oral submissions

26. The proposed first ground arises from the malfunction in the sound recording equipment referred to above at [10]. The applicant submitted that it was an error of law for the Court below, as a court of record, not to keep a full record of proceedings and that the lack of a full transcript would compromise this Court’s capacity to review the matter.

27. Section 8(2) of the District Court Act 1973 (NSW) provides that the District Court “shall be a court of record.” However, the legislation does not stipulate the records that must either be created or maintained.

28. There is no suggestion that the malfunction in the recording equipment deprived the primary judge of the opportunity of hearing and having regard to all the oral submissions which were made during the period of the malfunction. Its only consequence was that a portion of the plaintiffs’ oral submissions was not transcribed. It is not uncommon for District Court judges to hear and decide matters without the benefit of transcript, although a transcript of all matters is created.

29. The effect of the temporary malfunction is that this Court does not have a full transcript of the oral submissions made by the applicant to the Court below. However, as the error was discovered while the applicant was still making submissions, he had the opportunity to repeat or recapitulate what he had said when a functional recording system was available.

30. There may be instances where loss of transcript, particularly of crucial oral evidence, has compromised a parties’ right of appeal such that the only remedy to cure the injustice is to set aside the orders of the Court below and order a re-trial. I am not persuaded that the gap in the recording of the applicant’s submissions amounts to a basis for impugning the decision of the Court below in circumstances where the primary judge heard all the submissions and what was said in the Court below was not in contention. This ground of appeal does not raise any question of principle or any basis for suggesting that any reasonably clear injustice arose.

Proposed ground 2: alleged failure to provide adequate reasons

31. The applicant contended that the primary judge had failed to give adequate reasons for judgment. He particularly relied on the passages from his Honour’s reasons at [25] and [33] (extracted above).

32. The purposes of the judicial obligation to give reasons that explain why a decision has been reached include that the unsuccessful party is entitled to know why he or she has lost and also whether any error might warrant a challenge to the decision by an appeal: Pettitt v Dunkley (1971) 1 NSWLR 376 at 382 (Asprey JA) and 388 (Moffit JA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (McHugh JA). The length and detail required of reasons, accordingly, depends on the issues to be determined.

33. In the present case, where the plaintiffs had adduced no evidence to establish a number of the elements of the cause of action which they propounded, the primary judge was not required to do more than identify each element and explain why he considered proof to be deficient. In the circumstances of the present case, the applicant has failed to identify any respect in which the primary judge’s reasons were inadequate.

Proposed grounds 3 and 5: alleged error in “ignoring essential evidence” adduced by the applicant

34. In support of the proposed third and fifth grounds, the applicant relied on evidence which was said to establish that “the child in this case was removed on known false grounds and without delegated authority.” In his written submissions in this Court, the applicant said in part:

“Whilst the Applicant can appreciate that the matter of an unlawful removal of a child may not be the direct subject of this malicious prosecution, it most certainly is an essential element in regards to the grounding of malice.”

35. The primary judge addressed the question of malice at length (see the passages extracted from [52]-[59] of his Honour’s reasons). Of significance, there was no evidence that any “malice” could be sheeted home to either of the defendants, even if one or both of them could be shown to be a prosecutor for the purpose of the tort of malicious prosecution.

36. This point can be illustrated by the decision of this Court in State of New South Wales v Spedding [2023] NSWCA 180 (Bell CJ, Ward P and Adamson JA) (Spedding) where this Court held that the Office of the Director of Public Prosecutions, although found to be one of the “prosecutors” for the purposes of the tort of malicious prosecution, did not have the requisite malice (the improper purpose being confined to the police officers who had been involved in charging the respondent).

Proposed ground 4: alleged error in the finding that neither of the defendants had a personal involvement in the prosecution

37. The identity of the “prosecutor” for the purposes of the tort alleged was crucial to the cause of action. The positions held by the defendants at the relevant time were insufficient to establish that matter since, for the purposes of the tort of malicious prosecution, “the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor”: Davis v Gell (1924) 35 CLR 275 at 282; [1924] HCA 56 (Isaacs ACJ).

38. In Spedding, this Court said at [15]:

“[I]dentification of the prosecutor is not a matter of merely identifying a person who is literally or formally named as the ‘prosecutor’ on Court process.”

39. Even if it could be said that either of the defendants was, relevantly, a prosecutor, the applicant’s claim for damages was bound to fail because of the dearth of evidence to establish either malice or absence of reasonable and probable cause.

40. Proposed ground 4 does not raise an issue of principle since it was a factual question. Nor does it give rise to any reasonably arguable injustice.

Proposed grounds 6 and 7: alleged error in finding neither no reasonable and probable cause nor malice

41. In this Court, the applicant relied on an argument in support of these grounds which had been put and rejected in the Court below (as set out in the extracts from the primary judge’s reasons above). It does not follow from the fact that the characterisation of the 25 May order as an interim order turned out (with the benefit of this Court’s judgment in Burton CA) to be incorrect that there was any malice or lack of reasonable or probable cause in the prosecution of the plaintiffs for breach of the order which the prosecutors can be taken to have believed to be lawful at the time.

42. The applicant has failed to identify any issue of principle, question of public importance or reasonably clear injustice which arises either from the primary judge’s reasons, the orders made or the grounds of appeal.

Proposed ground 8: alleged error in finding that the applicant had not proved the damages alleged

43. In support of ground 8, the applicant argued that he had confirmed, at the outset of the proceedings in the Court below, that he was not claiming “special” damages. He submitted that he was, nonetheless, entitled to an award of damages “[e]specially in regards to the exemplary damages.”

44. In State of New South Wales v Landini [2010] NSWCA 157, this Court confirmed, by reference to High Court authority, that damages is an element of the cause of action for malicious prosecution at [20]:

“To these elements should be added proof of damage, as malicious prosecution is an action on the case (Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 284, 285 per Isaacs ACJ and Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552 at 557 per Jordan CJ with whom Halse Rogers and Street JJ concurred).”

45. In Davis v Gell, Isaacs ACJ said, at 285:

“Three possible classes of damage are enumerated … namely, damage to (1) person, (2) reputation, (3) property. It matters not whether the damage is such as the law imports or needs to be specifically proved. But that some damage is necessary, and that the plaintiff can recover only for such damage as is proved expressly or impliedly is conclusively established …”

46. The primary judge found that the tort was not made out as other elements (anterior to the question of damages) were not established. It is, accordingly, neither necessary nor desirable for this Court to address damages which, in the present case, could only be hypothetical. This ground does not provide a warrant for a grant of leave.

Proposed grounds 9 and 10: alleged error in the costs order in circumstances where no costs were personally incurred by either of the defendants

47. The applicant argued, as he had argued in the Court below, that because neither of the defendants had personally incurred a liability to pay the Crown Solicitor’s Office (CSO), the solicitor on the record for the defendants, for legal fees and costs, no order for costs in their favour ought be made. That argument was rejected by the primary judge for the reasons his Honour gave in the passage extracted from the Costs Judgment set out above.

48. The effects of s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) are that the State of New South Wales (the State) is vicariously liable in respect of torts committed by persons in the service of the Crown in the performance or purported performance of functions in the course of their service with the Crown and that the State is obliged to indemnify an employee or officer who, in the execution of duty, commits a tort in respect of which damages are awarded. As both defendants occupied public office, the State is vicariously liable for torts committed by them in the course of their public service (whether or not it was joined as a defendant) and obliged to indemnify them against any award of damages in favour of the plaintiff or any costs.

49. Section 44 of the Legal Profession Uniform Law Application Act 2014 (NSW) provides that the Crown Solicitor for NSW (namely, the CSO) may act as solicitor for the State or any officer or employee in the service of the State. The applicant accepted that the CSO was entitled to act as the solicitor for each or both of the defendants.

50. Each of the defendants was a “Covered Individual” for the purposes of the State government’s internal self-insurance arrangement. In these circumstances, as the primary judge found, the insurer had a right of recovery of the costs incurred for the benefit of the Treasury Managed Fund under the Statements of Cover, as well as by reference to the principles of subrogation. In these circumstances, whether the defendants are personally liable for the costs is not to the point.

51. The applicant further argued that, in the absence of evidence that either one of the defendants had instructed the CSO to act on his behalf, this Court ought conclude that the CSO was acting without their instructions and in contempt of this Court.

52. In support of this submission, the applicant relied on an internal CSO document which recorded that the CSO had been instructed to act on behalf of the Office of the Director of Public Prosecutions (ODPP) on 23 July 2020 and to act on behalf of the Department of Communities and Justice (DCJ) on 26 August 2020. I understood it to have been accepted that the first defendant had been the DPP at the time of the prosecution of the applicant in the Local Court and the second defendant was Secretary of FACS at the time of the prosecution, although he later became the Secretary of the DCJ.

53. In addition, the applicant relied on this Court’s decision in Burton v Babb [2020] NSWCA 331 in support of his submission that the CSO was in contempt of this Court by purporting to act on behalf of the defendants, notwithstanding that the defendants had not instructed them to do so and was, he alleged, acting on the instructions of the State. He argued that the State was, in substance, running the case for itself.

54. In Doulaveras v Daher [2009] NSWCA 58, Campbell JA (Giles and Macfarlan JJA agreeing) said, of present relevance, at [138]:

“Litigation proceeds on the basis of the court, and the other parties, assuming that the person purporting to act as solicitor for a party has authority from that party to bring the litigation and do the actions that are incidental to the conduct of the litigation. It is that assumption that is the basis of the ostensible authority of a solicitor concerning litigation. A challenge to retainer is a challenge to that assumption. It is often important that it be dealt with promptly after it is known that the challenge exists, lest the court and the parties engage in a charade of purporting to decide issues between parties to litigation when one of those parties is not really there.”

55. The party challenging a legal practitioner’s retainer bears the onus of proving that the legal practitioner has not been retained. However, depending on the quality of the challenger’s evidence, an evidentiary onus may move to the legal practitioner in relation to particular factual issues: Hawksford v Hawksford [2005] NSWSC 463; (2005) 191 FLR 173 at [55] (Campbell J). The applicant has not adduced any evidence to discharge the onus apart from the internal CSO document, which revealed no more than that the CSO had been instructed by those entities.

56. The communications between, on the one hand, the CSO, and, on the other, the defendants and the State are protected by client legal privilege which has not been waived. In these circumstances, the applicant’s contention that the CSO “never had instructions” to act on behalf of the defendants has not and cannot be made out. Indeed, inferences to the contrary are available from the circumstance that the State is not only vicariously liable for any liability established against either of the defendants, but it is also the (self-)insurer of this liability.

57. The proposed grounds 9 and 10 raise no issue of principle (since the applicable principle is well-established) or reasonably clear injustice.

Conclusion

58. For the reasons given above, none of the proposed grounds of appeal raises an issue of principle or gives rise to an injustice which is “reasonably clear”, rather than merely arguable. None of the grounds raises a real question as to the correctness of either the judgment in favour of the defendants or the order for costs in their favour.

Proposed orders

59. For the reasons given above, I propose the following orders:

1. Refuse leave to appeal.

2. Order the applicant to pay the respondents’ costs of the application.

60. SIMPSON AJA: I agree with Adamson JA.

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Decision last updated: 12 October 2023