Horton v Padoani

[2023] NSWDC 447

District Court

New South Wales

Medium Neutral Citation:

Horton v Padoani [2023] NSWDC 447

Hearing dates:

21, 22, 23, 24 and 25 August and 28 September

Date of orders:

24 October 2023

Decision date:

24 October 2023

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

(1) That there be judgment and verdict for the defendant against the plaintiffs.

(2) That the plaintiffs pay the defendant’s costs.

Catchwords:

TORTS – Malicious Prosecution

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500

Sahade v Bischoff [2015] NSWCA 418

Martin v Watson [1996] AC 74

Commercial Union v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Category:

Principal judgment

Parties:

1st Plaintiff: Richard Horton
2nd Plaintiff: Ben Horton
Defendant: Alida Padoani

Representation:

Counsel:
1st and 2nd Plaintiff: Mr J Sheller SC
Defendant: Mr A Rogers

Solicitors:
1st and 2nd Plaintiff: Fraser Clancy Lawyers
Defendant: LegalOne

File Number(s):

2021/90331

Publication restriction:

None

JUDGMENT

Introduction

1. The parties to these proceedings were at the relevant time neighbours, living in houses adjacent to each other in Double Bay. While they might have been living in close proximity to each other, there is no suggestion that their relationship could be described as in any way as “neighbourly.” The relationship over the years was one involving regular arguments, sometimes involving the intervention of Police, and the obtaining of Apprehended Violence Orders.

2. The proceedings concern a series of events which resulted in the Police charging the plaintiffs with common assault. The Fact Sheet prepared for the purposes of the prosecution, summarises the situation well:

“the two accused and the victim have been neighbours over the past 20 years and there has been extensive history of neighbourhood disputes between both parties families in this time period. Police have attended both locations on many occasions regarding these issues, and the parties have been in and out of court numerous times over the course of their dispute”

The Two Incidents

3. About noon on 2 November 2019, the first plaintiff was watering in his back garden. This activity was contrary to water restrictions applicable at the time. The defendant began to video record the first plaintiff’s actions on her mobile phone, upbraiding him, and suggesting that she was going to bring the video to the attention of the relevant water authorities, as evidence of his breach of the water restrictions.

4. An argument about this developed over the back fence. During this time, the first plaintiff picked up an air horn. He directed it in the direction of the defendant, who was in close proximity to him, discharging the air horn twice. The incident, which was captured on the defendant's security CCTV system, included footage that showed the defendant flinching upon the discharge of the air horn.

5. The first plaintiff had taken delivery of the air horn on the previous day. It was obviously close at hand, ready for use. The first plaintiff explained that he had purchased the air horn with a view of using it as a device to end arguments…