Burton v Office of the Director of Public Prosecutions

Burton appealed to the Court of Appeal of New South Wales against orders made by a primary judge dismissing his proceedings against the Office of the Director of Public Prosecutions. The dispute concerned whether the primary judge had erred in dismissing Burton's claim, which alleged, among other things, that the institution of criminal proceedings against him constituted a collateral abuse of process.

The Court of Appeal was required to determine whether the primary judge had correctly concluded that Burton's statement of claim failed to disclose a reasonable cause of action. Specifically, the court considered whether the tort of collateral abuse of process, as distinct from grounds justifying a stay of proceedings, had been properly pleaded and whether the institution of criminal proceedings with the intent to vex an accused fell within the lawful scope of the criminal process. The court also considered whether a non-publication order made by the primary judge was an interim order.

The Court of Appeal granted leave to appeal on all grounds except one. It reasoned that the primary judge had erred in dismissing the proceedings summarily. The court held that the tort of collateral abuse of process, which involves using the legal process for an ulterior purpose, was capable of being established on the facts pleaded. The court also found that the institution of criminal proceedings for the purpose of vexing an accused was not within the lawful scope of the criminal process.

Consequently, the Court of Appeal set aside the orders made by the primary judge dismissing Burton's proceedings.