Rock v Henderson; Rock v Henderson (No 2)

[2025] NSWCA 47

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47

Hearing dates:

3 March 2025

Date of orders:

28 March 2025

Decision date:

28 March 2025

Before:

Kirk JA; Adamson JA; Ball JA

Decision:

2024/223996:

(1)   Allow the appeal in part.

(2)   Set aside order 1 of the orders made by Olsson SC DCJ on 9 May 2024 and in its place order that there be judgment for the plaintiff in the sum of $100.

(3) Set aside order 5 of the orders made by Olsson SC DCJ on 9 May 2024 under the Court Suppression and Non-publication Orders Act 2010 (NSW).

(4)   Appellant to pay the respondent’s costs of the appeal.

2024/223980:

(1) Set aside order 5 of the orders made by Olsson SC DCJ on 9 May 2024 under the Court Suppression and Non-publication Orders Act 2010 (NSW).

(2)   Grant leave to appeal on grounds 1 and 2 identified in the draft notice of appeal, dismiss the appeal on those grounds, and otherwise refuse leave to appeal.

(3)   Applicant to file a notice of appeal raising grounds 1 and 2 only within seven days.

(4)   Applicant to pay the respondent’s costs of the application and the appeal.

Catchwords:

COURTS AND JUDGES – significant delay in providing reasons for judgment by primary judge – where primary judge delivered written reasons three months after making final orders in proceedings – whether delay in providing reasons amounts to error – whether a retrial is required as a consequence of the delay – whether UCPR r 36.2 applies where reasons for judgment are not yet reduced to writing – whether a common law duty compels District Court judges to give written reasons for judgment contemporaneously with judgment or very soon thereafter – where common law rule in Palmer v Clarke (1989) 19 NSWLR 158 has evolved – no such common law duty – retrial not required

TORTS – malicious prosecution – whether the tort is available in respect of the procuring of an Apprehended Domestic Violence Order (ADVO) – where ‘prosecutor’ for the purposes of the tort is the complainant – where provisional ADVO was issued by a police officer – where interim ADVO was consented to by respondent on a no admissions basis – where application for final ADVO was rejected by Magistrate – tort does not apply

TORTS – trespass – where appellant claimed to suffer PTSD resulting from the trespass – where the appellant claimed the trespass damaged his house – where primary judge found trespass occurred – where appellant failed to establish that he suffered damage as a consequence of the trespass – where primary judge declined to award damages for trespass – nominal damages payable

APPEALS – leave to appeal – where six instances of alleged battery occurred – where primary judge implicitly rejected the alleged battery – where damages not assessed by primary judge – whether failure to assess damages constituted error – where damages would likely be nominal and fall below $100,000 – whether leave should be granted – leave refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56(1)

Community Protection Act 1994 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW), s 12

Crimes Act 1900 (NSW), s 61AA

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 3, 5, 7-9, 14(1), 16, 17, 22-33A, 48-52, 55, 73, 78, 84(1), 88-90C, 99, 99A

Defamation Act 2005 (NSW), s 10A

District Court Act 1973 (NSW), ss 127(2)(c), 159(1)

District Court Rules 1973 (NSW), rr 9, 156

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Supreme Court Act 1970 (NSW), s 75A

Supreme Court Rules 1970 (NSW), r 2

Uniform Civil Procedure Rules 1995, r 36.2

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16

Butler v Simmonds Crowley and Galvin (2000) 2 Qd R 252; [1999] QCA 475

Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118

Clavel v Savage [2013] NSWSC 775

Clavel v Savage [2015] NSWCA 61

Clissold v Cratchley [1910] 2 KB 244

Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30

Crawford Adjusters(Cayman) Ltd v Sagicor General Insurance (Cayman) Limited [2014] AC 366; [2013] UKPC 17

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Ejueyitsi v Western Sydney University [2023] NSWCA 126

Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241; [1997] HCA 8

Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443; 91 WN (NSW) 34; [1970] 1 NSWR 617

Fletcher Construction Australia Ltd v Lines MacFarlane and Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167

Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

George v Rockett (1990) 170 CLR 104; [1990] HCA 26

Gersbach v Gersbach [2018] NSWSC 1685

Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52

Gibbs v Rea [1998] AC 786

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54

Gray v Motor Accident Commission (1998) 196 CLR 1, [1998] HCA 70

Gregory v Portsmouth City Council [2000] 1 AC 419; [2000] UKHL 3

Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80

HD v New South Wales [2016] NSWCA 85

IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407

Irlam v Byrnes (2022) 108 NSWLR 285; [2022] NSWCA 81

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

Johnson v Emerson (1871) LR 6 Ex. 329

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24

Kable v State of NSW [2010] NSWSC 811; (2010) 203 A Crim R 66

King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076

Li v Deng (No 2) [2012] NSWSC 1245

Little v Law Institute of Victoria [1990] VR 257

Marino v Bello(No 3) [2022] NSWCA 181; (2022) 408 ALR 650

Martin v Watson [1996] AC 74

Melville v Phillips (1899) 9 QLJ 114

Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209

MT v SE [2025] SASCA 8

Mulvena v Government Insurance Office of New South Wales (Court of Appeal (NSW), 16 June 1992, unrep)

New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

Odeh v New South Wales [2019] NSWSC 342

Palmer v Clarke (1989) 19 NSWLR 158

PPK Willoughby Pty Limited v Baird [2019] NSWCA 48

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Quartz Hill Consolidated Gold Mining Co. v Eyre (1883) 11 QBD 674

R v Casey; Ex parte Lodge (1887) 13 VLR 37

Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42

Rippon v Chilcotin (2001) 53 NSWLR 198; [2001] NSWCA 142

Rock v Henderson [2021] NSWCA 155

Roy v Prior [1971] AC 470

Sahade v Bischoff [2015] NSWCA 418

Savile v Roberts (1698) 91 ER 1147

State of Queensland v Stradford (A pseudonym) [2025] HCA 3

Sullivan v Moody (2001) 207 CLR 562 at 581; [2001] HCA 59

Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325; [2020] NSWCA 274

The Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307; [2005] QCA 475

The Walter D. Wallet [1893] P 202

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40

Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24

Watiwat v Dixon [2017] NSWSC 360

Willers v Joyce [2018] AC 779; [2016] UKSC 43

Wolfenden v International Theme Park Pty Ltd (Trading as Wonderland) [2008] NSWCA 78

Texts Cited:

Agreement in Principle Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 16 November 2007

Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, Dobbs’ Law of Torts (2nd ed, 2011, Thomson West), vol 3

E Bullen, SM Leake and J Jacob, Precedents of Pleadings (3rd ed, 1868, Sweet & Maxwell)

RWM Dias (ed), Clerk and Lindsell on Torts (16th ed, 1989, Sweet and Maxwell)

Category:

Principal judgment

Parties:

2024/223980:

Evelyn Stella Rock (Applicant)
Kim Kathleen Henderson (Respondent)

2024/223996

Darren Rock (Appellant)
Kim Kathleen Henderson (Respondent)

Representation:

Counsel:

E Chrysostomou (Applicant and Appellant)
MS White SC (Respondent in both matters)

Solicitors:

Swiftly Legal (Applicant and Appellant)
Dettmann Phair (Respondent in both matters)

File Number(s):

2024/223980 and 2024/223996

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

9 May 2024

Before:

Olsson SC DCJ

File Number(s):

2022/82363 and 2022/233086

HEADNOTE

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

This appeal involved two sets of related proceedings. The first arose from the acrimonious breakdown of the marriage between Mr Darren Rock and Ms Kim Henderson (Mr Rock’s matter). The second concerned a claim brought by Ms Evelyn Rock, Mr Rock and Ms Henderson’s daughter, against Ms Henderson in respect of six claimed incidents of battery (Ms Rock’s matter).

On 25 September 2018, Ms Henderson attended Rose Bay police station, where she made a statement to Constable Alex Pitt. In that statement, Ms Henderson reported that after she had moved out of the family home, she was travelling with a male friend to Launceston, Tasmania, for a weekend away when Mr Rock confronted them in Sydney Airport. Ms Henderson also stated that on three occasions Mr Rock had made unwanted visits to her place of work. Constable Pitt subsequently applied for a provisional apprehended domestic violence order (ADVO), which was issued by Senior Police Officer Wilkes on 26 September 2018.

On the first return date relating to the ADVO, Mr Rock consented to an interim ADVO on a no admissions basis. The application for a final ADVO for the benefit of Ms Henderson was heard by Magistrate Atkinson on 14 June 2019. Her Honour dismissed the application.

On 16 July 2019, Mr Rock and his two children returned home from a holiday in Darwin to find Ms Henderson there. According to Mr Rock, Ms Henderson was tampering with a fuse box.

On 10 August 2020, Mr Rock commenced proceedings in the District Court seeking damages against Ms Henderson for malicious prosecution arising out of the application for a final ADVO and for the trespass that occurred on 16 July 2019. Ms Henderson was successful in striking out the claim in the District Court. However, on 29 July 2021 this Court allowed an appeal of that judgment: Rock v Henderson [2021] NSWCA 155.

On 22 March 2022, Ms Rock, through her then tutor, Mr Rock, brought proceedings in the District Court seeking damages against Ms Henderson for assault and battery arising out of several incidents that had occurred between August 2017 and August 2018.

The two proceedings were heard together before Olsson SC DCJ over eight days between 19 June 2023 and 22 August 2023. The primary judge reserved her decision. On 9 May 2024, her Honour made the following orders in both proceedings: “(1) Verdict in favour of the defendant. (2) Reasons for judgment will follow. (3) The plaintiff to pay the defendant’s costs from the commencement of the proceedings up to and including 1 May 2023 on the ordinary basis and thereafter on an indemnity basis”. However, the primary judge’s written reasons for her decision on 9 May 2024 were not provided to the parties until 13 August 2024.

Mr Rock appealed and Ms Rock sought leave to appeal. The appeal and application for leave were heard together.

In Mr Rock’s matter, the issues on appeal were:

1.   What consequences, if any, follow from the fact that the primary judge did not give reasons for her decision until three months and four days after delivering judgment?

1. Is the tort of malicious prosecution available in respect of the procuring of an ADVO?

2. If the Court concludes that the consequence of the delay is not an order for a retrial, should the appeal succeed on its merits?

3. Did the primary judge err in her findings regarding Ms Henderson’s alleged trespass?

In Ms Rock’s matter, the issue of delay in giving reasons was also pressed. The other two issues on appeal in Ms Rock’s matter were:

1. Did the primary judge err in failing to hold Ms Henderson liable for the alleged battery against Ms Rock?

2. Did the primary judge err by failing to assess damages in favour of Ms Rock?

The Court held (Kirk, Adamson and Ball JJA) allowing Mr Rock’s appeal concerning the trespass claim but otherwise dismissing the appeal, and granting leave to appeal to Ms Rock in respect of the delay grounds but dismissing the appeal and otherwise refusing her leave to appeal:

As to the delay issue

(1) Whilst there may have once been a common law duty of a court in civil cases to deliver reasons at or immediately after the time it pronounces judgment, as suggested by Kirby P in Palmer v Clarke (1989) 19 NSWLR 158, that duty has been substantially modified in civil cases in the Supreme Court, District Court and Local Court. The common law is no longer that strict. Generally, a court should not make final orders without giving reasons. However, if it is necessary to postpone giving reasons (for example, because of urgency) reasons should be given as soon as reasonably practicable after judgment is delivered. Whether a court has failed to comply with that obligation will depend on all relevant circumstances, including the nature of the issue to be decided, the length of the delay and the reasons for any delay: [55], [60].

Palmer v Clarke (1989) 19 NSWLR 158, distinguished. Fletcher Construction Australia Ltd v Lines MacFarlane and Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 16, considered.

(2) Any remedy for a failure to give reasons as soon as practicable should be confined to what is necessary to rectify the error. The parties should only be put to the cost and inconvenience of a retrial if that is the only way of rectifying the consequences of the error. In this case, the appellants had been given leave to amend their grounds of appeal once the reasons became available. No further remedy was necessary: [64]-[65].

Mulvena v Government Insurance Office of New South Wales (Court of Appeal (NSW), 16 June 1992, unrep), applied.

As to the applicability of the tort of malicious prosecution

(3) Proceedings for an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) are not criminal proceedings. There are limited established categories of civil proceedings to which the tort can also apply. Any extension of those categories requires significant justification given the tension that exists between application of the tort and the principle of finality, together with related principles. Extension of the tort to encompass AVO proceedings would inevitably spawn satellite litigation. The potential for such litigation would tend substantially to undermine the objects and efficacy of the Act. The case for extending the tort of malicious prosecution to encompass proceedings seeking an AVO under the Act is not established: [165]-[166].

Willers v Joyce [2018] AC 779; [2016] UKSC 43, Gregory v Portsmouth City Council [2000] 1 AC 419; Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Limited [2014] AC 366; [2013] UKPC 17; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54; Sullivan v Moody (2001) 207 CLR 562 at 581; [2001] HCA 59; George v Rockett (1990) 170 CLR 104; [1990] HCA 26, considered.

As to the merits of the malicious prosecution claim

(4) In order for Ms Henderson to be liable for the tort (on the assumption, contrary to the above, that it was available) it was necessary for Mr Rock to prove that she deliberately supplied Constable Pitt with false information without which the police would not have proceeded to issue an interim ADVO. The onus was on Mr Rock to prove that her impugned statements were deliberately false. The evidence fell far short of that: [169], [178]-[179]. Whether it is appropriate to apply for a provisional ADVO does not depend on whether the relevant parties enjoy a cordial or even a loving relationship, thus Ms Henderson was not obliged to inform Constable Pitt of such matters: [176], [188].

As to the trespass claim

(5) Having found that Ms Henderson committed a trespass, it was not open to the primary judge to dismiss the claim. Given Mr Rock had failed to establish that he had suffered any damage, the appropriate order was a judgment for nominal damages: [190], [192].

Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325; [2020] NSWCA 274, applied. Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80, considered.

As to Ms Henderson’s liability for the alleged battery and the assessment of damages

(6) Even if the allegations of battery and assault had been made out, the damages would have been unlikely to be more than nominal since the force used, even on Ms Rock’s evidence, was not such as to inflict other than very minor injuries of transient effect. The small amount in issue militates against a grant of leave, having regard to the evident legislative intention in requiring leave to appeal in cases where the amount at issue is less than $100,000: [203].

Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118, considered.

(7) The primary judge gave detailed reasons as to why she preferred the evidence of Ms Henderson to that of Ms Rock. None of the errors identified by the applicant in the reasoning of the primary judge would appear to be material, much less give rise to a question of principle, issue of public importance or reasonably clear injustice. Accordingly, leave to appeal with respect to the liability grounds ought be refused: [203], [208], [212], [214].

(8) Though it is generally advisable for judges at first instance who find against a plaintiff on liability to assess damages on a contingent basis, this is not an invariable rule. Ms Rock did not demonstrate a reasonably clear injustice in this respect: [213].

Wolfenden v International Theme Park Pty Ltd (Trading as Wonderland) [2008] NSWCA 78, considered.

JUDGMENT

Introduction

1. THE COURT: Mr Darren Rock appeals against a decision of the primary judge (Olsson SC DCJ) dismissing claims for damages he brought against his former wife, Ms Kim Henderson, for malicious prosecution and trespass. The primary judge also dismissed a claim brought by the daughter of Mr Rock and Ms Henderson, Ms Evelyn Rock, against Ms Henderson with respect to six claimed incidents of battery. Ms Rock has sought leave to appeal that decision, leave being required as the sum in dispute is less than $100,000.

2. Both the appeal and the application for leave to appeal should be dismissed with costs. Notably, as regards both matters, the fact that the primary judge published her orders some nine months after reserving judgment but did not publish her reasons for another three months, whilst unsatisfactory, does not provide sufficient reason to uphold the appeal. As regards Mr Rock’s appeal, we conclude that the tort of malicious prosecution does not extend to the claim he has brought against Ms Henderson relating to the making of a provisional apprehended domestic violence order (ADVO) by a police officer, and the other grounds of appeal he has raised do not suffice to uphold the appeal. As regards Ms Rock’s application, there is no sufficient cause to grant leave to appeal beyond the grounds relating to the delay in giving reasons.

3. These reasons are structured as follows:

1. background facts (at [4]-[31]);

2. issues on the appeal (at [32]-[35]);

3. delay in delivering reasons (at [36]-[65]);

4. the tort of malicious prosecution (at [66]-[166]);

5. the merits of the case on the appeal (at [167]-[200]);

6. Ms Rock’s application for leave to appeal (at [201]-[214]);

1. conclusion and orders (at [215]-[218]).

Background facts

Events leading up to an application for an apprehended domestic violence order

4. The proceedings arise out of the acrimonious breakdown of the marriage between Mr Rock and Ms Henderson in about August 2017. The marriage had been in difficulties for several years and was characterised by the primary judge as a “love-hate” relationship during that time.

5. On 21 September 2018, Ms Henderson, who had moved out of the family home, was waiting at a bar at Sydney Airport with a man, Mr Steve Weston, who she had met three or four weeks earlier, for a flight to Launceston, Tasmania, where they intended to spend the weekend together at a holiday home owned by Ms Henderson. They were confronted in the bar by Mr Rock. How Mr Rock came to be there and what occurred is the subject of dispute to which it will be necessary to return later in this judgment. Following the confrontation, Mr Rock returned home and Ms Henderson and Mr Weston flew to Launceston as planned. The evidence was that Ms Henderson was very shaken by the encounter with Mr Rock. Concerned that he may be at the airport on her return to Sydney two days later, she decided not to board the return flight, but instead was admitted to a psychiatric ward at Launceston Hospital suffering from what was said to be a mental breakdown. While she was in hospital, she received a text message from Mr Rock telling her to remove her belongings from his home.

6. Ms Henderson returned to Sydney on 25 September 2018 with her sister, who lived in Tasmania. On her return they attended Rose Bay police station, where Ms Henderson made a statement to Constable Alex Pitt.

7. In her statement Ms Henderson said that she married Mr Rock in 2009, that they had had two children and that the catalyst for their split in around mid-July 2017 was “when Darren woke me in the middle of the night and amongst allegations of unfaithfulness, he threw me out of the house, threw the car keys at me and forced me out of the house”. She said that she slept in the car that night and subsequently, in August, moved out of the family home. In her statement, Ms Henderson referred to one occasion in July 2018 when Mr Rock had called Ms Henderson’s mother saying that Ms Henderson was suicidal. She also gave evidence of three occasions between July and September 2018 on which Mr Rock had made unwanted visits to her place of work where he questioned her about whether they were going to get a divorce and where on one occasion he said something like “I’m going to unleash a Rottweiler of a lawyer on you”. Ms Henderson said in her statement that “On each occasion I told Darren not to come to my work at all and that his presence there was not wanted”.

8. Ms Henderson’s statement also covered the encounter at Sydney Airport. According to her, while waiting at the bar, and while Mr Weston was in the bathroom, she felt two hands shake her shoulders. She turned around to see Mr Rock who said words to the effect of “This is going to be the most hideous divorce ever”. Mr Rock then left and she was rejoined by Mr Weston who (according to Ms Henderson) said that Mr Rock had confronted him and had described her as a “slut and a bitch”. She said that the interaction had made her “scared and anxious that he [Mr Rock] had either followed me or he was there waiting for me”. Ms Henderson also said that while she was in hospital in Launceston, the hospital had received calls from Mr Rock enquiring about her status, which made her even more fearful. Her statement concluded:

17   I am fearful of Darren, he is jealous and controlling. In my relationship with him, he would make accusations of infidelity and it appears he still appears jealous as he approached Steve WESTON and I at the airport. I am fearful of having any sort of relationship with another person as I believe Darren will continue to confront them and me. I am fearful of his anger and him confronting me and causing a scene in public. I feel I am not safe anywhere I go I have fears he will turn up no matter where I am. There is no reason for him to approach me in person, I have told him not to attend my work and he has still shown up unannounced.

9. The statement did not mention that over the same period of time, Mr Rock and Ms Henderson had on occasions enjoyed cordial relations and had attempted to reconcile their differences. They had dined and attended a number of other social engagements together. Following their separation, they had seen a marriage counsellor and had been on holidays together with their children.

10. Constable Pitt also obtained a statement from Mr Weston. The written statement is dated 15 October 2018, although there is a question whether Constable Pitt obtained an oral statement from Mr Weston over the telephone at or about the time Ms Henderson attended the police station. Mr Weston’s written statement was generally consistent with Ms Henderson’s account of what occurred at the airport, although it differed in its details.

Provisional ADVO granted

11. In accordance with s 27 of the Crimes (Domestic and Personal Violence) Act2007 (NSW) (the Act), Constable Pitt applied for a provisional ADVO, which was issued by Senior Police Officer Wilkes on 26 September 2018. Under s 29 of the Act, that provisional order is taken to be an application to the Local Court for an ADVO under Pt 10 of the Act. The provisional order specified 4 October 2018 as the first court date and Waverley Local Court as the court to hear the application. The grounds for the application were taken largely from the statement provided by Ms Henderson, although it is relevant to observe that part of the account of the incident that occurred at Sydney Airport appears to have come from Mr Weston.

12. On the first return date, Mr Rock consented to an interim ADVO on a no admissions basis and the matter was set down for a final hearing on 14 June 2019.

Events following the interim ADVO

13. On 4 October 2018, Mr Rock travelled with his two children to Japan for a holiday. While there he says that his children told him that they had been hurt by their mother on several occasions when she was drunk and that that explained bruises that he had noticed previously that both had had. During the conversation, he says that his daughter, Evelyn, said that she never wanted to see her mother again.

14. On 18 October 2018, the police issued a provisional ADVO against Ms Henderson naming the children as the protected persons. Precisely how that came about is not apparent from the evidence, although the likelihood is that it resulted from a complaint from Mr Rock following his return from Japan. The application resulting from that provisional order was listed for hearing on 5 April 2019. At that time, Ms Henderson consented without admissions to final orders which were in force until approximately October 2019. By this stage, Family Court proceedings were on foot and it appears that sole custody of the children had been granted to Mr Rock.

Application for a final order dismissed

15. The application for a final ADVO for the benefit of Ms Henderson was heard by Magistrate Atkinson on 14 June 2019. Her Honour delivered an oral judgment on that day. As her Honour correctly observed, the Court may make an ADVO if (to quote from her Honour’s judgment):

it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears the commission by the other person of a domestic violence offence against the person, or the engagement of the other person in conduct in which the other person intimidates the person or a person with whom the person has a domestic relationship or stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

16. Her Honour concluded that she was not satisfied that that test had been met in this case. She gave two reasons. First, she thought it was an important factor that no further incidents had occurred since the incident at the airport. Second, she thought that “it would be unsafe to place a great deal of weight” on the evidence given by Ms Henderson since, as is apparent from the transcript, her evidence was often argumentative, non-responsive to the questions she was asked and failed to make concessions that were “necessary” (to use the language of the magistrate). Her Honour concluded:

I am not satisfied on the balance of probabilities that the fears that she has articulated both in the statement and in court today are reasonable and certainly I cannot be satisfied that those fears relate to the commission of a domestic violence offence or the conduct that intimidates or stalks.

Events following dismissal of application for a final ADVO

17. On 16 July 2019, Mr Rock and the two children returned home from a holiday in Darwin at approximately 8.50 pm to find Ms Henderson there. According to Mr Rock, she was tampering with a fuse box. There was a brief confrontation between Mr Rock and Ms Henderson. Ms Henderson left shortly afterwards. The following day she was arrested and charged with contravening the ADVO that was in place against her. Subsequently, that ADVO was varied to extend the existing order by two years and six months from 5 April 2019. The variation also included Mr Rock as a protected person. Ms Henderson ultimately pleaded guilty to a charge of contravening the ADVO and received a 12 month conditional release order.

18. On 10 August 2020, Mr Rock commenced proceedings in the District Court seeking damages against Ms Henderson for malicious prosecution arising out of the application for a final ADVO and the trespass that occurred on 16 July 2019.

19. On 22 September 2020, Ms Henderson filed a notice of motion seeking to strike out the claim. The motion was successful at first instance, but on 29 July 2021 this Court allowed an appeal from that judgment: Rock v Henderson [2021] NSWCA 155 (Henderson CA).

20. On 30 September 2021, Mr Rock filed an amended statement of claim.

21. On 22 March 2022, Ms Rock, through her then tutor, Mr Rock, brought proceedings in the District Court seeking damages against Ms Henderson for assault and battery arising out of the alleged incidents she had told her father about for the first time in Japan.

The District Court hearing and subsequent events

22. The two proceedings were heard together and an order was made that evidence in one be evidence in the other. The hearing occurred over eight days commencing on 19 June 2023 and finishing on 22 August 2023. The primary judge reserved her decision.

23. On 22 February 2024, Mr Rock sent an email to the District Court asking in effect when judgment would be handed down and asking that his query be forwarded to the Chief Judge. He was told in a response that, after enquiries had been made of the Chief Judge, it was anticipated that “the parties will receive a listing in March”. That did not occur and Mr Rock sent a further query on 2 April 2024. On the same day, the solicitors for Ms Henderson sent an email to the primary judge’s Associate enquiring when a judgment was likely to be handed down. The Associate replied “judgment should be delivered by the end of April”. On 30 April 2024, the Associate wrote to the parties advising that the matters were listed for judgment on 9 May 2024. On that day, her Honour announced a decision, but did not publish reasons. Relevantly, her Honour made the following orders in each matter:

1.   Verdict in favour of the defendant.

2.   Reasons for judgment will follow.

3.   The plaintiff to pay the defendant’s costs from the commencement of the proceedings up to and including 1 May 2023 on the ordinary basis and thereafter on an indemnity basis.

The orders for indemnity costs in each matter were based on offers of compromise that had been made by Ms Henderson and which were handed up to her Honour following the pronouncement that there would be a “verdict [sic, judgment]” for the defendant.

24. On 5 June 2024, Mr Rock filed a notice of intention to appeal.

25. On 11 June 2024, Ms Henderson’s solicitors sent the primary judge’s Associate an email asking when the parties might receive the reasons for judgment. The Associate replied by email the following day saying:

Judge Olsson has advised that the judgment is done [scil, not done] but she is working on it.

Her Honour returns from leave next week.

26. Ms Henderson’s solicitors sent a follow up email on 15 July 2024. The primary judge’s Associate responded to that email the following day saying:

Judge Olsson has asked me to let you know that the reasons for decision should be ready to be provided to you tomorrow.

27. Ms Henderson’s solicitors sent a further follow up email on 30 July 2024. The Associate responded to that email saying:

I apologise for the delay.

Her Honour is giving the matter priority, but is also in a trial this week. I will [sic] be provided to you as soon as possible.

28. On 9 August 2024, Mr Rock filed a notice of appeal. It raised two grounds, both concerned with the failure to provide reasons.

29. The reasons for judgment were emailed to the parties on 13 August 2024. They are lengthy, comprising approximately 80 pages and 348 paragraphs.

The reasons for judgment

30. In relation to the malicious prosecution claim by Mr Rock, the primary judge recognised that there was a question whether the tort was available in relation to applications for ADVOs. However, her Honour thought it was unnecessary to decide that question since, even if it was, the claim failed on its merits. Her Honour’s conclusion on that issue was summarised in the following paragraphs:

[303] I am satisfied that at the date of the incident at the airport, and because of it, Ms [Henderson] held a reasonable belief on rational and genuine grounds, that her husband was and had engaged in a form of emotional and mental abuse and deliberate intimidation in the context of a domestic relationship which had been exposed in his conduct towards her and Mr [Weston], in public, at Sydney Airport.

[304] It is of no relevance that the interim ADVO was dismissed later the following year. This court needs to consider what was in the mind of a person in the position of Ms [Henderson] at the time the conduct was occurring.

[305] Moreover, the police officer making out the case for the order interviewed and clearly accepted the evidence of Mr [Weston], who was a disinterested witness.

[306] In relation to the allegations made by Mr [Rock] in respect of the malicious prosecution, the plaintiff has the burden of proof to establish that there was an absence of reasonable cause and that there was malice. I am of the view that that test was not satisfied and I so find.

31. The primary judge dismissed Mr Rock’s trespass claim. Her Honour also dismissed the battery claims in the case brought by Ms Rock.

Issues on appeal

32. On 6 September 2024, Mr Rock filed an amended notice of appeal raising a substantial number of additional grounds of appeal. Most concern the primary judge’s factual findings relevant to the question of liability. Several relate to the primary judge's conclusions in relation to damages both for malicious prosecution and trespass. More will be said about the grounds of appeal later in this judgment. By a further amended notice of contention filed on 24 January 2025, Ms Henderson raises five contentions in support of the primary judge’s decision. They are:

1   With regard to appeal grounds 3 to 16 of the Amended Notice of Appeal filed on 6 September 2024 (the ANA), on the grounds that the tort of malicious prosecution does not apply to an application [under] the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

2   With regard to appeal grounds 5 and 16 of the ANA, on the ground that the evidence did not support a finding that the Respondent acted with malice or maliciously and/or that no such finding could be made in light of the finding, and the bases for the finding, that the Respondent acted with reasonable and probable cause.

3   With regard to appeal ground 9 of the ANA, on the ground that the evidence supported a finding that the Respondent acted with a subjective belief that she had reasonable and probable cause.

4   With regard to grounds 17 to 19 of the ANA on the ground that the Respondent had an implied licence to enter the property to collect her mail such that no trespass was committed.

5   With regard to grounds … 3 to 16 of the ANA, on grounds that the Respondent did not procure the ADVO proceedings.

33. The first four contentions are self-explanatory. The fifth rests on a submission that the ADVO proceedings were procured by Constable Pitt after obtaining statements from both Ms Henderson and Mr Weston.

34. The issues therefore before this Court in Mr Rock’s appeal are:

1. What consequences, if any, follow from the fact that the primary judge did not give reasons for her decision until three months and four days after delivering judgment? This issue is raised by grounds 1 and 2 of the amended notice of appeal.

2. Is the tort of malicious prosecution available in respect of the procuring of an ADVO? This issue is raised by para 1 of the further amended notice of contention.

3. Should the appeal succeed on its merits? This issue is raised by grounds 3 to 26 of the amended notice of appeal and paras 2 to 5 of the further amended notice of contention. This issue only arises if the Court concludes that the consequence of the delay is not an order for a retrial.

35. Like her father, Ms Rock filed a notice of intention to appeal in June 2024, prior to the primary judge providing her reasons. However, Ms Rock did not file a summons seeking leave to appeal until 10 October 2024, which was outside the permitted time. The respondent did not rely on the late filing of the summons as a reason for refusing leave. Grounds 1 and 2 of Ms Rock’s proposed grounds of appeal replicate Mr Rock’s grounds, relating to the delay in giving reasons after making orders. The remaining proposed grounds concern liability (grounds 3 to 6) and damages (grounds 7 to 10).

Delay in delivering reasons

Palmer v Clarke

36. The recent starting point for a consideration of the question of the consequences of a delay in delivering reasons for judgment is the decision of this Court in Palmer v Clarke (1989) 19 NSWLR 158 (Palmer). In that case, following a nine day hearing in the District Court that concluded on 26 June 1985, the trial judge reserved his decision. At that time, he gave the parties leave to file further written submissions that were not received until 19 December 1985. There was then a delay of almost two years until the matter was listed for judgment on 3 December 1987. On that day, his Honour announced his decision and indicated that reasons would be available the following day. On the following day, his Honour commenced giving oral reasons, but then stopped to ask for submissions on interest. It is unclear precisely what happened then. The transcript of the reasons gives the appearance that it was a continuous record, but in fact it was common ground that his Honour did not complete delivering oral reasons until sometime in March 1988, when he delivered reasons occupying a further 20 pages of transcript. On appeal, this Court concluded that in the circumstances it was necessary to set aside the judgment and order a new trial.

37. In reaching that conclusion, Kirby P (with whom Samuels JA agreed) commenced by pointing out that the tradition at common law was for a continuous oral trial conducted before a jury. As his Honour explained (at 164):

This tradition of the continuous oral trial affected the common law and practice of the delivery of reasons for judgment. Until very recently such reasons, even of appellate courts, were in England read out in open court so that the litigants and citizens could hear them. In England, this practice has lately been modified to allow the delivery of written judgments. That change of procedure was adopted many decades earlier in the superior courts of Australia.

His Honour might have added that the practice is still followed in judge alone criminal trials in this State and when sentences are imposed.

38. As his Honour pointed out, that practice, in so far as it applied to the District Court, had been modified to some extent by Pt 31, r 9 of the District Court Rules 1973 (NSW), which provided:

Where the Court gives any judgment or makes any order and the opinion of the Court is reduced to writing, it shall be sufficient to state orally the opinion without stating the reasons for the opinion, but the written opinion shall be then given by delivering it to a specified officer of the Court or to the Chief Court Reporter for delivery to the parties.

39. An equivalent provision was contained in the Supreme Court Rules 1970 (NSW): see Pt 40, r 2. A similar provision is now found in Uniform Civil Procedure Rules 1995 (NSW) (UCPR) r 36.2, which provides:

(1)    If the court gives any judgment, or makes any order or decision, and its reasons for the judgment, order or decision are reduced to writing, it is sufficient for the court to state its judgment, order or decision orally, without stating the reasons.

(2)    After a judgment, order or decision has been stated orally under subrule (1), a written copy of it, including the court’s reasons for it, must then be delivered to an associate, registrar or some other officer of the court for delivery to the parties or may instead be delivered directly to the parties.

40. According to Kirby P, in the case of inferior courts of record (such as the District Court), absent a provision such as Pt 31, r 9, strict compliance with the requirements of the common law was necessary. His Honour referred to several decisions supporting that conclusion including Melville v Phillips (1899) 9 QLJ 114 (Melville), R v Casey; Ex parte Lodge (1887) 13 VLR 37 (R v Casey) and Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443; 91 WN (NSW) 34; [1970] 1 NSWR 617 (Ex parte Currie).

41. In Melville, the Full Court of the Supreme Court of Queensland held that the requirement to deliver judgment in open court could only be dispensed with by statutory authority. Consequently, r 156 of the District Court Rules which permitted a judgment to be delivered by a registrar was ultra vires. It followed that a judgment delivered in accordance with the rule was a nullity, with the result that the Full Court had no jurisdiction to entertain an appeal from it. In a passage quoted by Kirby P (at 165), Griffith CJ explained the decision in these terms (at 116):

But pronouncing judgment upon a trial is a judicial proceeding—perhaps the most important part of the judicial proceeding—and I confess I do not see how a judge can pronounce judgment except in open court, unless under the authority of some statute. A statute was passed a year or two ago empowering absent members of the Full Court, in any case in which judgment is reserved, to send their judgment in writing, to be read by a brother judge in open court. In the absence of any statutory authority of that kind, I can see no authority for a judge to give judgment otherwise than in open court; and so it appears to have been decided in Victoria. If that is the correct view, judgment has not been pronounced in this case, and as the Full Court does not sit as an advisory court, to give opinions in cases in which judgments have not been pronounced, this appeal is premature, and we have no jurisdiction to entertain it.

42. Similarly, in R v Casey, Higinbotham CJ, delivering the judgment of the Court, said (at 40):

We think that the decision or determination of the learned judge in this case ought to have been pronounced in court, and that as it was not so pronounced it was not a judgment at all, and the entry in the county court register book and all the proceedings founded upon it are void. There is nothing however to prevent the learned judge from delivering his judgment on a future day.

43. In Ex parte Currie, one of three licensing court magistrates who sat on a hearing was ill and did not sit at the time judgment was delivered. He later died. This Court held that under the relevant legislation, the Full Bench of the Licensing Court could only be constituted by three members. Consequently, at the time it delivered judgment it was not validly constituted, with the result that its judgment was void. In reaching that conclusion, the Court (Herron CJ, Wallace P and Manning JA) drew a distinction between superior and inferior courts (at 447, 38, 620):

Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court … Such a tribunal is not invested with those powers which are commonly exercised by courts of supreme judicature such as the Supreme Court of this State or higher tribunals. Such powers have their origin in tradition and their procedures are often dictated by convention.

Commenting on this passage, Kirby P said (at 167):

These words are equally applicable to the District Court, which is another court of limited statutory jurisdiction and not a superior court of record.

44. Against that background, Kirby P concluded that the announcement of the primary judge in that case on 3 December 1987 was not the pronouncement of a judgment. It was merely a foreshadowing of what the trial judge intended to do later: at 168. What happened the following day was the pronouncement of judgment but plainly did not satisfy the judicial duty to give reasons: at 170. The subsequent oral reasons given in March 1988 did satisfy the requirements to give reasons, but they did not satisfy “the common law duty which rests upon judges to deliver their judgment and the reasons and opinions which support them in open court and at, or virtually immediately after, the time of the pronouncement of judgment”. So much in fact seems to have been accepted by the parties. Instead, the respondent argued that the delay in delivering reasons could be excused as an irregularity under s 159(1) of the District Court Act 1973 (NSW), which relevantly provided that a failure to comply with the Act or rules “shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings …”. Kirby P rejected that argument for two principal reasons. First, the pronouncement of judgment was “a most important step in the judicial process” that could only be excused by express legislation. Second, s 159(1) was not apt to cure the problem. The appellant had not asserted that the judgment was null and void. They simply asserted that the failure to provide reasons was an appealable error: at 172.

45. Priestley JA reached the same conclusion but on the basis that the primary judge, having delivered his judgment and some reasons on 4 December 1987, was functus officio. The reasons delivered on 4 December 1987 were so inadequate that the primary judge had failed in his judicial duty, with the result that a retrial was necessary: at 174. Kirby P thought that that point was arguable but in view of the conclusions he had reached, considered that it was unnecessary to decide it: at 172.

Mulvena v Government Insurance Office of New South Wales

46. Palmer was considered by this Court in Mulvena v Government Insurance Office of New South Wales (Court of Appeal (NSW), 16 June 1992, unrep) (Mulvena). In that case, the primary judge (Viney QC DCJ) at the conclusion of a trial on 23 November 1990 announced that he had “formed the view that the plaintiff had not discharged his onus in this case and I propose to … enter a verdict for the defendant”. That decision was recorded on the District Court file at the time. On 12 December 1990, the primary judge then published a document entitled “Reasons for Judgment”. It was unclear whether the matter had been listed for judgment at that time, although it was common ground that the outcome of the case did not turn on whether the document was delivered in open court or not.

47. Mahoney JA, with whom Clarke JA although writing separately substantially agreed, took the view that the appeal on the merits should be dismissed but that there had been a procedural error for two reasons. One was that the reasons were not given at the time the order was made. The other was that the reasons that were given, which were reduced to writing, were not given in accordance with Pt 31, r 9 of the District Court Rules. That error was an error of law but not a jurisdictional one. It could be corrected by setting aside the verdict and judgment and returning the matter to the trial judge “with a direction that he should, upon the evidence before him, make such order by way of verdict or judgment as is appropriate and should, when doing so, deliver his reasons for so doing”.

48. In reaching that conclusion, Mahoney JA drew a distinction between “[a] court of unlimited jurisdiction”, such as the Supreme Court, which “may make orders taking effect instanter and may give reasons for the order subsequently” and courts of limited jurisdiction. Palmer was concerned with courts of the latter type. Relevantly, it decided that a District Court judge was obliged by the common law and the District Court Rules to give reasons at the time of pronouncing judgment. Part 31, r 9 was of no assistance, since it was primarily concerned with how written reasons for judgment were to be given, not when they were to be given. However, in his Honour’s view, the decision in Palmer should not be understood as requiring a retrial on each occasion of a procedural error. Rather “the remedy given should … be confined to what is necessary to rectify that error. It is only if the effect of that error cannot be rectified without a new trial of all issues that a new trial should be ordered”. In the present case, the error could be rectified by the order proposed.

49. Sheller JA dissented. In his opinion, Palmer could not be distinguished and therefore a new trial was necessary.

Irlam v Byrnes

50. The issue was considered again by this Court in Irlam v Byrnes (2022) 108 NSWLR 285; [2022] NSWCA 81 (Irlam). Like Palmer and Mulvena, that case concerned an appeal from the District Court. The hearing at first instance took place over five days between 18 and 22 June 2018. The primary judge handed down his judgment on 18 December 2020. After giving brief reasons for his conclusions, his Honour said:

As a consequence of my findings, for reasons that are lengthy and that I will publish by which I do not intend presently to read but which will be sent to you on Monday [21 December], the orders that I make in these proceedings are as follows …

In fact, on 24 December, his Honour’s Associate forwarded an email to the parties attaching a judgment in standard form of 64 pages.

51. Cavanagh J (with whom Simpson AJA and N Adams J agreed in substance) concluded that the issue was governed by UCPR r 36.2. That provision did not require reasons to be delivered simultaneously with the pronouncement of the orders. Some delay was permissible. What that delay was depended on the circumstances of the case: see [2] (Simpson AJA); [21] (N Adams J); [118]ff (Cavanagh J).

52. In reaching that conclusion, Cavanagh J distinguished Palmer on the basis that that was decided by reference to Pt 31, r 9 of the District Court Rules, which was worded slightly differently from UCPR r 36.2 (the Court did not refer to Mulvena). Moreover, it was necessary to interpret UCPR r 36.2 in light of s 56(1) of the Civil Procedure Act 2005 (NSW) (the CPA), which requires the rules to be construed having regard to the overriding purpose of the CPA, which was to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The delay was short. It occurred at the end of term, when it was unlikely that the unsuccessful party would want to take immediate action based on the results. In addition, it was apparent from what the primary judge said on 18 December that the reasons had largely been prepared and the primary judge just needed a short time to finalise them.

Consideration

53. The decision in Palmer is not directly relevant to the facts in this case. In Palmer, the issue was not whether the District Court could deliver written reasons for judgment some time after pronouncing judgment. Rather, the question was whether the court, having delivered some reasons at the time of announcing its decision, could several months later seek to supplement those reasons by delivering additional oral reasons. It is hardly surprising that the Court concluded that it could not. Although it was suggested both in Palmer and Mulvena that that conclusion depended on the particular status of the District Court, that does not appear to have been a critical factor. Ultimately, Kirby P’s conclusions rested on what was said to be the common law requirement to deliver reasons “at, or virtually immediately after, the time of the pronouncement of judgment”. Absent legislation, it is unclear why that requirement would not apply equally to the Supreme Court.

54. On the facts in Palmer, there also appears to be considerable force in the proposition accepted by Priestley JA that, having delivered its decision and some reasons for it, the Court was functus officio. That also explains why it was appropriate in that case to order a retrial. If the Court was functus officio, the additional reasons were not delivered in connection with the proceedings. Consequently, they were irrelevant and had to be ignored. The reasons that were delivered were plainly inadequate. Accordingly, there was no alternative other than to order a retrial. The position, of course would be different where, as in this case, the judge specifically reserved the giving of reasons to a later date.

55. We have some difficulty in accepting, now, the proposition that appears to have been accepted by Kirby P in Palmer that at common law the duty of a court is to deliver oral reasons at or immediately after the time it pronounces judgment, at least in civil cases. As Kirby P pointed out, at one time that duty may have existed as part of the oral tradition of the common law. But that oral tradition has been modified substantially at least in civil cases in the Supreme Court, District Court and Local Court. In most civil cases in those courts evidence in chief is given either by affidavit or witness statements. Judgment is frequently reserved. Normally, although the decision is announced in open court, the reasons for the decision are reduced to writing and are provided to the parties at the time judgment is pronounced. However, particularly in urgent matters it is not uncommon for the court to announce its decision and state that it will provide its reasons later. Often that occurs where a plaintiff seeks interlocutory relief. But it may also happen where urgent final relief is sought. In interlocutory matters and in ancillary matters, such as judgments in relation to questions of costs, it is not unusual for the matter to be dealt with on the papers. It would be surprising if the common law in relation to what was required of a judge when giving reasons had not adapted to these changes in practice.

56. There are suggestions in both Palmer and Mulvena that the ability of a court to deliver reasons after delivering its decision rests on the relevant rules of court (now UCPR r 36.2) or can be explained as a power vested in superior courts of record. However, neither of those explanations is entirely satisfactory.

57. Certainly, some decisions can be explained as applications of UCPR r 36.2 (or its predecessors). The decision in Irlam is an example. However, UCPR r 36.2 cannot provide a complete explanation of current practice. That rule only applies where the court gives judgment “and its reasons for judgment … are reduced to writing”. On its face, the rule contemplates that the reasons are reduced to writing at the time judgment is given. That was the interpretation given to the rule by Campbell J in King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 at [151] and this Court in Ejueyitsi v Western Sydney University [2023] NSWCA 126 at [47]-[50] (Griffiths AJA; Mitchelmore JA and Simpson AJA agreeing). On an ordinary reading of the rule, that interpretation must be correct. The rule applies not only to judgments but to “any order or decision”, an expression that plainly includes interlocutory decisions given in urgent cases. But in many of those, the reasons for the decision will not have been reduced to writing at the time the decision is announced and the relevant orders entered.

58. It is also unclear why special rules apply to superior courts of record in this respect. An important feature of a superior court of record is that any order it makes even if it is outside jurisdiction is valid until it is set aside: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32], [38] and [41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). But in the present context it was accepted both in Palmer and Mulvena that the failure to give reasons at the time judgment was pronounced, or at a time that was otherwise permitted, was not a jurisdictional error. It was an error of law. It has been held that a failure of an inferior court to give adequate reasons is not generally, of itself, jurisdictional error: Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 (Ming) at [25]-[46] (Kirk JA, White and Mitchelmore JJA). Not every judicial decision requires the giving of reasons: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] (French CJ and Kiefel J with Heydon J agreeing at [147]). However, “[t]he centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised”: ibid at [54]. If reasons are required, then the failure of a superior court to give adequate reasons may also be an appellable error, and one of law: see eg. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [23]-[29] (Basten JA, Leeming JA agreeing at [413]).

59. Why, then, the law should impose different obligations on the Supreme Court and District Court in this regard is unclear. Certain specialist tribunals established by legislation may be the subject of specific obligations to give reasons, and the failure to comply with those obligations may amount to a jurisdictional error. Although not concerned with the timing of judgments or the adequacy of reasons, the decision in Ex parte Currie referred to by Kirby P in Palmer is an example of a case where the delivery of judgment by a panel not constituted in accordance with the relevant legislation was a jurisdictional error. However, there is nothing in the District Court Act1973 (NSW) which imposes particular obligations on the District Court in relation to the timing or content of reasons. What those obligations are is left to the common law.

60. If the timing of reasons (where required to be given), like the content of reasons, is a question for the common law, that raises the question what the common law requires in that regard. We do not think that the common law now is as strict as Kirby P suggested in Palmer, since it must accommodate the examples we have given. In our opinion, in general a court should not make final orders without giving reasons (where reasons are required) unless there is sufficient cause to take that course, for example because of urgency. If the giving of reasons is postponed, then the obligation must be an obligation to give reasons as soon as reasonably practicable after judgment is delivered. Whether a court has failed to comply with that obligation will depend on all relevant circumstances, including the nature of the issue to be decided, the length of the delay and the reasons for any delay.

53. Stating the test in those terms is consistent with the decisions we have referred to. It is also consistent with the decision of the Victorian Court of Appeal in Fletcher Construction Australia Ltd v Lines MacFarlane and Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167, where Chernov JA (with whom Charles and Vincent JJA agreed) said (at [32]) that there was “no such rule” that required a judge of a superior court to give reasons contemporaneously with pronouncing judgment. At the same time, a requirement that reasons be given as soon as practicable after judgment is pronounced recognises the importance of the prompt delivery of reasons. As Kirby P said in Palmer (at 173), admittedly in justification of a stricter standard:

This is not a blind adherence to legal history or to technical forms. It is insisted upon out of respect for our tradition of open justice and the public demonstration of its rational basis. It is observed in deference to the rights of unsuccessful parties to consider an appeal. It facilitates the performance by appellate courts of their function, including in the grant of urgent relief. Such a step can be best considered with the benefit of the reasons for the judgment appealed from.

62. There are well-recognised reasons why courts in general are required to give reasons for their decisions. Those include: a hallmark of judicial power is that it resolves disputes in a way that is reasoned; facilitating justice being seen to be done; enabling the parties to understand the basis for the decision so as to consider exercising any rights to appeal; and because formulating reasons is a discipline which promotes better decision-making (see Ming at [26]-[29]). As to the first and second of those points, a significant delay in giving reasons for final orders may undermine the perception that justice has been done. As to the third, the time for filing any appeal will commence running when final orders are made. It will be unfair to the losing party if the time for appeal is diminished or expires before they can make an informed assessment of the prospects of an appeal. As to the fourth, most judges will have experienced cases where they have reached a particular view on a point of fact or law after a hearing but then changed their minds upon further reflection when writing their judgment. The possibility of the judge changing their mind illustrates why final orders in general should not be made until reasons are formulated.

63. Plainly, in this case the primary judge did not deliver the reasons for her decision as soon as practicable. By its nature, the case was one where it might have been expected that the reasons for judgment would be delivered immediately after the judgment was pronounced. That did not happen. The delay was lengthy. The only apparent reason for the delay was that her Honour was under some pressure to deliver a decision and chose to do so well in advance of finalising her written reasons. That is not a satisfactory reason for the delay. Indeed, the course adopted by her Honour made the position worse because the appeal period commenced to run, yet it was not possible for Mr Rock and Ms Rock to formulate grounds for an appeal.

64. The question remains what follows from the primary judge’s error. In answering that question, it is not easy to reconcile the approaches taken in Palmer and Mulvena, although the different decisions can be explained on the basis that in Palmer the effect of the Court’s decision was that the reasons were wholly inadequate whereas in Mulvena they were not only adequate but correct. In any event, we agree with the approach taken in Mulvena that the remedy should be confined to what is necessary to rectify the error. That approach is consistent with the conclusion that the error is not a jurisdictional one. The parties should only be put to the cost and inconvenience of a retrial if that is the only way of rectifying the consequences of the error. In this case, it could not be argued that her Honour was functus officio. It was plain that her Honour intended to deliver reasons and that fact was recorded in the orders that her Honour made on 9 May 2024.

65. In the present case, there is no reason to think that the delay in delivering reasons affected the contents of those reasons. As we will explain, there are some problems with her Honour’s reasons. But there is nothing about those problems that suggests her Honour’s orders might have been different if they had been delivered at the same time as her reasons. Her Honour did ultimately deliver detailed reasons for her decision and any error in the orders made is capable of being corrected by this Court exercising its powers under s 75A of the Supreme Court Act 1970 (NSW). Because of the delay in delivering reasons, Mr Rock was unable initially to formulate grounds of appeal. However, that problem has been overcome by the filing of an amended notice of appeal once the reasons became available. The same is true of Ms Rock. Whilst her summons seeking leave to appeal was filed out of time, that point has not been taken by the respondent. The absence of reasons, and the need for Mr Rock to file an amended notice of appeal, may have caused some delay in the hearing of the appeal. But that delay is not great, and any delay that has occurred could hardly be addressed by ordering a retrial. Neither Mr Rock nor Ms Rock point to any other prejudice suffered as a consequence of the delay. Accordingly, in our opinion, no further orders are required to address the error arising from the primary judge’s delay in delivering reasons.

The tort of malicious prosecution

66. The question whether the tort of malicious prosecution is available in respect of an ADVO is raised by the first paragraph of Ms Henderson’s further amended notice of contention in Mr Rock’s appeal (see above at [32]).

The elements and rationale of the tort

67. The elements of the tort were identified in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 (A v NSW) at [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), referring to E Bullen, SM Leake and J Jacob, Precedents of Pleadings (3rd ed, 1868, Sweet & Maxwell) at 350-356, as follows:

For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause.

(Emphasis added and footnote omitted.)

68. As appears from the highlighted words, the tort typically applies to criminal proceedings. Proceedings under the Act are civil proceedings, not criminal proceedings: Henderson CA at [34] (Brereton JA). In order to determine whether the tort applies to proceedings under the Act, it is necessary to consider the circumstances in which the tort applies to civil proceedings and the rationale for such application as well as the nature of proceedings under the Act. However, before addressing this issue, it is useful to consider the rationale for the tort as it applies to criminal proceedings, they being the paradigm application of the tort.

69. The tort typically applies either to private criminal prosecutions or prosecutions brought by the police or taken over from the police by the Director of Public Prosecutions (DPP). Indeed, the elements of the tort were commonly stated (at least before the decisions of the United Kingdom (UK) Supreme Court and Privy Council referred to below) as if the tort had no application to civil proceedings because its application to civil proceedings was so limited. For example, in RWM Dias (ed), Clerk and Lindsell on Torts (16th ed, 1989, Sweet and Maxwell) at 1042, par 19–05 the authors say:

In an action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the plaintiff.

(Emphasis in bold added.)

70. In Gregory v Portsmouth City Council [2000] 1 AC 419; [2000] UKHL 3 (Gregory), the House of Lords (Lord Steyn, Lords Browne-Wilkinson, Nicholls, Hobhouse and Millett agreeing) identified the rationale for the tort at 426 as follows:

The paradigm is the tort of malicious prosecution of criminal proceedings. A distinctive feature of the tort is that the defendant has abused the coercive powers of the state. The law recognises that an official or private individual, who without justification sets in motion the criminal law against a defendant, is likely to cause serious injury to the victim. It will typically involve suffering for the victim and his family as well as damage to the reputation and credit of the victim. On the other hand, in a democracy, which upholds the rule of law, it is a delicate matter to allow actions to be brought in respect of the regular processes of the law. Law enforcement agencies are heavily dependent on the assistance and co-operation of citizens in the enforcement of the law. The fear is that a widely drawn tort will discourage law enforcement: it may discourage not only malicious persons but honest citizens who would otherwise carry out their civic duties of reporting crime. In the result malevolent individuals must receive protection so that responsible citizens may have it in respect of the hazards of litigation. The tort of malicious prosecution is also defined against the backcloth that there are criminal sanctions, such as perjury, making false statements to the police, and wasting police time, which discourage the mischief under consideration. Moreover, the tort must be seen in the context of overlapping torts, such as defamation and malicious falsehood, which serve to protect interests of personality.

(Emphasis added.)

71. In Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Limited [2014] AC 366; [2013] UKPC 17 (Crawford) (discussed further below), Lord Sumption, who was in the minority, noted, at [145], that there is an important distinction between criminal and civil proceedings. His Lordship described the tort of malicious prosecution as an anomalous tort which is an exception to two principles: “that things done and said in the course of legal proceedings are absolutely immune from civil liability, and the principle that malice does not make an otherwise lawful act tortious”. His Lordship concluded:

These exceptional features of the tort of malicious prosecution are justifiable only because the tort of malicious prosecution is a form of misfeasance in public office. It is a tool for constraining the arbitrary exercise of the powers of public prosecuting authorities or private persons exercising corresponding functions. A malice-based tort makes no sense in the context of private litigation where the plaintiff is not exercising any public function. Nor is there any justification in that context for making a further substantial inroad into the immunity from civil liability for things said and done in the course of legal proceedings.

72. In all public prosecutions, the police or the DPP are the gateway for the laying of charges and the prosecution of the criminal proceedings and have a discretion whether to charge and whether to prosecute. Because of this in-built filter to the commencement of criminal proceedings, a person, even one who deliberately lies to the police about a person who is then charged, is not thereby converted into a “prosecutor”. In actions for damages based on the tort, the defendant is “the prosecutor” and is, therefore, almost invariably the police or the DPP. It is only in exceptional cases where the defendant deliberately supplies the police with false information and the police would not have proceeded without that information that a private person may be found to be a prosecutor: see generally the discussion of authorities in Martin v Watson [1996] AC 74 at 80-87 (Lord Keith, Lords Slynn, Lloyd, Nicholls and Steyn agreeing), which included Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 379 (Dixon J); [1935] HCA 30. This aspect of the tort, together with the significance of the independent discretion exercised by prosecutors, was also considered by this Court in Sahade v Bischoff [2015] NSWCA 418 at [113]-[120] (Gleeson JA, Basten JA and Beech-Jones J agreeing).

73. By contrast, in civil proceedings, the plaintiff in the first proceedings (the alleged “prosecutor” for the purposes of the tort) and the defendant in the second proceedings based on the tort are usually one and the same. In the civil context, there is no public authority acting as a “filter” to the commencement of the first proceedings. Further, at least with private litigants, there is no question of abuse of public power when a plaintiff commences a civil suit. These differences are significant when addressing the authorities and in determining whether the tort applies to civil proceedings generally and, more particularly, to proceedings under the Act.

74. Mr Chrysostomou, who appeared for Mr Rock and Ms Rock in this Court and in the Court below, relied on UK authorities, referred to below, which support a broader view of the civil proceedings to which the tort of malicious prosecution applies than has, to date, been accepted in Australia.

UK Authorities

75. The established position in the UK was that the tort did not apply to civil proceedings, other than certain historical exceptions. This position was confirmed in Gregory.

Gregory v Portsmouth City Council (2000)

76. Gregory concerned baseless disciplinary proceedings brought by the Council against Mr Gregory, a councillor, in which it was alleged that he had misused for personal advantage confidential information gained by him from his position. Once the disciplinary proceedings were dismissed, Mr Gregory claimed damages against the Council. The Council successfully applied for an order striking out the proceedings as disclosing no cause of action. Mr Gregory’s appeals, including finally to the House of Lords, were unsuccessful.

77. Lord Steyn (with whom the other judges agreed) identified, at 427, various civil proceedings to which the tort has been held to apply:

1. malicious presentation of a winding up order or petition in bankruptcy (Johnson v Emerson (1871) LR 6 Ex. 329; Quartz Hill Consolidated Gold Mining Co. v Eyre (1883) 11 QBD 674 (Quartz Hill));

2. procuring the issue of a search warrant (Gibbs v Rea [1998] AC 786);

3. obtaining a bench warrant ex parte (Roy v Prior [1971] AC 470);

4. setting in train execution of property (Clissold v Cratchley [1910] 2 KB 244); and

5. arrest of a ship (The Walter D. Wallet [1893] P 202).

78. His Lordship referred, at 427-428, to the “traditional explanation” for the confined application of the tort to certain civil proceedings as being that, generally, civil proceedings cause no damage since “the fair name of the defendant is protected by the trial and judgment of the court”. His Lordship, at 427, extracted the rationale for the exceptional cases given by Brett MR in Quartz Hill at 684-685 – that the defendant is injured before he can show that the accusation made against him is false – and contrasted it with typical civil proceedings, where the evil done by bringing the action is regarded as having been remedied at the same time as the mischief is published, namely, at trial.

79. His Lordship found, at 432-433, that the tort had not been held to extend to disciplinary proceedings and that it ought not be extended so as to apply to such proceedings because related torts were sufficient to protect a defendant to any such claim.

80. The refusal by the House of Lords to extend the tort to civil proceedings which did not fall within the limited list of exceptions has been superseded in the UK by Crawford and Willers v Joyce [2018] AC 779; [2016] UKSC 43 (Willers), which are considered below.

Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Limited (2014)

81. In Crawford, there was a hurricane in the Cayman Islands which caused substantial damage. Mr Paterson was engaged by insurers and owners of property as a loss adjuster. Acting on Mr Paterson’s advice, the insurers made substantial payments to contractors who carried out remedial work. Shortly before Mr Paterson finalised his loss adjustment, the insurer engaged Mr Delessio as senior vice-president. Mr Delessio, who disliked Mr Paterson and regarded him as incompetent, caused the insurers and owners to sue Mr Paterson for damages, including for deceit and fraud. He also alerted the local press to the allegations made, which were published and led to substantial harm to Mr Paterson’s reputation. Days before the trial was due to commence, the insurers and owners discontinued their proceedings. The judge ordered the plaintiffs to pay Mr Paterson’s costs on an indemnity basis and allowed him to amend his cross-claim to add a claim against the insurers for damages for abuse of process and for the tort of malicious prosecution.

82. The trial judge in Crawford, Henderson J, found the elements of the tort (of malicious prosecution) were made out but found, relying on Gregory, that the law did not permit the tort to apply to civil proceedings such as those brought against Mr Paterson and, accordingly, dismissed his claim. Counsel for Mr Paterson in the Cayman Islands Court of Appeal formally maintained (for the purposes of an appeal to the Privy Council) that the tort extended to the claim against Mr Paterson but accepted that Gregory required the Court to dismiss the appeal on that ground: Crawford at [34]-[35] (Lord Wilson).

83. The Privy Council by majority (Baroness Hale, Lords Wilson and Kerr, Lords Neuberger and Sumption dissenting) allowed the appeal. At [78], Lord Wilson, after reviewing the cases commencing with Savile v Roberts (1698) 91 ER 1147, concluded that the tort had originally applied both to civil and criminal proceedings but that it had become confined to criminal proceedings and selected civil proceedings after costs orders became available to successful defendants in civil proceedings. His Lordship considered that the rationale for the limitation on the types of civil proceedings to which the tort would apply, which was articulated in Quartz Hill was no longer applicable.

84. Lord Wilson also considered two postulated rationales for the tort: first, the need to provide a remedy for a successful defendant who was unable (by reason of absolute privilege) to sue a claimant for defamation in respect of allegations made maliciously in legal proceedings; and second, the need to provide a remedy when the defendant to the tort proceedings had abused the coercive powers of the state. His Lordship considered that, in this context, there was no reason in principle to distinguish between criminal and civil proceedings and considered that if no cause of action or remedy other than a claim for damages for malicious prosecution had been available in Gregory, the tort would have been available in that case, since it was only the availability of other remedies which led the House of Lords to conclude that the tort of malicious prosecution was not available in that case.

85. Lord Wilson concluded that the policy arguments against the applicability of the tort in civil cases (including potential deterrence to litigants from bringing meritorious cases and the “floodgates” argument) were not sufficiently strong to override the principle that wrongs should be remedied. His Lordship emphasised the stringency of the elements of a cause of action in malicious prosecution. His Lordship also concluded that the insurers were not guilty of the tort of abuse of process because they had not sued Mr Paterson to secure an ulterior object and that Mr Paterson would be without a remedy if the tort of malicious prosecution was not found to apply to him.

172. The onus was on Mr Rock to prove that those statements were deliberately false. The evidence fell far short of that.

173. The points made in (1) and (2) are consistent with findings made by the primary judge. There was ample evidence to support them, and they do not appear to be seriously contested.

174. Her Honour referred to the matters in (3), although she did not make specific findings about whether they were true or not.

175. According to Ms Henderson’s statement to Constable Pitt, the first occasion Mr Rock came to her place of work was around early July 2018. She said that Mr Rock sent her a text or voicemail message saying that he was coming to her place of work. She says that on that occasion she met him downstairs and that they spoke for about an hour. During that time, Mr Rock asked if they were getting a divorce and said that they did not need to. Ms Henderson also says that she told Mr Rock on that occasion (and subsequent ones) not to come to her work and that his presence there was not wanted. It appears that in giving that evidence Ms Henderson was referring to an occasion on which Mr Rock came to her place of work on 16 July 2018. Mr Rock gave evidence that that meeting had been arranged by Ms Henderson. He does not deny her account of what occurred at the meeting, although he says “after she finished work, she came over to my home and we had sex”.

176. The following appears to be the relevant exchange of text messages by which the meeting was arranged:

Mr Rock:                      I’ll come to St. Leonard’s and meet you in one of the cafes. Let me know what time suits.

Ms Henderson:            Well I’m here.. at my job…

Mr Rock:                      OK, what time? It’s 12 now

at 2.00 pm) I’m on my way to St. Leonard’s. I’ll be there at 2.30pm. Please let me know where you would  like to meet

Ms Henderson:            Are u here

Mr Rock:                      Yep

Ms Henderson   :         Like at my work?

Or at the station

Well let me know

Mr Rock:                      At the station. Where do you want to meet?

Ms Henderson:            I’m at work and can grab my things and leave for a bit.

…

184. It seems plain from this exchange that, contrary to the evidence given by Mr Rock, the meeting had not been arranged in advance and that Ms Henderson was caught by surprise at Mr Rock’s suggestion that he would come to her place of work. There is no reason to think that any other aspect of Ms Henderson’s statement to the police about this meeting was untrue, let alone deliberately untrue.

185. According to Ms Henderson’s statement, the second occasion that Mr Rock came to her place of work was in early September 2018. It was at that meeting that, according to Ms Henderson, Mr Rock threatened to “unleash a Rottweiler of a lawyer on you”. According to Ms Henderson’s statement, the third meeting occurred on 12 or 13 September, at which time she received an internal message from other staff saying that Mr Rock was in the foyer. Mr Rock said nothing about either of those meetings in his witness statement. Rather, Mr Rock’s case was that he and Ms Henderson during that time had had many other cordial interactions. But that falls far short of establishing that what Ms Henderson told Constable Pitt about the occasions Mr Rock attended her place of work was untrue, let alone deliberately untrue.

186. In relation to point (4), it is apparent from what occurred and from para 17 of her statement that what triggered Ms Henderson’s statement to the police was the incident at the airport. As the primary judge found, Ms Henderson’s account of that incident in her statement to Constable Pitt was substantially correct. It was supported by Mr Weston. Mr Rock gave a different account. His evidence was that he went to the airport as a “surprise romantic gesture”, intending to accompany Ms Henderson on her weekend away, only to discover her with another man. However, the primary judge correctly rejected that evidence. It was inconsistent with the fact that Mr Rock went to the airport without a ticket and apparently without any luggage. It was also inconsistent with the fact that he had made no arrangements for the care of their children in his absence. Far from being deliberately false, an important if not critical aspect of Ms Henderson’s statement to the police was true.

187. In relation to point (5), again the primary judge did not make a specific finding in relation to the question whether Ms Henderson told the police deliberate falsehoods about her fears. However, the evidence does not support such a finding. The uncontradicted evidence from both Ms Henderson and Mr Weston was that Ms Henderson was very shaken by the encounter at the airport. She refused to fly back to Sydney with Mr Weston and instead was admitted to the psychiatric ward of Launceston Hospital. As soon as she got back to Sydney, she went to the police. All that suggests that at the time she genuinely feared Mr Rock.

188. It was part of Mr Rock’s case before the primary judge that Ms Henderson committed the tort of malicious prosecution by proceeding with the application for a final ADVO and, in particular, by failing to tell the police of the many consensual encounters she had had with Mr Rock before she went to the police station and of the pleaded encounters after the interim ADVO was issued. The primary judge did not specifically deal with that case. For the reasons already given, there is no substance in it. The question was not whether Ms Henderson and Mr Rock had cordial relations on some occasions. The question was whether Mr Rock had engaged in conduct that satisfied the requirements of the Act. The fact that there were other aspects of the relationship between Ms Henderson and Mr Rock that did not was not to the point. Consequently, it was not misleading of Ms Henderson not to tell the police of those matters.

189. The conclusions of the previous paragraph are reinforced by what happened and the way in which the provisions relating to ADVOs work. Following the making of a provisional ADVO by the police, the matter came before the Local Court. At that time, as noted above, Mr Rock consented to an interim ADVO, which replaced the provisional ADVO. It is difficult to see how Mr Rock could maintain that that ADVO was procured by deliberately false statements made by Ms Henderson, since he consented to it. The matter was then listed for a final hearing. The question whether the Court should make a final ADVO depended on the evidence available to the Court at that time. One of the reasons the magistrate declined to make a final ADVO was that there had been no further incidents that might justify an order since the incident at the airport. But none of that explains why at some stage between the making of the interim order by consent and the final hearing, Ms Henderson was obliged to tell the police of matters that might undermine the case at a final hearing.

Trespass

190. The primary judge appears to have made inconsistent findings in relation to the allegation that Ms Henderson committed the tort of trespass when she entered Mr Rock’s property on the evening of 16 July 2019. At J[157] her Honour, after setting out in detail the evidence given by Mr Rock and Ms Henderson in cross-examination, concludes “I am not satisfied to the requisite standard that the claim of trespass [has] been met”. However, later in her judgment (at J[314]) she says “I find that a trespass occurred but I am not satisfied that Mr [Rock] suffered any loss and I so find” (emphasis in original). It may be that the former finding was intended to be a finding to the same effect as the latter. In any event, her Honour found that Mr Rock was not entitled to recover any damages as a consequence of the trespass and therefore dismissed the claim.

191. Ms Henderson, by her further amended notice of contention, challenges the primary judge’s finding at J[314] that she committed a trespass on the basis that she had an implied licence to enter the premises to retrieve her mail. That contention must be rejected. Whether an implied licence to enter land exists is essentially a question of fact: Halliday v Nevill (1984) 155 CLR 1 at 6-7 (Gibbs CJ, Mason, Wilson and Deane JJ); [1984] HCA 80. In the present case, the existence of any implied licence was negated by the circumstances in which Ms Henderson left the family home, the text message she said she received while in the Launceston Hospital telling her to remove her belongings from the property and the ADVO that had been taken out against her.

192. Having correctly found that Ms Henderson committed a trespass, it was not open to the primary judge to dismiss the claim. If the position was that Mr Rock had failed to establish that he had suffered any damage, the appropriate order was a judgment for nominal damages: Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325; [2020] NSWCA 274 at [73] (Bell CJ, Gleeson and Payne JJA).

193. At trial, Mr Rock had claimed between $15,000 and $20,000 general damages, between $2,500 and $5,000 aggravated damages and between $5,000 and $10,000 exemplary damages. As Windeyer J explained in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149; [1966] HCA 40, in a passage which was referred to with approval by Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission (1998) 196 CLR 1, [1998] HCA 70 at [6]:

aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment – moral retribution or deterrence.

194. The primary judge rejected each head of damage claimed by Mr Rock.

195. The claim for damages rested on two factual matters. First, Mr Rock claimed that Ms Henderson had damaged his house and, in particular, had broken one of the windows. Second, Mr Rock claimed that he suffered from post-traumatic stress disorder (PTSD) as a consequence of the encounter with his wife. In support of that claim, he gave evidence that when he saw his wife at the house she was carrying a bag and that he “immediately thought that she may have been concealing a weapon” in it. He said that he started to panic.

196. In support of his claim that he suffered from PTSD following the incident, Mr Rock served reports from a psychiatrist, Dr Joey Le. Dr Le concluded in his report that, on the assumptions given to him, Mr Rock did suffer from PTSD. The primary judge did not deal with Dr Le’s reports in the context of Mr Rock’s trespass claim. She did deal with them in the context of Ms Rock’s assault claim. However, it was apparent that little weight could be placed on Dr Le’s opinion that Mr Rock suffered from PTSD in the context of the trespass claim. That is because the opinion was not confined to the events that occurred on 16 July 2019 and depended on an account of those events that the primary judge did not accept. That is apparent from the following conclusion expressed by Dr Le:

The primary contributing factors to Mr Rock’s PTSD are the repeated experiences of trauma that have resulting [sic] in a profound fear of death or serious injury to himself or his children. Mr Rock clearly described a profound fear of serious injury arising from his ex-wife’s attempt to break into their residence in 2019, which in addition to multiple instances of being harassed, has resulted in a significant trauma response …

197. The factual findings that the primary judge did make on this aspect of the case must be understood in the context of the way the case was put. Her Honour rejected Mr Rock’s account of what occurred on 16 July 2019. In doing so, her Honour said:

[310]    The vague descriptions of the ‘damage’ to the house are not credible and not proven. I prefer Ms [Henderson’s] version of events of that night both as to the damage to the house and as to her conduct. Mr [Rock’s] evidence – in court and in the psychiatric notes – that he feared she had a weapon is totally without foundation and implausible. Moreover, it is entirely inconsistent with the fact that he videoed the encounter; a video which supports Ms [Henderson’s] version of events.

Ms Henderson had denied that she caused any damage to the house and gave evidence that one window that was cracked had been in that state for several months.

198. There was no error in the primary judge’s findings on this aspect of the case. There was no evidence that Ms Henderson had caused any damage to the house. Mr Rock did not give evidence that he saw her cause any damage. His evidence that she did was speculation on his part. The primary judge was right to conclude that Mr Rock’s evidence that he feared his wife was carrying a weapon was without foundation and implausible. There was no evidence that supported it.

199. The claim for aggravated and exemplary damages also needed to be considered in context. That context was of an acrimonious and long-running domestic dispute in which each party had on occasions behaved badly and accused one another of bad behaviour.

200. Taking those matters into account, there was no error in the primary judge’s conclusion that Mr Rock had suffered no actual loss as a consequence of the trespass and was not entitled to recover aggravated or exemplary damages. In those circumstances, the appropriate order was to give judgment for nominal damages.

Ms Rock’s application for leave to appeal

201. Ms Rock applies for leave to appeal against the judgment entered in favour of Ms Henderson on Ms Rock’s claim for damages for assault and battery. It was common ground that leave to appeal was required under s 127(2)(c) of the District Court Act 1973 (NSW) as the amount in issue did not amount to $100,000 or more. An applicant for leave to appeal must in general establish that there is an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable: see the authorities referred to in PPK Willoughby Pty Limited v Baird [2019] NSWCA 48 at [6] (Bell P and Simpson AJA).

202. As noted above, grounds 1 and 2 of the proposed grounds of appeal replicate Mr Rock’s grounds of appeal relating to the delay in giving reasons. Those grounds have been addressed above. They raise an issue of principle and Ms Rock should have leave to appeal on those grounds, even though they are not made out. The remaining proposed grounds concern liability (grounds 3 to 6) and damages (grounds 7 to 10). For the reasons which follow Ms Rock has failed to establish any basis for a grant of leave with respect to those grounds which will, accordingly, be refused.

203. There is a significant obstruction to a grant of leave: the amount in issue is not only below the statutory threshold but it is significantly below it. Even if the allegations of battery and assault had been made out, the damages would have been unlikely to be more than nominal since the force used, even on Ms Rock’s evidence, was not such as to inflict other than very minor injuries of transient effect. The small amount in issue militates against a grant of leave, having regard to the evident legislative intention in requiring leave to appeal in cases where the amount at issue is less than $100,000: see the discussion in Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [14]-[21] (Bell CJ, Ward P and Basten AJA agreeing).

204. The grounds in question principally turn on findings of fact based on assessment of credibility of witnesses. It would appear that Ms Rock’s sole basis for seeking leave in respect of the remaining grounds are that there is a reasonably clear injustice.

205. In her statement of claim, Ms Rock alleged that Ms Henderson had committed the tort of battery against her on several occasions when she was about 12 years old. Ms Rock gave evidence of the incidents (the dates of which broadly corresponded with the pleaded allegations). The evidence, and the primary judge’s conclusion on each, can be summarised as follows:

Date	Ms Henderson’s evidence of Conduct	Precipitant	Primary judge’s finding
1	August 2017	Ms Henderson grabbed Ms Rock’s left arm at Moore Park SupaCenta: [160].	Ms Rock complained in a queue about not being served, which led Ms Henderson to call her a “brat”, take her arm and lead her out of the shop [167]-[170].	Not satisfied to the requisite standard that the conduct was tortious because even though the conduct occurred it amounted to reasonable chastisement of a child: [163]-[173].
2	October 2017	Ms Henderson punched Ms Rock on the arm: [174].	Ms Rock caught Ms Henderson drinking whisky in Leura and threatened to tell her grandparents: [174].	Did not accept that the incident had occurred as inconsistent with the pleading, not corroborated: [174]-[181].
3	March 2018	Ms Henderson hit Ms Rock’s right arm: [183].	Ms Rock asked about a man in Ms Henderson’s room: [182]-[183].	Not satisfied that the event occurred as brother (the source of the information) not called, no corroboration and not put to Ms Henderson in cross-examination: [182]-[189].
4	May 2018	Ms Henderson punched Ms Rock’s upper arm: [191].	Ms Rock asked if Ms Henderson was really getting back with “Darren” (Mr Rock) at Waverley.	The incident did not occur (not put to Ms Henderson in cross-examination and no complaint made to anyone): [190]-[192].
5	July 2018	Ms Henderson punched either Ms Rock’s arm, thigh or hamstring: [193].	Nil, occurred when Ms Rock woke her mother up from a nap at Waverley: [193].	Not satisfied that it occurred or, if it occurred, that it was tortious as inconsistencies as to where she was punched and no complaints were made: [193]-[198].
6	August 2018	Ms Henderson hit Ms Rock’s leg with force: [199].	Ms Henderson was trying to sew Ms Rock’s hem and Ms Rock refused to co-operate: [199].	Not satisfied that the event occurred; inconsistencies in Ms Rock’s evidence; no evidence of contemporaneous complaint; incident not put to Ms Henderson: [199]-[204].

206. In addition, Ms Rock alleged assault (constituted by an apprehension of unlawful physical contact by Ms Henderson) on 16 July 2019 when Ms Henderson visited the premises where Mr Rock and Ms Rock were living (see J[158]). Her evidence was that Ms Henderson had approached her outside those premises and had remained parked outside for about 10 minutes.

207. The primary judge recited the evidence given by Ms Rock and Ms Henderson about what occurred on 16 July 2019. Her Honour’s ultimate finding, in which she implicitly rejected the claim of assault, was as follows:

[284]    Ms [Rock] took every opportunity to denigrate and belittle her mother. I formed the view that her evidence was as vitriolic as it was implausible. Her purported concern on the evening of 16 July 2019 that she feared that there was a weapon or knife of some sort in the bag her mother was carrying, on the basis that she had possessed a craft bag of similar appearance a year earlier, was wholly unfounded and vicious. [Ms Rock] was either in the hire car, or shielded behind it. The court watched the video taken by Mr [Rock]. Ms [Henderson] did not appear inebriated as alleged, nor did she approach either himself or the children. She walked to her car and drove off, whereupon the children went into the house.

208. In addition to specific findings in respect of each of these alleged incidents (J[158]-J[204]), her Honour gave detailed reasons as to why she preferred the evidence of Ms Henderson to that of Ms Rock with respect to them, including that there were several inconsistencies between various versions given by Ms Rock at different times, including in the handwritten notes prepared by Ms Rock in October 2018 at Mr Rock’s request, what she told police in the course of her electronically recorded police interview on 2 November 2018, the allegations in the statement of claim and her evidence (J[205]-J[266]).

208. Mr Chrysostomou accepted that it was open to the primary judge in making credit findings to take into account Ms Rock’s lack of contemporaneous or proximate complaint, the lack of corroboration of injury (in the form of photographs or otherwise) and significant inconsistencies in Ms Rock’s versions. However, he submitted that the primary judge was in error in taking into account, contrary to the fact, that some of the incidents had not been put to Ms Henderson in cross-examination. He also identified various other errors in her Honour’s judgment relating to what the evidence amounted to. None of these indicates that the primary judge was relying exclusively on her memory of the evidence, since her Honour included extensive extracts from the transcript in her reasons.

209. Mr Chrysostomou further submitted that the primary judge did not take into account, in making findings about the alleged assault on 16 July 2019, that Ms Rock was “cowering behind the car”, was 12 years old and that there was an AVO in place.

210. In addition, Mr Chrysostomou argued in respect of the first incident that the primary judge was wrong to consider the availability of the defence of “lawful correction” pursuant to s 61AA of the Crimes Act 1900 (NSW) which is available as a defence to criminal proceedings in respect of the use of force against a child. In circumstances where Ms Henderson raised Gersbach v Gersbach [2018] NSWSC 1685 in which Garling J (at [309]-[312] and [326]) found that the defence of lawful correction was available as a defence to intentional torts where physical force was used against a child as well as the crime of assault, this “error” is not one of substance.

211. While Mr Chrysostomou has identified various errors in the primary judge’s reasons (such as whether something was put to Ms Henderson in cross-examination), none of the errors identified would appear to be material, much less give rise to a question of principle, issue of public importance or reasonably clear injustice. Further, there would be no utility in granting leave in circumstances where the analysis of the primary judge, though flawed in minor respects, pays sufficient regard to the gravamen of the evidence of Ms Rock and Ms Henderson. Ms Rock’s claims depended on her evidence being accepted, which it was not.

212. Mr Chrysostomou also challenged the primary judge’s failure to assess damages and submitted that her Honour ought to have assessed damages on the basis that the alleged batteries and assault had been made out. It is generally advisable for judges at first instance who find against a plaintiff on liability to assess damages on a contingent basis so that, if the finding of liability is overturned on appeal, the matter need not be remitted: Wolfenden v International Theme Park Pty Ltd (Trading as Wonderland) [2008] NSWCA 78 at [3] and [6] (Giles JA, Hodgson JA agreeing at [53]). However, this is not an invariable rule. Where the version given by a plaintiff is not accepted because of concerns about the plaintiff’s credibility, it may be difficult or impossible for a judge at first instance to identify the facts on which the contingent assessment ought be made. No reasonably clear injustice has been demonstrated.

213. For these reasons, leave to appeal with respect to proposed grounds 3 to 10 ought be refused.

Conclusion and orders

215. It follows from what has been said that Mr Rock’s appeal must be allowed but only in relation to the claim for trespass and only to the extent that Mr Rock is entitled to recover nominal damages. As a result, Ms Henderson has been substantially successful. There is in those circumstances no reason to disturb the costs order made by the primary judge. Similarly, there is no reason why Mr Rock should not pay Ms Henderson’s costs of the appeal. Nor is there any reason why Ms Rock should not be ordered to pay costs.

216. In both matters the primary judge made an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) that the names of the parties “be suppressed and replaced with pseudonyms in any published decision of the Court”. Suppression, non-publication and pseudonym orders are an exception to the fundamental principle of open justice. They should not be made or maintained without proper cause. If made at all the statutory requirements must be complied with. The orders did not comply with the requirements of that Act in so far as they did not identify their duration (cf s 12). Her Honour suggested at J[3] that the plaintiffs had sought such an order. However, in this Court that was said to be incorrect and neither party sought to support the orders nor asked that this Court make equivalent orders. The orders in question made below should be set aside. They are not consistent with the parties’ names being identified in this Court, and to leave them in place could lead to confusion and potentially further disputation.

217. The orders of the Court in Mr Rock’s appeal (matter 2024/223996) are:

1. Allow the appeal in part.

2. Set aside order 1 of the orders made by Olsson SC DCJ on 9 May 2024 and in its place order that there be judgment for the plaintiff in the sum of $100.

3. Set aside order 5 of the orders made by Olsson SC DCJ on 9 May 2024 under the Court Suppression and Non-publication Orders Act 2010 (NSW).

4. Appellant to pay the respondent’s costs of the appeal.

218. In Ms Rock’s application for leave to appeal (matter 2024/223980) the Court’s orders are:

1. Set aside order 5 of the orders made by Olsson SC DCJ on 9 May 2024 under the Court Suppression and Non-publication Orders Act 2010 (NSW).

2. Grant leave to appeal on grounds 1 and 2 identified in the draft notice of appeal, dismiss the appeal on those grounds, and otherwise refuse leave to appeal.

3. Applicant to file a notice of appeal raising grounds 1 and 2 only within seven days.

4. Applicant to pay the respondent’s costs of the application and the appeal.

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Decision last updated: 28 March 2025