Kronen v Paolini - [2025] SADC 73

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KRONEN v PAOLINI
[2025] SADC 73
Judgment of his Honour Judge Burnett
20 June 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - ESSENTIALS OF ACTION
TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND
The applicant has brought a review of a minor civil action in which the Magistrate granted the respondent’s application for summary judgment and summary dismissal of the applicant’s claim.
The applicant and the respondent are neighbours and there is a shared boundary fence between their properties. A dispute arose about that fencing. In separate proceedings, the respondent was ordered to erect a fence on the boundary. The respondent engaged her son, Mr Paolini, to do so. Mr Paolini erected the fence on 4 April 2020. The applicant claimed that the fence was not erected on the boundary and was partly erected on his land. On 4 May 2020, the applicant dismantled part of the fence claiming that it was not on the boundary. Police attended on this occasion and Mr Paolini made a statement to the police claiming that the applicant should be charged because, by dismantling the fence, he had damaged the property of the respondent. Mr Paolini later provided a statement and affidavit to the police in which he also claimed that a panel of the fence had been damaged by the applicant. The applicant claimed that this was a false statement which was the basis of the prosecution.
The applicant was charged with damaging property. Those charges were later discontinued. The applicant brought a claim for malicious prosecution against the respondent and a claim for debt/trespass in relation to the erection of the fence on his property. The applicant also brought a minor civil action against the State of South Australia for malicious prosecution which he settled.
Held:
1.      That part of the judgment of the Magistrate that deals with the dismissal of the claim for      malicious prosecution is affirmed. That part of the judgment of the Magistrate that deals with the claim for debt/trespass is rescinded and remitted to the Magistrate’s Court for further     hearing.
2.      There was no reasonable basis for the claim for malicious prosecution and it was appropriate        to summarily dismiss or award summary judgment in respect of this claim. There was no       reasonable prosect that the claim could succeed because:
(1) the applicant cannot establish that the prosecution was brought or maintained without reasonable and probable cause. Absence of reasonable and probable cause involves a subjective element and an objective element: A v New South Wales (2007) 230 CLR 500, Le v Plummer [2023] WASCA 178 applied. There was a reasonable and probable cause because the prosecution relied upon the admitted acts of the applicant in removing the fence and was not dependent on proving that the fence panel had been damaged;
(2) there was no reasonable basis for the claim that the respondent was either the instigator of the prosecution or acted in concert with Mr Paolini such that she should be held liable with him for instigating the prosecution. A person, other than the prosecuting authority, can be regarded as the instigator of the prosecution if they misled the police or unduly influenced the police: Davis v Gell (1924) 35 CLR 275 applied. There was no reasonable basis for the claim that the respondent was liable for any tort of
Mr Paolini (as the alleged instigator of a malicious persecution) as there was no evidence that the respondent and Mr Paolini agreed to pursue a common purpose or agreed to take concerted action: Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403 applied.

2. The settlement of the minor civil against the State of South Australia did not prevent the applicant from bringing these proceedings: s 12 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, s 39 Magistrates Court Act 1991 (SA) applied.
3. There was no reasonable basis for the claim of the applicant for damages for trespass. It is arguable that the respondent, through Mr Paolini, committed a trespass by erecting the fence on the applicant’s land and leaving it there: Westripp v Baldock [1939] 1 All ER 27 applied. The applicant should be permitted to amend his claim to trespass from debt in response to the summary judgment application. Summary judgment and summary determination should not be awarded in relation to this part of the claim.
Criminal Law Consolidation Act 1935 (SA) ss 84(1), 85; Magistrates Court Act 1991 (SA) ss 38(1), 38(6)-(9), 38(8); Freedom of Information Act 1991 (SA); Fences Act 1975 (SA) s 8(2); Uniform Civil Rules 2020 (UCR) rr 143-144; Federal Court of Australia Act 1976 (Cth); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), referred to.
Harradine v District Court of South Australia [2012] SASC 96; Wilczynski v District Court of South Australia [2017] SASCFC 102; Danby v Beardsley (1880) 43 LT 603; Vanderbergh v Blake (1662) Hard 194; Herniman v Smith [1938] AC 305; Castrique v Behrens (1861) 3 El & El 709; Savile v Roberts (1698) 1 Ld Raym 374; A v New South Wales (2007) 230 CLR 500 ; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Spencer v Commonwealth of Australia (2010) 241 CLR 118; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; Le v Plummer [2023] WASCA 178; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 ; Davis v Gell (1924) 35 CLR 275; Pandit Gaya Parshad Tewari v Sadar Bhagat Singh (1908) 24 TLR 884; Fanzelow v Kerr (1896) 14 NZLR 660; Bruton v Regina City Policemen’s Association, Local No 155 [1945] 3 CLR 437; Morgans v Launchbury [1973] AC 127; Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (In liq) (2013) 209 FCR 368; Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403; Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] UKHL 15; Slater v Ecosol Pty Ltd [2023] SASC 99; Westripp v Baldock [1939] 1 All ER 27; Watson v Cowen [1959] Tas SR 194; Jones v Stones [1999] 1 WLR 1739; Bonette v Woolworth Ltd (1937) 37 SR (NSW) 142, 153; Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, applied.

KRONEN v PAOLINI
[2025] SADC 73
Introduction

This is a review pursuant to s 38(6) of the Magistrates Court Act 1991 (SA) of a minor civil action in which the Magistrate granted the respondent’s application for summary judgment and/or summary dismissal of the claims of the applicant for malicious prosecution and debt/trespass against the respondent. The applicant is dissatisfied with the decision of the Magistrate and has sought a review of that decision.
Application for review
This review is conducted pursuant to ss 38(6) to 38(9) of the Magistrates Court Act. On this review, the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence. The Court may, if it thinks fit, rehear the evidence taken in the Magistrates Court. In hearing and determining this review, the Court must act according to equity, good conscience and the substantial merits of the case, without regard to technicality and legal form. On the review, the Court is conducting a review of the matter and not a review of the judgment. The decision of this Court on the review is final and, pursuant to s 38(8) of the Magistrates Court Act, is not subject to appeal.
On this review, the Court may affirm the judgment of the Magistrate or rescind it and substitute the judgment that this Court considers appropriate or remit the matter to the Magistrates Court for further hearing. If the judgment is rescinded, in whole or part, the matter will return to the Magistrate’s Court for further hearing.
Conduct of the Review
This review concerns whether the Magistrate was correct in summarily determining the claim of the applicant. The Court must consider whether the Magistrate correctly applied the law relating to summary judgment, summary dismissal, malicious prosecution and debt/trespass (the claim in debt was orally recast at the hearing as a claim in trespass) and then determine whether the determination of the Magistrate that the case should be dismissed or summary judgment granted, was correct. This Court, on the review, may rehear evidence without being confined to the fresh evidence rules which apply to appeals by way of rehearing.[1] Therefore, if it was the case that there was some new evidence which the applicant did not put before the Magistrate, the Court would give him the opportunity to adduce that evidence on the review. The applicant did not identify such evidence nor, given the nature of the application and of the matter, was there any reasonable possibility that there would be such evidence.
[1] Harradine v District Court of South Australia [2012] SASC 96, [53].
In an application for summary dismissal or summary judgment, the onus is on the respondent to show that there is no reasonable cause of action or no reasonable basis for prosecuting the claim. This is not a case therefore that requires further evidence on the review. The correct approach to the review in this case therefore is to determine the matter based on the evidence that was adduced in the Magistrates Court.[2]
[2] Wilczynski v District Court of South Australia [2017] SASCFC 102.
Background to the dispute
The Magistrate set out the factual findings which are not in dispute. The factual findings were correctly made.
The applicant and respondent are neighbours. The claim arose out of a dispute involving a shared boundary fence dividing the rear of 82 Alice Street, Septon Park (the applicant’s property) and 50 Emily Street, Sefton Park (the respondent’s property).[3] Following orders made on 21 January 2020 in separate proceedings in the Magistrate Court, a fence was constructed between the two properties on 4 April 2020 by or on behalf of the respondent. The order in those proceedings was that Ms Paolini erect the fence or arrange at her cost for a contractor to do so. The respondent engaged her son, Mr Marco Paolini (Mr Paolini), to erect the new fence on 4 April 2020. Police attended on this occasion as a dispute arose between the parties.
[3] Reasons, [2].
On 4 May 2020, the applicant dismantled part of the fence that had been erected, claiming that it was not on the boundary between the two properties and was on his property. Police were also called to the property on this occasion.[4] Mr Paolini made a statement to the police and requested that the applicant be charged with damaging property.
[4] Reasons, [4].
Mr Paolini made a further statement to the police on 30 May 2020 by way of email in which he advised that there had been damage to a fence panel.

Mr Paolini then provided an affidavit dated 21 June 2020 relating to that damage. That statement and affidavit is the basis of the applicant’s claim for malicious prosecution. The applicant was charged (which charges were later discontinued) with damaging property contrary to s 85 of the Criminal Law Consolidation Act 1935 (SA).
The applicant subsequently brought two separate legal claims: one against the State of South Australia and one against Ms Paolini, both seeking damages in the sum of $11,999 (being the limit of minor civil claims) for the alleged wrongful arrest and malicious prosecution.[5] The State settled the applicant’s claim for that sum. In these proceedings, the applicant also brought a claim for $373 for the costs that he says he incurred in communication with the respondent regarding the fence being in the wrong place ($288) and the cost of removing that fence on 4 May 2020 and placing it on the boundary ($85). These are referred to as the Part A damages.
[5] Reasons [4]-[5].
Conduct of the hearing in the Magistrate Court
The hearing in the Magistrates Court was conducted in an accordance with the requirements of s 38(1)(a) of the Magistrates Court Act. In paragraph [10] of the Reasons,[6] the Magistrate set out how he approached the hearing of the matter with an emphasis on hearing the matter will all due expedition, informally and acting according to the substantial merits of the case without undue technicality. The applicant relied upon his affidavit, a document providing further particularisation of his loss and causes of action, as well as tendering a number of documents, including police records obtained through the Freedom of Information Act (1991)(SA) and communications between the applicant and the respondent and Mr Paolini. The applicant provided detailed written submissions and also made oral submissions. The respondent filed affidavit material and also provided written and oral submissions.
[6] [2024] SAMC 41.
Findings and decision of the Magistrate
The Magistrate correctly identified four issues in respect of which he made determinations that led to his conclusion that there was no reasonable basis for the claim of the applicant and/or no reasonable basis that the claim would succeed.
The first issue was whether the applicant had established the elements required for a claim for malicious prosecution. The Magistrate referred to the decision of the High Court in A v New South Wales,[7] where the High Court identified the elements necessary to establish a claim for malicious prosecution. Those elements are:
(1)the defendant was ‘actively instrumental’[8] in instituting or continuing the previous proceedings complained of;
(2)the proceedings were terminated, where capable of termination, in favour of the person against whom they were brought;[9]
(3)the proceedings were brought without reasonable and probable cause;[10]
(4)in bringing the proceedings the defendant was motivated by malice;[11] and
(5)damage was caused to the plaintiff.[12]
[7] (2007) 230 CLR 500, [1]; [2007] HCA 10.
[8] Danby v Beardsley (1880) 43 LT 603.
[9] Vanderbergh v Blake (1662) Hard 194.
[10] Herniman v Smith[1938] AC 305.
[11] Castrique v Behrens (1861) 3 El & El 709; [1861-73] All ER Rep Ext 1616; (1861) 4 LT 52; 121 ER 608.
[12] Savile v Roberts (1698) 1 Ld Raym 374; 91 ER 1147. See [415-1805]-[415-1815]. A v New South Wales (2007) 230 CLR 500 at 502-03; 233 ALR 584; [2007] HCA 10; BC200701675 at [1] per Gleeson CJ (Gummow, Kirby, Hayne, Heydon and Crennan JJ agreeing).
The Magistrate found that there was no reasonable basis for the claim for malicious prosecution because the applicant could not establish that the prosecution had been brought or maintained without reasonable or probable cause. The Magistrate found that, irrespective of Mr Paolini (whom the applicant asserted was acting on behalf of the respondent), making an alleged false statement to the police about the damage to the fence panel, the police would have prosecuted the applicant based on his admitted conduct alone. The Magistrate came to this view on the basis that:
(1)The fence was a shared boundary fence;
(2)The applicant admitted to dismantling the fence; and
(3)Dismantling the fence reduced its value in accordance with s 84(1) of the Criminal Law Consolidation Act which includes in the definition of damage “to make an alteration to the property that depreciates its value”.
Accordingly, the Magistrate found that that the admission of the applicant to deliberately dismantling the fence provided a reasonable basis for the criminal prosecution, irrespective of Mr Paolini’s statements about damage to a fence panel or whether the applicant believed that he was acting lawfully.
The second issue identified by the Magistrate was whether the respondent acted in concert with her son, or whether her son acted as her agent. Another of the elements of a claim for malicious prosecution is that the defendant to such an action must be the instigator of the prosecution. The instigator may be someone other than the police. In this case, it may be Mr Paolini. If Mr Paolini was the instigator of the prosecution, then the respondent will be liable if she assisted in its instigation, for example if Mr Paolini was her agent or they acted in concert.
Mr Paolini lived on the property (which the respondent owned) and was engaged to do the fencing construction for the respondent. The respondent and Mr Paolini had agreed that the property would be transferred to him. The Magistrate found that there was no evidence that Ms Paolini was aware, procured or directed her son to provide a statement and affidavit to the police or that she knew they were false (if that was the case). The Magistrate found that the applicant could not satisfy this element and therefore the claim for malicious prosecution was doomed to fail.
The third issue identified was whether the applicant’s action against the State of South Australia, in which he was awarded, by consent, damages in the sum of $11,999, compensated him for the loss of damage which he now claims against the respondent in these proceedings. The Magistrate found that the applicant’s decision to institute two separate minor civil actions was a strategic decision and further the applicant had recovered the maximum amount recoverable in his action against the State of South Australia. The Magistrate found that for these reasons the applicant should not be entitled to seek to recover against the respondent for the same loss and damage. The Magistrate did not consider that the additional claim for aggravated and/or exemplary damages included in this claim materially altered the nature of the claim such that the applicant should be permitted to bring the claim in these proceedings for the same loss and damage.
Fourthly, in respect of the claim for damages set out in Part A of the claim, the applicant sought damages for the time, expense and inconvenience of the actions that he personally took to dismantle part of the fence. The Magistrate found that s 8(2) of the Fences Act 1975 (SA) precluded any such action. When the applicant was made aware of this statutory bar, he sought to recast his Part A claim as a claim for damages in trespass. The Magistrate did not permit this recasting and did not consider that the applicant should be entitled to proceed with this claim for damages.
The Magistrate therefore ordered summary dismissal and granted summary judgment of the action on the following grounds:
(1)The malicious prosecution claim failed as there was reasonable cause for the police to prosecute the applicant based on the applicant’s own conduct, irrespective of the statement of Mr Paolini;
(2)There was no evidence that the respondent authorised, knew of, or participated in her son’s police statement, precluding any liability being attributed to her through agency or concerted action; and
(3)Any damages claim was barred by the fact that the applicant had already been compensated for the same loss by the State and could not recover twice;
(4)Part A of the Applicant’s claim for his time, expense and inconvenience of the actions that he personally took to deconstruct part of the fence was barred by s 8(2) of the Fences Act. This ground only affects a small amount of the claim and would not provide a ground for summary judgment or summary dismissal of the whole claim.
Notice of Review

In his Notice of Review, the applicant did not set out any grounds of review. Instead, the grounds were provided in a subsequent Written Case. The review grounds can be grouped into the following categories:
(1)The Magistrate erred in finding that the prosecution brought by the police was brought or maintained with reasonable and probable cause. The applicant contended that there was no damage done to the fence and therefore that the statement and affidavit of Mr Paolini was false;
(2)The Magistrate gave insufficient weight to the evidence of Mr Paolini’s statement and affidavit and erred in finding that there was a reasonable basis for the police to prosecute the applicant independently of the Paolini affidavit;
(3)The Magistrate erred in finding that the respondent’s son, Mr Paolini, was not acting as an agent for or in concert with the respondent, when providing the statement or affidavit and when dealing with the fencing dispute (in general and with his dealings with the police);
(4)The Magistrate erred in finding that any damages claim was barred because the applicant had already been compensated for the same loss by the State and could not recover twice;
(5)The Magistrate erred in not finding that there was a reasonable basis for a claim in trespass in relation to the erection of the fence by the respondent on the property of the applicant.
The first two grounds of review relate to the finding that there was a reasonable cause for the institution of the prosecution.
Summary dismissal and summary judgment-principles of law
The UCR provide for summary determination in a number of ways including by way of summary judgment and summary dismissal.
143.1 Judgment for failure to disclose basis
(1) The Court may grant judgment dismissing an action on the ground that no reasonable cause of action in the case of a claim is capable of being disclosed.
144.2—Summary judgment
(1) The Court may, on application by a party, give summary judgment in favour of an
applicant—
(a) on a claim if there is no reasonable basis for defending the claim;
(b) on a cause of action in a claim if there is no reasonable basis for defending
the cause of action; or
(c) on a separate issue that arises in a claim if there is no reasonable basis for
contesting that issue.
(2) The Court may, on application by a party, give summary judgment against an
applicant—
(a) on a claim if there is no reasonable basis for prosecuting the claim;
(b) on a cause of action in a claim if there is no reasonable basis for prosecuting
the cause of action; or
(c) on a separate issue that arises in a claim if there is no reasonable basis for
contesting that issue.
(3) An application for summary judgment must be made by filing an interlocutory
application and supporting affidavit in accordance with rule 102.1. (my emphasis)
The respondent brought her application on both of these bases: that is, the claim for malicious prosecution should be summarily dismissed pursuant to UCR 143.1, or summary judgment be given against the applicant pursuant to UCR 144.2(c). Pursuant to UCR 143.1, the Court may grant judgment dismissing an action where no reasonable cause of action is capable of being disclosed. Pursuant to UCR 144.2, the Court may give summary judgment against an applicant if there is no reasonable basis for prosecuting the claim. The party seeking summary determination, in this case the respondent, bears the onus of persuading the court that an order should be made dismissing the claim.
In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (Adelaide Brighton Cement),[13] Doyle J discussed summary determination and summary judgment in circumstances, where, as in the present case, they rely upon there being no reasonable cause of action. Doyle J referred to the decision of the High Court in Spencer v Commonwealth of Australia[14] where it was held that the exercise of the power required a practical assessment as to whether the applicant had real, as opposed to merely fanciful, prospects of success. The Court should be cautious not to do a party an injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law. The court should not embark on a mini trial.
[13] (2020) 137 SASR 117; [2020] SASC 161.
[14] (2010) 241 CLR 118, [24]-[26]; [2010] HCA 28.
In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd,[15] Rares J held in respect of the broadly similar power to award summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) that the purpose of that section was to enable the court to deal with matters that should not be litigated because there was no reasonable prospect of any outcome but one. Rares J went on to hold that the exercise of judicial power to prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success, would defeat, not advance the ends of justice.
[15] (2006) 236 ALR 720; [2006] FCA 1352.
In Adelaide Brighton Cement, Doyle also considered the difference between the power to summarily dismiss a claim and granting summary judgment. His Honour held that while the difference was difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.[16]
[16] (2020) 137 SASR 117, [68]; [2020] SASC 161.
These principles apply to an application for summary determination of a minor civil action. However, in minor civil actions, the Court should be mindful of the requirement to conduct the proceedings with expedition and informality and act according to the substantial merits of the case without undue technicality. These requirements may lead the Court to more readily conclude that an application is not suitable for summary determination.
Determination of the Review
This review concerns whether the Magistrate was correct in his assessment that the claim disclosed no reasonable cause of action.
Reasonable and probable cause for the prosecution
The applicant contended that the Magistrate erred in finding that the claim for malicious prosecution was bound to fail because there was no reasonable prospect that the applicant would be able to establish that the prosecution was brought or maintained without reasonable and probable cause. The applicant contends that this finding was wrong because the Magistrate failed to give sufficient weight to Mr Paolini’s statement and affidavit and wrongly concluded that the prosecution could proceed independently of those documents.
The absence of reasonable and probable cause involves both an objective and subjective element. In A v New South Wales, the High Court held at [38]:
Insofar as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect.
Therefore, as Mitchell and Vaughan JJA held in Le v Plummer,[17] the requirement for an absence of reasonable and probable cause is established by proving either:
(a) the defendant did not honestly conclude that the material on which he or she acted provided a proper case for prosecution; or
(b) the material on which the defendant acted, considered in light of all of the facts of the particular case, was not objectively sufficient to support the conclusion that there was a proper case for prosecution.
[17] [2023] WASCA 178, [5]-[9]. See also Re Rules of the Supreme Court 1971 (WA) [2023] WASC 477. [38]-[42].
In the present case, it is clear from the facts of charge submitted by the police (part of exhibit A16), that there were two bases for the charge of damaging property. They are (1) the fence was dismantled by taking the fence posts from the post holes and new concrete had to be purchased and the fence re-erected; and

(2) one of the fence panels was damaged and had to be replaced. Even if there was a dispute about the second matter which could not be resolved on a summary judgment, the applicant had admitted carrying out the dismantling of the fence posts. There is also no dispute that Mr Paolini believed, subjectively, that was sufficient for the application to be prosecuted for damaging property.
The background to the events on 4 May 2020 also supports the finding that there was reasonable and probable cause to bring the prosecution. In a police report dated 4 April 2020 (Exhibit A9), the police advised the complainant (the respondent) to seek legal advice as the fencing issue appears to be a civil matter. However, the police report also stated that the officer had advised the respondent that “if Kronen does try and pull-down fence (sic) and there may be issues e.g. property damage/SBOP then [Mr Paolini] should call police (sic)”. In his further and better particulars of the claim, the applicant stated, inter alia:
(1)on 4 May 2020, he dismantled the relevant section of the fence and placed the components on the respondent’s land;
(2)the two SAPOL offices, Ms Paolini, Mr Paolini and I inspected the fence components and the work site. Mr Paolini and the respondent did not make complaint of any damage to any of the components:
(3)Nonetheless, Mr Paolini urged the officers to lay criminal charges against me. When the officers raised that possibility…
(4)Following the departure of the SAPOL officers, the applicant observed Mr Paolini and a person who he understood to be his brother, commence the task of re-erecting the fence.
The applicant does not claim, consistent with those particulars, that Mr Paolini did not, subjectively, hold the view as at 4 May 2020 and thereafter, that the removal of the fence by the applicant was sufficient for criminal charges to be brought against the applicant for damage to the fence. The conduct of Mr Paolini in urging the police to lay the charges is evidence of this fact. The respondent did not play a role in Mr Paolini making that spontaneous statement.
Further, the evidence about the dismantling of the fence was objectively sufficient to support the conclusion that there was a proper case for a prosecution. Under s 84 of the Criminal Law Consolidation Act, “to damage” in relation to property includes-
(a)To destroy the property;
(b)To make an alteration to the property that depreciates it value;
(c)To render the property useless or inoperative;
(d)In relation to an animal-to injure, wound or kill the animal.
The property has been altered by the removal of the fence. There is a cost involved in the rebuilding of the fence and therefore that evidence was sufficient to support the conclusion that there was a proper case for prosecution.
It follows that there is no reasonable basis to bring the claim for malicious prosecution as the applicant was bound to fail because he cannot establish that there was not a reasonable and probable cause for the prosecution as he admitted to taking down the fence. This was a matter that was suitable for summary determination.
Agency
The applicant also has no reasonable basis for his claim that the respondent was either the instigator of the prosecution or should be liable with Mr Paolini for its instigation. The applicant referred to the fact that he had made an application to join Mr Paolini in the proceedings. However, this is not a case where either Mr Paolini or the respondent is the instigator of the prosecution such that it is appropriate that they both be named as respondents. Whether Mr Paolini is the instigator of the prosecution is not dependent on a finding as to the role of the respondent.
A person who merely presents facts to authorities without making a direct charge is not considered to have instigated a prosecution, which is deemed to result from the independent discretion of police or judicial officers.[18] However, if that discretion is unduly influenced, the person may be regarded as the true prosecutor despite not being formally recorded as such.[19] A person who knowingly misleads the police or magistrate and encourages false witnesses to corroborate the false information is actively instrumental in the prosecution even though not appearing on the record as a prosecutor.[20]
[18] Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 379; 35 SR (NSW) 399; [1935] ALR 330 per Dixon J (‘it is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority’).
[19] Davis v Gell (1924) 35 CLR 275.
[20] Pandit Gaya Parshad Tewari v Sadar Bhagat Singh(1908) 24 TLR 884, PC (cited with approval Davis v Gell (1924) 35 CLR 275 at 283; [1925] VLR 89; (1924) 31 ALR 49; Fanzelow v Kerr (1896) 14 NZLR 660.
There is no claim (or evidence) that the respondent herself made a statement to the police which was the basis of the claim for malicious prosecution. It is alleged that Mr Paolini unduly influenced the police by submitting a false statement and affidavit in relation to the alleged damage to the fence panel. The claim alleges that the respondent is responsible for the statements made by Mr Paolini and therefore that she was also the instigator of the malicious prosecution. The applicant did not set out any basis for that attribution. The Magistrate raised three possibilities: the doctrines of agency, vicarious liability and concerted action and dismissed each of those possibilities. In his written case on this review, the applicant contends that the respondent acted in concert with Mr Paolini. These matters must be considered in the context of the dispute and the events leading up to the prosecution.
The property was owned by the respondent, the mother of Mr Paolini. However, Mr Paolini, his wife and children were residing at the property and were in the process of buying and transferring it into his name (from his mother’s name). Mr Paolini had also sent letters to and had conversations with the applicant concerning the property. The Police Report dated 15 August 2020 (part of exhibit A16) states “Marco Paolini is authorised to speak for and on behalf of his mother as well as in regard to this property”. Mr Paolini makes that same statement in his affidavit dated 21 June 2020 which, along with this statement of 30 May 2020, is the basis of the claim for malicious prosecution. The applicant also relied on communications sent by the respondent to the applicant in which the respondent said that she would notify the police, and the applicant would be charged with the destruction of property if he continued to remove the fence. The applicant further relied upon the fact that the respondent was in attendance on 4 May 2020 and took some photographs on that date which the applicant says may have been used by Mr Paolini.
The most common way in which a relationship of agency arises is pursuant to the express or implied assent or consent of both principal and agent.[21] Implied agency arises from the conduct or situation of the parties.[22] There is no requirement for a legally binding contract of agency, but it is necessary that there should be an instruction or request from the [principal] and an undertaking of the duty or ask by the agent.[23] Bare assertions from the agent as to their agency is not enough, there must be conduct on the part of the alleged principal from which the agency relationship can be inferred.[24] Jordan CJ in Bonette v Woolworth Ltd explained:[25]
Evidence that a person is purporting to do acts on behalf of a principal in some capacity in such circumstances that the knowledge and approval of the principal may fairly be inferred is evidence that the principal has authorised him to act in the particular capacity. If there is evidence justifying such an inference, it justifies the further inference the person has authority to do such acts as would be done, as matter of ordinary business practice, by a person acting in such a capacity.
[21] Bruton v Regina City Policemen’s Association, Local No 155 [1945] 3 CLR 437 at 456.
[22] Ibid.
[23] Morgans v Launchbury [1973] AC 127 at 141.
[24] Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (In liq) (2013) 209 FCR 368.
[25] (1937) 37 SR (NSW) 142, [253].
There is no basis to suggest that Mr Paolini was the agent of the respondent when he made the statement to the police on 30 May 2020 or provided the affidavit dated 21 June 2020. The affidavit (which confirms the matters in the statement) refers to actions and steps that Mr Paolini undertook, along with confirming a number of matters. The affidavit goes on to state that he was willing to attend court, if necessary. Although he says that he was authorised to speak for his mother as regards to the property, he does not in fact do so. He did not state that the applicant had directed him to make a complaint to the police. The relationship of principal and agent cannot apply to acts done by one person in their personal capacity. The affidavit does not refer to things that the respondent did or observed such that it might be said that Mr Paolini was a conduit for reporting those actions and observations. While the respondent was aware of the involvement of the police in the fencing dispute (see her letters dated 4 April 2020, and 3 May 2020), the phone call complaints from Mr Paolini were on his behalf with no mention of his mother (he was named as the victim in the police report dated 1 October 2020 and phone log dated 4 April 2020).
Vicarious liability does not arise. The respondent and Mr Paolini were not in a relationship such that the respondent was liable for the acts of Mr Paolini.
The doctrine of concerted action was discussed in Hardie Finance Corporation Pty Ltd v Ahern (No 3),[26] where Pritchard J held:[27]
At common law, persons will be held jointly liable for a tort in circumstances where (amongst others) they agree to pursue a common purpose and take concerted action to that end, and in the course of pursuing that joint purpose any one of them commits a tort: Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574, 580 - 581 (Brennan CJ, Dawson & Toohey JJ), 600 (Gummow J agreeing), 591 (Gaudron J agreeing); The Koursk [1924] P 140, 151 - 152 (Bankes LJ), 155 - 156 (Scrutton LJ), 159 - 160 (Sargant LJ).
What will be required to establish a common purpose will be evidence of an agreement, express or implied, to undertake the activity complained of: CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] UKHL 15; [1988] AC 1013;Balkin RP & Davis JLR, Law of Torts (4th ed, 2009) [29.25].
[26] [2010] WASC 403.
[27] Ibid, [177]-[178]
In this case, the agreement (express or implied) that would be required for the respondent to be said to have acted in concert with Mr Paolini would be an agreement between them that Mr Paolini would make a false statement to the police so that the applicant could be charged. There would need to be an agreement as to what this false statement would contain. There is no evidence in any of such agreement before the Court (nor is there any reasonable possibility that such evidence could be obtained). There is no basis to infer such an agreement.
It follows that the applicant’s claim against the respondent for malicious prosecution is bound to fail because it cannot be established that the respondent was an instigator of the prosecution or that she is liable with Mr Paolini (because of agency or concerted action) for the instigation of the prosecution. For this reason also, the respondent is entitled to summary judgment or summary determination in her favour in relation to the claim for malicious prosecution. This was also a matter that was suitable for summary determination.
Effect of the settlement of the claim brought by the applicant against the State of South Australia

The Magistrate found that the claim of the applicant was also bound to fail because he had already been compensated for his loss and damage as a result of his case against the State of South Australia and the settlement of that claim for $11,999. The Magistrate’s reasons were:
(1)The applicant had already been adequately compensated by the State of South Australia; and
(2)The applicant’s decision to institute two separate minor civil actions was a tactical one and one apparently done on legal advice.
Section 12 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) provides that:
(1) A judgment for damages against one person does not bar an action against another person who is also liable for the same harm.
(2) The general rule is that if separate actions are brought for damages for the same harm—
(a) the aggregate amount of damages recoverable in the actions cannot exceed the relevant amount; and
(b) the claimant is not entitled to costs in any action except the first.
(3) However, if a court is satisfied that there were in the circumstances of a particular case reasonable grounds for bringing the actions separately, the court may depart from the general rule to the extent that it is fair and equitable to do so in the circumstances of that case.
(4) The relevant amount is—
(a) in a case that does not involve apportionable liability—the amount of damages awarded in the judgment first given (or, if that amount is varied on appeal, the amount as varied);
(b) in a case involving apportionable liability—the amount fixed in the judgment first given as the plaintiff's notional damages (or, if that amount is varied on appeal, the amount as varied).
Section 39 of the Magistrates Court Act 1991 (SA) provides that:
a determination of an issue in a minor civil action does not prevent the parties from again litigating the same issue in different proceedings based on a different claim.
The rationale for s 39 of the Magistrates CourtAct is that different rules are applied under s 38 for the hearing and determination of a minor civil action to those ordinarily applying to litigation.[28] These include that the rules of evidence do not apply, the parties are not bound by their pleadings and the court proceeds in an inquisitorial manner.
[28] Slater v Ecosol Pty Ltd[2023] SASC 99, [601].
Section 39 of the Magistrates Court Act does not prevent the applicant from litigating the same issue (the loss that he claims to have suffered because of the alleged malicious prosecution) based on a different claim - namely a claim against a different party. Section 12 of the Law Reform Act only refers to the imposition of a general rule, rather than imposing a prohibition on the bringing of a further action in respect of the same harm but against another party. Section 12(3) provides that if the court is satisfied that there were in the circumstances of a particular case reasonable grounds for bringing the actions separately, the court may depart from the general rule to the extent that it is fair and equitable to do so. However, because of s 39 of the Magistrates Court Act, the principles of Anshun estoppel or issue estoppel do not apply where the first case is heard as a minor civil action.[29] In these circumstances, there would appear to be a good argument that the general rule set out in s 12 of the Law Reform Act also does not apply where the first case was a minor civil action. It follows, in my view, that there is not a sufficient basis to award summary judgment or summary determination in favour of the respondent on this ground. Given my findings in relation to the other elements of malicious prosecution, this issue is only hypothetical.
[29] Ibid.
Claim in trespass
The Magistrate’s reasons in relation to this claim were very brief. After finding that s 8(2) of the Fences Act prevented the claim in debt, the Magistrate refused the applicant permission to recast the claim as a claim for damages for trespass to his property. The Magistrate did not give any reasons for that decision other than to say that he did not consider that the applicant would be entitled to proceed with a claim for damages in the circumstances.
Under s 38(1)(d) of the Magistrates Court Act, the parties are not bound by their written pleadings in a minor civil action. In a minor civil action, a party responding to a summary judgment application would be given the opportunity to recast their claim, provided that recasting had merit. The requirement under the Act that the Court must act according to the substantial merits of the case, also requires the applicant to be given that opportunity.
The question therefore arises whether there is merit in a claim for trespass in relation to the damages claimed in Part A of the claim. The merit of the claim must be assessed in the context of the summary judgment application: that is, the respondent must establish that the claim in trespass has no reasonable basis and is bound to fail.
The applicant claims that the respondent committed a trespass by erecting the fence on the applicant’s land. There was sufficient evidence on a summary judgment application to support a finding that the fence was erected on the applicant’s land. Trespass requires an interference with the land. A person who places or leaves material on the land of the applicant commits a trespass. [30] The erecting of a fence on the land of the applicant falls into that category. An applicant need not prove damage to succeed on a trespass to land action, however the trespasser is liable for any loss that they caused to the land.[31] Nominal damages may be awarded for trespass where the interference has been proved but there is no damage.[32] The nominal damages may be significant.[33]
[30] Westripp v Baldock [1939] 1 All ER 27; Watson v Cowen [1959] Tas SR 194; Jones v Stones [1999] 1 WLR 1739.
[31] Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87, [145].
[32] Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87.
[33] TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.
In the present case, the applicant has claimed damages for the time and expense in communicating with the respondent about this issue and the cost of removal of the fence from what he claims was his land. The former does not appear to be a proper claim for damage of trespass, but it is reasonably arguable that the applicant is entitled to claim the cost of the removal of the fence. In addition, the applicant is able to seek nominal damages in relation to the trespass. There is some similarity to this case and the decision in James v North Star Pastoral Pty Ltd (James).[34] That case also involved a trespass caused by erecting a fence on the applicant’s property rather than on the boundary. Barr J held that the applicant was entitled to damages even though he had suffered no actual physical loss or damage, and the trespass was minor. His Honour held that the applicant was entitled to general damages for vindication of his right to exclusive use and occupation and was awarded the sum of $2,500.
[34] [2019] NTSC 72.
Section 8(2) of the Fences Act does not prohibit a claim for damages for trespass. Section 8(2) prohibits the recovery of a contribution for the erection, repair or maintenance of a dividing fence (i.e. which under s 4 is a fence on the boundary between the two properties) where the procedure set out Act has not been followed. A claim for trespass is not a claim for contribution in respect of fencing work.
It follows that the respondent has not established that there is no reasonable basis for the claim of the applicant for damages for trespass. Summary judgment or summary determination should not be awarded in relation to this part of the claim.
Conclusion
For the reasons that I have expressed, I allow the review insofar as it deals with the claim for debt (recast as trespass) but dismiss the review insofar as relates to the claim for malicious prosecution. The formal order of the Court pursuant to s 38(7)(d)(ii) and (iii) of the Magistrates Court Act is that the order of the Magistrate granting summary determination or summary judgment of the claim for debt/trespass and the Part A damages is rescinded and remitted to the Magistrates Court for further hearing. The order of the Magistrate granting summary determination and/or summary judgment in respect of the claim for malicious prosecution and the Part B damages is affirmed pursuant to s 38(7)(d) (i) of the Magistrates Court Act.