Burton v Babb - [2023] NSWDC 103

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Burton v Babb [2023] NSWDC 103
Hearing dates: 13 and 14 February 2023 and 5 April 2023.
Date of orders: 19 April 2023
Decision date: 19 April 2023
Jurisdiction: Civil
Before: Weber SC DCJ
Decision:
(1) That there be judgment and verdict for the
defendants against the plaintiffs.

Catchwords:
TORTS – Malicious Prosecution

Legislation Cited:
Childrens and Young Persons (Care and Protection) Act 1998
Civil Procedure Act 2005
Court Suppression and Non-Publication Orders Act 2010
Uniform Civil Procedure Rules 2005

Cases Cited:
Burton v Local Court of NSW [2019] NSWSC
Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120
Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245
A v State of New South Wales (2007) 230 CLR 500
Jones v Dunkel (1959) 101 CLR 298
Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61
State of NSW v Landini [2010] NSWCA 157
Bailey v Director General Department of Natural Resources [2014] NSWSC 1012

Category: Principal judgment
Parties: First Plaintiff: Paul Robert Burton
Second Plaintiff: Andrew Katelaris
First Defendant: Lloyd Babb
Second Defendant: Michael Coutts-Trotter
Representation:
Counsel:
Plaintiffs: Self Represented
Defendants: G Bateman
Solicitors:
Plaintiffs: Self Represented
Defendants: Crown Solicitors Office

File Number(s): 2020/00191681
Publication restriction: None

JUDGMENT

Background

On 25 May 2017 the Children’s Court made an interim order pursuant to s 57(1)(a) of the Court Suppression and Non Publication Act (“the Act”), The order prohibited the publication of information which orders could identify certain persons involved in proceedings before it (“The 25 May Order”).
The 25 May Order was in the following terms:

“INTERIM ORDER
1. Pursuant to section 7(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 and relying on the grounds outlined in subsections 8(1)(c) and 8(1)(e) of the Act: there must be no publication or information that would identify or tend to identify individuals within the following groups of persons connected with proceedings...”

The 25 May Order was sought on the application of the Department of Family and Community Services (FACS). At all relevant times the second defendant was the Secretary of FACS.
At all relevant times the First defendant was the Director of Public Prosecutions for the State of NSW.
On 31 May 2017 the Children’s Court made a further order pursuant to s 57 (1) designed to prohibit the publication of information which might compromise evidence in the proceedings before it.
The plaintiffs posted material on Facebook which on its face appeared to breach the 25 May Order.
On June 27, 2017, Catherine Samuels, the Director of Child Protection FACS Legal, sent emails to the Plaintiffs requesting that they remove any posts on their Facebook pages which were in breach of the 25 May Order. Both Plaintiffs refused to do so.

The Subsequent Course of Litigation

In July 2017 proceedings were brought on behalf of the Second Defendant in the Equity Division of the Supreme Court. The Summons sought injunctive relief against the Plaintiffs, and orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burton v Babb

Details

AGLC: Burton v Babb [2023] NSWDC 103
Case: [2023] NSWDC 103
Decision Date: 19 April 2023

CaseChat Overview and Summary

Burton sued Babb, alleging malicious prosecution in relation to criminal proceedings that Babb had initiated against Burton. The case was heard in the Supreme Court of New South Wales. Burton claimed that Babb had maliciously prosecuted him for an offence which he did not commit, thereby causing him harm and damage to his reputation. Babb, on the other hand, asserted that the prosecution was initiated with proper motives and on reasonable grounds, and that Burton's claims were unfounded.

The primary legal issue before the court was whether Babb's prosecution of Burton was malicious, and whether it was conducted without probable cause. The court needed to determine if Babb acted with malice, meaning an improper motive, and if the prosecution was based on reasonable and probable cause. The court also had to consider if Burton had suffered any damages as a result of the alleged malicious prosecution.

The court found that Babb's prosecution of Burton was not malicious, as Babb had acted with a proper motive and on reasonable grounds. The evidence showed that Babb had acted in good faith and had a reasonable belief that Burton was guilty of the offence. The court held that the prosecution was not carried out with an improper motive or without probable cause. As a result, the court found in favour of Babb, awarding him costs and dismissing Burton's claims. The court ordered that there be judgment and verdict for the defendants against the plaintiffs.

Orders

Orders of the court

(1) That there be judgment and verdict for the

defendants against the plaintiffs.

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.

Medium Neutral Citation:	Burton v Babb [2023] NSWDC 103
Hearing dates:	13 and 14 February 2023 and 5 April 2023.
Date of orders:	19 April 2023
Decision date:	19 April 2023
Jurisdiction:	Civil
Before:	Weber SC DCJ
Decision:	(1) That there be judgment and verdict for the defendants against the plaintiffs.
Catchwords:	TORTS – Malicious Prosecution
Legislation Cited:	Childrens and Young Persons (Care and Protection) Act 1998 Civil Procedure Act 2005 Court Suppression and Non-Publication Orders Act 2010 Uniform Civil Procedure Rules 2005
Cases Cited:	Burton v Local Court of NSW [2019] NSWSC Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120 Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245 A v State of New South Wales (2007) 230 CLR 500 Jones v Dunkel (1959) 101 CLR 298 Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 State of NSW v Landini [2010] NSWCA 157 Bailey v Director General Department of Natural Resources [2014] NSWSC 1012
Category:	Principal judgment
Parties:	First Plaintiff: Paul Robert Burton Second Plaintiff: Andrew Katelaris First Defendant: Lloyd Babb Second Defendant: Michael Coutts-Trotter
Representation:	Counsel: Plaintiffs: Self Represented Defendants: G Bateman Solicitors: Plaintiffs: Self Represented Defendants: Crown Solicitors Office
File Number(s):	2020/00191681
Publication restriction:	None