Burton v Babb

Case [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— TORTS — applicant charged in Local Court for posting material in apparent breach of suppression order — charges withdrawn as order unenforceable — proceedings commenced against respondents for damages for malicious prosecution — elements of tort not made out — alleged failure of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…

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AGLC
Burton v Babb [2023] NSWCA 242
Case
[2023] NSWCA 242
Decision Date

CaseChat Overview and Summary

The applicant, Burton, sought leave to appeal against a decision of the District Court concerning proceedings he had commenced against the respondents for malicious prosecution. Burton had previously been charged in the Local Court for allegedly breaching a suppression order, but these charges were withdrawn on the basis that the order was unenforceable. Burton then initiated proceedings against the respondents, alleging they had maliciously prosecuted him.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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