Burton v State of New South Wales

[2024] NSWDC 314

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Burton v State of New South Wales [2024] NSWDC 314

Hearing dates:

29 July 2024

Date of orders:

30 July 2024

Decision date:

30 July 2024

Jurisdiction:

Civil

Before:

Acting Judge Levy SC

Decision:

1. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) the plaintiff’s proceedings are dismissed;

2.   The plaintiff is to pay the defendant’s costs on the ordinary basis unless otherwise ordered;

3.   Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – claims by plaintiff of malicious prosecution – whether prosecution was a collateral abuse of process lacking reasonable or probable cause; CIVIL PROCEDURE – dismissal of plaintiff’s proceedings pursuant to UCPR r 13.4 - following determination of issues in prior proceedings - res judicata – Anshum estoppel – rejection of plaintiff’s application to file an amended statement of claim as an abuse of process in circumstances where the grant of such an application would permit the possibility of inconsistent judgments bringing the proper administration of justice into disrepute

Legislation Cited:

Children and Young Persons Care and Protection Act 1998 (NSW), s 105

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Crown Proceedings Act 1988 (NSW), s 5

Uniform Civil Procedure Rules 2005 (NSW), r 13.4, r 14.28

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10

Burton v Babb [2023] NSWCA 242

Burton v Babb [2023] NSWDC 103

Burton v Director of Public Prosecutions [2024] NSWSC 863

Burton v Local Court of New South Wales [2019] NSWSC 191

Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245

Burton v Office of the Director of Public Prosecutions [2019] NSWDC 120

Burton v Office of the Director of Public Prosecutions [2019] NSWDC 120

Henderson v Henderson (1843) 3 Hare 115; 67 E.R. 319

Melbourne Port Authority v Anshun Pty Ltd (1981) 1447 CLR 589

Re Christoper [2017] NSWSC 318; Re Christoper [2017] NSWSC 318

Reichel v McGrath (1899) 14 AC 665

Rippon v Chilcotin Pty Ltd [2001] NSWLR 198; [2001] NSWCA 142

Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Category:

Procedural rulings

Parties:

Paul Robert Burton (Plaintiff in person)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr G Bateman (Defendant)
Solicitors:
Crown Solicitor for New South Wales (Defendant)

File Number(s):

2023/452883

Publication restriction:

None

Judgment

1. Two notices of motion arise for determination in these proceedings brought by the self-represented plaintiff, Mr Paul Burton, claiming damages for alleged malicious prosecution against the defendant, the State of New South Wales.

First notice of motion – filed by the defendant

2. The first notice of motion, filed by the defendant on 2 April 2024, seeks dismissal of the plaintiff’s proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), or alternatively, that the plaintiff’s statement of claim be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), with a consequential order for costs.

3. The defendant relied upon an affidavit affirmed on 2 April 2024 by Ms Emma Morris, solicitor, in support of its motion.

4. The basis for the relief sought by the defendant is founded on alternative claims that the plaintiff’s proceedings are either frivolous, vexatious, not disclosing of a reasonable cause of action, or an abuse of the process of the court (UCPR r 13.4), or that the plaintiff’s proceedings disclose no reasonable cause of action, or alternatively, that the plaintiff’s pleadings have a tendency to cause prejudice or embarrassment, and otherwise constitute an abuse of the process of the court: UCPR r 14.28.

Second notice of motion – filed by the plaintiff

5. The second notice of motion, filed by the plaintiff on 22 April 2024, is reactive to the defendant’s dismissal motion filed on 2 April 2024. The plaintiff’s motion seeks leave for the filing of an amended statement of claim with consequential orders for costs and procedural directions on the assumption that the proceedings will remain on foot after determination of the defendant’s notice of motion.

6. The plaintiff relied upon his own affidavit sworn on 22 April 2024 in support of the orders sought in his motion.

Sequence for consideration

7. The parties agreed that the appropriate sequence for the consideration and determination of the respective motions was that the defendant’s motion should be determined first. They also agreed that the arguments raised by the defendant on the dismissal and strike out applications also applied to the plaintiff’s application for leave to file his proposed amended statement of claim.

Common Court Book

8. The parties agreed that the relevant materials required for the consideration of the respective motions were contained in a common court book which was conveniently assembled by the solicitor for the defendant.

Factual Background

9. These proceedings emerge from a long history of litigation brought by the plaintiff against the State of New South Wales. The plaintiff has advanced various iterations of his litigation against the defendant and its employees over the course of time. That history stemmed from the decision in Re Christoper [2017] NSWSC 318.

10. Broadly stated, the plaintiff was the first defendant in those proceedings brought pursuant to the Children and Young Persons Care and Protection Act 1998 (NSW) [“the Care Act”].

11. In those proceedings, various non-publication orders were made pursuant to s 105 of the Care Act and s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) [“the Suppression Act”].

12. The plaintiff and another defendant in those proceedings, Mr Andrew Katelaris, were prosecuted for alleged breaches of a suppression order made in that case prohibiting the publication of the name of the subject child.

13. In judicial review proceedings, on a construction point, it was ultimately determined that prosecution was flawed because the relevant suppression order was not appropriately defined or limited as to time and geographic location: s 11 of the Suppression Act. That determination led to the discontinuance of the prosecution of the plaintiff.

14. Based upon that outcome, the plaintiff commenced a series of cases, which, in their various iterations, claimed damages for alleged malicious prosecution.

15. That series of cases, which have already been concluded, include the following proceedings which are listed in chronological sequence:

1. Re Christoper [2017] NSWSC 318

2. Burton v Local Court of New South Wales [2019] NSWSC 191;

3. Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245;

4. Burton v Office of the Director of Public Prosecutions [2019] NSWDC 120;

5. Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285;

6. Burton v Babb [2023] NSWDC 103;

7. Burton v Babb [2023] NSWCA 242;

8. Burton v Director of Public Prosecutions [2024] NSWSC 863.

16. The court was informed that there were 10 cases involving alleged breaches of suppression or non-publication orders, where seven of those cases involved orders made under the Suppression Act. The hearing of some of those cases still remain outstanding and are due to be heard in the latter part of this year.

Issues

17. The pivotal issues which will determine the outcome of the respective notices of motion are first, whether, by reason of res judicata estoppel or an Anshun estoppel, the plaintiff should be precluded from advancing his claims either as originally pleaded in these proceedings, or in the suggested amended form the subject of his notice of motion, and secondly, whether the plaintiff’s present proceedings, in either original or amended form, amount to an abuse of process that, if permitted to go forward, would bring the administration of justice into disrepute.

Submissions by the State of New South Wales

18. The defendant submitted that these proceedings commenced by the plaintiff on 11 December 2023 claiming damages for malicious prosecution represent an attempt to re-litigate essential issues which have already been determined against him in his prior proceedings which were dismissed on 19 April 2023: Burton v Babb [2023] NSWDC 103.

19. The defendant submitted that position is evident from an examination of the plaintiff’s present statement of claim and an examination of the earlier pleadings and the decision in Burton v Babb [2023] NSWDC 103, at [33], [34], [60] to [69], where the essential elements of reasonable and probable cause for prosecution and malice were rejected.

20. The defendant also relied upon the earlier finding that the plaintiff had not established as against the prosecutor the element of malice, namely a purpose other than the proper invocation of the criminal law, namely, an illegitimate or oblique motive: A v State of New South Wales (2007) 230 CLR 500: [2007] HCA 10, at [91].

21. The defendant further submitted that where the individuals who were previously sued unsuccessfully as was found in Burton v Babb, supra, (Mr Babb and Mr Coutts-Trotter) are not the same as the named defendant in this case (the State of New South Wales) is not fatal to the defendant’s arguments concerning res judicata estoppel, and Anshun estoppel: Melbourne Port Authority v Anshun Pty Ltd (1981) 147 CLR 589.

22. The defendant also submitted that it’s abuse of process argument, whilst not constituting an estoppel, was nevertheless supported by applicable authority: Rippon v Chilton [2001] NSWCA 142, and related cases.

23. The defendant submitted that the plaintiff’s pleadings, whether in the form of the existing statement of claim or in the proposed amended form, were “so flawed as to be embarrassing”.

24. That submission was made on the basis that no improper purpose for the prosecution of the plaintiff has been pleaded or established by him, and his suggested inference that the prosecution of him was launched without reasonable or probable cause amounting to a collateral abuse of process, was wrong in law on multiple levels, as was explained in Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245, at [42].

25. On those bases, the defendant submitted that the plaintiff’s proceedings should be dismissed pursuant to 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), with costs.

Submissions by Mr Burton

26. The plaintiff submitted that his present proceedings, either in the form as presently filed, or in the proposed amended form, is not an attempt on his part to re-litigate issues that have already been determined against him: Burton v Babb [2023] NSWDC 103.

27. The basis for that submission is that although the charges which underlie all of his proceedings have not changed, relevantly, the parties are different.

28. Essentially, the plaintiff submitted that since the defendant in the present case is the entity comprising State of New South Wales, as distinct from the named persons in the prior proceedings (Mr Babb and Mr Coutts-Trotter), the defendant’s arguments raising res judicata estoppel and Anshun estoppel do not effectively operate as barriers to his case proceeding forward to a hearing on the merits.

29. That argument proceeded on the basis that the fact of a differently named defendant, with differently configured particulars, defeats the res judicata and estoppel arguments presented by the defendant.

30. The plaintiff further argued that the judicially determined flaw in the underlying proceedings identified in the earlier judicial review proceedings (the omission to identify a time duration and a geographic location for the operation of the non-publication order) rendered that non-publication order unenforceable. The submitted consequence was that the prosecutor lacked reasonable and probable cause to justify the commencement of those underlying proceedings.

31. The plaintiff’s submissions rejected arguments put forward by the defendant along the lines that allowing the plaintiff’s proceedings to continue would permit inconsistent judgments so as to bring the administration of justice into disrepute.

32. The plaintiff also rejected the proposition that his proposed claim against the defendant raising the argued tort of a collateral abuse of process was wrong in law.

33. On that basis, the plaintiff sought to resist the defendant’s request to have the proceedings dismissed, and instead argued that he was entitled to amend his statement of claim in the manner he has formulated.

Consideration and determination

34. It is self-evident that the basic facts and charges upon which the plaintiff has brought these and the previous proceedings has not changed. What has changed is the naming of the respective defendants. There is no question that but for overriding questions of estoppel, he is entitled to pursue the various defendants for malicious prosecution, and such claims would then stand to be determined on their merits.

35. In the plaintiff’s previous litigation in which the plaintiff was unsuccessful, he had sued the Director of Public Prosecutions, Mr Lloyd Babb, and Mr Michael Coutts-Trotter, the then Secretary of the Department of Communities and Justice, in their personal capacities alleging malicious prosecution: Burton v Babb [2023] NSWDC 103.

36. The plaintiff’s failure in those proceedings has resulted in a res judicata estoppel which prevents the underlying facts of those earlier proceedings from being relitigated.

37. That proposition self-evidently arises from a comparison between the pleadings in that case (paragraphs 41 and 42 of both versions of the plaintiff’s statement of claim in proceedings numbered 2020/191681) and both versions of his pleadings in the present case (paragraphs 6 to 10 in both the original statement of claim and the proposed amended pleading, in proceedings numbered 2023/452883, including paragraphs 6A, 6B, and 9A in the latter version) which the plaintiff now seeks leave to rely upon.

38. Artfully, the plaintiff seeks to avoid the res judicata argument by pointing to the differently named defendants, namely Mr Babb and Mr Coutts-Trotter on the one hand, and the State of New South Wales on the other hand.

39. In my view that argument should not be accepted because it is inherently flawed.

40. In the circumstances of the litigation, it could not be reasonably argued, as the plaintiff does, that Mr Babb and Mr Coutts-Trotter brought the litigation against the plaintiff in their personal capacities.

41. Instead, as they were self-evidently acting in accordance with their delegated child protection duties as employees of the State of New South Wales, the State must assume vicarious liability for their actions if such actions are found to be tortious. In that regard, their actions in prosecuting the plaintiff are covered by the umbrella provision comprising s 5 of the Crown Proceedings Act 1988 (NSW).

42. If I am found to be wrong in that analysis, then in my view, there is a further and insurmountable barrier to the success of the plaintiff’s action, in whichever of the two alternative forms it is pleaded, namely the defendant’ claim of an Anshun estoppel.

43. The defendant submitted that a wider sense of res judicata arises in this case as was recognised by the High Court in Melbourne Port Authority v Anshun Pty Ltd (1981) 147 CLR 589, at 598, where the plurality held as follows:

“The critical issue then, is whether the case falls within the extended principle expressed by Sir James Wigram V.C. in Henderson v Henderson (1843) 3 Hare, at p 115; 67 E.R., at p 319). Th Vice Chancellor expressed the principle in these terms:

‘… where a given matter becomes the subject of litigation in, and adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstance) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time’.”

44. I find that those authoritative statements aptly apply to the circumstances of this case. Anshun estoppel arises in this case notwithstanding a change in the name of the defendant to the State of New South Wales and notwithstanding a change in the name of the prosecutor, in this case, a named police officer. All of those persons are covered by the same umbrella vicarious liability protection afforded to them by s 5 of the Crown Proceedings Act 1988 (NSW) as employees of the State.

45. I also accept the aptness of the defendant’s argument citing Halsbury LJ, in Reichel v McGrath (1899) 14 AC 665, at 668, as follows:

“It would be a scandal to the administration of justice if, the same question having been disposed of in one case, the litigant were to be permitted by changing the form of the proceedings to set out the same case again … There must be an inherent jurisdiction in every court of Justice to prevent such an abuse of procedure …”

46. That citation was approved in Rippon v Chilcotin [2021] NSWCA 142, at [15], and earlier, by the High Court in Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, at 393, where it was held:

“Yet again, proceedings before a Court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new a case which has already been disposed of by earlier proceedings.”

47. I find that those statements also aptly apply to the circumstances of this case.

48. The final element of the plaintiff’s claim is what I consider to be the fallacious and inference based argument to the effect that the prosecution of him amounted to an abuse of process because the charges were laid against him without reasonable and probable cause so as to amount to a collateral abuse of process.

49. That argument is plainly wrong in law because it does not identify a pleaded improper purpose, which is an essential ingredient of a claim of collateral abuse of process, as explained by Bell P (as his Honour then was) in Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245, at [42], where a second missing element in the plaintiff’s pleading was also identified as requiring an allegation to the effect that the legal process in question was misused to obtain a collateral advantage outside that which was afforded by the invoked legal process. The plaintiff’s pleadings are deficient on both of those counts.

50. Accordingly, at multiple levels, I find that the plaintiff’s proceedings are terminally afflicted, and should not be permitted to advance any further. For that reason, it would be inappropriate to apply the strike out provisions of r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

Disposition

51. For the foregoing reasons the plaintiff’s proceedings should be dismissed.

Costs

52. The consequence of dismissal of the plaintiff’s proceedings is that the plaintiff should pay the defendant’s costs of the dismissed proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

53. I make the following orders:

1. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) the plaintiff’s proceedings are dismissed;

2. The plaintiff is to pay the defendant’s costs of the dismissed proceedings on the ordinary basis unless otherwise ordered;

1. Liberty to apply on 7 days’ notice if further or other orders are required.

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Amendments

30 July 2024 - Corrected formatting and paragraph numbering.

Decision last updated: 30 July 2024