Clavel v Savage

[2015] NSWCA 61

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Clavel v Savage [2015] NSWCA 61
Hearing dates:	16 and 17 February 2015
Decision date:	24 March 2015
Before:	Macfarlan JA at [1]; Emmett JA at [2]; Sackville AJA at [4]
Decision:	1. Appeal dismissed. 2. The appellants pay the costs of the third respondent (State of New South Wales) of the appeal.
Catchwords:	TORTS – malicious prosecution – whether appellant demonstrated absence of reasonable and proper cause – whether malice demonstrated – identifying the prosecutor or instigator of the prosecution – collateral abuse of power – whether improper purpose established – whether delay in delivery of primary judgment resulted in unsafe findings
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Crimes Act 1900 (NSW), ss 59, 61, 195(a), 562 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 Inclosed Lands Protection Act 1901 (NSW), s 4 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	A v New South Wales [2007] HCA 10; 230 CLR 500 Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432 Calderbank v Calderbank [1975] 3 All ER 333 Clavel v Savage [2013] NSWSC 775 Clavel v Savage (No 2) [2014] NSWSC 463 Davis v Gell [1924] HCA 56; 35 CLR 275 Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; 140 FCR 17 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470 State of New South Wales v Landini [2010] NSWCA 157 State of New South Wales v Quirk [2012] NSWCA 216 Williams v Spautz [1992] HCA 34; 174 CLR 509
Texts Cited:	J Fleming, The Law of Torts (9th ed 1998)
Category:	Principal judgment
Parties:	Jean Luc Clavel (First Appellant) Sarah Clavel (Second Appellant) State of New South Wales (Third Respondent)
Representation:	Counsel: DE Baran (Appellants) P Neil SC / N Newton (Third Respondent) Solicitors: Zelden Solicitors (Appellants) Crown Solicitor’s Office (Third Respondent)
File Number(s):	2013/192206
Decision under appeal	Court or tribunal: Supreme Court Citation: [2013] NSWSC 775 [2014] NSWSC 483 Date of Decision: 14 June 2013 23 April 2014 Before: Rothman J File Number(s): 2002/69251

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between November 1999 and April 2002, Mr Clavel was charged with a number of offences and numerous applications for Apprehended Violence Orders (AVOs) were made against him. With one exception (which was dismissed pursuant to 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)), all charges were dismissed, some after appeals to the District Court.

On 29 July 2002, the appellants commenced proceedings in the Common Law Division against their former neighbours, Mr and Mrs Savage, seeking damages for intentional inflection of emotional distress. They also sued the State seeking damages for malicious prosecution and collateral abuse of process.

The primary Judge delivered judgment in favour of the defendants on 14 June 2013, almost exactly two years after the hearing concluded: Clavel v Savage [2013] NSWSC 775 (Primary Judgment).

The appellants appealed against the whole of the decisions and orders made by the primary Judge. However, the proceedings between the appellants and Mr and Mrs Savage were settled before the hearing of the appeal.

The issues on appeal were:

(1)   Did the delay in delivery of the judgment result in unsafe findings of fact, especially in relation to the credibility of Mr Clavel?

(2)   Did the primary Judge err in dismissing the malicious prosecution claims, on the grounds that an absence of reasonable cause and malice had not been proven?

(3)   Did the primary Judge err in dismissing collateral abuse of process claims, on the ground that improper purpose had not been proven?

(4)   Did the primary Judge err in the assessment of costs in favour of the respondents?

The Court held (Per Macfarlan JA, Emmett JA and Sackville AJA), dismissing the appeal:

In relation to (1):

The authorities suggest that even where the delay is lengthy, the trial judge’s reasons may demonstrate that full consideration has been given to the evidence and that the trial judge’s advantage has not been weakened: (at [88]). The primary Judge explained that he had completed a draft judgment incorporating evidentiary findings at or soon after the completion of the hearing. Critically, however, the findings as to Mr Clavel’s credit were not material to the primary Judge’s conclusion that the appellants had not demonstrated a lack of reasonable and proper cause for the prosecutors to initiate the prosecutions: (at [89], [96])

Considered: Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; 140 FCR 17; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470

In relation to (2):

The primary judge did not err in finding that the appellants had failed to prove a lack of reasonable cause for the prosecution. In relation to one of the prosecutions, the primary Judge did not err in finding that that the appropriate prosecutor had not been identified: (at [101], [102], [109], [112], [118], [119])

Considered: A v New South Wales [2007] HCA 10; 230 CLR 500; Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432; Davis v Gell [1924] HCA 56; 35 CLR 275; State of New South Wales v Landini [2010] NSWCA 157; State of New South Wales v Quirk [2012] NSWCA 216

In relation to (3):

The primary Judge did not err in finding that the claims for collateral abuse of process had not been established, as the appellants had failed to prove that the two police officers were motivated by an improper purpose in seeking the AVOs against the appellant: (at [121], [122])

Considered: Williams v Spautz [1992] HCA 34; 174 CLR 509

In relation to (4):

The appellants did not advance any cogent reason for concluding that the primary Judge misapplied the relevant principles or improperly exercised his discretion in relation to costs: (at [129])

Considered: Calderbank v Calderbank [1975] 3 AII ER 333

Judgment

1. MACFARLAN JA: I agree with Sackville AJA.

2. EMMETT JA: The appellants sued their former neighbours and the State of New South Wales in the Common Law Division. They were unsuccessful at first instance and appealed to this Court. Insofar as the appeal affected the claim against the neighbours, the appellants and the neighbours reached a compromise. The appeal proceeded only against the State. The claim against the State was for damages for malicious prosecution and collateral abuse of process.

3. I have had the considerable advantage of reading in draft form the proposed reasons of Sackville AJA. I agree with his Honour, for the reasons proposed by him, that the appeal should be dismissed with costs. In particular, I agree with his Honour’s observations concerning the obligation of the parties to facilitate the just, quick and cheap resolution of the real issues in dispute. For whatever reason, the real issues in dispute between the parties have been resolved otherwise than quickly and cheaply.

4. SACKVILLE AJA: After a 47 day trial, the primary Judge (Rothman J) gave judgment for the defendants in proceedings brought by the present appellants, Mr and Mrs Clavel: Clavel v Savage [2013] NSWSC 775 (Primary Judgment).

Background

5. The events which gave rise to these proceedings (and to many other court proceedings) occurred in the small community of Great Mackerel Beach. The community, at the relevant times, had only three streets and could be reached only by water. There were no resident police officers.

6. As the primary Judge recorded (at [2]), the proceedings arose from the deterioration of the relationship between the appellants, on the one side, and the Savages and other residents of Great Mackerel Beach on the other. That deterioration led to various court proceedings, including numerous applications for Apprehended Violence Orders (AVOs) against Mr Clavel.

7. Between November 1999 and April 2002, Mr Clavel was charged with a number of offences. With one exception, all charges were dismissed, some after appeals to the District Court. The exception involved a charge that was found to have been proved, but in that case the Court did not record a conviction and dismissed the charge pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).

8. On 29 July 2002, the appellants commenced proceedings in the Common Law Division. They pleaded their case in a Second Further Amended Statement of Claim filed on 20 July 2007 (Statement of Claim). They sued:

• their former neighbours, Mr and Mrs Savage (the Savages), seeking damages for intentional infliction of emotional distress;

• the State of New South Wales (State), seeking damages for malicious prosecution; and

• the State seeking damages for “collateral abuse of process” arising out of AVOs issued by members of the police against Mr Clavel.

9. The primary Judge delivered the 307 page Primary Judgment on 14 June 2013, almost exactly two years after the hearing concluded. His Honour delivered a second judgment on 23 April 2014 dealing with consequential matters, including costs: Clavel v Savage (No 2) [2014] NSWSC 463 (Supplementary Judgment).

10. The appellants appealed against the whole of the decisions and orders made by the primary Judge. However, the proceedings between the appellants and Mr and Mrs Savage were resolved before the hearing of the appeal. The appellants filed a Further Amended Notice of Appeal which confined the challenge to the judgment for the State on the appellants’ claim for malicious prosecution and to costs orders made in the Supplementary Judgment. The Further Amended Notice of Appeal was subsequently replaced by a Second Further Amended Notice of Appeal (Notice of Appeal).

The Cri de Coeur

11. At the outset of the Primary Judgment, his Honour delivered what he described as a “Cri de Coeur”, as follows:

“[5]   Some controversies should never be litigated, regardless of the rights and wrongs of the particular parties. This controversy involved oral hearings over some 15 weeks (including interlocutory hearings), with the final hearings commencing on 25 October 2010 (with an original estimate of eight weeks) proceeding until the end of term, recommencing on 21 February 2011 and concluding at the end of June 2011.

[6]   The evidence included complaints, some allegedly, as background to the relationship: of the use of rocks from the adjacent National Park in residences of one or other of the neighbours; the failure to obtain building or development approvals for renovations to the houses of one or other of the neighbours; the number of times one or other neighbour mowed or racked the grass; the number of times a motor dinghy was driven up and down the water adjacent to the beach where and when the other neighbour was partying; the games played by one or other neighbour in the front yard; stones being thrown on the roof; and the “last straw” example was the ‘adventures’ or aggression surrounding the escape of and hunt for a pet rabbit.

[7]   The evidence as to the pet rabbit was adduced during the tenth day of hearing, during the evidence in chief of Mr Clavel (a statement having been tendered), at which I remarked that the case was becoming more like ‘Alice in Wonderland’ …

[8]   At the conclusion of the hearing, I informed the parties that, since each of the neighbours had left Great Mackerel and there was no relevant continuing interaction between the parties, the judgment did not have the usual urgency and I would seek to finalise the judgment in my leave. A draft judgment that dealt with the resolution of the evidentiary findings was completed, but I had not determined liability and I was not sure whether I would need to have further submissions (but not evidence) on damages, once liability had been finalised.

[9]   Unfortunately, the leave that I anticipated utilising became unavailable. As a consequence, the first available leave was in January 2013 and there has been a regrettable and unfortunate delay in the publication of the judgment.

[10]   Notwithstanding my view that the deterioration in the relationship could have been, and should have been, avoided by one or other or both of the neighbours and the litigation resolved, rights have been asserted and it is the function of the Court to determine those rights on the basis of the application of the law to the facts as found. This is despite the fact that a neighbourhood dispute of this kind, no matter how serious, that does not involve continuing rights or relationships, cannot justify the costs involved in this litigation. Ultimately, those factors, while depriving the matter of urgency over other matters, are irrelevant to the determination of liability or damages. And, in any event, once the police were involved, escalation of the differences between the neighbours was inevitable.”

12. It is not clear why this case took eight years from the commencement of proceedings to reach trial. Counsel appearing on the appeal were asked why the trial itself occupied 47 hearing days. The answers seemed to suggest that no-one was to blame. It is, however, difficult to understand how proceedings arising out of neighbourhood disputes, even with the overlay of claims of malicious prosecution, can justify such a lengthy trial. It is even more difficult to understand how a trial of this length could have taken place consistently with the parties’ obligation to assist the court to further the overriding purpose stated in s 56(1) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) namely “to facilitate the just, quick and cheap resolution of the real issues in dispute”.

13. The delay in delivering judgment added to the magnitude of the failure to achieve the overriding purpose in this case and is the subject of several grounds of appeal. One consequence of the cumulative delays in resolving these proceedings is that 13 years have now elapsed since the most recent of the relevant prosecutions was instituted. This is precisely the kind of situation that Part 6 of the Civil Procedure Act is intended to avoid. While the Act was not in force when the proceedings commenced, it had come into force long before the trial.

The Prosecutions and AVOs

14. The Notice of Appeal challenges the primary Judge’s findings in relation to six prosecutions brought against Mr Clavel. An outline of each prosecution is given below.

First Prosecution

15. On 30 November 1999, Mr Clavel was charged with assaulting a boy, Andreau Serra, then aged 10. The assault was alleged to have taken place on 18 November 1999. At about 8 pm on that day, Senior Constable Francis of the Broken Bay Water Police attended Great Mackerel Beach and obtained a brief statement from Andreau Serra in the presence of his mother. During the following week Senior Constable Francis and Senior Constable Menzies (of the Water Police) obtained statements from a number of witnesses to the incident. These included a statement by another young boy who had been with the victim at the time of the alleged assault.

16. On 30 November 1999, Mr Clavel attended the Mona Vale Police Station. After a conversation with Mr Clavel through a French interpreter, Senior Constable Francis informed Mr Clavel that he was under arrest for assaulting Andreau Serra. An interview then took place, but Mr Clavel declined to answer questions in relation to the matters. Senior Constable Francis then charged Mr Clavel with assaulting Andreau Serra on 18 November 1999, in contravention of s 61 of the Crimes Act 1900 (NSW) (Crimes Act). Senior Constable Francis was named as the informant.

17. After a two day hearing before the Local Court at the Downing Centre, the charge was dismissed. The Magistrate found that Mr and Mrs Clavel gave “quite good evidence, apparently believable evidence”. He concluded that the case had not been proved beyond reasonable doubt.

Second Prosecution

18. Mr Clavel was arrested on 7 February 2000 and charged with committing an offence contrary to s 562 of the Crimes Act, in that he knowingly contravened a prohibition or restriction in a specified non-domestic AVO. Mr Clavel was subsequently convicted by a Magistrate, but the conviction was quashed on appeal to the District Court.

19. In the course of argument in this Court, Mr Baran, who appeared for the appellants, stated that he did not press the ground of appeal concerned with the second prosecution. Nothing more need be said about it.

Third Prosecution

20. At about 1 am on Saturday, 12 February 2000, Senior Constable Jones and Constable Brown received a report of an incident at Great Mackerel Beach. They arrived by launch at Great Mackerel Beach Wharf about 25 minutes later, together with five other police officers. Senior Constable Jones and Constable Figgis entered the house occupied by Ms J Pollack and spoke with her and other witnesses.

21. Senior Constable Jones saw Mr Clavel in the front room of the house. Senior Constable Jones arrested Mr Clavel for unlawfully entering the house. Mr Clavel was handcuffed and escorted from the house. In the meantime, other police officers took statements from witnesses.

22. Mr Clavel was taken to Dee Why Police Station. He was interviewed, but declined to answer questions without his solicitor, who he had been unable to contact.

23. Mr Clavel was subsequently charged with the following offences:

• assault on Mr A Hutchinson, contrary to s 61 of the Crimes Act;

• entering inclosed lands, being the property of Ms Pollack, without consent and without lawful excuse, contrary to s 4(1) of the Inclosed Lands Protection Act 1901 (NSW) (Inclosed Lands Act); and

• maliciously damaging property of Ms Pollack, a resident of Great Mackerel Beach, contrary to s 195(a) of the Crimes Act.

Senior Constable Menzies was the informant for the first two charges; Senior Constable Parsons was the informant for the third charge.

24. The charges were heard over two days (31 August 2000 and 5 March 2001) by the Local Court at the Downing Centre. The Magistrate dismissed all charges, finding that Mr Clavel had to receive the benefit of the doubt. While some of Mr Clavel’s actions were “bizarre”, the Magistrate accepted that he had genuine fears that may have explained his conduct, whether or not the fears were well-founded. The Magistrate made it clear that she did not find that the prosecution witnesses were not telling the truth. Her finding was that she could not be satisfied beyond reasonable doubt that Mr Clavel did not fear for his safety. In her view, it was the accused’s perception of events even if not necessarily right, that had to be taken into account.

Fourth and Fifth Prosecutions

25. On 28 April 2000, apparently in consequence of the alleged assault on Andreau Serra, an interim AVO was issued against Mr Clavel. The protected persons were Andreau Serra, Gina Serra and Adrian McBeth, all of whom lived at the same address. The terms of the interim AVO prohibited Mr Clavel from approaching within 100 metres of the premises at which the protected persons lived.

26. At about 5 pm on 8 July 2000, the police were informed by Ms Serra and Mr McBeth that Mr Clavel had stopped outside their house on a number of occasions and stared into their property. Other residents who were protected persons under AVOs issued against Mr Clavel made similar complaints.

27. Senior Constables Molloy and Fitzpatrick attended and took statements from Ms Serra, Mr McBeth and two other complainants. The police officers then went to Mr Clavel’s home and informed him that he was under arrest. In circumstances that were the subject of contested evidence, Mr Clavel fled from the premises and could not be apprehended.

28. On 10 July 2000, Mr Clavel presented himself at Surry Hills Police Station in the company of his solicitor. He was assisted and charged with the offences allegedly committed on 8 July 2000, as follows:

• knowingly contravening a restriction specified in a non-domestic AVO, in breach of s 562I of the Crimes Act; and

• resisting an officer in the execution of his duty, in breach of s 58 of the Crimes Act.

The informant was Senior Constable Kilpatrick.

29. Prior to the hearing of the charge against Mr Clavel in the Local Court Mr Ashworth, who had given a statement to police supporting the claim that Mr Clavel had breached the AVO, wrote to the Police Prosecutor requesting that the charge be dropped. Mr Ashworth said that he was unhappy about being served with a subpoena and that he considered the move “very divisive of our community”. He also said that he had cleared up all issues with Mr Clavel.

30. The hearing in the Local Court at the Downing Centre took place on 13 and 19 June 2001. Mr Ashworth, among others, gave evidence on behalf of the prosecution. His letter requesting withdrawal of the charge was tendered by Mr Clavel’s solicitor and admitted into evidence. The Magistrate found both offences proven but, pursuant to s 10(1) of the Sentencing Act, recorded no conviction on either charge. Mr Clavel was released on entering a bond to be of good behaviour for six months.

31. On appeal to the District Court (Bellear DCJ), the conviction on the charge of contravening an AVO was quashed. His Honour accepted that a breach occurred, but took the view that the AVO was “restrictive, harsh, or unconscionable” and should be reviewed or rectified. On that basis, his Honour upheld the appeal.

32. Bellear DCJ accepted that all elements of the charge of resisting arrest had been made out. However, he did not record a conviction and dismissed the charge pursuant to s 10(1) of the Sentencing Act.

33. The primary Judge held (at [55], [805]) that the charge of resisting arrest could not be the subject of a claim for malicious prosecution as the order made by the District Court was not a favourable outcome for Mr Clavel in the sense required by the authorities. The appellants do not press the ground of appeal challenging this holding.

Sixth Prosecution

34. On 25 February 2002, Mr N Kennedy, a neighbour of Mr Clavel’s, reported to Manly Police Station that he had been assaulted by Mr Clavel at about 1.30 pm on 23 February 2002 at his (Mr Kennedy’s) own property at Great Mackerel Beach. On the same day, Inspector Walton of the Dee Why Police Station received a three line statement from Mr Clavel. The statement asserted that Mr Kennedy had assaulted Mr Clavel at about 8.30 pm on 23 February 2002 and that the assault had been witnessed. The statement said that Mr Clavel’s solicitor could provide more details.

35. On 5 March 2002, Mr Kennedy gave a statement to the police at the Northern Beaches Police Station. The statement recounted that Mr Kennedy had found Mr Clavel on his (Mr Kennedy’s) balcony. According to Mr Kennedy, he told Mr Clavel, who was accompanied by a person identified by Mr Kennedy as “Antoine”, to leave the premises but he did not do so. Mr Kennedy was enraged that Mr Clavel refused to leave and Antoine restrained Mr Kennedy. At that point Mr Clavel hit Mr Kennedy twice with a ski paddle, causing a large laceration. Mr Kennedy broke free from Antoine, retrieved the paddle and retreated.

36. The statement annexed a photograph showing the injuries Mr Kennedy said he had sustained. Mr Kennedy recorded that he had attended a doctor on 25 February 2002 and had reported the alleged assault to the police on that day.

37. On 10 April 2002, Mr Clavel was arrested near Palm Beach Ferry Wharf by Constable Phillips, who was accompanied by Constable O’Brien. Constable Phillips informed Mr Clavel that he was being arrested for assaulting Mr Kennedy. Mr Clavel was taken to Dee Why Police Station, where he was interviewed, but declined to answer any questions. Mr Clavel was then charged with assaulting Mr Kennedy, thereby occasioning actual bodily harm, in breach of s 59(1) of the Crimes Act. Constable Phillips was the informant.

38. On 21 April 2002, Mr Clavel wrote to the Northern Beaches Commander at Dee Why Police Station noting that he had received no response to earlier correspondence. The letter referred to a number of matters about which Mr Clavel had previously made complaints, including damage to and thefts from his motor vehicle. The letter also referred to a telephone conversation in which Mr Clavel had informed Constable Lincoln that he should make contact with the Superintendent to familiarise himself with the correspondence. Mr Clavel said he had also told Constable Lincoln to contact him (Mr Clavel) after familiarising himself with the correspondence so that Mr Clavel could give Constable Lincoln details of Mr Clavel’s solicitor.

39. On 17 September 2002, Mr Clavel’s solicitor wrote to the Police Commissioner asking for the prosecution to be discontinued. The letter said that there was an independent witness who would show that the charge was groundless. The letter did not, however, identify the independent witness and did not attach a statement from the witness. In fact the solicitors had taken a statement in writing from Antoine Sakellarides on 12 April 2002, in which Mr Sakellarides stated that Mr Kennedy had been the aggressor. That statement did not come to the attention of the police or the police prosecutors until the hearing in the Local Court.

40. The charge of assault occasioning actual bodily harm was heard in the Local Court at Manly, commencing on 19 September 2002. Mr Sakellarides gave evidence on behalf of the defence. At the conclusion of the hearing on that day, the Magistrate dismissed the information. On 11 October 2002, the Magistrate awarded costs of $12,000 against Constable Phillips. The reasons of the Magistrate are not in the appeal papers.

The Four Prosecutions in Issue

41. It follows from what has been said that the only matters in issue on the appeal concern the First, Third, Fourth and Sixth Prosecutions.

The AVOs

42. The appellants pleaded that the elements of the tort of collateral abuse of process had been made out in relation to a number of AVOs issued by various police officers. Not all claims were pressed and the primary Judge found against the appellants on all claims that were pressed. Only two AVOs were the subject of written submissions on behalf of the appellants on the appeal.

Sergeant Figgis

43. On 24 February 2000, the Local Court at Manly made an interim AVO against Mr Clavel pursuant to Part 15A of the Crimes Act (Part 15A was repealed in 2008). The AVO was granted on the application of Sergeant Figgis who was both the complainant and the person said to be in need of personal protection. The complaint made by Sergeant Figgis alleged that Mr Clavel had behaved towards him on numerous occasions in a manner that was harassing and intimidating. Sergeant Figgis also alleged that Mr Clavel had repeatedly made threats against him.

44. Mr Clavel defended the application for a final AVO, which was heard by the Downing Centre Local Court on 30 and 31 October 2000. The Magistrate dismissed the application. Although Sergeant Figgis said (and the Magistrate appeared to accept) that he feared for his safety, the Magistrate did not accept that Sergeant Figgis, as an experienced police officer, had reasonable grounds for the fear.

Sergeant Francis

45. Senior Constable Francis made a complaint against Mr Clavel alleging that he (Senior Constable Francis) feared for his personal safety by reason of threats made by Mr Clavel and his aggressive conduct. The Local Court at Manly made an interim AVO against Mr Clavel on 24 February 2000, the same day as the interim AVO was made on Sergeant Figgis’ complaint.

46. Mr Clavel defended Senior Constable Francis’ application for a final AVO. The application was heard at the Downing Centre Local Court on 2 and 3 November 2000 by a different Magistrate than the Magistrate who heard Sergeant Figgis’ complaint. The application was dismissed, but it appears that the whole of the Magistrate’s judgment was not recorded. The portion that was recorded indicates that the Magistrate did not accept the submissions made on Mr Clavel’s behalf that the application for an AVO was rather “silly”. The Magistrate stated that he took the application “very seriously”.

Legal Principles

47. The primary Judge set out the principles governing a claim for damages for malicious prosecution at some length. There is no dispute as to those principles and the appellants do not suggest that the primary Judge mis-stated the principles.

48. The elements of the tort of malicious prosecution are stated in A v New South Wales [2007] HCA 10; 230 CLR 500 at [1] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). A plaintiff must establish:

“(1)   that proceedings of the kind to which the tort applies (generally … criminal proceedings) were initiated against the plaintiff by the defendant;

(2)   that the proceedings were terminated in favour of the plaintiff;

(3)   that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4)   that the defendant acted without reasonable and probable cause.”

See also Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432 at [4] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

Absence of Reasonable Cause

49. Much of the argument on appeal concerned the fourth element of the tort, namely that the defendant must have acted without reasonable cause. The High Court considered this element at considerable length in A v New South Wales. The joint judgment pointed out (at [3]) that some of the leading judicial statements concerning the fourth element of the tort were made when prosecutions were in private hands and prosecutors usually had personal knowledge of the facts alleged. Their Honours recognised (at [49]) that the assumption that a prosecutor has personal knowledge of the facts alleged

“may appear to be at odds with modern notions of elaborate arrangements within the executive government for the detection and prosecution of crime”.

Accordingly (at [39]), the question of whether the prosecutor did not have reasonable and probable cause to institute or maintain the prosecution:

“may be affected by the nature of the allegations, and the prosecutor’s capacity to form an opinion about their strength and reliability”.

50. The principles laid down in A v New South Wales are not easy to summarise concisely. In State of New South Wales v Quirk [2012] NSWCA 216 Tobias AJA (Beazley and Hoeben JJA agreeing) distilled (at [70]) a number of propositions from the joint judgment in A v New South Wales:

“(a) To succeed with respect to the tort of malicious prosecution, the plaintiff is required to prove two distinct elements, one positive (malice) and the other negative (absence of reasonable and probable cause). Each has a separate role to play: [54].

(b)   [[A] conclusion about malice does not render irrelevant the inquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain the prosecution. Even if the prosecutor acts maliciously and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge.]

(c) Thus the inquiry about reasonable and probable cause has two aspects. The first is what did the prosecutor make of the material available to him and the second is what should the prosecutor have made of it. The first is a subjective test the second an objective test: [58].

(d) As the question … whether there is an absence of reasonable and probable cause must be determined at the time the prosecution is commenced, attention is necessarily directed to what material the prosecutor has available for consideration when deciding whether to commence or maintain the prosecution: [59].

(e)   It is important to recognise that in an action for malicious prosecution the plaintiff must establish a negative (the absence of reasonable probable cause). The forensic difficulty of proving such a negative is well known. It is very much dependant upon the nature of the forensic circumstances of a particular case. What must be avoided is the tendency to translate the negative question - whether the defendant prosecutor acted without reasonable and probable cause - into the different question - what will constitute reasonable and probable cause to initiate criminal proceedings: [60].

(f)   Subject to the qualification in (h) below, in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469 Jordan CJ said that there were five conditions to be met if a person was to have reasonable and probable cause for prosecuting another for an offence:

‘(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.’

(g)   To succeed on the issue of absence of reasonable and probable cause, the plaintiff has to establish "that one or more of the foregoing conditions did not exist" which, according to Jordan CJ, he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds: [64].

(h) The five conditions stated by Jordan CJ provide guidance about the particular kinds of issue that might arise at trial in those cases where the defendant prosecutor may be supposed to have personal knowledge of the facts giving rise to the charge and the plaintiff alleges either that the prosecutor did not believe the accused to be guilty, or that the prosecutor's belief in the accused's guilt was based on insufficient grounds. However those five conditions should not be understood as completely or exhaustively describing what will constitute reasonable and probable cause: [66].

(i) If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining a prosecution, that is an allegation about the prosecutor's state of persuasion. The subject matter of the relevant state of persuasion in the mind of prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the process of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies, the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt: [71].

(j)   The negative proposition that the plaintiff must establish (that the prosecutor acted without reasonable and probable cause) may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief: [77].

(k) In most cases, honesty, or more accurately, the allegation of lack of honesty, will require consideration of what the prosecutor knew, believed or concluded, about some aspect of the material. However, if the prosecutor's knowledge or belief must be considered, honesty will add nothing to the inquiry: [78].

(l)   What is required is an examination of the prosecutor's state of persuasion about the material considered by him or her. That should not be done by treating the five conditions stated by Jordan CJ as a complete and exhaustive catalogue of what will constitute reasonable and probable cause although they are generally sufficient where the prosecutor is not required to act upon information provided by others [as in the present case]. However the focus must be on the absence of one or more of those conditions: [81].

(m)   The objective element of the absence of reasonable and probable cause has been couched in terms of the "ordinarily prudent and cautious man placed in the position of the accuser" or explained by reference to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution". The resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may (not must) depend upon evidence demonstrating that further inquiry could and should have been made [no such assertion was made in the present case]: [83], [86].” (Emphasis in original.)

(I have substituted my own summary of [54] and [56] of the joint judgment in A v New South Wales in para (b) of the above extract.)

51. In addition to Tobias AJA’s summary, the following propositions derived from A v New South Wales, are also relevant to the present case:

(n)   In cases where the prosecutor acts on material provided by third parties, a relevant question is whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. If the prosecutor is shown to have been of the view that the charge would likely fail at committal or would be abandoned by the Director of Public Prosecutions, absence of reasonable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established (at [80]).

(o)   Absence of reasonable and proper cause is not demonstrated by showing only that there were further inquiries that could have been made before laying the charge. Nor is there an inflexible rule that a prosecutor acts without reasonable and probable cause in prosecuting on the basis only of uncorroborated statements of the victim (at [86], [87]).

Collateral Abuse of Process

52. The primary Judge summarised (at [75]) the principles governing collateral abuse of process stated by the joint judgment (Mason CJ, Dawson, Toohey and McHugh JJ) in Williams v Spautz [1992] HCA 34; 174 CLR 509 at 523-524, 529. His Honour’s summary was not disputed by the parties and is as follows:

“(i)   … the party who has instituted the impugned proceedings [must have] done so for a purpose or to effect an object beyond that which the legal process offers;

(ii)   The purpose of the party instituting the impugned proceedings is of crucial importance;

(iii)   The abusive purpose of the impugned proceedings must be the predominant or effective purpose; and

(iv)   The onus of proof on a plaintiff in order to succeed on a claim of collateral abuse is a heavy one.”

Malice

53. In A v New South Wales the joint judgment quoted with approval (at [89]) the observation of Professor Fleming (The Law of Torts (9th ed, 1998) at 685) that:

“At the root of [malice] is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause.”

Their Honours went on to explain the concept as follows:

“[91]   What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an ‘illegitimate or oblique motive’ (98). That improper purpose must be the sole or dominant purpose actuating the prosecutor (99).

[92]   Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant (100) and to stop a civil action brought by the accused against the prosecutor (101). But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose.”

The Primary Judgment

54. The primary Judge dealt with each of the six prosecutions on which the appellants based their claims of malicious prosecution. I summarise his Honour’s findings below.

First Prosecution

55. The primary Judge accepted (at [730]) that Senior Constables Menzies and Francis (neither of whom gave evidence) were responsible for laying the charges and instigating the prosecution, notwithstanding that responsibility for the prosecution was subsequently handed to a Police Prosecutor. His Honour was not prepared to find (at [735]-[737]) that, on the material available to the Senior Constables at the time the charge was laid, the charge was not preferred without reasonable or proper cause.

56. His Honour pointed out (at [731]) that the police had a statement from the alleged victim. Another child, Tobias had also given a statement to police which (at [736]):

“together with the statement of the victim, formed the basis of the charge. The witness Tobias corroborated a confrontation between Mr Clavel and the victim. He did not corroborate all of the physical contact. Nevertheless, the confrontation was corroborated and the policy were entitled, in those circumstances, to leave for the tribunal of fact the determination of who, Mr Clavel or his wife, on the one hand, or the victim, on the other hand, were being truthful. The decision to prosecute was, in those circumstances, not formed on an insufficient basis.”

57. His Honour further found (at [740]) that the appellants had failed to prove that the evidentiary basis for bringing or continuing the proceedings was not reasonably capable of belief. In those circumstances and in the absence of evidence of subjective belief or evidence from which such an inference could be drawn, the appellants had failed to prove the absence of reasonable and proper cause.

58. The primary Judge accepted (at [738]) that on 28 November 1999, Senior Constable Figgis (who had retired by the time of the trial) attended Great Mackerel Beach with Senior Constable Francis and had threatened to arrest Mr Clavel if he did not attend Mona Vale Police Station. His Honour found (at [746]) that ultimately no arrest was effected. He did find, however (at [748]), that the attempt at an arrest was not appropriate for an assault not occasioning actual bodily harm in circumstances where there was no threat of flight. His Honour also found that in a conversation with Mr Clavel’s solicitor, Senior Constable Francis said that he had to arrest (or threaten to arrest) Mr Clavel “because the rest of Mackerel Beach will lynch me if I don’t”.

59. The primary Judge said (at [743]) that even if he was incorrect on the question of reasonable and proper cause, the appellants had failed to prove that the prosecution was occasioned by a purpose other than enforcement of the criminal law. In his view, the inappropriate threat to arrest Mr Clavel did not establish that the prosecution was instituted with malice. His Honour found (at [749]) that one reason for threatening to arrest Mr Clavel was extraneous to the enforcement of the criminal law, namely the relationship between the police and other residents of Great Mackerel Beach. But that had not been shown to be the predominant reason for the laying of the charge.

Third Prosecution

60. The primary Judge noted (at [770]) that Mr Clavel had not complained that his arrest was unlawful. His Honour also noted (at [773]) that there was a dispute as to the circumstances leading up to the arrival of the police following Ms Pollack’s call for assistance. However, he found (at [777]) that the police were informed upon their arrival that Mr Clavel was barricaded in Ms Pollack’s house. Ms Pollack confirmed that this was the case and the police could see Mr Clavel was in the house (at [778]). Moreover, Ms Pollack told the police that she had awoken, became aware of Mr Clavel’s presence and was frightened for her own safety. According to the information given to the police, Mr Hutchinson had entered the house and told Mr Clavel to leave, whereupon Mr Clavel grabbed Mr Hutchinson by the throat causing him to lose balance and smash an ornament (at [779]).

61. The primary Judge continued:

“[780]   Plainly, on the material available to the police, they had reasonable and probable cause to arrest Mr Clavel for assault and for malicious damage and for entering inclosed lands. There is (and can be) no basis upon which it can be said, of this incident, that the police were motivated by matters extraneous to the enforcement of the law. Moreover, the police may have been able to arrest Mr Clavel as a means of preventing a breach of the peace (see above). It is unnecessary to deal with that aspect.

[781]   The fact, if it be the fact, that the information was incorrect, does not make the basis of the charge or arrest without reasonable or proper cause. Nor does it amount to malice.

[782]   I accept that the plaintiff, Mr Clavel, told the police that he had been assaulted. I accept that he said it more than once. I also conclude that the police told him that he could make a statement when he went to the police station. The police noticed a distinct shoe print on the chest of Mr Hutchinson at the time and that, together with the other material they were given, was sufficient to take the view that there was reasonable and proper cause to charge Mr Clavel with assault and malicious damage to property and entering inclosed lands.”

62. The primary Judge also found (at [785]) that the evidence was consistent with each of the police officers who gave evidence telling the truth. Senior Constable Parsons, the informant for one of the charges, gave evidence. Senior Constable Menzies did not.

Fourth Prosecution

63. The primary Judge found (at [803]) that “[o]n any analysis” the statements obtained by the police when they arrived at Great Mackerel Beach provided them with sufficient information to have reasonable and probable cause to charge Mr Clavel with breach of an AVO. His Honour accepted (at [804]) the evidence of Senior Constable Kilpatrick (the informant) and Senior Constable Molloy as to their subjective views at the date of the arrest. His Honour also found (at [807]) that the appellants had not satisfied the burden of proving that the charge for breach of the AVO was preferred for a reason other than enforcement of the AVO itself.

64. The primary Judge referred (at [809]) to the letter sent by Mr Ashworth to the Police Prosecutor. His Honour found that the letter could not advance the appellants’ malicious prosecution case as it could not affect the state of mind of the police at the time the charges were preferred; nor could the letter affect their motive. If, though not particularised, it was alleged that the letter should have led to the proceedings being withdrawn:

“the letter does not, on its face, affect the truthfulness of the account given to the Constables on the evening, the existence of reasonable or probable cause in relation to the breach of an AVO nor the existence of malice, either before or after the receipt of the letter”.

Sixth Prosecution

65. The primary Judge found (at [824]) that the informant on the charge of assaulting Mr Kennedy, Constable Phillips, had no knowledge of events and therefore could not be regarded as the prosecutor or instigator of the criminal proceedings. Since the appellants’ pleading identified Constable Phillips as the prosecutor, they had failed to identify the instigator of the proceedings for the purposes of their claim of malicious prosecution (at [825]). His Honour thought that if anyone was the prosecutor for the purposes of a claim of malicious prosecution, it was Mr Kennedy.

66. In any event, there was no evidence of malice by the police (at [828]) and there was nothing to support the contention that the police lacked reasonable and proper cause to prosecute (at [829]). The material before the police indicated an assault of some seriousness (at [826]). Evidence was given in the Magistrates Court, on Mr Clavel’s behalf by Mr Sakellarides. However, Mr Clavel’s legal representative had not made Mr Sakellarides’ statement available to the police until the hearing of the charge (at [831]). While Mr Clavel was entitled to keep his witnesses to himself, the police could not be criticised for failing to take into account a statement with which they were not provided. Nor were they remiss in failing to interview a witness who, according to Mr Kennedy, had been actively involved in the assault.

67. The primary Judge therefore concluded (at [832]) that the claim for damages on the basis of malicious prosecution in connection with the alleged assault on Mr Kennedy failed.

Collateral Abuse of Process

Sergeant Figgis

68. The primary Judge pointed out (at [850]) that the appellants had pleaded that the improper purpose for the commencement and maintenance of the proceedings by Sergeant Figgis was “assisting [the Savages] in intimidating [the appellants] to leave Mackerel Beach by using the Court’s process”. His Honour noted that the appellants, despite their pleaded case, eschewed any allegation of conspiracy between different police officers or between the police officers and the Savages.

69. The primary Judge found (at [851]) that Sergeant Figgis did not want the appellants to move from Great Mackerel Beach. Moreover:

“it was never put to Sergeant Figgis that he wanted to assist Mr and Mrs Savage or wanted to assist them to have Mr and Mrs Clavel leave Mackerel Beach or, alternatively, that of his own volition, Sergeant Figgis took the AVO in order to obtain the collateral purpose of having Mr and Mrs Clavel leave Mackerel Beach.”

70. His Honour found (at [852]-[853]) that Sergeant Figgis believed that Mr Clavel deliberately invaded his (Sergeant Figgis’) space and intended to spray spittle on his face. Sergeant Figgis’ purpose was to have Mr Clavel cease that conduct and cease harassing him. That was the bona fide purpose in seeking an AVO.

71. In any event, the appellants had:

“failed to prove, on the balance of probabilities, that the more likely purpose of taking the AVO was that Sergeant Figgis wanted Mr and Mrs Clavel (or either of them) to leave Great Mackerel and the pleaded case has not been proved. Further, they have failed to prove that the purpose of Sergeant Figgis in taking the AVO of 24 February 2000 was to assist Mr or Mrs Savage in achieving such a purpose. The claim for collateral abuse based upon that AVO must also fail.”

Senior Constable Francis

72. The primary Judge found (at [858]-[859]) that Senior Constable Francis was directed by his superior officer to seek an AVO because of concerns for his welfare. His Honour also found (at [862]-[863]) that Senior Constable Francis was not unreasonable in perceiving Mr Clavel as having threatened him and hoped that the AVO would cause Mr Clavel to stop intimidating him. Thus the appellants had failed to prove that Senior Constable Francis had a motive beyond that which was the proper purpose for seeking and obtaining an AVO (at [864]).

Appellants’ Submissions

The Effect of Delay

73. The appellants put at the forefront of their written submissions a complaint that the delay of two years in delivering judgment rendered the primary Judge’s findings of fact unsafe. Specifically, so the appellants argued, the primary Judge’s finding (at [721]) that Mr Clavel was lying “in some matters” was tainted by the delay in delivering judgment.

74. Mr Baran, who appeared for the appellants, submitted that the finding was also unfair, in that the primary Judge placed considerable significance on what he said was Mr Clavel’s failure to inform two forensic psychiatrists who had prepared reports put in evidence that he had experienced serious traumas as a child in Morocco. Mr Baran contended that Mr Clavel’s “failure” to include these matters in his personal history had not been put to Mr Clavel despite the extensive cross-examination over many hearing days. Accordingly, Mr Clavel had been given no opportunity to explain why he had not communicated these matters to the forensic psychiatrists.

75. Mr Baran also criticised the primary Judge for finding (at [712]) that Mr Clavel had perceived events at Great Mackerel Beach in a “persecuted” or “paranoid” way and had thus misinterpreted innocuous events. This finding, too, rested in part on the opinions of the psychiatrists and had not been put to Mr Clavel for his response.

First Prosecution

76. Mr Baran submitted that the police should not have arrested Mr Clavel on the charge of assaulting Andreau Serra. Further, the alleged victim and the other boy had given different versions of events in their statements. The inconsistencies were such that the prosecutor should have formed the view that there was no proper case to move forward.

77. Mr Baran also submitted that the prosecution had been maintained at the hearing in the Magistrate’s Court notwithstanding that the alleged victim had changed his version of events in the course of giving evidence. This should have led the prosecutor to withdraw the charge, rather than leaving the matter to the Magistrate to decide. Thus the prosecution had been maintained without reasonable or proper cause.

78. Mr Baran further submitted that the primary Judge should have drawn the inference that the predominant reason for seeking to arrest Mr Clavel was extraneous to the enforcement of the criminal law, namely the relationship between the police and other residents of Great Mackerel Beach. In the absence of evidence from Senior Constable Francis and Senior Constable Menzies, the primary Judge should have found that this was the predominant reason for the prosecution.

Third Prosecution

79. The appellants’ written submissions asserted that there was a “complete absence of reasonable and probable cause” for the Third Prosecution having regard to:

“the nature of [Mr Clavel], the lack of any criminal anticedence [sic] or any other possible theory consistent with a break, enter and steal or break and enter”.

80. Mr Baran in his oral submissions relied particularly on the complaint by Mr Clavel to the police officers that he had been assaulted. As I understood the submissions, it was that the police, before charging Mr Clavel with the three offences, should have investigated whether Mr Clavel’s fear of being assaulted justified him in entering Ms Pollack’s premises, albeit without permission. In the absence of such an investigation, the primary Judge should have found that the Third Prosecution was instituted without reasonable and proper cause.

Fourth Prosecution

81. The appellants made only very brief written submissions in support of the challenge to the primary Judge’s findings in relation to the Fourth Prosecution (breach of the AVO). Mr Baran did not seek to elaborate on the written submissions in his oral argument.

82. The appellants’ principal submission appears to be that Senior Constables Molloy and Fitzpatrick should not have attempted to arrest Mr Clavel over a trivial matter and that they knew or should have known that the complainants were “bitter enemies” of Mr Clavel. They also contend that upon receipt of Mr Ashworth’s letter (see at [29] above), the maintenance of the prosecution became untenable.

Sixth Prosecution

83. The appellants’ written submissions asserted that the primary Judge was “plainly wrong” in finding that Constable Phillips was not the prosecutor in relation to the prosecution alleging that Mr Clavel had assaulted Mr Kennedy. The appellants submitted, without elaboration, that Constable Phillips was “actively instrumental in the control, instigation and maintenance of the prosecution”. The written submissions also asserted that there was never any basis for the assault charge as Mr Clavel had never assaulted anyone and there were two witnesses (presumably Mr Clavel and Mr Sakellarides) “who verified that fact”.

84. Mr Baran did not develop the written submissions any further in his oral argument on the appeal.

Collateral Abuse of Process

85. The appellants’ written submissions challenge the findings made by the primary Judge on the issue of collateral abuse of process. In substance the submissions refer to evidence given before the Downing Centre Local Court in each case and assert that there could never have been a genuine basis for their claimed fears. The submissions do not contend that the primary Judge should have found that the appellants had made out the pleaded improper purpose for the complaints made by Sergeant Figgis and Senior Constable Francis. Indeed the appellants say that the provisions of the Crimes Act “were being abused simply [as] a tactic of intimidation”.

86. Mr Baran chose not to elaborate on these written submissions in his oral argument, but did not abandon reliance on them.

Reasoning

The Delay in Delivering Judgment

87. A very substantial delay between the hearing of evidence and the delivery of judgment does not necessarily indicate that a trial has miscarried or that the findings of fact are unsafe: Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; 140 FCR 17 at [69] per curiam. But where there is a significant delay, it is incumbent on the appellate court to look with special care at any findings of fact that are challenged. The problem with a delay such as occurred in this case is not merely fading memory, but that the pressure to finish the judgment may unconsciously affect the decision-making process: Expectation v PRD Realty at [74]. Furthermore, as Kirby J pointed out in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470 at [86], undue delay may undermine acceptance by the parties and the community that the decision maker has given consideration to all the evidence and has remembered the detail.

88. The authorities suggest that even where the delay is lengthy, the trial judge’s reasons may demonstrate that full consideration has been given to the evidence and that the trial judge’s advantage has not been weakened. In Expectation v PRD Realty, the Court said (at [73]) that it is open to a trial judge to explain in the judgment that contemporaneous notes were made of impressions of important witnesses. The weight given to the trial judge’s advantage will be less where it is not possible to assess how the fact finding process has been affected by delay: cf NAIS v Minister at [9] (Gleeson CJ).

89. In the present case, the primary Judge explained (at [8]) that he had completed a draft judgment incorporating evidentiary findings at or soon after the conclusion of the hearing. His Honour also gave reasons why completion of the judgment took longer than he had anticipated. If there were no other problems with the findings as to the credibility of Mr Clavel, that might well be a sufficient answer to the criticism of the findings based on delay.

90. Independently of the effects of delay, however, there is force in the appellants’ criticism of the primary Judge’s general finding that Mr Clavel had lied on some matters. It seems clear enough that his Honour relied, to some extent at least, on Mr Clavel’s apparent failure to give a complete history to the forensic psychiatrists. But as Mr Neil SC, who appeared with Mr Newton for the State, properly conceded, Mr Clavel was never given an opportunity to explain the apparent failure to give a full history. The general finding about Mr Clavel’s credibility therefore may have involved procedural unfairness.

91. There is, however, a fundamental problem with the appellants’ reliance on any procedural unfairness associated with the finding as to Mr Clavel’s credibility. The appellants’ written submissions, which placed this argument at the forefront of their contentions, were prepared at a time when the appeal against the primary Judge’s decision in favour of the Savages was still on foot. The adverse credit findings made against the appellants played an important part in his rejection of their claim against the Savages for intentional infliction of emotional distress. But as between the appellants and the Savages, the proceedings have now been resolved.

87. As Mr Neil pointed out, the primary Judge’s view of the credibility of Mr Clavel (and, for that matter, Mrs Clavel) had no bearing on the appellants’ case against the State. The principal issues that his Honour had to resolve were whether the instigators of the prosecution in each case had been shown not to have reasonable and proper cause to prosecute and to have acted with malice. With one exception, the evidence of Mr and Mrs Clavel did not bear in those issues.

88. The exception is that Mr Clavel’s evidence was relevant to the Fifth Prosecution, in which he was charged with resisting arrest. His evidence directly conflicted with that of the prosecutors, who had personal knowledge of the circumstances relating to the arrest at the time they decided to charge Mr Clavel. The Fifth Prosecution therefore differed from the other Prosecutions, where the prosecutors had no personal knowledge of the alleged offences and were reliant on information provided by the alleged victims or third parties. Since, as I have explained, the appellants do not challenge the primary Judge’s decision in respect of the Fifth Prosecution, the primary Judge’s finding that he preferred the evidence of the State’s witness concerning the Fifth Prosecution is not in issue on the appeal.

89. Mr Baran was invited in oral argument to identify how the primary Judge’s findings on the credibility of Mr and Mrs Clavel had any bearing on the issues relating to the four Prosecutions to which the appellants’ Notice of Appeal relates. In response, Mr Baran referred to Mr Clavel’s evidence that before being charged with offences arising out of the events at Ms Pollack’s residence (the Third Prosecution), he told the police he had been assaulted. The difficulty with that response is that the primary Judge accepted (at [782]) Mr Clavel’s evidence that he had complained about an assault and indeed his Honour found that Mr Clavel made the allegation “more than once”. Thus, despite his Honour’s reservations about Mr Clavel’s credibility, he accepted Mr Clavel’s evidence insofar as it was relevant to the Third Prosecution.

90. Mr Baran was given overnight to consider whether he could identify any other issues between the appellants and the State in respect of which the credibility of either of the appellants had any bearing. He referred the Court to one issue arising in relation to the Third Prosecution, but the issue he identified did not involve any factual dispute that the primary Judge was required to or did resolve.

91. It follows that even if the primary Judge’s assessment of the credibility of the appellants was flawed, the error is not material to his conclusion that the appellants had not made out a case of malicious prosecution in relation to any of the four Prosecutions in issue on the appeal. The findings as to Mr Clavel’s credit were not material to his Honour’s findings that the appellants had not established a lack of reasonable and probable cause for the prosecutors to initiate the Prosecutions (or any of them) and had failed to prove malice on the part of any of the prosecutors.

The Prosecutions

First Prosecution

97. The appellants’ challenge to the primary Judge’s findings in relation to the First Prosecution repeated the arguments put to the primary Judge. His Honour recognised that there were minor differences between the statements made by the alleged victim, Andreau Serra, and the second boy but considered that, in substance, the latter’s account corroborated that given by Andreau Serra. His Honour accepted that one reason for the police officers threatening to arrest Mr Clavel (although in the event he was not arrested) was extraneous to the criminal law, but found that this had not been the predominant reason for the laying of the assault charge against Mr Clavel.

98. Mr Baran took the Court to the statements made by Andreau Serra and the other boy and submitted that the “discrepancies” were significant. One example of a significant discrepancy was said to be that Andreau claimed that Mr Clavel had squeezed his (Andreau’s) nose, while the other boy did not say that he had seen Mr Clavel squeeze Andreau’s nose. But the other boy did say that Andreau had complained that Mr Clavel “grabbed” his nose. A similar complaint by Andreau was recorded in a separate statement by Mr Robb, an adult resident of Great Mackerel Beach.

99. The other “discrepancies” identified by Mr Baran were of a similar character. The statements of the two children were, as the primary Judge found, in substance consistent and supported Andreau’s claim that Mr Clavel had assaulted him. A v State of New South Wales makes it clear (at [87]) that a prosecutor does not necessarily act without reasonable and proper cause in prosecuting only on the uncorroborated statement of the victim. In this case the victim’s claims were corroborated.

100. Mr Clavel was given the opportunity at the Mona Vale Police Station on 30 November 1999 to give his version of events, but declined to answer questions. Mr Clavel was fully entitled to take that course. The effect of Mr Clavel taking this course, however, was that the only material available to Senior Constables Francis and Menzies suggested that Mr Clavel had indeed assaulted Andreau Serra. Had Mr Clavel provided information indicating, for example, that the boys had made up their story (as the Magistrate thought was a possibility), a failure by the police to investigate further may have supported the appellants’ claim that the charge had been laid without reasonable and probable cause. But no such information was provided. The fact that the Magistrate, on the hearing of the charge, ultimately formed the view that cross-examination of the boys by Mr Clavel’s solicitor cast doubt on their story cannot establish that the prosecutors lacked reasonable and proper cause to charge Mr Clavel with assault.

101. In these circumstances, the appellants have not shown that the primary Judge erred in his findings on reasonable and probable cause. Neither of the prosecutors had any personal knowledge as to whether the alleged assault had taken place. The evidence did not establish that the prosecutors had an insufficient basis for an honest belief that Mr Clavel had assaulted Andreau Serra as the charges alleged. Nor did the evidence establish that the prosecutors did not honestly believe that Mr Clavel was probably guilty of the offence.

102. Although it is strictly not necessary to decide, the evidence does not justify overturning the primary Judge’s finding that neither of the prosecutors was shown to have acted with malice in charging Mr Clavel with assault. The Statement of Claim alleged that the prosecutors were actuated by malice in that the prosecution was instigated or maintained to intimidate the appellants into leaving Great Mackerel Beach and because the prosecutors were under pressure to try and remove by use of the criminal law the appellants from Great Mackerel Beach.

103. The only evidence identified by Mr Baran that might have supported the allegation of malice was the conversation between Mr Clavel’s solicitor, Mr Bizannes, and Senior Constable Francis. On the basis of their conversation, the primary Judge accepted that a reason for threatening to arrest Mr Clavel was extraneous to enforcement of the criminal law, namely the relationship between the police and residents of Great Mackerel Beach. However, as events transpired, Mr Clavel was not arrested. In any event, the primary Judge declined to find that the purpose of laying the charge was other than enforcement of the criminal law. Having regard to the totality of the evidence, especially the material before the prosecutors when the charges were laid, that conclusion was clearly open. A fortiori, the evidence fell well short of establishing the malice pleaded in the Statement of Claim. The absence of the prosecutors from the witness box could not fill the evidentiary gaps on the appellants’ case.

104. The appellants’ written submissions criticised the primary Judge for not dealing with the “maintenance” aspect of the First Prosecution. The criticism appeared to be that his Honour did not explain why he rejected a contention that the prosecution should not have been maintained when it became apparent that the evidence of the two boys had been undermined in cross-examination.

105. The criticism is misplaced for three reasons:

• the case advanced by the appellants in their written submissions was not pleaded in the Statement of Claim;

• there was no evidence that the prosecutors identified in the Statement of Claim had the authority or ability to terminate the criminal proceedings at the conclusion of the prosecution case in the Magistrate’s Court (which was conducted by a police prosecutor) or that they took active steps at that stage to continue the prosecution (see A v New South Wales at [34]); compare the different circumstances of State of New South Wales v Landini [2010] NSWCA 157); and

• the appellants’ solicitor, Mr Bizannes, gave evidence that he did not apply to the Magistrate to find that the prosecution had not established a prima facie case because he considered that the evidence was sufficient to establish a case to answer.

Third Prosecution

106. In my view, it is difficult to see how the primary Judge could have made findings in relation to the Third Prosecution other than those he did. The evidence showed that when the police officers arrived at Ms Pollack’s house at about 1 am on 12 February 2000, they found that Mr Clavel had barricaded himself inside the premises. Ms Pollack told the police that not only did Mr Clavel not have permission to be there, but when she awoke and found him inside the house she was frightened and feared for her safety. (The Magistrate accepted that finding Mr Clavel in her house at 1 am “would have been frightening” for the “poor woman”.)

107. Mr Hutchinson told the police that he heard Mr Clavel screaming and saw him run into Ms Pollack’s house. Mr Hutchinson said that he tried to enter the house because he feared for Ms Pollack’s safety but found the front door locked. He then entered the house through an unlocked rear door and told Mr Clavel to get out. After a stand-off lasting some minutes, Mr Clavel (according to Mr Hutchinson) kicked Mr Hutchinson above his chest area and subsequently grabbed him by the throat and pushed him backwards, causing Mr Hutchinson to break some items of pottery.

108. Mr Hutchinson’s account to the police was corroborated by Mr Mitchell, who entered the house in the company of Mr Hutchinson, and by Ms Pollack who said that she observed the assault by Mr Clavel. Senior Constable Jones, as the primary Judge found, noticed the impression of a shoe on Mr Hutchinson’s chest and observed grazed skin on his left underarm.

109. The primary Judge accepted that Mr Clavel told the police that he had been assaulted. However, on Mr Clavel’s own account he did not elaborate at the time on this claim. In particular, he did not assert that he had entered Ms Pollack’s house because he feared for his safety and needed to find shelter from his assailants. When given the opportunity to answer questions at Dee Why Police Station, Mr Clavel declined to do so. Again, Mr Clavel was fully entitled to take this course, but in the absence of a plausible account from Mr Clavel suggesting that he had a reasonable excuse to be on Ms Pollack’s premises, the primary Judge was correct to conclude that the appellants had not demonstrated a lack of reasonable and probable cause to charge Mr Clavel with the offence under the Inclosed Lands Act without further inquiries. Similarly, in the absence of some explanation for the apparent assault on Mr Hutchinson, his Honour was correct to find that the appellants had not established a lack of reasonable and probable cause for the charge of assaulting Mr Hutchinson.

110. Mr Baran rather faintly contended that the primary Judge should have considered whether the maintenance of the prosecutions after the evidence in the Magistrates Court had concluded constituted malicious prosecution. This submission encounters similar difficulties to those which render unsustainable the equivalent submission in relation to the First Prosecution. The only significant difference is that Mr Clavel’s solicitor put a no-case submission to the Magistrate in relation to the inclosed lands and assault prosecutions, but his Honour found that Mr Clavel had a prima facie case to answer. (The appellants make no separate complaint about the malicious damage charge.)

Fourth Prosecution

111. The primary Judge found (at [787]) that upon arriving at Great Mackerel Beach Senior Constables Molloy and Fitzpatrick were informed by the complainants that Mr Clavel had walked back and forth past their houses, concentrating on the Ashworth’s house. The statements by the complainants to the police officers indicated (at [790]) that Mr Clavel had stared into the houses occupied by the Ashworths and the McBeths, on one occasion entering into the rear of an unoccupied property to look into the rear of the Ashworth’s property. Mr Ashworth described Mr Clavel’s conduct as “staring menacingly”, while another complainant, Ms Robb, said she felt “harassed, threatened and intimidated” (at [791]).

112. The appellants have not given any cogent reason for challenging the primary Judge’s finding (at [803]) that on any analysis, the police had sufficient information to have reasonable and probable cause to charge Mr Clavel with a breach of the subsisting AVO. The issue of whether or not the police needed to arrest Mr Clavel perhaps may have been relevant to a claim of malicious prosecution for resisting arrest, but it did not bear on the claim that the prosecutors lacked reasonable and probable cause to charge Mr Clavel with breaching the AVO.

113. Similarly, the discord between the appellants and those who had taken out AVOs against them was no doubt known to the police, but had little bearing on whether the information provided to the prosecutors showed that they could not have believed on reasonable grounds that Mr Clavel was probably guilty of the offence with which he was charged. The unfortunate history of disputation did not demonstrate, for example, that the prosecutors were not justified in believing the truth of the allegations against Mr Clavel. As has been noted, the District Court Judge found that a breach of the AVO had occurred, but quashed the conviction because he thought the AVO had been too restrictive and harsh.

114. The letter written by Mr Ashworth prior to the hearing in the Local Court does not advance the appellants’ case for the reasons given by the primary Judge (at [809]).

Sixth Prosecution

115. As Mr Baran chose not to elaborate on the appellant’s rather perfunctory written submissions, the basis for challenging the primary Judge’s findings in relation to the Sixth Prosecution is not clear. It is, however, clear that the identity of the prosecutor for the purposes of the malicious prosecution claim was in issue at the trial.

116. The appellants pleaded that Senior Constable Buckley and Constable Phillips were the persons who prepared the police brief, took statements from witnesses and instituted and maintained the prosecution for assaulting Mr Kennedy. The State’s position was that although Constable Phillips arrested Mr Clavel and was named as the informant, he had no knowledge of Mr Clavel prior to the arrest, had no direct role in the investigation and did not give evidence in the Local Court. The State also said that the prosecution in the Local Court had been conducted by a Police Prosecutor and Constable Phillips played no part in the conduct of the hearing.

117. In support of its submissions at the trial, the State relied on the observations of Isaacs ACJ in Davis v Gell [1924] HCA 56; 35 CLR 275 at 282-283:

“For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position”.

118. The appellants did not provide any basis for challenging the primary Judge’s finding (at [824]) that Constable Phillips had no knowledge of events and was simply a person sent to arrest Mr Clavel and nominated to act as informant. Nor did the appellants submit that a finding should have been made that Senior Constable Buckley played an active part in the investigation or prosecution. In these circumstances, no basis has been established for challenging the ultimate finding (at [825]) that the appellants had failed to identify an instigator of the Sixth Prosecution for the purposes of their action founded on malicious prosecution.

119. Even if Constable Phillips is to be regarded as the instigator of the prosecution, no basis has been shown to overturn the primary Judge’s finding (at [826]) that the appellants had failed to prove that the charge was prosecuted without reasonable and probable cause. As his Honour found, Mr Kennedy provided a statement indicating that a serious assault had occurred and that statement was supported by medical evidence. Mr Kennedy’s statement suggested that “Antoine”, deliberately or inadvertently played a part in assisting or facilitating the assault by Mr Clavel. Mr Clavel’s legal representatives obtained a statement from Mr Sakellarides five months before the hearing in the Local Court but did not provide a copy of the statement to the police until the hearing actually took place. No doubt the police might have sought out Mr Sakellarides for his version of events. But in the light of Mr Clavel’s reluctance to provide details of the “independent witness” and (on Mr Kennedy’s account) Mr Sakellarides’ role in the alleged assault, the failure of the police to initiate further inquiries does not establish error on the part of the primary Judge. The fact that the Magistrate dismissed the charge and awarded costs to Mr Clavel also cannot negate the findings made by the primary Judge.

Collateral Abuse of Process

120. It is not surprising that the primary Judge was not satisfied that Sergeant Figgis made a complaint against Mr Clavel for the purpose of assisting the Savages to intimidate the appellants to leave Great Mackerel Beach. Not only did Sergeant Figgis deny that he wanted the appellants to leave Great Mackerel Beach, it was never put to him that his reason for seeking an AVO was to intimidate the appellants into leaving the area.

121. As has been noted, the Magistrate appeared to accept that Sergeant Figgis genuinely feared for his safety but dismissed the complaint because he was not satisfied that Sergeant Figgis’ fear was reasonable. The primary Judge found that Sergeant Figgis genuinely believed that Mr Clavel acted deliberately in order to intimidate him. The appellants’ submissions do not establish any basis for setting aside that finding. In any event, the Court was not taken to any evidence which was capable of establishing that Sergeant Figgis had the improper purpose pleaded in the Statement of Claim.

122. The appellants have also not established grounds for setting aside the findings made in relation to the complaint made by Senior Constable Francis. In order to succeed on the claim of collateral abuse of process, the appellants had to establish that Senior Constable Francis’ complaint was made for the purpose of intimidating the appellants and forcing them to leave Great Mackerel Beach. The appellants’ written submissions do not identify evidence before the primary Judge that would support such a finding. Nor do they challenge the finding that Sergeant Francis was instructed by his superior to make a complaint, a finding that strongly suggests that Senior Constable Francis genuinely feared for his safety.

120. The appellants’ written submissions submitted that the primary Judge should have found that Senior Constable Francis made his complaint for an improper purpose other than the purpose pleaded in the Statement of Claim. It is not open to the appellants to raise for the first time on appeal an issue that was not pleaded and was not the subject of submissions to the primary Judge.

121. The appellants’ grounds of appeal complain that the primary Judge referred in the judgment to the failure of the appellants to allege a conspiracy involving Sergeant Figgis and Senior Constable Francis. The complaint appears to be that the appellants did not wish to plead a conspiracy case and the primary Judge should not have criticised them for not bringing a different action in tort. But the point his Honour was making was simply that in the absence of an allegation that the police officers had acted in concert with each other and the Savages, it was very difficult to show that the complaints leading to the AVOs had been made for the improper purpose pleaded in the Statement of Claim.

122. The appellants’ challenge to the primary Judge’s findings on their claims founded on collateral abuse of process must be rejected.

Costs

126. In the Supplementary Judgment, the primary Judge dealt with an application by the State for a special costs order. The application was based on letters sent on 22 December 2010 offering the appellants, to submit to a verdict, in the aggregate, of $200,000 plus $400,000 in costs. The letters were not made as offers of compromise under the Uniform Civil Procedure Rules 2005 (NSW), but invoked the principles enunciated in Calderbank v Calderbank [1975] 3 All ER 333. The offer was expressed to be open for 28 days.

127. The State’s offer was made after the trial had been adjourned on the 36th day of the hearing, 17 December 2010. The trial was scheduled to (and did) resume on 21 February 2011. There was therefore sufficient time for the appellants, if they were so minded, to accept the State’s offer prior to the resumption of the hearing.

128. The primary Judge considered (at [52]) that the Calderbank offer was “more than reasonable in the circumstances” and was open for a reasonable period. Since the offer, if accepted, would have achieved a more favourable result for the appellants than they achieved in the contested litigation, his Honour ordered, subject to one presently irrelevant qualification, that the appellants pay the State’s costs as and from 22 December 2010 on an indemnity basis.

129. The appellants challenge the costs order in their written submissions. However, they do not advance any cogent reason for concluding that his Honour misapplied the relevant principles or that his discretion otherwise miscarried. It is not to the point that the rejected offer “bore no resemblance” to the damages claimed by the appellants. Nor is it to the point that the offer was made relativey late in the proceedings. The case continued for another seven hearing days in 2011.

130. The costs orders made by the primary Judge require the applicants to pay indemnity costs from the date of the offer, rather than from the last day for acceptance of the offer. It is not clear whether this makes any difference to the quantum of costs payable by the appellants but, in any event, the appellants take no point about the precise date from which the indemnity costs order operates.

131. The appellants’ challenge to the indemnity costs order fails.

Orders

132. The appeal must be dismissed, with costs.

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Decision last updated: 24 March 2015