Clavel v Savage

Case [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…

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AGLC
Clavel v Savage [2015] NSWCA 61
Case
[2015] NSWCA 61
Decision Date

CaseChat Overview and Summary

The appeal in *Clavel v Savage* concerned a claim for malicious prosecution brought by the appellants against the respondents. The appellants alleged that the respondents had initiated or instigated criminal proceedings against them without reasonable and proper cause and with malice. The case was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the appellants had successfully demonstrated the absence of reasonable and proper cause for the prosecution, whether malice had been established, and whether the respondents could be identified as the prosecutor or instigator of the proceedings. Further, the court considered whether there had been a collateral abuse of power or an improper purpose in the institution of the prosecution, and whether any delay in the delivery of the primary judgment had rendered the findings unsafe.

The Court of Appeal ultimately dismissed the appeal. The reasoning of the court, though not detailed in the provided text, would have involved an analysis of the evidence presented in relation to each of the elements of malicious prosecution. This would have included an assessment of whether the respondents acted with an improper motive or for a purpose other than the proper administration of justice, and whether the prosecution was so lacking in reasonable and probable cause that malice could be inferred. The court's decision indicates that the appellants failed to satisfy the onus of proof required to establish their claim.

Consequently, the appeal was dismissed, and the appellants were ordered to pay the costs of the third respondent, the State of New South Wales, in relation to the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellants pay the costs of the third respondent (State of New South Wales) of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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