MT v Se
[2025] SASCA 8
•7 February 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MT v SE
[2025] SASCA 8
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Auxiliary Justice Hall)
7 February 2025
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT
TORTS - ABUSE OF LEGAL PROCESS - ABUSE OF PROCESS - RELATIONSHIP WITH MALICIOUS PROSECUTION
The appellant and the respondent were formerly married. The respondent made serious allegations of physical, emotional and sexual abuse, which the appellant denied. They were in dispute about the care arrangements for their child.
A domestic violence service recommended that the respondent make a report to SAPOL ‘so that the appropriate preventative orders could be made’ pursuant to s 20 of the Intervention Order (Prevention of Abuse) Act 2009 (SA). A support worker made an appointment for the respondent at the Port Adelaide Police Station for 19 March 2015, where an affidavit was prepared and, soon after, police obtained an interim intervention order naming the respondent and her son as protected persons, and preventing contact apart from contact permitted under the Family Law Act 1975 (Cth) or the Children’s Protection Act 1993 (SA).
A trial was listed for 7 January 2016 to determine whether final orders should be made in the intervention order proceedings. The trial did not proceed because the presiding magistrate took the view that any necessary protective arrangements could be made by the Federal Circuit Court in connection with pending parenting proceedings. The interim intervention order was revoked with the consent of the appellant.
On 4 April 2016, interim orders were made in the Federal Circuit Court for a mutual injunction, restraining the behaviour of both parties in relation to each other and their son. Those orders were finalised by consent in the Federal Circuit Court on 21 September 2016.
On 7 October 2021, the appellant filed a statement of claim in the District Court. The appellant alleged malicious prosecution and collateral abuse of process against the respondent. The appellant claimed a total of $207,033.55 from the respondent. This comprised $104,252.95 in general damages, $100,000 in aggravated, exemplary and special damages, and court fees. The appellant alleged that he lost the opportunity to take up paid employment as a teacher as the result of the intervention order proceedings.
The respondent applied for summary judgment against the appellant or, in the alternative, for all, or part, of his claim to be struck out. The respondent obtained summary judgment. The primary judge concluded that in relation to both causes of action there was a fundamental element, or elements, of the tort that could not be satisfied.
The appellant, who is unrepresented, appealed. The respondent filed a notice of contention.
Held, per the Court, allowing the appeal in part, setting aside summary judgment in respect of the claim of malicious prosecution and affirming summary judgment in respect of the collateral abuse of process claim, and dismissing the notice of contention:
1.Contrary to the finding of the primary judge, there was a reasonable basis for the claim that the respondent initiated the intervention order proceedings, and it is arguable that those proceedings were terminated in favour of the appellant for the purposes of the claim based on malicious prosecution. [76]-[78], [88]-[90]
2.The primary judge was correct to conclude that there was no evidence that could support the element of improper purpose in respect of the collateral abuse of process claim. Whilst it is strictly unnecessary to decide it, the primary judge was also correct to conclude that there was a reasonable basis for a claim for ‘special damage’. [82]-[84], [108]-[109]
Children's Protection Act 1993 (SA); Defamation Act 2005 (SA) ss 7(1), 7(2); Family Law Act 1975 (Cth); Federal Court of Australia Act 1976 (Cth) s 31A; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 20; Supreme Court Civil Rules 2006 (repealed) (SA) r 323; Uniform Civil Rules 2020 (SA) r 144.2(2), referred to.
A v New South Wales [2007] HCA 10; (2007) 230 CLR 500; Bayne v Blake (1909) 9 CLR 347; Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432; Berry v British Transport Commission [1962] 1 QB 306; Cassell & Co Ltd v Broome [1972] AC 1027; Clavel v Savage [2013] NSWSC 775; Davis v Gell [1924] HCA 56; (1924) 35 CLR 275; Emanuele v Hedley (1998) 179 FCR 290; Grainger v Hill (1838) 4 Bing (NC) 212; 132 ER 769; Hadley v Baxendale (1854) 9 Ex 341; Hanrahan v Ainsworth (1985) 1 NSWLR 370; Marino v Bello (No 3) [2022] NSWCA 181; (2022) 408 ALR 650; Martin v Watson [1996] 1 AC 74; Paff v Speed (1961) 105 CLR 549; Ratcliffe v Evans [1892] 2 QB 524; Skrijel v Mengler [2003] VSC 270; Varawa v Howard Smith Co Ltd (1911) 13 CLR 35, discussed.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; (2020) 137 SASR 117; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256; Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432; Burton v Office of Director of Public Prosecutions (NSW) (2019) 100 NSWLR 734; Butler v Simmonds Crowley & Galvin [1999] QCA 475; [2000] 1 QD R 252; Coleman v Buckingham’s Ltd (1962) 63 SR (NSW) 171; Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343; Cosenza v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65; Crawford Adjusters (Caymen) Ltd v Sagicor General Insurance (Caymen) Ltd [2014] AC 366; Crawford v Sagicor General Insurance (Cayman) [2013] UKPC 17; [2014] AC 366; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62; Emanuele v Hedley (1998) 179 FCR 290; Eng Mee Yong v Letchumanan [1980] AC 331; Fairfax Media Publications Pty Ltd v Voller (2001) 206 CLR 512; Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 126; Gilding v Eyre (1861) 10 CBNS 592; 142 ER 584; Goldsmith v Sperrings Ltd [1977] 1 WRL 478; Gulabrai v Hamer-Mathew [1997] NSWCA 131; Hanrahan v Ainsworth (1985) 1 NSWLR 370; Hanrahan v Ainsworth (1990) 22 NSWLR 73; HD v New South Wales [2016] NSWCA 85; Hegarty v Keogh (No 2) [2023] SASCA 30; Jones v Jones [1916] 2 AC 481; Land Securities Plc v Fladgate Fielder (A Firm) [2010] Ch 467; Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; Li v Deng (No 2) [2012] NSWSC 1245; Marino v Bello (No 3) [2022] NSWCA 181; (2022) 408 ALR 650; Martin v Norton Rose Fulbright Australia [No 11] [2020] FCA 1641; Martin v Watson [1996] 1 AC 74; Maxwell-Smith v S & E Hall Pty Ltd [2014] 86 NSWLR 481; [2014] NSWCA 148; MT v SE [2023] SADC 129; National Australia Bank Ltd v McFarlane [2005] VSC 438; Paradise Grove Pty Ltd v Stubberfield [2001] QCA 117; QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245; Quartz Hill Gold Mining Company v Eyre (1883) 11 QBD 674; Rock v Henderson [2021] NSWCA 155; Sahade v Bischoff [2015] NSWCA 418; Savile v Roberts (1698) 3 Salk 16; 91 ER 1147; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; Tabet v Gett (2010) 240 CLR 537; Webster v Lampard [1993] HCA 57, (1993) 177 CLR 598; Wentworth v Rogers (No 5) (1989) 6 NSWLR 534; Williams v Spautz [1992] HCA 34; 174 CLR 509, considered.
MT v SE
[2025] SASCA 8Court of Appeal – Civil: Livesey P, Bleby JA and Hall AJA
THE COURT: This is an appeal from a decision to grant summary judgment to the respondent in respect of proceedings brought by the appellant, seeking damages for malicious prosecution and collateral abuse of process.
The appellant and the respondent were in a relationship from 2009 and married in 2011. Their union proved to be an unhappy one, though it produced a son. They finally separated in 2014, and access to their son was a matter of significant contention between them. In March 2015, the respondent attended the Port Adelaide Police Station and made a statement alleging that the appellant had harassed and abused her. On the basis of this statement, South Australian Police (SAPOL) applied for an interim intervention order in the Port Adelaide Magistrates Court. An interim order was made, but the appellant opposed the making of a final order. The interim intervention order was revoked on 7 January 2016 without a final hearing. That was not the end of the matter.
The appellant commenced an action against the respondent in the District Court. The appellant alleged that, in initiating the intervention order proceedings, the respondent had engaged in malicious prosecution and collateral abuse of process. He claimed that the intervention order had prevented him from obtaining employment as a teacher and claimed damages for loss of income as well as aggravated and exemplary damages. The respondent applied for summary judgment in respect of that action.
The causes of action of malicious prosecution and collateral abuse of process both require that the respondent be the person who instituted or initiated the intervention order proceedings. The primary judge found that the respondent was not the initiator, and that the intervention order proceedings had been prosecuted or instigated by SAPOL.[1]
[1] MT v SE [2023] SADC 129 [63], [98].
The claim of collateral abuse of process also required that the respondent had commenced the intervention order proceedings for an improper purpose. At least arguably, that required that there had been a demand, threat, or overt coercion in respect of the proceedings. The primary judge concluded that the only alleged threat was made 10 months before the intervention order proceedings were commenced, and that the threat could not be said to be connected to the proceedings. Further, the primary judge found that there was no evidence that the respondent had misused the legal process by reporting her complaint to SAPOL and seeking an intervention order.[2]
[2] MT v SE [110].
The primary judge concluded that in relation to both causes of action there was a fundamental element, or elements, of the tort that could not be satisfied. Her Honour held that there was no arguable basis for the appellant’s claims and ordered that there be summary judgment for the respondent.[3] The appellant now appeals against that decision.
[3] MT v SE [109], [111].
The appellant is self-represented. His grounds of appeal are not in conventional form. In essence, he contended that the primary judge erred in finding that the respondent was not the initiator or instigator of the intervention order proceedings. He also contended that the primary judge erred in finding that there was no arguable basis for the claim that the proceedings were brought for an improper purpose.
By notice of contention, the respondent contended that the decision of the primary judge to grant summary judgment can be upheld on alternative grounds. First, the respondent contended that the appellant cannot prove that the intervention order proceedings terminated favourably to him and that this is fatal to the malicious prosecution claim. Secondly, the respondent contended that the appellant cannot prove that he suffered special damage with respect to the collateral abuse of process claim, and that this is fatal to that claim.
For the reasons that follow, in our view it was reasonably open for the appellant to contend that the respondent initiated or instigated the intervention order proceedings. However, the primary judge was correct to conclude that there was no evidence that could support the element of improper purpose in respect of the collateral abuse of process claim.
As to the notice of contention, it is arguable that the intervention order proceedings were terminated in favour of the appellant. It is strictly unnecessary to determine the question regarding special damage because the claimed collateral abuse of process cannot succeed in any event. However, in our view, there was a reasonable basis for a claim for special damage.
We would allow the appeal in part by setting aside summary judgment in respect of the claim of malicious prosecution and, in lieu thereof dismiss that part of the summary judgment application. We would affirm that part of the summary judgment application dealing with the collateral abuse of process claim.
Factual Background
The appellant and the respondent swore affidavits for the purposes of the summary judgment proceedings. Whilst noting that some matters are in dispute, the following factual background can be drawn from those affidavits.
The appellant and the respondent were in a relationship between November 2009 to June 2014, with some periods of separation. They were married in July 2011 and remained so until October 2015. There is one child of the relationship, a son, born on 15 April 2011. After their separation and, later, divorce, the appellant and the respondent attempted to reach an agreement regarding the care and access arrangements for their son. No agreement could be reached.[4]
[4] Affidavit of SE, sworn 25 July 2022, 2; Affidavit of MT, sworn 12 August 2022, 2.
The respondent claimed that the appellant was abusive and controlling during their relationship, and that this continued after their separation. She sought assistance from Relationships Australia and was referred to a domestic violence service. After the respondent provided a history of the alleged abusive behaviour, the domestic violence service recommended that she make a report to SAPOL ‘so that the appropriate preventative orders could be made’.[5] A support worker arranged an appointment for the respondent at the Port Adelaide Police Station for 19 March 2015.[6]
[5] Affidavit of SE, sworn 25 July 2022, 2.
[6] Affidavit of SE, sworn 25 July 2022, 2.
The respondent attended the appointment at the police station with a support worker. The respondent gave a statement to a police officer and was advised of SAPOL’s intention to file an application for an intervention order against the appellant, naming the respondent and her son as protected persons. SAPOL then prepared an affidavit based on the information that the respondent had provided (police affidavit).[7]
[7] Affidavit of SE, sworn 25 July 2022, 3.
In her affidavit in the summary judgment proceedings, the respondent stated, in regard to her attendance at the Port Adelaide Police Station:[8]
I was advised of SAPOL’s intention to file an application for an intervention order against [the appellant], naming myself and [my son] as protected persons to keep us safe from [the appellant’s] behaviour. SAPOL prepared an affidavit on my behalf setting out the information that I disclosed to them.
[8] Affidavit of SE, sworn 25 July 2022, 3.
The respondent went on to say:[9]
My only further involvement was that I was advised by SAPOL that I was required to attend Port Adelaide Magistrates Court on 25 March when the order was put in place in case I needed to give evidence in support of their application for an intervention order.
[9] Affidavit of SE, sworn 25 July 2022, 3.
The police affidavit is annexed to the summary judgment affidavit. The police affidavit named the respondent as the complainant and the appellant as the defendant. At paragraph 3, the respondent stated ‘I am applying for an Intervention Order against [the appellant]’.[10] At paragraph 5 the respondent stated:[11]
My reason for seeking an intervention order is that, based on the evidence I have provided in this statement, it is reasonable to suspect that the defendant will, without intervention:
(1) Commit an act of abuse against me;
(2) Commit and [sic] act of abuse against (name of person or child/children);[12]
(3) Commit an act of abuse which may be heard or witnessed by, or the effects otherwise exposed to (name child/children).
[10] Affidavit to support application for intervention order (domestic), sworn 19 March 2015, 1.
[11] Affidavit to support application for intervention order (domestic), sworn 19 March 2015, 2.
[12] The name of the child has not been filled in on the copy of the affidavit provided, either for this section or the next.
The police affidavit set out a detailed history of the alleged abuse under the heading ‘History and Effects of the Incidents’. It is sufficient to note that very serious allegations of physical, emotional and sexual abuse are made. At paragraph 22, the respondent stated:[13]
I am requesting an Intervention Order to keep me safe from [the appellant]. He has not approached [the child’s] pre-school and I am concerned he will come to my house. He scares me and is scaring [the child] also. He has even said to me in an email ‘that he will stop responding to me in a poorly manner, as he knows it will result in an AVO’.
[13] Affidavit to support application for intervention order (domestic), sworn 19 March 2015, 6.
The appellant has always denied any abuse, physical or otherwise. He denies any controlling behaviour and, specifically, denies the allegations made by the respondent in her affidavit provided to SAPOL.[14]
[14] Affidavit of MT, sworn 12 August 2022, 2-3.
SAPOL filed an application for an interim intervention order in the Port Adelaide Magistrates Court. The application was first listed for hearing on 25 March 2015. An interim intervention order was made on that date. The respondent was present, but the appellant was not. The respondent stated that she was required to attend in case she needed to give evidence in support of the police application.[15]
[15] Affidavit of SE, sworn 25 July 2022, 3.
The interim intervention order named the applicant as ‘Police’ and the appellant as the defendant. The protected persons are named as the respondent and her son. The order prohibited any contact, physical or otherwise, between the appellant and the respondent and their son, apart from contact permitted under the Family Law Act 1975 (Cth) or the Children’s Protection Act 1993 (SA).[16]
[16] Core Appeal Book 35-36.
The appellant contested the intervention order proceedings and sought that the matter be set down for a trial. The proceedings were listed for a trial to take place on 7 January 2016. In the meantime, on 28 May 2015, the Federal Circuit Court made interim orders in parenting proceedings, including that the child live with the respondent and have supervised contact with the appellant.[17]
[17] Core Appeal Book 6.
The trial listed for 7 January 2016 was to determine whether final orders should be made in the intervention order proceedings. The trial did not proceed on that day because the presiding magistrate took the view that any necessary protective arrangements could be made by the Federal Circuit Court in connection with the parenting proceedings that were pending in that court. The interim intervention order was revoked with the consent of the appellant.[18]
[18] Affidavit of SE, sworn 25 July 2022, 3.
On 4 April 2016, interim orders were made in the Federal Circuit Court for a mutual injunction, restraining the behaviour of both parties in relation to each other and their son. Those orders were finalised by consent in the Federal Circuit Court on 21 September 2016.[19]
[19] Affidavit of SE, sworn 25 July 2022, 4.
In her affidavit in the summary judgment proceedings, the respondent stated at paragraph 26:[20]
I say that I have never made an Application to the Court for an Intervention Order pursuant to s 20 of the Intervention Order (Prevention of Abuse) Act 2009. I simply provided to SAPOL my account of the abuse perpetrated by [the appellant] in relation to myself and my son to the best of my knowledge and belief.
[20] Affidavit of SE, sworn 25 July 2022, 4.
The appellant’s account of the events did not substantially differ, though he did point to statements made by the respondent in the Federal Circuit Court and to communications with the police, both of which he said are consistent with the respondent being the instigator of the intervention order proceedings.[21]
[21] Affidavit of MT, sworn 5 September 2022, 2-4.
The appellant’s pleaded case
On 7 October 2021, the appellant filed a statement of claim in the District Court. The appellant claimed a total of $207,033.55 from the respondent. This comprised $104,252.95 in general damages, $100,000 in aggravated, exemplary and special damages, and court fees.[22]
[22] Core Appeal Book 1, 6-7.
The appellant pleaded that, following their separation in June 2014, he and the respondent attempted to come to an agreement about care arrangements for their son. This provided impossible. The pleadings then continued:[23]
[23] Core Appeal Book 6.
6.On 25 July 2014, [the respondent] threatened my ability to work as a teacher and blackmailed me in regard to my requests to spend more time with my son by stating in Facebook messages ‘If you want continued phone contact [with our child] and upadates [sic] [regarding our child] I’d leave that right now. Play hard ass with me and I’ll talk to the educaiton [sic] department and the courts. Don’t’ [sic] try it. You left. Accept responsibilyt [sic] for your actions’, and ‘No go ahead. I’ll bring that up in court and to the Tas Education office. Sounds good. … and your parents too … your’e [sic] responsible right … you can handle it’.
7.On 5 March 2015, [the respondent] informed me that I could no longer see our son.
8.On 13 March 2015, I filed parenting proceedings in the Federal Circuit Court.
9.On 17 March 2015, I informed [the respondent] that I had filed parenting proceedings.
10.On 19 March 2015, [the respondent] provided a statement to SAPOL at the Port Adelaide Police Station requesting an Interim Intervention Order (‘IO’), protecting both herself and our child as alleged victims.
11.On 25 March 2015, the application for an Interim Intervention Order was granted in the Port Adelaide Magistrates Court. I contested the Interim Intervention order.
12.On 28 May 2015, the Federal Circuit Court of Australia made interim orders, ordering that our child live with his mother and have supervised contact with me, due to the Interim Intervention Order.
13.On 25 September 2015, I was denied teacher’s registration by the Teacher’s Registration Board of SA.
14.On 7 January 2016, the Interim Intervention Order was revoked.
15.On 8 January 2016, the causes of action accrued for both malicious prosecution and collateral abuse of process, as it was the date after the Interim Intervention Order was revoked.
16.On 5 June 2016, I was approved teacher’s registration by the Teacher’s Registration Board of SA.
In respect of the claim of malicious prosecution, the appellant’s pleaded case was as follows:[24]
1. Malicious prosecution.
1.1The IO proceedings were instituted by [the respondent] against [the appellant] when she made a complaint to police on 19 March 2015, which was approved on 25 March 2015. Precedent allows for [the respondent] to be considered as the prosecutor as she was the originating complainant.
1.2The proceedings terminated in favour of [the appellant] when the IO was revoked on 7 January 2016.
1.3[The respondent] acted without reasonable and probable cause when she instituted proceedings by using false statements in [the] complaint to SAPOL to support the IO application, on 19 March 2015. There was no reasonable and probable cause to prosecute the IO matter.
1.4[The respondent] acted maliciously when she decided to initiate and maintain the IO proceedings as she had threatened to harm [the appellant’s] ability to teach and spend time with [his] son if [he] sought more time.
[24] Core Appeal Book 6.
In respect of the collateral abuse of process claim, the appellant’s pleaded case was as follows:[25]
[25] Core Appeal Book 7.
2. Collateral abuse of process.
1.1[The respondent] instituted legal proceedings for an improper purpose:
i. The IO proceedings were instituted by [the respondent] against [the appellant] when she made a complaint to police on 19 March 2015, which was approved on 25 March 2015. Precedent allows for [the respondent] to be considered as the party who used the improper purpose.
ii. The process was started by [the respondent’s] complaint to SAPOL on 19 March 2015.
iii. [The respondent] started the process with an improper purpose as she had threatened to harm [the appellant’s] ability to teach and spend time with [his] son if [he] sought more time with him.
1.2[The respondent] misused the legal process to gain a collateral advantage by improperly supporting her response in the Federal Circuit Court for the child to live with her and supervised time with [the appellant]. These was [sic] also collateral damage caused to [the appellant] which included lost wages and time spent with the child due to her collateral advantage.
1.3[The respondent] made an overt act/threat when she threatened to cause damage to [the appellant’s] ability to teach and spend time with [his] son if [he] sought more time with him. This act/threat was made on 25 July 2014, and potentially more overt acts/threats were made between June 2014 and March 2015.
1.4The damage caused by collateral abuse of process was made to [the appellant’s] ability to teach from 25 September 2015 to 5 June 2016, and other damage to [his] ability to spend more time with [his] son.
The appellant sought findings that the respondent had caused damage to him by maliciously prosecuting court proceedings by initiating and/or maintaining the intervention order application, in that she made a complaint to SAPOL on 19 March 2015. He also sought a finding that the respondent had engaged in a collateral abuse of process by instituting the intervention order proceedings.[26]
[26] Core Appeal Book 7.
The general damages claimed by the appellant were in the total sum of $104,252.95 being: $54,360.50 in lost wages; $10,000 in lost future earnings for ‘advancing in incremental teaching steps’; a further $10,000 for lost future earnings for annual increases, based on indexation; and $4,892.45 in lost superannuation. He also sought $25,000 for loss of reputation and damage to his character. Each of those amounts was referred to as an approximation. The appellant also sought: aggravated damages in the amount of $50,000, exemplary damages in the amount of $25,000, special damages in the amount of $25,000; and all filing fees and costs.[27]
[27] Core Appeal Book 7.
The respondent’s defence
The respondent filed a defence to the claim on 1 December 2021.[28]
[28] Core Appeal Book 8.
As regards the threats referred to in paragraph 6 of the statement of claim, the respondent admitted that she made statements in the terms referred to but disputed that her purpose was to blackmail the appellant. She also noted that these statements were made ‘almost a full year before the Intervention Order application’.[29]
[29] Core Appeal Book 10.
The respondent said that the comments that she made about the appellant working as a teacher occurred in the context of a dispute regarding access arrangements to their son. The respondent stated:[30]
I told [the appellant] I didn’t feel safe handing our son over to him in this situation and he continued to pressure me to do so. I encouraged [the appellant] to see a counsellor and gain support for his abusive behaviours. The comments I made in this conversation relate to me telling [the appellant] that if he would not gain support for his behaviours and would continue to try to force me into doing things I did not feel comfortable or safe doing so, I would seek the support of the Courts to ensure our son’s safety. I was concerned that [the appellant’s] behaviours were not the type of behaviours that would be expected of a teacher and through suggesting that I would tell the education department I hoped that this would encourage him to access professional support and change his ways.
[30] Core Appeal Book 11.
As regards paragraph 9 of the statement of claim, the respondent admitted that the appellant told her that he would be taking her to court in regard to parenting arrangements. However, she said that the appellant threatened to take her to court on many occasions. She also stated that the appellant told her he was studying to be a lawyer, and that taking her to court was ‘free practice’. She stated that the appellant had frequently used the legal system to attempt to control, bully and harass her, and lists the various applications and claims the appellant has brought against her in the Federal Circuit Court and the Magistrates Court. She also included in that list the subject proceedings commenced in the District Court.[31] As regards the appellant’s claim that the intervention order proceedings were terminated in his favour, the respondent stated:[32]
I agree that the Intervention Order was revoked, however the Magistrate did not hear this case. On the day that the order was withdrawn, I was present at the hearing as a witness. The magistrate indicated to police prosecution that as the case was now in the Family Law courts, he trusted that orders would be made by the Federal Judge to protect me and our son. After discussing this with me, the police prosecutor withdrew the application. Parenting orders were heard through the Federal Circuit Court and the orders were made do [sic] include such protective orders.
[31] Core Appeal Book 10.
[32] Core Appeal Book 10.
As regards the malicious prosecution claim, the respondent stated that she did not agree that she made a malicious statement to SAPOL, or that the statement contained false information. As to the circumstances in which she made her statement to SAPOL, the respondent stated:[33]
I explained that I wanted to be safe from his violence and the DV support worker and the officer explained what an Intervention Order was to me. I gave a statement and SAPOL placed an interim intervention order on [the appellant] to protect me from his behaviours. The officer asked if I wanted to press charges against [the appellant] and I said that I did not want to press charges, but that I just wanted to be safe.
[33] Core Appeal Book 11.
As regards the claim of collateral abuse of process, the respondent denied that she instituted the intervention proceedings for an improper purpose. She stated that she provided a truthful statement to SAPOL, and that it was the appellant who lodged an application in the Federal Circuit Court seeking parenting orders. She noted that:[34]
When making orders regarding parenting, the Federal Circuit court took the domestic violence I had experience at the hands of [the appellant] and outlined in my SAPOL affidavit seriously and made injunctive orders for protection which are still in place.
[34] Core Appeal Book 11.
A revised defence prepared by the respondent’s solicitors was filed on 31 May 2022. The revised defence does not differ in substance from the first defence. In the revised defence, the respondent maintained that the application for an intervention order was made by the police and not herself. She stated that the interim intervention order was revoked by consent on 7 January 2016 and before any evidence was heard. She denied that her statements to SAPOL were untrue or made with malicious intent. She claimed that the tort of malicious prosecution does not lie in relation to civil proceedings and the intervention order proceedings were civil in nature. If she did institute the proceedings, the respondent denied doing so for any improper purpose.[35]
[35] Core Appeal Book 14-15.
The summary judgment application
The respondent applied for a summary judgment against the appellant or, in the alternative, for all, or part, of his claim to be struck out. The application was made on the following grounds:[36]
[36] Respondent’s Outline of Argument, dated 25 August 2022.
1. There is no reasonable basis upon which to prosecute the claim in relation to either tort, as the respondent was not the person, or entity who initiated the IO proceedings. The application for an Interim Intervention Order was made by SAPOL pursuant to s 20(1)(a) of the Intervention Order (Protection of Abuse) Act 2009 (SA), (IO Act). It was not made personally by the respondent pursuant to s 20(1)(b) of the IO Act. It is not asserted that the person who applied for the Intervention Order (a police officer) was acting as an employee or agent of the respondent.
2. A person who provides police with information, believing it to be true, is not to be held to have instituted police proceedings. The proceedings are, in such circumstances, initiated at the discretion of an independent prosecuting authority after assessing the information provided. Setting the law in motion is not enough.
3. In any event, making false witness does not constitute malicious prosecution. In this matter:
31.the Interim Intervention Order application was made by a police officer and not the respondent;
3.2the respondent’s only involvement was to report to police and provide a statement;
3.3the respondent never have oral evidence in the IO proceedings; and
3.4the respondent was advised by SAPOL that the hearing for a final order would not proceed because of the Magistrate’s concerns regarding the FCC [Federal Circuit Court] proceedings involving the parties and especially [their son]. Those proceedings having priority at that date.
4. In any event, general and compensatory damages cannot be awarded in the action for the tort of collateral abuse of process. The [appellant] has not pleaded detail of the special damage that he suffered as a result of ant misuse of legal process.
5. The IO application was successful, and remained in place between 25 March 2015 and 7 January 2016, a period of over 10 months. The IO proceedings were not decided on the merits. There was no finding in the PAMC, or any other court, that the respondent had provided a false statement to police.
6. The [appellant] has not amended his Claim, and if summary judgment is not granted, the respondent seeks an order that Part 4, and Orders 3, 4, 5, 6, 7 and 9 of the Statement of Claim be struck out, as being vague and lacking particularity, and on the basis that there is no basis pleaded for the granting of aggravated or exemplary damages, nor for the relief sought generally in Order 3.
The appellant’s response was to contend that a police prosecutor in intervention order proceedings can be considered as acting as the agent of the protected person, relying on s 20 of the Intervention Order (Prevention of Abuse) Act 2009 (SA) (IO Act). In relation to both causes of action, the appellant argued that the facts supported a finding that the respondent procured, instigated and/or actually prosecuted the intervention order. The appellant contended that the respondent set the proceedings in motion.[37]
[37] Core Appeal Book 44-51.
The appellant also argued that the matter was one that should not be decided summarily. It was a factual scenario where his case was sufficiently arguable and raised questions of law that should be allowed to go to trial. He submitted that the intervention order was sought by SAPOL on a false basis. The respondent’s statement to the police contained incorrect information, which is strongly denied by the appellant. He denied that he was ever the perpetrator of family violence.[38]
[38] Core Appeal Book 44-51.
The primary judge’s reasons
In regard to the question of whether the respondent was the initiator or instigator of the intervention order proceedings, the primary judge considered the terms of relevant parts of the IO Act. Her Honour referred to the object of the IO Act, and to the primary aim of the IO Act as being the prevention of abuse.[39] Her Honour then said:[40]
As a result of the nature of the proceedings under the IO Act, they are often fraught with emotion. Serious allegations of a very personal nature are made. It is important that victims of abuse, and those who live in fear, are not further abused by a legal system allowing those against whom abuse is alleged, to seek personal liability from them. This would be contrary to the objects of the IO Act, and could stop victims applying for Intervention Orders. Such an outcome would nullify the principles for intervention against abuse, as set out in section 10.
It is also equally important to ensure the integrity of IO proceedings, and not allow them to be used for an improper purpose, by providing a statement to police that is untrue. However, based upon the principles set out in section 5 and 10 of the IO Act, I am of the view that this is a secondary consideration.
In this matter it is not disputed that the IO proceedings were commenced by SAPOL pursuant to s 20(1)(a) of the IO Act. They were not brought personally by the respondent, as they could have been, pursuant to s 20(1)(b) of the Act. The respondent’s role was confined to giving a statement to police. This is the only way police can commence IO proceedings in the absence of criminal charges.
In these circumstances, it is generally found that, the person providing the statement has not instituted the proceedings, rather, they were initiated at the discretion of an independent authority.
[39] MT v SE [53].
[40] MT v SE [54]-[57].
The primary judge referred to statements made by Nettle J in Skrijel v Mengler,[41] to the effect that the defendant must have been ‘actively instrumental’ in setting the law in motion and that merely providing information to the police on which they eventually decided to prosecute, is not equivalent to commencing a prosecution. However, her Honour also noted that Nettle J went on to say that an informant may be regarded as a prosecutor if the information they provide ‘virtually compels’ the police to prosecute, and even more so when the informant deliberately deceives the police by supplying false information without which the police would not have proceeded.[42]
[41] Skrijel v Mengler [2003] VSC 270.
[42] MT v SE [58].
The primary judge concluded that:[43]
The evidence in this matter is that SAPOL was in control of the IO proceedings at all times. The respondent’s only involvement was to provide a statement to them. Upon SAPOL’s assessment of the information provided in that statement they initiated the IO proceedings. The Intervention Order was made on 25 March 2015 without the respondent giving evidence.
[43] MT v SE [59].
A little later, her Honour said:[44]
I find that there was nothing that occurred in relation to the IO proceedings that was not intended by the IO Act. Powers are given to police to assess complaints and apply to courts for Interim Intervention Orders. They have control of the process. The applicant opposed the order, and consent arrangements were later reached.
In all the circumstances, I find that the respondent was not the prosecutor or instigator of the Intervention Order proceedings.
[44] MT v SE [62]-[63].
The primary judge then turned to consider the question of whether the intervention proceedings had been terminated in favour of the appellant. She noted that the intervention order proceedings were terminated with the consent of all parties, without a trial, and upon the basis that the same issues were before another court. Her Honour said that in the New South Wales case of Clavel v Savage,[45] a similar factual scenario was involved. In that case, intervention order proceedings were terminated without any evidence being given and it was found that a concession that the proceedings had been terminated in favour of the plaintiff was appropriately made. Her Honour concluded that there was a reasonable basis upon which it could be argued that the intervention order proceedings in the present case had been terminated in favour of the appellant.[46]
[45] Clavel v Savage [2013] NSWSC 775.
[46] MT v SE [65], [72]-[73].
In relation to the collateral abuse of process claim, the primary judge came to a similar conclusion regarding SAPOL having instituted the proceedings. Her Honour noted that in Marino v Bello (No 3)[47] (Marino) the New South Wales Court of Appeal had concluded that it was reasonably arguable that a complainant in respect of an apprehended domestic violence order issued by the police was the instigator of the proceedings. However, her Honour said that Marino was not a final judgment on the facts and there was no certainty that it would be confirmed at trial or on any subsequent appeal. In these circumstances her Honour considered that she was bound by the decision of the Full Federal Court in Emanuele v Hedley,[48] in which it was said that an action for abuse of process is available only against the party who instituted the proceedings. In conclusion, her Honour said:[49]
I find in the action before the court that the respondent was not the party who instituted the IO proceedings. The proceedings were clearly instituted by SAPOL pursuant to s 20(1)(a) of the IO Act. The only step the respondent took was to make a statement to police. SAPOL then commenced and took control of the IO proceedings. The applicant’s claim in collateral abuse of process cannot reasonably succeed in such circumstances.
In coming to this conclusion, I rely upon the factual basis for my finding that the respondent was not the instigator of the IO proceedings for the purpose of the tort of malicious prosecution. The IO Act clearly sets out a process for the manner in which Intervention Orders are sought. The respondent did no more than make a statement to police. Thereafter, SAPOL was in control of, and instituted, the IO proceedings.
[47] Marino v Bello (No 3) [2022] NSWCA 181; (2022) 408 ALR 650.
[48] Emanuele v Hedley (1998) 179 FCR 290 [44].
[49] MT v SE [97]-[98].
The primary judge then turned to the question of whether the appellant had sustained special damage in respect of the collateral abuse of process claim. She noted that it was not in dispute that an essential element of that claim was that the appellant must prove he suffered special damage as a result of the improper legal process. Her Honour concluded:[50]
In the circumstances of this matter there is a reasonable basis for arguing that the applicant has suffered precise loss of income that could be regarded as special damage. However, there is no plea as to how those damages are calculated given that the [appellant] was not employed as a teacher in South Australia at the time the Intervention Order was made. Significantly more detail will be required to meet the test in Paff v Speed. This would include what was needed for him to be registered as a teacher in South Australia; what work was available for which he was qualified; and what salary would apply to him. These are matters which must be pleaded to establish special damage in the context of past loss of wages.
Despite this, I conclude that in relation to the need to prove a loss by way of special damages, that in the [appellant’s] circumstances of him being a teacher, that he meets the criteria in Paff v Speed of being a professional person whose part loss of income could be estimated to trial ‘without difficulty’. This would require a pleading regarding his capacity to obtain registration and employment in South Australia.
In the circumstances, I find that the [appellant’s] failure to set out the basis of his precise loss of income in his statement of claim, is not reason for his claim in collateral abuse of process to be struck out. Rather, this is a matter where leave could be provided to the [appellant] to amend his pleadings to set out more precisely his past loss of income to date.
(Original emphasis.)
[50] MT v SE [106]-[108].
The primary judge concluded that, in respect of both causes of action, there was a fundamental element of the tort that could not be satisfied. Both torts required that the respondent be found to be the person who instituted or initiated the proceedings. Her Honour found that it was SAPOL who was the prosecutor or instigator of the proceedings and not the respondent, and that, consequentially, both claims had no reasonable basis.[51]
[51] MT v SE [109].
The primary judge also found that, in relation to the tort of collateral abuse of process, she was not satisfied that the appellant had a reasonable basis for the claim that the respondent commenced the intervention order proceedings for an improper purpose, and that the proceedings involved a demand, threat, or overt coercion. She said that the only alleged threat, if it was such, was made nearly 10 months before the proceedings were commenced and could not be said to be part of, or connected to, them. There was no evidence before the court that the respondent had misused the legal process, by reporting the alleged abuse to SAPOL and seeking an intervention order.[52]
[52] MT v SE [110].
In all of the circumstances, the primary judge found that the respondent had established that there was no reasonable basis for the appellant’s claims, and she ordered summary judgment for the respondent.[53]
[53] MT v SE [111].
Grounds of appeal
As has been noted earlier in these reasons, the appellant is self-represented. His grounds of appeal are repetitious and stray into submissions. In essential terms, the grounds can be summarised as follows:[54]
1. The primary judge erred in fact and law by concluding that there was no reasonable basis for contending that the respondent initiated the intervention order proceedings.
2. The primary judge erred in fact and law by concluding that there was no reasonable basis for contending that the respondent had initiated the intervention order proceedings for an improper purpose.
[54] Core Appeal Book 115-121.
Notice of contention
The respondent contended that the decision of the primary judge could also have been made on the following alternative grounds:[55]
1. With respect to the tort of collateral abuse of process, the appellant cannot prove that he suffered special damage as a result of the alleged improper legal process and, accordingly, the appellant’s claim insofar as it is based on this tort has no reasonable prospects of success.
2. With respect to the tort of malicious prosecution, the appellant cannot prove a constituent element of the tort, namely, that the subject proceedings terminated favourably to him. Accordingly, the appellant’s claim insofar as it is based on this tort has no reasonable prospects of success.
[55] Notice of Contention, filed 5 September 2024 (FDN 22).
Relevant legal principles – summary judgment
Rule 144.2(2) of the Uniform Civil Rules 2020 (SA) (UCR) provides that a court may give summary judgment on a claim, a cause of action, or an issue that arises on the claim, if there is no reasonable basis for prosecuting the claim, cause of action or issue. The ‘no reasonable basis’ test is materially the same as that which previously applied under Rule 232 of the Supreme Court Civil Rules 2006 (SA) (repealed). It is also similar to the test under s 31A of the Federal Court of Australia Act 1976 (Cth), which is whether there is no reasonable prospect of successfully prosecuting the proceedings. The focus of all of these provisions is on whether the claim has a reasonable basis or prospect of success. Thus, cases dealing with any of these tests may be relevant.[56]
[56] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; (2020) 137 SASR 117 [53]-[54] (Doyle J).
The general principles that apply to a defendant’s application for summary judgment are well-established. The power to order summary judgment is one that should be exercised with great care (sometimes expressed as ‘exceptional caution’). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there exists a high degree of certainty about the ultimate outcomes of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no reasonable basis for the claim.[57]
[57] Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24] (French CJ and Gummow J), [53]-[55] (Hayne, Crennan, Kiefel and Bell JJ); Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; (2020) 137 SASR 117 [59]-[60] (Doyle J), Cosenza v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65 [26]-[30] (Livesey J); Hegarty v Keogh (No 2) [2023] SASCA 30 [53]-[55] (Livesey P, Doyle and Bleby JJA) cf Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 90-91 (Dixon J); General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 126, 219‑130 (Barwick CJ); Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (Mason, Murphy, Wilson, Deane and Dawson JJ), 619 (Toohey J); Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow and Hayne JJ); Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46] (Gleeson CJ, Gummow, Hayne and Crennan JJ).
At all times, the respondent retained the legal onus of demonstrating that the application for summary judgment ought to succeed. The respondent must establish that there is no reasonable basis for the claim made on any cause of action raised by the appellant.[58]
[58] Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424, 74, 757 (Parker J).
Actions should not be disposed of summarily where there are material factual issues between the parties in dispute. Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial.[59] But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent.[60]
[59] Webster v Lampard [1993] HCA 57; (1993) CLR 598, 604, 608, 611 (Mason CJ, Deane and Dawson JJ), 614 (Toohey J).
[60] Eng Mee Yong v Letchumanan [1980] AC 331, 341.
Where a plaintiff’s claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The courts should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.[61]
[61] Spencer v The Commonwealth of Australia [205] (French CJ and Gummow J).
It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff’s case is so clearly untenable that it cannot possibly succeed.[62]
[62] General Steel Industries Inc v Commissioner for Railways (NSW) 130 (Barwick CJ).
A litigant in person is under a significant disadvantage, and care must be exercised to ensure that this disadvantage does not deprive him or her of the opportunity to have his or her claim determined according to law. Courts should approach the peremptory termination of litigation with special care to ensure that, within a possibly poorly expressed and unstructured statement of claim, there is no viable cause of action which, with appropriate amendment, could be put into proper form.[63]
[63] Wentworth v Rogers (No 5) (1989) 6 NSWLR 534, 536-537 (Kirby P, Hope and Samuels JJA agreeing).
Issue 1 – who initiated the proceedings?
It is an element of both the tort of malicious prosecution and the tort of collateral abuse of process that proceedings were initiated against the plaintiff by the defendant. The law in this regard has developed separately for each tort.
In A v New South Wales,[64] the High Court considered a case where malicious prosecution proceedings were brought against a police officer. The plurality noted that the identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. To incur liability, the defendant must play an active role in the conduct of the proceedings, as by instigating or setting the proceedings in motion. There can be cases where a complainant, rather than the police officer who signs a charge sheet, will be regarded as the prosecutor. Furthermore, there may be circumstances where the capacity of a police officer to verify information and form an opinion about where the truth appears to lie, in a practical sense, is very limited.[65]
[64] A v New South Wales [2007] HCA 10; (2007) 230 CLR 500.
[65] A v New South Wales [34]-[36] (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ).
Martin v Watson[66] is a case in which it was held to be open to sue the complainant for malicious prosecution. In that case, the complainant made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She complained to the police and a police officer laid an information against the neighbour. When the matter came before the Magistrates Court, the prosecution offered no evidence and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant’s knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution. Lord Keith of Kinkel quoted with approval a statement that a person may be regarded as the prosecutor if he or she puts the police in possession of information which virtually compels them to bring a charge.[67]
[66] Martin v Watson [1996] 1 AC 74.
[67] Martin v Watson 84.
An assessment of whether a person has instigated the proceedings will turn upon the circumstances of the case. In Davis v Gell,[68] a case in which a farmer brought a suit for malicious prosecution against his neighbour on the basis of what was said to be a false complaint to the police regarding the poisoning of the neighbour’s pigs, Isaacs ACJ said:[69]
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.
[68] Davis v Gell [1924] HCA 56; (1924) 35 CLR 275.
[69] Davis v Gell 282-283.
It has been recognised that the assumption that the police will exercise independent discretion in deciding whether to bring proceedings can be vitiated in at least two ways, First, where the information provided is solely within the complainant’s knowledge such that the police had no practical ability to conduct an independent investigation.[70] Secondly, where the complainant actively misleads the police by providing false information in order to procure the laying of a charge.[71]
[70] Martin v Watson; Sahade v Bischoff [2015] NSWCA 418 [138] (Gleeson JA).
[71] Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343, 379 (Dixon J).
As regards the tort of collateral abuse of process, there is a line of authority to the effect that such a claim is only maintainable against the person who actually brings the proceedings.[72] However, in Marino,[73] collateral abuse of process was claimed against a person who made a complaint to police that resulted in the making of a provisional apprehended domestic violence order. The New South Wales Court of Appeal held that though the apprehended domestic violence order proceedings were not brought in the name of the defendant, it was sufficiently arguable that the defendant could be liable for collateral abuse of process and the case ought not to have been summarily dismissed. Brereton JA (with whom McFarlan and Kirk JJA agreed) set out a number of reasons why the tort may not be confined in the way previous authorities had held. His Honour said that recognition that an instigator could be liable for the tort of collateral abuse of process would be consistent with the law in relation to malicious prosecution.[74]
[72] Emanuele v Hedley (1998) 179 FCR 290 [44]; Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; Maxwell-Smith v S & E Hall Pty Ltd [2014] 86 NSWLR 481; [2014] NSWCA 148 [59].
[73] Marino v Bello (No 3) [2022] NSWCA 181; (2022) 408 ALR 650.
[74] Marion v Bello (No 3) [12]-[16] (Brereton JA, Macfarlan and Kirk JJA agreeing).
It may well be that the position in relation to collateral abuse of process is not finally settled, but it is at least arguable that the tort extends to a person who is the instigator of proceedings. It is unnecessary to finally resolve the issue in this case for two reasons. First, the bar to be met at the summary judgment stage is only that the legal proposition is reasonably arguable. Secondly, the collateral abuse of process cause of action has no prospect of success for another reason that will be dealt with later in these reasons (see Issue 2).
In the present case, the application for an intervention order was made by SAPOL. However, it is necessary to consider the substance and not merely the legal form of the proceedings. The mere fact that the police brought the application does not exclude the respondent from being the effective prosecutor. It is necessary to consider whether the police exercised, or were capable of exercising, an independent discretion or were, in effect, the agents for the respondent.
In this case, the available evidence was that the respondent attended Port Adelaide Police Station on 19 March 2015. She was informed after giving her statement that the police would make an application to the court for an intervention order. The application must have been filed promptly, as it was listed for a first hearing on 25 March 2015. There is nothing to indicate that the police undertook any independent investigation into the allegations made by the respondent. Indeed, it is unlikely that they did, given the speed with which the application was brought. Furthermore, the respondent told police that she did not wish criminal charges to be brought against the appellant. It is significant that the nature of the information provided by the respondent was such that it was likely to be within her sole knowledge.
To say, as the primary judge did, that SAPOL was in control of the proceedings at all times, and that the respondent’s only role was to provide a statement to the police, was, with respect, an inaccurate summary and did not engage with the essential issues. The respondent’s stated objective in doing so was to obtain an intervention order. The police discontinued the application only after consulting with the respondent. In the circumstances, the available evidence indicated that the police did not exercise independent discretion. There was, at least, a reasonable basis for advancing a claim that the respondent was the instigator of the proceedings.
It is also relevant to take into account that the appellant denied the allegations of abuse and claimed that they were entirely false and made for the improper purpose of frustrating any attempt by him to obtain more favourable access to the child. Whether or not the allegations were true is not a matter that can be determined at the summary judgment stage. But the determination of the summary judgment application should have proceeded on the basis that the appellant’s denials and claims could be true.
A factor that weighed heavily in the decision of the primary judge was the policy underlying the IO Act. Her Honour recognised that the IO Act is intended to ensure that protective measures can be put in place quickly and effectively to prevent domestic violence. Her Honour said that abusers should not be permitted to further abuse their victims by using the legal system to pursue claims of legal liability. She said that if this was permitted, it could deter victims of domestic violence from applying for intervention orders. However, as her Honour also recognised, it is ‘equally important to ensure the integrity of IO proceedings, and not allow them to be used for an improper purpose’.[75]
[75] MT v SE [55].
Ultimately, whilst any discretion exercised by the police needs to be understood in the context of the IO Act, the question to be answered remains the same: did the respondent play an active role in the proceedings by instigating them or setting them in motion? If the answer to that question is ‘yes’, the fact that the proceedings are brought under the IO Act would not prevent them from being the subject of an action for malicious prosecution or (arguably) collateral abuse of process. In any event, the concern expressed by the primary judge that the risk of being sued would deter genuine applicants is contestable.[76]
[76] Crawford v Sagicor General Insurance (Cayman) [2013] UKPC 17; [2014] AC 366, 406 [100] (Lord Kerr).
It is instructive in this regard to note that there have been a number of cases in New South Wales where it has been held, or at least assumed, that an application for an order analogous to an intervention order may found a claim for malicious prosecution.[77] This is so notwithstanding that such applications are not criminal in nature (thought usually brought in the criminal jurisdiction of the Magistrates Court). The purpose of restraining order proceedings has not been viewed as an impediment to an action for malicious prosecution, or collateral abuse of process. It is at least arguable that these causes of action extend to IO proceedings. It would be inappropriate to use summary judgment to terminate proceedings on the basis of a legal question where that question is arguable and the law may be open to development.
[77] Rock v Henderson [2021] NSWCA 155 [34] (Brereton JA), [110] (Wright J); HD v New South Wales [2016] NSWCA 85; Clavel v Savage, Li v Deng (No 2) [2012] NSWSC 1245; Marino v Bello (No 3).
For these reasons, in our view, the primary judge erred by concluding that there was no reasonable basis for claiming that the respondent was the instigator of the IO proceedings. On the available evidence, it was at least open to argue that the respondent had played an active role in the conduct of the proceedings by instigating them or setting them in motion, and that the police had exercised no independent discretion in that regard.
That does not foreclose the possibility that additional evidence at trial may shed further light on the role played by the police. The appellant may not ultimately succeed in proving this element at trial, but that does not mean that he should be deprived of the opportunity to establish a claim that has a reasonable basis.
Issue 2 – were the proceedings brought for an improper purpose?
An abuse of process occurs where the purpose of bringing legal proceedings is to use them to obtain some collateral purpose. In order to establish the tort of collateral abuse of process the plaintiff must establish that the proceedings were instituted for an improper purpose. That purpose must be the predominant purpose for the proceedings being brought.[78] The essence of the tort of collateral abuse of process is the employment of legal proceedings to achieve a purpose which could not lawfully be obtained and which is entirely outside the ambit of the legal claim upon which the court is asked to adjudicate.[79]
[78] Williams v Spautz [1992] HCA 34; 174 CLR 509, 529 (Mason CJ, Dawson, Toohey and McHugh JJ).
[79] Marino v Bello (No 3) [7] (Brereton JA, Macfarlan and Kirk JJA agreeing).
It has been held that it is not sufficient to prove that proceedings were instituted with an ulterior motive.[80] An overt act, such as a demand or threat made in furtherance of the improper purpose, is also required.[81] This demand or threat should be distinct from pursuit of the proceedings itself.[82] However, there is authority to the opposite effect, such that an independent improper act is not an essential ingredient in the concept of abuse of process and that the commencement of legal process can itself constitute improper use.[83] In Williams v Spautz, the plurality in the High Court explained this in the following way:
The statements that there must be a use of the proceedings are equivocal because the commencement of the proceedings may be described as a ‘use’ of them, even if no attempt be made thereafter to take advantage of them for such a purpose as would constitute an abuse of process. Especially is this so when the party commencing the proceedings has previously threatened that, unless the other party complies with some improper demand the first party has made, such as payment of an alleged debt, criminal proceedings will be commenced and prosecuted to a conviction. In such a case, a very commencement of the proceedings amounts to use of them for an improper purpose.[84]
[80] Hanrahan v Ainsworth (1990) 22 NSWLR 73, 122 (Clarke JA).
[81] Butler v Simmonds Crowley & Galvin [1999] QCA 475; [2000] 1 QD R 252 [38]; Paradise Grove Pty Ltd v Stubberfield [2001] QCA 117.
[82] Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146; (2014) 86 NSWLR 481 [54] (Barrett JA, Beazley P and McColl JA agreeing).
[83] Williams v Spautz 174 CLR 509, 527 (Mason CJ, Dawson, Toohey and McHugh JJ).
[84] Ibid 528 (Mason CJ, Dawson, Toohey and McHugh JJ).
In the present case the appellant relied on alleged threats made by the respondent both to prove an improper purpose and to prove an overt act by the respondent (see Statement of Claim, paragraphs 1.1.(iii) and 1.3 under the Collateral Abuse of Process heading, referred to at [31] above). Accordingly, it is unnecessary to determine whether it was necessary to establish a separate overt act. The alleged threats were essential in either respect.
The appellant’s claim that the IO proceedings were brought for an improper or collateral purpose rests critically on the Facebook messages that were exchanged by the parties on 25 July 2014 (referred to in [6] of the Statement of Claim). The appellant’s contention was that threats by the respondent to raise allegations against the appellant in the courts if he pursued claims for greater access to their son showed that the respondent had an improper purpose in bringing the intervention order proceedings. That is, that those proceedings were brought to deter the appellant from pursuing claims for access by threatening his reputation and his ability to work as a teacher.
There is an obvious flaw in the appellant’s case in regard to collateral abuse of process. The Facebook messages were sent approximately eight months prior to the respondent making her statement to the police. In any event, the reference to ‘courts’ in those messages appear to be referencing possible custody related proceedings. No doubt there was acrimony between the appellant and the respondent at that time, but there is nothing to indicate that intervention order proceedings were in contemplation at that stage. The significant time difference between the sending of the Facebook messages and the commencement of the intervention order proceedings is such that it was not reasonably arguable that the messages were connected to the IO proceedings.
In our view, the primary judge was correct to find that there was no reasonable basis for claiming that the IO proceedings involved a demand, threat or overt coercion. There was also no reasonable basis for claiming an improper purpose on the basis of the alleged threats. Accordingly, the claim based on collateral abuse of process had no reasonable basis, and summary judgment in respect of that claim was appropriate.
Issue 3 – were the proceedings terminated in favour of the appellant?
It is an element of the tort of malicious prosecution that the proceedings terminated favourably to the plaintiff. The meaning of ‘favourably’ in this context was considered by the High Court in Beckett v New South Wales,[85] a case in which an action for malicious prosecution was commenced after criminal proceedings were terminated by the filing of a nolle prosequi by the prosecution. The plurality in that case said:[86]
The requirement that the prosecution has terminated avoids the possibility of conflict in the decisions of the court trying the criminal charge and the court trying the civil action. Any termination that does not result on conviction is favourable to the plaintiff for the purposes of the civil action. Prosecutions may terminate in a number of ways without verdict: the magistrate may not commit for trial; the Director may not find a bill of indictment; the Director may direct that no further proceedings be taken after a bill has been found; or the Attorney-General may enter a nolle prosequi. The plaintiff has no control over the termination of the proceedings in any of these ways and in those circumstances it would be unjust to deprive him or her of the ability to recover for the tort. As Professor Salmond explained it: “What the plaintiff requires for his action is not a judicial determination of his innocence, but merely the absence of any judicial determination of his guilt”.
[Emphasis added. Citations omitted.]
[85] Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432.
[86] Beckett [6] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
The plurality in Beckett later considered whether there was any necessity for the termination to be one that involved an inquiry into the merits of the proceedings:[87]
The respondent’s submission wrongly assumes that other forms of termination favourable to the plaintiff incorporate an element of “merit assessment”. The termination of a prosecution may be for a technical reason that is unconnected to the strength of the prosecution case. The termination is nonetheless one favourable to the plaintiff such as to maintain the civil action. For example, the decision not to find a bill of indictment may be taken for reasons which are not connected to the strength of the prosecution case. The requirement that the plaintiff prove favourable termination, as earlier explained, is concerned with consistency of the judicial decisions. Proof of favourable termination does not involve an inquiry into the underlying merits of the prosecution. The respondent was right to acknowledge in drafting the separate question that the prosecution had terminated in favour of the appellant.
[Citations omitted.]
[87] Beckett [50] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
In the present case, the IO proceedings were dismissed by consent on 7 January 2016 and the interim intervention order was revoked. That was, in substance, the outcome that the appellant sought. The fact that there was no determination of the merits of the application is not an impediment to malicious prosecution proceedings.
The respondent submitted that notwithstanding the revocation of the interim intervention order, the proceedings did not terminate favourably to the appellant. The respondent submitted that the application for an interim order was successful and that the final hearing did not proceed for the sole reason that the magistrate considered that protection orders could be made in parenting proceeding in the Family Court. The respondent said that the application was not ultimately decided on the merits and no evidence was called. The agreement to revoke the intervention order should be characterised as a mutual application.
We are unable to accept the respondent’s characterisation. The focus must be on the outcome and not on who made the application to terminate the proceedings. Nor is it relevant that there was no consideration of the merits of the application. The fact that there was an interim intervention order does not alter the nature of the application. The hearing on 7 January 2016 was to determine whether a final intervention order should be granted. The appellant’s position was that such an order should not be made. The dismissal of the proceedings and revocation of the interim order was the outcome sought by the appellant. It was plainly arguable that the proceedings were terminated in his favour.
The primary judge found that there was a reasonable basis upon which to argue that the IO proceedings terminated in favour of the appellant. In our view, her Honour was correct in this regard. This aspect of the notice of contention fails.
Issue 4 – was it arguable that the appellant incurred ‘special damage’?
One distinguishing feature between malicious prosecution and the tort of collateral abuse of process is the need to allege and prove ‘special damage’ in order to succeed with a claim for damages for abuse of process.[88] Like the requirements to prove improper purpose and, where appropriate, an overt demand or threat, this may be viewed as a form of brake on the action, helping to ensure that it is kept within reasonable bounds.[89]
[88] Hanrahan v Ainsworth (1985) 1 NSWLR 370, 374D-E (Hunt J, as he then was) followed in Burton v Office of Director of Public Prosecutions (NSW) (2019) 100 NSWLR 734 [41]-[42] (Bell P).
[89] Williams v Spautz 526 (Mason CJ, Dawson, Toohey and McHugh JJ); Burton v Office of Director of Public Prosecutions (NSW) (2019) 100 NSWLR 734 [16]-[20] (Bell P), and so as to avoid a proliferation of litigation based on the “mere occurrence of the earlier litigation with an added assertion of improper motive or absence of legitimate purpose in bringing or defending the proceedings”, Butler v Simmonds Crowley & Galvin [2000] 2 Qd R 252, 264; [1999] QCA 475 [38].
By her notice of contention, the respondent maintained that in so far as the appellant had alleged that whilst he was subject to the IO proceedings he lost the opportunity to obtain registration and, in consequence, paid employment as a teacher, this was a claim for ‘general damage’ rather than ‘special damage’. Although the appellant claimed $25,000 for this aspect of his claim, this was not particularised, and the respondent contended that the claimed loss of the opportunity to earn an income in a teaching career which had not yet commenced was associated with too many uncertainties to be described as a “precise loss of income that could be regarded as special damage” as the primary judge found.[90]
[90] MT v SE [106].
The respondent contended that it was not arguable that the appellant had incurred ‘special damage’, relying on the well-known passage from the reasons of Fullagar J in Paff v Speed, a personal injury case:[91]
Special damages are awarded in such cases in respect of monetary loss actually suffered and expenditure actually incurred. Their two characteristics are (1) that they are assessed only up to the date of verdict, and (2) that they are capable of precise arithmetical calculation or at least of being estimated with a close approximation to accuracy. The familiar examples are medical and surgical fees paid or payable, ambulance and hospital expenses, and loss of income. Where the plaintiff has been employed at a fixed wage or salary, his loss of income can commonly be calculated with exactness. Where the plaintiff has not been employed, but is, for example, a professional man, his monetary loss can be estimated without difficulty be reference to his past earnings. In a high proportion of cases the amount of the “special damages” is agreed between counsel for the plaintiff and counsel for the defendant.
“General damages” on the other hand, are, of their very nature, incapable of mathematical calculation, and (although the expression is apt to be misleading) commonly very much “at large”. They are at large in the sense that a jury has, in serious cases, a wide discretion in assessing them. Also general damages may be assessed not with reference to any limited period, but with reference to an indefinite future. Damages may be awarded for “pain and suffering”, and such damages are assessable for past, present and future pain and suffering. But here calculation is obviously impossible, and damages for pain and suffering should clearly be regarded as “general” and not “special” damages. In fact, the question of general damages is generally, I think, put to a jury under three heads – (1) “economic loss”, (2) loss of “amenities” or “enjoyment of life”, and (3) pain and suffering.
[91] Paff v Speed (1961) 105 CLR 549, 558-559.
There are two issues concerning this part of the case. The first is the potential for confusion in the meaning of the term ‘special damage’ across various contexts, and the second is the sense in which this term is used in connection with the tort of collateral abuse of process.
Before addressing these issues, it is helpful to remember that the tort of collateral abuse of process, whilst discussed in the cases from time to time,[92] is not often litigated to judgment,[93] and is usually only briefly addressed in the textbooks and by academics.[94] There has been some confusion associated with the elements of this tort,[95] and there are few examples of plaintiffs succeeding, whether in England,[96] or in Australia,[97] since the tort was first recognised in Grainger v Hill in 1838.[98]
[92] See, for example, Bayne v Blake (1909) 9 CLR 347, 353-355 (Griffith CJ), 357-358 (O’Connor J); Varawa v Howard Smith Co Ltd (1911) 13 CLR 35, 69-71 (O’Connor J), 91-92 (Isaacs J); Williams v Spautz 521-526 (Mason CJ, Dawson, Toohey and McHugh JJ).
[93] In Hanrahan v Ainsworth (1985) 1 NSWLR 370, 374G, Hunt J suggested that most plaintiffs would prefer to have the proceedings against them stayed before damage is incurred rather than wait and claim damages. His Honour gave the examples of Goldsmith v Sperrings Ltd [1977] 1 WRL 478 and Spautz v Williams [1983] 2 NSWLR 506.
[94] Burton v Office of the Director of Public Prosecutions (NSW) (2019) 100 NSWLR 734, [22] (Bell P) “discussion of the tort of collateral abuse of process in textbooks is frequently fleeting”; Emerson Hynard and Aiden Lerch, ‘The Tort of Collateral Abuse of Process’ [2021] 44(2) UNSW Law Journal 714, 718 “academic scrutiny of the tort is not only limited, but virtually non-existent”.
[95] See the helpful discussion about the distinction between the tort of collateral abuse of process and abuse of process more generally in Burton v Office of the Director of Public Prosecutions (NSW) (2019) 100 NSWLR 734 [14]-[24] (Bell P).
[96] In Land Securities Plc v Fladgate Fielder (A Firm) [2010] Ch 467 [41] (Etherton LJ) and [81] (Moore‑Bick LJ) it was said that the cases of Grainger v Hill (1838) 4 Bing (NC) 212; 132 ER 769 and Gilding v Eyre (1861) 10 CBNS 592; 142 ER 584 were the only two examples of successful recoveries for this tort in England.
[97] In ‘The Tort of Collateral Abuse of Process’ (2021) 44(2) UNSW Law Journal 714, 717 Hynard and Lerch give four examples of successful claims: QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245, where $10,000 together with costs was awarded and exemplary damages were refused; Gulabrai v Hamer-Mathew [1997] NSWCA 131 where a Master ordered general compensatory damages in the sum of $50,000, exemplary damages in the sum of $50,000 and special damages in the sum of $1,613.00, a total of $101,613, concerning a defence; National Australia Bank Ltd v McFarlane [2005] VSC 438 (where an injunction was ordered); and Martin v Norton Rose Fulbright Australia [No 11] [2020] FCA 1641 (where a proportion of costs incurred and aggravated damages of $10,000 were awarded in a case where a claim in deceit also succeeded).
[98] Grainger v Hill (1838) 4 Bing (NC) 212; 132 ER 769.
One explanation for the comparative rarity of the cases involving the tort of collateral abuse of process was offered by Lord Sumption in Crawford Adjusters (Caymen) Ltd v Sagicor General Insurance (Caymen) Ltd:[99]
… the essence of the tort is the abuse of civil proceedings for a predominant purpose other than that for which they were designed. This means for the purpose of obtaining some wholly extraneous benefit other than the relief sought and not reasonably flowing from or connected with the relief sought. The paradigm case is the use of the processes of the court as a tool of extortion, by putting pressure on the defendant to do something wholly unconnected with the relief, which he has no obligation to do. Such cases are extremely rare. Although there is a moderately substantial body of case law, there are only two reported cases in England in which the action has succeeded, both involving the now obsolete procedures for the arrest of debtors, which had an obvious potential for abuse.
[99] Crawford Adjusters (Caymen) Ltd v Sagicor General Insurance (Caymen) Ltd [2014] AC 366 [149] (Lord Sumption).
In Hanrahan v Ainsworth, Hunt J explained that the decisions concerning this tort all make clear the need for proof of ‘special damage’, without analysing exactly what this element of the tort entails.[100] In Torts: The Laws of Australia the author simply states that special damage must be ‘alleged and proved for this action on the case’ and Hanrahan v Ainsworth is cited.[101]
[100] Hanrahan v Ainsworth (1985) 1 NSWLR 370, 374-375 (Hunt J), concerning Grainger v Hill (1838) 4 Bing (NC) 212; 132 ER 769; Varawa v Howard Smith Co Ltd (1911) 13 CLR 35.
[101] Paul Vout, Torts: The Laws of Australia (Lawbook Co, 2003), [127].
The scope for confusion about what is meant by ‘special damage’ is explained in an old edition of McGregor on Damages:[102]
In the cases damage or damages are often said to be “general” or “special”, these two terms are usually contrasted with each other. Yet the terms are used in a variety of different meanings, and if these meanings are not kept separate the indiscriminate use of the terms only spells confusion. Such a separation is not seen very often, and it is therefore wise to elucidate these terms …
[Citation omitted.]
[102] Harvey McGregor, McGregor on Damages (Sweet & Maxwell Ltd, 14th ed, 1980), [16]. See also James Edelman, McGregor on Damages (Sweet & Maxwell Ltd, 21st ed, 2021) [46-001]-[46-004].
The author offers four suggested meanings for the term ‘special damage’, including the well-known first and second rules in Hadley v Baxendale in connection with liability in contract.[103] That is to say, the difference between damage arising naturally or in the normal course of things (general damage) and damage which was within the particular contemplation of the parties (special damage).
[103] Hadley v Baxendale (1854) 9 Ex 341.
In the case of defamation at common law, the traditional distinction is between defamatory statements actionable only on proof of ‘special damage’ – most slanders[104] – and defamatory statements actionable per se – such as libels.[105] The common law remains relevant to understanding the historical meaning of the term ‘special damage’, even though the general law distinction between slander and libel has been abolished by statute.[106] In this context, ‘special damage’ has been regarded as any pecuniary loss, whether ‘a money loss or a loss calculable in money terms’.[107] In Cassell & Co Ltd v Broome, Lord Hailsham LC said:[108]
It has been more than once pointed out the language of damages is more than usually confused. For instance, the term “special damage” is used in more than one sense
to denominate actual past losses precisely calculated (as in a personal injuries action), or “material damage actually suffered” as in describing the factor necessary to give rise to the cause of action in cases, including cases of slander, actionable only on proof of “special damage”. If it is not too deeply embedded in our legal language, I would like to see “special damage” dropped as a term of art in its latter sense and some phrase like “material loss” substituted.[104] Jones v Jones [1916] 2 AC 481, 489-490 (Viscount Haldane). See TK Tobin and MG Sexton, Australian Defamation Law & Practice: History of Slander and Libel (LexisNexis, 2021) [2001], stating that the four exceptions where slander was actionable per se were: (i) an imputation of a crime punishable by imprisonment, (ii) an imputation that the plaintiff has a contagious or infectious disease, (iii) an imputation disparaging the plaintiff in his office, profession, trade or business, and (iv) an imputation imputing unchastity to a woman.
[105] Historically, slander was not a criminal offence whilst libel could constitute both a criminal offence and a civil wrong, Jones v Jones [1916] 2 AC 481, 489-490 (Viscount Haldane). See Harvey McGregor, McGregor on Damages (Sweet & Maxwell Ltd, 14th ed, 1980), [1375].
[106] Defamation Act 2005 (SA), s 7(1). Section 7(2) states that ‘[a]ccordingly, the publication of defamatory matter of any kind is actionable without proof of special damage’. See also Fairfax Media Publications Pty Ltd v Voller (2001) 206 CLR 512, 532 [31] (Gageler and Gordon JJ).
[107] Harvey McGregor, McGregor on Damages (Sweet & Maxwell Ltd, 14th ed, 1980), [1376]. In the case of slander, and the requirement for special damage, see Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519, [98]-[99]; Rayney v Western Australia (No 4) [2022] WASCA 4, [138]‑[145] (Buss P, Murphy JA and Corboy J); James Edelman, McGregor on Damages (21st ed, 2021) [46-001]-[46-004].
[108] Cassell & Co Ltd v Broome [1972] AC 1027, 1073B.
Professor Luntz and Dr Harder have suggested that the term ‘special damage’, or ‘special damages’, can be taken to refer to the way in which certain kinds of damage should be pleaded as well as the way in which certain kinds of damage for personal injury may be calculated or assessed.[109] This latter example probably best explains the sense in which Fullagar J used the term ‘special damages’ in contrast to ‘general damages’ in Paff v Speed. According to Professor Luntz and Dr Harder, there is a ‘lack of consistency’ regarding the use of the terms ‘special damages’ and ‘general damages’ in connection with the recovery of damages for personal injury:[110]
There is a lack of consistency in distinguishing the terms “special damages” and “general damages” in different areas of the law, at different times and even in different jurisdictions in Australia. As a result of this inconsistency, it can be dangerous to attach substantive consequences to the distinction between them. In Griffith v Kerkemeyer, Stephen J in the High Court saw the approach there adopted … – by which damages for nursing care are awarded on the basis of the plaintiff’s needs, not for the expenditure of money – as depriving of all substantive significance the distinction between special and general damages.
Nevertheless, the terms have long been part of the vocabulary of the courts and at least one legislature has used “special damages” as a label the profession can be expected to understand.
[Citations omitted.]
[109] Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (LexisNexis Butterworths, 2021), 159.
[110] Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (LexisNexis Butterworths, 2006), 159.
For the purposes of the tort of collateral abuse of process, the term ‘special damage’ is used to identify an essential element of the tort. As Grainger v Hill makes clear, that element is required because the tort is not actionable per se, it is an ‘action on the case’,[111] where damage is the gist of the action, just as in a case of negligence.[112]
[111] Grainger v Hill (1838) 4 Bing (NC) 212, 219; 132 ER 769, 772 (Tindal CJ), “a special action on the case”.
[112] Carolyn Sappideen and Prue Vines, Fleming’s Law of Torts (Thomson Reuters, 10th ed, 2011), [27.109].
In Hanrahan v Ainsworth, Hunt J held that ‘actual damage (in the sense of actual temporal loss) must be pleaded and proved’,[113] and for this proposition Ratcliffe v Evans was cited.[114] In that case, the plaintiff sued a publisher for a false and malicious publication. It was proved that after the publication the plaintiff suffered a general loss of business. On appeal, the defendant complained that there was no proof of any particular customers or orders lost. The Court of Appeal held that this did not matter. For the purposes of the case before them, the Court regarded the loss of business as sufficient to support an action on the case.[115]
It was contended before us that in such an action it is not enough to allege and prove general loss of business arising from the publication, since such loss is general and not special damage, and special damage, as often has been said, is the gist of such an action on the case. Lest we should be led astray in such a matter by mere words, it is desirable to recollect that the term “special damage”, which is found for centuries in the books, is not always used with reference to similar subject-matter, nor in the same context. At times (both in the law of tort and of contract) it is employed to denote that damage arising out of the special circumstances of the case which, if properly pleaded, may be separated to the general damage which the law implies in every breach of contract and every infringement of an absolute right … [i]n all such cases the law presumes that some damage will flow in the ordinary course of things from the mere invasion of the plaintiff’s rights, and calls it general damage. Special damage in such a context means the particular damage (beyond the general damage), which results from the particular circumstances of the case, and of the plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.
[113] Hanrahan v Ainsworth (1985) 1 NSWLR 370, 375 (Hunt J).
[114] Ratcliffe v Evans [1892] 2 QB 524, 527-528, 531, 532.
[115] Ratcliffe v Evans [1892] 2 QB 524, 528 (Bowen LJ delivered the judgment of the Court, which comprised Lord Esher MR, Bowen and Fry LJJ).
Later, the Court warned:[116]
In this judgment we shall endeavour to avoid a term which, intelligible enough in particular contexts, tends, when successfully employed in more than one context and with regard to different subject-matter, to encourage confusion in thought. The question to be decided does not depend on words, but is one of substance. In an action like the present, brought for a malicious falsehood intentionally published in a newspaper about the plaintiff’s business – a falsehood which is not actionable as a personal libel, and which is not defamatory in itself – if evidence to shew that a general loss of business has been the direct and natural result admissible in evidence, and, if uncontradicted, sufficient to maintain the action?
[116] Ratcliffe v Evans [1892] 2 QB 524, 529 (Bowen LJ).
After drawing a distinction between libel and slander, including cases of slander which are not actionable per se, the Court of Appeal ultimately rested on the proposition that it was sufficient to plead and prove damage actually done, for this was the gist of the action.[117] The Court held that it was in the nature of the matter that the falsehood was openly disseminated through a publication which was probably read and possibly acted on by persons of whom the plaintiff had never heard.[118] The Court of Appeal held that what had been pleaded and proved was sufficient.
[117] Ratcliffe v Evans [1892] 2 QB 524, 532 (Bowen LJ).
[118] Ratcliffe v Evans [1892] 2 QB 524, 533 (Bowen LJ, with whom Lord Esher MR and Fry LJ agreed).
If the essential element of ‘special damage’ is established, there is a question whether non-economic losses can be recovered, as in a case of malicious prosecution,[119] or slander at common law.[120] There would also be a question whether costs, including solicitor-client costs, associated with the earlier litigation could be recovered, or whether the much-criticised limitation discussed by Devlin LJ in Berry v British Transport Commission would prevent their recovery.[121] Whilst it is not necessary to express a concluded view, a broad approach seems to have been taken in the Australian cases, where compensatory as well as exemplary damages and costs have been awarded.[122]
[119] In Savile v Roberts (1698) 3 Salk 16; 91 ER 1147, it was decided that three categories of damage were recoverable by the plaintiff in a malicious prosecution claim - that is, damage to fame, to person, or to property.
[120] In ‘The Tort of Collateral Abuse of Process’ (2021) 44(2) UNSW Law Journal 714, 720 Hynard and Lerch suggest that the four successful Australian cases demonstrate that “the usual rules governing remedial responses will apply”.
[121] Berry v British Transport Commission [1962] 1 QB 306, followed in QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245. In Martin v Norton Rose Fulbright Australia [No 11] [2020] FCA 1641 costs were recovered.
[122] In Gulabrai v Hamer-Mathew [1997] NSWCA 131 the Court of Appeal upheld an award by a Master of general compensatory damages in the sum of $50,000, exemplary damages in the sum of $50,000 and special damages in the sum of $1,613. In QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245, Macrossan J, as he was, thought that the damages might otherwise be “at large”, citing Coleman v Buckingham’s Ltd (1962) 63 SR (NSW) 171, 182, a case of malicious prosecution.
Obviously enough, whether the appellant could establish the alleged link between the IO proceedings and his claimed loss of opportunity would be an issue for trial. It would be necessary to do more than demonstrate the loss of a speculative possibility.[123] That is not the present issue. The issue is whether there is a reasonable basis for this part of the case.
[123] Cf Tabet v Gett (2010) 240 CLR 537.
As summary judgment on the claim for collateral abuse of process should be upheld in any event, it is not necessary to come to a final view on this part of the case. Nonetheless, the preferable view appears to be that the term ‘special damage’ in the context of a claim for damages for collateral abuse of process incorporates any temporal or pecuniary loss actually lost or incurred. That is to say, any loss which is capable of being viewed as a material loss, regardless whether it might be characterised as general damages or special damages in the sense explained by Fullagar J in Paff v Speed.[124] As the facts of Ratcliffe v Evans suggest, much may depend on the circumstances of the particular case and the extent of the proof reasonably available to the claimant.[125]
[124] Cf Hynard and Lerch, ‘The Tort of Collateral Abuse of Process’ (2021) 44(2) UNSW Law Journal 714, 746.
[125] Ratcliffe v Evans [1892] 2 QB 524. In QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245, Macrossan J did not follow Hanrahan v Ainsworth (1985) 1 NSWLR 370 because although there was no “special damage”, it was sufficient that a winding-up application had been presented and notified, relying on Quartz Hill Gold Mining Company v Eyre (1883) 11 QBD 674, 684-685 (Brett MR), 693 (Bowen LJ).
Because there remains some uncertainty about what this element of the tort entails, and where further development of the law can be anticipated,[126] this is not an appropriate issue for summary determination and this part of the notice of contention should also be dismissed.
[126] In ‘The Tort of Collateral Abuse of Process’ (2021) 44(2) UNSW Law Journal 714, 747-748 Hynard and Lerch question the need for proof of special damage where there may be no direct monetary impact on a plaintiff, and suggest that there is “no reason why the tort of collateral abuse of process should not dilute its strict requirement of special damage”, so that there is no difference between this tort and the losses recoverable in a case of malicious prosecution.
Conclusion
The primary judge erred in concluding that there was no reasonable basis for arguing that the respondent instigated the IO proceedings. However, her Honour was correct to conclude, in respect of the collateral abuse of process claim, that there was no reasonable basis to argue that the proceedings had been brought for an improper purpose. Her Honour was also correct to conclude that there was a reasonable basis for arguing that the IO proceedings were terminated in favour of the appellant. Finally, her Honour was correct to conclude, in respect of the collateral abuse of process claim, that there was a reasonable basis for arguing that the appellant had suffered special damage.
We would allow the appeal in part by setting aside summary judgment in respect of the claim of malicious prosecution, and, in lieu thereof, dismiss that part of the summary judgment application. We would affirm that part of the summary judgment application dealing with the collateral abuse of process claim. We would dismiss the notice of contention. We would otherwise set aside the orders made below and make no order for costs.
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