Burton v Babb

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had previously been charged in the Local Court for allegedly breaching a suppression order, but these charges were withdrawn on the basis that the order was unenforceable.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.