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— TORTS — applicant charged in Local Court for posting material in apparent breach of suppression order — charges withdrawn as order unenforceable — proceedings commenced against respondents for damages for malicious prosecution — elements of tort not made out — alleged failure of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
Category: Principal judgment Parties: Paul Robert Burton (Applicant)
Lloyd Babb (First Respondent)
Michael Coutts-Trotter (Second Respondent)Representation: Counsel:
Solicitors:
Applicant (self-represented)
G Bateman (Respondents)
Not applicable (Applicant)
Crown Solicitor’s Office (Respondents)
File Number(s): 2023/144234 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Civil
- Citation:
- 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…
Continue reading Burton v Babb
Sign in free to access the full text
- AGLC
- Burton v Babb [2023] NSWCA 242
- Case
- [2023] NSWCA 242
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the respondents could be considered "prosecutors" for the purposes of the tort of malicious prosecution, and whether the District Court judge had erred in finding that the elements of the tort were not made out. Specifically, Burton alleged the judge failed to provide adequate reasons, ignored essential evidence, and wrongly concluded there was no proof of damages. A secondary issue concerned an alleged error in a costs order, particularly in circumstances where the defendants had not personally incurred costs and whether the Crown Solicitor's Office (CSO) had acted without proper instructions.
The Court of Appeal found that the applicant had failed to identify any issue of principle, question of public importance, or reasonably clear injustice that would warrant granting leave to appeal. Regarding the malicious prosecution claim, the Court implicitly accepted the District Court's findings that the respondents were not prosecutors in the relevant sense, and that the necessary elements of the tort, including proof of damage, were not established. On the costs issue, the Court noted that the defendants were covered by the State of NSW's self-insurance arrangement, and the State was entitled to conduct proceedings on behalf of the defendants, provided it acted in good faith. There was no evidence to challenge the retainer between the defendants and the CSO.
Consequently, the Court of Appeal ordered that leave to appeal be refused and that the applicant pay the respondents’ costs of the application.
Orders
Orders of the court
(1) Refuse leave to appeal.
(2) Order the applicant to pay the respondents’ costs of the application.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.