Rock v Henderson; Rock v Henderson (No 2)

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.

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.

These reasons are structured as follows:

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: Rock v Henderson (District Court (NSW), Olsson SC DCJ, 9 May 2024, unrep) at [112].

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.

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.

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”.

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:

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.

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.

In accordance with s 27 of the Crimes (Domestic and Personal Violence) Act 2007 (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.

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.

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.

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.

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):

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:

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.

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.

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).

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

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 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.

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:

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

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:

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:

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

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

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

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:

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

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:

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.

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

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).

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.

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):

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:

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 2005 (NSW) (UCPR) r 36.2, which provides:

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, R v Casey; Ex parte Lodge (1887) 13 VLR 37 and Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443; 91 WN (NSW) 34; [1970] 1 NSWR 617.

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 1891 (Qld) 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):

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

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 SR (NSW) 447, WN (NSW) 38, NSWR 620):

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 appellants 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.

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.

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 has 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.

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”.

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: at 11. 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”: at 18. In the present case, the error could be rectified by the order proposed.

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

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:

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).

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) (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.

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.

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.

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.

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.

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 the 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.

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 agreeing). 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) 243 LGERA 102; [2020] NSWCA 165 at [23]-[29].

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 Act 1973 (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.

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.

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:

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.

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.

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.

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 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 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 and SM Leake, Precedents of Pleadings (3rd ed, 1868, Stevens and Sons) at 350-356, as follows:

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.

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 Gregory v Portsmouth City Council [2000] 1 AC 419 (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:

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:

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).

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.

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.

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 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.

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

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.

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.

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.

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.

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).

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) 1 Ld Raym 374; 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.

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.

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.

Baroness Hale agreed with Lord Wilson and concluded:

Lord Kerr said, at [94], that “the pre-eminent principle at stake here is that for every injustice there should be remedy at law”. His Lordship observed that Mr Paterson had suffered an injustice for which the law had not provided a remedy ([95]) and concluded:

In his minority judgment in Crawford, Lord Sumption (with whom Lord Neuberger agreed) at [121] identified the genesis of the tort as the need “to deal with the problem of abusive private prosecutions, which was then a serious social evil but has now almost entirely vanished as a result of the creation of public prosecuting authorities”.

Lord Sumption summarised the state of the law with respect to the tort:

His Lordship also warned of the consequences of extending the ambit of the tort and said:

Lord Neuberger surveyed United States authorities on the tort and referred to the so-called “American rule”, which his Lordship said, at [173], was summarised in Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts (2nd ed, 2011, Thomson West), vol 3, at 408 as follows:

His Lordship noted, at [174], that the so-called “English rule” reflected the American rule but contained an additional requirement of “special injury” (by causing the injured party to be arrested or deprived of the possession of his land or chattels) which requires “something more than the expense, distress, and reputational loss that is ordinarily suffered as a result of wrongful litigation” and “must result directly from the suit itself or the court’s pre-judgment orders”.

Lord Neuberger also made reference to Australian decisions in the following terms:

In Willers, the UK Supreme Court addressed the difference in approach between Gregory and Crawford. Mr Willers had been the right-hand man of Mr Gubay, a successful businessman who controlled Langstone Leisure Ltd (Langstone), of which Mr Willers was a director. Langstone maintained a claim for wrongful trading against the directors of another company, Aqua Design and Play Ltd (Aqua), which had gone into liquidation. The claim was abandoned on Mr Gubay’s instructions. Subsequently, Langstone sued Mr Willers for alleged breach of contract and breach of fiduciary duty in causing it to incur costs in pursuing the directors of Aqua. Mr Willers defended the claim and (by a third party claim) sought indemnity against Mr Gubay who had directed him to bring the proceedings against Aqua’s directors. Langstone discontinued the claim two weeks before the hearing. An order for costs was made in favour of Mr Willers.

Mr Willers sued Mr Gubay for damages for malicious prosecution. Upon his death, his executors were substituted as parties. His proceedings were struck out at first instance on the basis that the claim was not known to the law. As the matter concerned conflicting decisions of the House of Lords (Gregory) and the Privy Council (Crawford), the Supreme Court gave permission for the appeal to come directly to it.

The Supreme Court by majority (Lord Toulson, Baroness Hale, Lords Kerr and Wilson agreeing and Lord Clarke also agreeing but writing separately, Lords Neuberger, Mance, Sumption and Reed dissenting) allowed the appeal as they considered that Mr Willers’ claim ought be permitted to go forward.

Lord Toulson identified countervailing arguments in support of the decision at first instance (and not extending the tort to civil proceedings generally):

After identifying and addressing these “countervailing factors”, Lord Toulson concluded:

The approach of the minority in Willers accorded with Gregory and the minority approach in Crawford.

The result in each case addressed above would appear to have been arrived at as a consequence of competing policy considerations, rather than precedent, although there is a detailed consideration of the earlier cases which appeared to delineate the limits of the civil cases to which the tort will apply. The cases considered above illustrate that there are two main approaches to the question whether the tort ought apply beyond the limited categories of civil proceedings established by authority and listed in Gregory.

The majority approach (the broad approach) in the UK, following Willers, is that, for every wrong there ought be a remedy and if there is no other remedy for civil proceedings brought maliciously, the tort will lie. The minority approach (the narrow approach), following Gregory, is that the justification for the limited application of the tort to civil proceedings within well-defined categories does not extend to civil litigation outside those categories and that any such extension would do more harm than good, including that it would have a tendency to deter litigants from pursuing their rights in litigation and foster potential abuse by vindictive litigants, thereby prolonging disputes, promoting satellite litigation and compromising the principle of finality.

There is a dearth of authority in Australia on the extent to which the tort applies to civil proceedings. The High Court in A v NSW, in the passage extracted above, considered that the tort applied generally to criminal proceedings but accepted, consistently with authority, that it also applies, exceptionally, to some civil proceedings.

While matters of law, even those which require complex legal argument, can be determined on an application for summary dismissal or an appeal against such an order (as occurred in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69; see also Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241; [1997] HCA 8), the question whether the tort applies to civil proceedings beyond the limited categories such as bankruptcy, winding up and arrest of a ship has not been finally determined, except in Queensland, where it has consistently been held that the tort is not available with respect to civil proceedings: Butler v Simmonds Crowley and Galvin (2000) 2 Qd R 252; [1999] QCA 475 at [19]; The Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307; [2005] QCA 475 at [14]; IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407 at [40].

In other States, including New South Wales (NSW), the question has been considered but not decided in the following contexts:

In the present case, the question arises squarely for our consideration. Although it was not expressly pleaded in the defence, it was plainly an issue at trial and was the basis for Ms Henderson’s application for summary dismissal of the claim founded on the tort. Mr White SC, who appeared for Ms Henderson in this Court and in the Court below, made detailed oral and written submissions in the Court below that the tort did not apply to proceedings under the Act, which were further developed in this Court in support of the further amended notice of contention. As has been noted above, the primary judge did not adjudicate on this issue but simply assumed that the tort did apply (at J[296]-J[297]).

The Act replaced Pt 15A of the Crimes Act 1900 (NSW). The Agreement in Principle Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 16 November 2007 at 4327—4328) said in part:

The Act distinguishes between ADVOs and apprehended personal violence orders (APVOs) (referred to collectively as AVOs). Applications for ADVOs may only be sought where the person in need of protection has or has had a “domestic relationship” with the defendant, as relevantly defined in s 5. Otherwise, an APVO is the appropriate order. As the present case concerns an ADVO, the provisions relating to such orders will be addressed. The Act contemplates that AVOs can be made where an application is made in accordance with the Act or as a consequence of a person being charged with certain nominated offences.

Section 9 provides in part that the objects in relation to domestic violence are “to ensure the safety and protection of all persons, including children, who experience or witness domestic violence”: s 9(1)(a). Section 9(2) provides:

Section 9(3) provides in part:

Section 9(4) requires a “court that, or person who, exercises any power conferred by or under this Act in relation to domestic violence [to be] guided in the exercise of that power by the objects referred to in this section”.

A person who knowingly contravenes a prohibition or restriction specified in an AVO made against the person is guilty of an offence: s 14(1). The offence carries a maximum penalty of 2 years imprisonment or 50 penalty units, or both.

Section 16(1) provides:

Section 7 extensively defines “intimidation” and includes “an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety”: s 7(1)(b). Section 8 relevantly defines “stalking” as including following a person: s 8(1)(a). Thus, an AVO may be made in circumstances where the conduct which the person in need of protection fears does not amount to a criminal offence.

In deciding whether to make an ADVO, the court must consider the safety and protection of the protected person and is to consider any hardship caused by making or not making the order, particularly to the protected person: ss 17(1) and (2)(b). When making an ADVO, the court is to ensure that the order only imposes those prohibitions and restrictions on the defendant as in the opinion of the court are necessary for the safety and protection of the protected person: s 17(3). If the application seeks an order that prohibits or restricts the defendant’s access to any premises or place and the court does not impose such restrictions, the court is to give reasons for that decision: s 17(4).

Part 6 of the Act provides for interim ADVOs, which may be made whether or not the defendant is present or has been given notice of the proceedings: s 22(3). Such orders may be made if it appears that it is necessary or appropriate to do so in the circumstances: s 22(1). No doubt account would be taken of the grounds on which a final AVO could be made under s 16. That being so, an interim AVO might be made in circumstances where the feared conduct did not amount to a criminal offence. If an interim order is made, the court is to require the defendant to appear at a further hearing of the matter by the court “as soon as practicable” and may, at such further hearing, make a final order in the same terms, vary the terms or revoke the order, whether or not the defendant appears: s 22(5). While an interim court order is in force, it has the same effect as a final AVO: s 22(6). Under s 23(1), a Registrar may make interim AVOs by consent of the parties. Such an order is taken to have been made by the court: s 23(4).

An interim order remains in force until it is revoked, ceases to have effect because a final order is made or if the application for a final order is withdrawn or dismissed: s 24(1).

Part 7 of the Act also deals with provisional orders (orders for which an application is made by telephone, facsimile or other communications device). Only police officers (applicant officers) may apply for such orders and such applications are made to an “authorised officer”, either at the request of the protected person or on the applicant officer’s initiative: s 25.

Section 26(1) provides that such an application may be made if (a) an incident occurs involving the person against whom the provisional order is sought and the person who would be protected by the order; and (b) a police officer has good reason to believe that such an order needs to be made immediately to ensure the safety and protection of the person who would be protected by such an order or to prevent substantial damage to any property of that person. Such an application may be made at any time, whether or not the court (relevantly, the Local Court: s 3(1)) is sitting: s 26(2).

Section 27(1) imposes an obligation on a police officer to apply for a provisional order in certain circumstances, including if the officer “suspects or believes that” a domestic violence offence is likely to be committed against the person for whose protection such an order would be made and the police officer has good reason to believe that such an order needs to be made immediately to ensure the safety and protection of the person. This obligation is qualified by s 27(4) which relieves the police officer of the obligation if he or she believes that the person for whose protection the order would be made intends to make an application or for other good reason.

An authorised officer may, on application, make a provisional order “if satisfied that there are reasonable grounds for doing so”: s 28(1). The grounds are not spelt out but may be taken to refer to those identified in s 26(1). As for final and interim orders, those grounds are not limited to where the commission of a criminal offence is feared. Pursuant to s 3(1), the term “authorised officer” has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which defines “authorised officer” as meaning a magistrate, a registrar of the Local Court or an employee of the Attorney General’s Department so authorised. In addition, a senior police officer (who is not the applicant officer) may make a provisional order: s 28A.

A provisional order is taken to be an application by the applicant officer under Pt 10 of the Act: s 29(1). That Part deals with applications to a court for an AVO. A provisional order must be recorded in a form, which includes the name of the issuing officer, the date and time of its making and the date of the hearing of the application: s 30. It must be served personally on the defendant by a police officer as soon as practicable: s 31.

On the first return date, if a provisional order is in force, the court may dismiss the application taken to have been made under Pt 10, revoke the order or vary it (in which case it becomes either an interim order or a final order, which has the effect of revoking the provisional order): ss 32(1) and (3). By implication, the defendant may seek revocation or variation. If none of those things are done, the provisional order becomes an interim order: s 32(2). A provisional order made by an authorised officer may be varied or revoked by an authorised officer or by the court (s 33(2)) but an application under s 33 may only be made by a police officer: s 33(3). For a provisional order made by a senior police officer the defendant may apply for variation or revocation by a court: s 33A.

Part 10 of the Act provides for the making of final and interim orders by a court. Relevantly, an application for a final AVO can only be made by a police officer or the person for whose protection an order is sought: s 48(2). Section 49 imposes an obligation on a police officer to make an application for an interim or final order in similar terms to s 27 (which applies with respect to provisional orders, see above).

Section 49A makes it a criminal offence to make a materially false or misleading statement to a Registrar or Magistrate for the purpose of making an application for an APVO (there is no equivalent provision for ADVOs).

Division 3 of Pt 10 provides for applications for final and interim AVOs, which are to have been commenced when an application notice is filed by, relevantly, the protected person or by a police officer: ss 50, 51, 52. Such notices are required to be served: s 55. Division 4 of Pt 10 provides for the hearing of the matter in the court. The court has broad powers under s 73 to vary or revoke a final AVO or interim court order.

Final AVOs or interim court orders may be made by the consent of the parties: s 78(1). Such orders may be made whether or not the defendant admits to any or all of the particulars of the allegation: s 78(2). Thus AVOs can be, and commonly are, made on a without admissions basis.

The defendant may apply for an annulment of an AVO pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) as if it were a conviction to which that Act applies: s 84(1).

Part 11 of the Act confers power on the police to arrest the defendant pursuant to a warrant issued by an authorised officer: s 88. The person may be detained for certain purposes, including to be served with an interim AVO (ss 89 and 89A) and may also be searched (s 90C).

Section 99(2) provides that costs other than professional costs are not to be awarded in AVO proceedings. Professional costs are those relating to professional expenses and disbursements (including witnesses’ expenses) in respect of AVO proceedings before a court (but not court fees payable to a court): s 99(1). The court may, subject to s 99A, award professional costs to the applicant or the defendant in accordance with s 99: s 99(3).

Section 99A provides that in AVO proceedings, costs cannot be awarded against the protected person unless the court is satisfied that the application is vexatious, and cannot be awarded against an applicant who is a police officer unless the applicant knew the application contained matter that was false or misleading in a material particular, or the applicant deviated from the reasonable case management of the proceedings so significantly as to be inexcusable.

Mr Chrysostomou submitted that an application under the Act was “effectively pseudo-criminal proceedings” since, although the standard of proof was on the balance of probabilities, a breach of an AVO was criminal. He also submitted that an application for an AVO “invoked the apparatus of the State” (the NSW Police) and, if an AVO is granted, its effect may be to substantially limit the defendant’s rights and liberties, including freedom of movement and that, if the defendant breached those limits, the defendant would be liable to criminal prosecution. Mr Chrysostomou also submitted that if an application under the Act is made for an improper or collateral purpose, no different analysis in principle would apply. The tort of abuse of process was not pleaded in this case. Accordingly, it is not necessary to address it further.

Civil injunctions, by definition, have a limiting effect. Breach of an injunctive order may render the defendant liable for contempt. However, this does not make such orders criminal or quasi-criminal. While a breach of an AVO is an offence, proceedings under the Act are nonetheless civil proceedings. Making an AVO against a person is not to convict them of an offence. Further, the feared conduct warranting an order itself will not necessarily be criminal (see above at [113], [115] and [120]). Therefore, in order to establish that the tort applies to such proceedings, Mr Rock needs to establish that the potential application of the tort should be extended to encompass this type of civil proceeding.

The question that arose in Gregory, Crawford and Willers – the extent to which the tort applies to civil proceedings – was determined in each case by considering the particular civil proceedings and asking various questions, including whether the law provided a remedy other than the tort of malicious prosecution and whether there were policy reasons against recognising the application of the tort to those proceedings.

In the present case, the proceedings to which the tort is alleged to apply is an application for an ADVO under the Act. Although it was submitted on behalf of Ms Henderson that the tort did not apply to proceedings under the Act because they are civil proceedings, it is not necessary to determine this question at that level of generality. Although many of the considerations relevant to that larger question will be relevant to the present appeal, the question to be determined is whether the tort applies to proceedings under the Act.

This Court has observed that applications for AVOs are not closely analogous to traditional civil or criminal proceedings. In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101, Spigelman CJ (Mason P and Beazley JA agreeing) said, referring to the repealed Pt 15A of the Crimes Act:

The purpose of the Act is protective even though many of its consequences may appear punitive to defendants: cf Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 at [30]-[35] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

The present case specifically concerns a provisional ADVO. Only a police officer can apply for a provisional ADVO, which is generally made without the defendant having an opportunity to be heard. A provisional order need not be made by a court since it may be made by a senior police officer, as occurred in the present case. As referred to above, a provisional order is itself taken to be an application by the applicant officer to a court under Pt 10 of the Act: s 29(1).

As has been noted, the provisional order in the present case was first returnable before the Local Court on 4 October 2018. On that day, Mr Rock consented to an interim order, without admissions. The effect of the making of an interim order was to revoke the provisional order: s 32(3). The application for a final order was refused on 14 June 2019, some eight months later, on the basis that the magistrate was not satisfied on the balance of probabilities that Ms Henderson’s fears of a domestic violence offence or stalking were reasonable as at that time. Such applications are determined as at the date of the order. Accordingly, it cannot be inferred from the magistrate’s refusal to make an order on 14 June 2019 (which was based in part on the length of time since the airport incident) that the provisional order made on 26 September 2018 (the day after Ms Henderson’s return from Tasmania) ought not to have been made.

Further questions arise as to whether the elements of the tort could ever be established in these circumstances. These include: whether an application for a provisional AVO constitutes a proceedings at all (in circumstances where a senior police officer can grant it on the application of another police officer); whether Mr Rock can prove that he was successful in the AVO proceedings (since, as referred to above, it does not follow from the refusal of the final order that the provisional order ought not have been granted); and whether his consent to an interim AVO amounted to a concession that one was appropriate in the circumstances. However, the question raised by the further amended notice of contention for present determination is whether the tort applies at all to proceedings under the Act.

There are aspects of proceedings under the Act which would seem to correspond to the category of civil proceedings to which the tort has been held to apply. As was observed in Li v Deng (No 2) at [169], the obtaining of an AVO can damage a person’s general reputation, even if it is later not confirmed by a final order, just as bankruptcy proceedings can harm a person’s reputation for creditworthiness. Further, an application for an AVO (or complaint to police which leads to an application) could be regarded as falling into the category of cases described by Lord Sumption in Crawford at [143] of “ex parte interlocutory orders improperly procured by the person initiating the proceedings”.

On the question whether the law provides a sufficient remedy without the tort, there is a limited power to award costs in favour of a defendant against the person allegedly in need of protection (only when the proceedings are vexatious) provided by s 99A. There is no criminal offence of making a materially false or misleading statement to a Registrar or Magistrate with respect to ADVOs which corresponds with the offence in s 49A, which applies with respect to applications for APVOs.

As to whether the law provides a remedy for alleged reputational damage, it has been assumed that the law of defamation applies to reports made to police officers of offences or suspected offences: Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299 (Coles Myer) at [30] (Ipp JA, Hodgson JA and Handley AJA agreeing).

The plaintiff in defamation proceedings is required to prove serious harm as an element of the offence pursuant to s 10A of the Defamation Act 2005 (NSW). There is a real prospect that that would be difficult to prove in respect of communications to police to obtain an AVO. Like Computerised Operational Policing System (COPS) reports, details of ADVOs are not readily available and are generally accessible only to those authorised by the law, specifically other police officers. Such officers may be taken to know the basis on which such orders, particularly provisional orders are made; the common circumstance that they are made by consent without admissions in favour and against both parties to a domestic relationship; and their prevalence in the context of family law proceedings.

However, when a matter is listed in the Local Court, as applications for interim and final orders are, the identity of the defendant becomes known because the court lists are public and the hearings generally are conducted in open court. The laws of defamation will not protect a defendant in respect of matters aired in open court because those matters will be subject to absolute privilege. Nonetheless, members of the public may be taken to be generally aware of the prevalence of such orders, particularly in the context of domestic relationships which have broken down. The public can also be taken to be aware that such orders are often made without admissions and simultaneously against, and for the protection of, each party to the relationship. The sting of the defamation may be much diminished in these circumstances.

The defence of qualified privilege would apply to communications between the complainant and the police. If the plaintiff can establish malice, such as if the person making the report is found not to have believed that the reports were true at the time they were made or to have invented them, the defence of qualified privilege will be defeated as the statements will, in that event, not have been made in good faith: Coles Myer at [93]-[94] (Ipp JA, Hodgson JA and Handley AJA agreeing). Thus, while it is unlikely that, absent an admission, a complainant’s statement of fear and apprehension could be found to be lacking in good faith, if the facts underlying a complaint were untrue to the complainant’s knowledge, the defence of qualified privilege would be defeated.

Aside from the circumstance that there are some limited remedies for a defendant against whom an AVO has been ordered in circumstances where, as here, a final order is not made, there are even more fundamental reasons why the tort ought not be held to apply to proceedings under the Act.

Judicial recognition of the application of the tort to proceedings under the Act would, inevitably, spawn satellite litigation (such as in the present case and in MT v SE), the very bringing of which would tend substantially to undermine the objects and evident intention of the Act, including the following:

In proceedings for the tort the complainant would be subjected to relatively complex, expensive litigation which would carry with it a risk that any costs incurred would not be recovered and pose the threat that the complainant would be made liable for any costs expended by the other party. Such litigation has the potential to impose a ruinous financial burden through costs – whether the proceeding are well-founded or not – and through exposure to substantial damages. There would be a real risk that those in need of protection would be deterred from seeking it because of fear of reprisal by such satellite litigation.

Any extension of the tort would be in tension with the principle of finality. This principle was described in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 (D’Orta) at [34] (Gleeson CJ, Gummow, Hayne and Heydon JJ) as “a central and pervading tenet of the judicial system … that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances” (see also [166]-[167] (McHugh J) and [374] (Callinan J)).

The principle of finality underpins several features of the administration of justice, including:

Generally, “[t]he common law of Australia, as expounded in D’Orta and Giannarelli, reflects the priority accorded by this Court to the values of certainty and finality in the administration of justice as it affects the public life of the community”: Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [36] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

In D’Orta, the plurality said:

To that observation may be added the following: a defendant’s success in litigation may also be accompanied by a feeling of grievance towards a plaintiff for the trouble, cost, grief and time of defending proceedings, as well as, potentially, the loss of reputation which may have arisen from the proceedings themselves. Such a defendant may feel entitled to recompense for all the loss alleged to have resulted from the first proceedings and may, in a tit-for-tat way, want the former plaintiff to suffer by being turned into a defendant in the new proceedings. If the tort were held to apply generally to civil proceedings, the commencement and maintenance of the second set of proceedings would undermine the principle of finality in a substantial way.

Indeed, in the present case, if Mr Rock is entitled to bring his claim in tort against Ms Henderson, there would potentially be no reason to prevent her from bringing a claim in tort for his alleged malicious prosecution of her in the proceedings in the Court below and so on ad infinitum. Because of the importance of the principle of finality to the administration of justice, a litigant who seeks to compromise or undermine the principle has a high onus of persuading the court that the benefits of such a compromise are worth the detriment which is occasioned by departing from the principle.

It is no answer to say that, because of the difficulties of proving the tort, a person in the position of Ms Henderson in the present case will win in the end. The observations made by Lord Sumption in Crawford at [148] (extracted above), including that “[t]he vice of secondary litigation is in the attempt”, were made in a commercial context of alleged insurance fraud. These observations have even greater force in the context of interpersonal relationships, particularly those which feature violence or mental harm of threats thereof. If the tort applied to proceedings under the Act the tort could readily become an instrument of oppression. The purpose of the Act – the protection of people (usually women) who are in fear of domestic and personal violence – could thereby be substantially subverted. Obsessiveness and resentment, which are hallmarks of unhealthy personal relationships, particularly if they have broken down, not uncommonly form the background to proceedings under the Act. To allow the tort to apply to a person who claims to be in need of protection and who seeks protective orders under the Act would be to add fuel to an already dangerous fire and subject applicants for orders under the Act to the risk of “prolonged, disruptive, wasteful” civil proceedings in tort. It would also tend to operate as a deterrent to a complainant contacting police in the first place as well as an incentive for a complainant to retract true statements made to the police, as frequently occurs in cases of domestic violence.

Recognition of the application of the tort would also cut across the principle of witness immunity which, as referred to above, is a product of the principle of finality: if a person in need of protection gave evidence to the effect of the statement provided to police, the witness would be immune from civil prosecution as regards that evidence.

The concept of coherence is also relevant here, given that the appellant is seeking an extension of the common law. The concept is generally applied when a duty of care is sought to be formulated, particularly in an area which is subject to a statutory regime or where there are apparently conflicting principles. As in that context, the present question “turns on a close examination of the terms, scope and purpose of the relevant statutory regime”: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [146] (Gummow and Hayne JJ, Gaudron J agreeing). In such cases, the legislative regime is closely examined to determine whether it would be incoherent for the common law to impose a duty of care in circumstances governed by statute.

In Sullivan v Moody (2001) 207 CLR 562 at 581; [2001] HCA 59 at [55]-[56], the question was whether a duty of care was owed to those who were alleged to have sexually abused children by those who were obliged to act in the interests of the children (being the respondents in the case). It was held that any such duty of care would be incoherent with the legislative framework and therefore ought not be imposed. The Court (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) said, of present relevance:

It is also relevant that, in the legislative context addressed in Sullivan v Moody, there was a similar feature in that an examiner may not be able “to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened” ([62]) (first emphasis added). The Court continued:

In Sullivan v Moody, the question for the respondents posed by the statute was whether they suspected on reasonable grounds that a child had been sexually abused, which necessarily amounted to criminal conduct. If so, the matter was required to be reported because otherwise the child, whose interests are paramount, could not be protected.

As regards final or interim AVOs, the basis for the application is not the assessment of whether a criminal act has occurred but rather whether the complainant feared particular conduct (which need not be criminal) in the future. Such an inquiry is necessarily hypothetical and is based on assessment of risk. There is both an objective element (the fear must be reasonable) and subjective one (the person must actually fear the relevant risk). Further, because the fear might be of conduct that causes mental harm, it is not necessary that there be physical violence. Indeed, online stalking or physical following without actual physical contact can also form the basis for the requisite fear. As regards provisional AVOs, the requisite state of mind is that the applicant police officer has “good reason to believe” that the order is necessary to protect the potential victim or their property: s 26(1) of the Act. The officer is under a duty to apply for a provisional order if they also have the suspicion or belief that a relevant offence has been committed, is imminent, or is likely to be committed: s 27(1).

The High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in George v Rockett (1990) 170 CLR 104; [1990] HCA 26, considered where the concepts of suspicion and belief lie on a spectrum. Suspicion “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’” (at 115). Belief “is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture” (at 116).

Although the Act does not provide that the interests of the person alleged to be in need of protection are paramount, it is plain from the objects of the Act and the extract from the Agreement in Principle Speech, that the purpose of the Act is protective. The relatively low threshold of “reason to suspect” or “believe” tends to advance this purpose.

While Sullivan v Moody concerned whether a duty of care ought be imposed on the respondents, on whom the legislation had imposed duties, the concept of coherence is not confined to such a case. The potential for incoherence in Sullivan v Moody (which led to the rejection of the postulated duty of care) is analogous to the issues raised in the present case where the application of the tort to proceedings under the Act would tend to produce consequences which are inimical to the operation of the Act and its objects.

Drawing these points together, then, the paradigm for application of the tort of malicious prosecution is criminal proceedings. Proceedings for an AVO under the Act 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. That a person is subject to an AVO could have some detrimental effect on their reputation, but any such effect is relatively limited in circumstances where the community may be taken to be aware of the prevalence of such orders, especially in the context of troubled domestic relationships, and also be aware that such orders are often made without admissions and directed to both relevant parties. There are already some remedies available for a person who has been the subject of an AVO induced by a person acting with malice. Extension of the tort to encompass AVO proceedings would inevitably spawn satellite litigation, in circumstances where those involved not infrequently are motivated by feelings of personal grievance. The potential for such litigation would tend substantially to undermine the objects and efficacy of the Act. That is so even given the difficulty of making out the tort and the potential for costs orders to be made with respect to unsuccessful claims.

Given these considerations, the case for extending the tort of malicious prosecution to encompass proceedings seeking an AVO under the Act is not established. Ground 1 of the further amended notice of contention has been made out.

Having regard to the conclusions we have reached, it is not strictly necessary to address the merits of the malicious prosecution case. However, we will still do so lest we are wrong about the availability of the tort.

Thirteen of Mr Rock’s grounds of appeal relate to the primary judge’s conclusion that the tort of malicious prosecution was not made out on the facts. Grounds 3 to 5, 9, 11 and 16 all relate to what was said to be a failure of the primary judge to address adequately Mr Rock’s pleaded case and the elements of the tort. Grounds 6 to 8 relate to what is said to have been errors by the primary judge in either excluding relevant evidence or relying on what was said to be Mr Rock’s past conduct as relevant to the question whether Ms Henderson had reasonable and probable cause to complain to the police. Grounds 10, 12 and 13 relate to the way in which the primary judge dealt with the incident at the airport. Ground 14 relates to what was said to be a failure by the primary judge to address evidence of the relationship between Mr Rock and Ms Henderson “during the ADVO complaint period” in the form of text messages between them. Ground 15 relates to what was said to have been an error of the primary judge in concluding that Ms Henderson was fearful of the appellant “and was justified in that fear [which] was the culmination of months of hostility regarding the state of the marriage”.

The decision to grant a provisional ADVO and in doing so to apply for a final ADVO was a decision for the police. Ms Henderson was the “prosecutor” for the purposes of the tort only in so far as she placed material before Constable Pitt with the intention that based on that material he would apply for an interim ADVO from a more senior officer under s 27 of the Act. Consequently, in order for Ms Henderson to be liable for the tort 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 (see above at [72]). The only evidence of what Ms Henderson said to Constable Pitt was the material contained in her statement to the police and in the grounds for the application for a final ADVO.

Neither the primary judge nor the parties before us addressed the tort of malicious prosecution precisely in those terms. As is apparent from [303] to [306] of her judgment (quoted above at [30]), the primary judge focussed on the requirement that the plaintiff prove that the defendant acted without reasonable and probable cause; and she did so by reference to what was necessary for the police to prove in order to obtain a final order under s 16 of the Act. Understandably, the grounds of appeal and further amended notice of contention were formulated by reference to what the primary judge did. One issue raised by the further amended notice of contention was that the primary judge did not deal with the requirement that Mr Rock prove that in initiating or maintaining the proceedings Ms Henderson acted maliciously. However, the two requirements addressed by her Honour and the parties do not fit easily with a case where it is alleged that a person who did not bring the proceedings ought to be treated as the prosecutor. In addressing those requirements, the parties did address the question whether Ms Henderson deliberately supplied Constable Pitt with false information. In our opinion, it is best to focus on that question.

In para 7 of his amended statement of claim, Mr Rock pleaded that Ms Henderson knowingly made false statements to Constable Pitt by virtue of the matters pleaded in paras 4 and 5 “and/or … 6”. Paragraph 4 contains the following relevant particulars:

Paragraph 5 of the amended statement of claim contains an extensive list of particulars of an allegation that “In reality, the parties had regular, positive, and affectionate interactions from July 2017 until 21 September 2018”. Paragraph 6 contains an allegation that Ms Henderson told Constable Pitt that she was “fearful of the plaintiff in circumstances where she harboured no such fears”. It gives as particulars of that allegation that Ms Henderson attended Mr Rock’s home “on two occasions: once after the first return date of the Proceedings, and again on 16 July 2019”.

Several points may be made about this pleading.

First, nothing turns on the first particular in para 4. There is a dispute about what happened on the evening in question. But the significance of the evidence is that following a heated argument, Ms Henderson left the house, slept in her car and moved out shortly afterwards. None of that is disputed.

Second, Ms Henderson did not in her statement make the allegation referred to in the second particular to para 4. What she did do is give evidence of specific events on the basis of which she said she was fearful of Mr Rock in the ways described in para 17 of her statement. The allegation that Ms Henderson deliberately lied about those matters for the purposes of obtaining an ADVO was a serious allegation that needed to be properly pleaded and particularised. It was not.

Third, it is apparent from para 5 that the substance of Mr Rock’s claim is that Ms Henderson misled Constable Pitt because she did not tell him about the many instances in which she and Mr Rock had enjoyed cordial relations since their separation. But that part of the pleading misunderstands the requirement of the tort and fails to have proper regard to the circumstances in which it will be appropriate for the police to apply for and to make provisional ADVOs. 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. It depends on whether, notwithstanding those matters, events have occurred in their relationship which the police officer making the application has good reason to believe an order needs to be made immediately to ensure the safety and protection of the person who would be protected by the order (to use the language of s 26 of the Act). In order to establish the tort it was necessary for Mr Rock to prove that Ms Henderson told Constable Pitt deliberate falsehoods about events relevant to his consideration of those matters. It was not necessary for her to tell him about the circumstances in which she had enjoyed cordial relations with her husband since their separation.

Fourth, the question whether Ms Henderson committed the tort must be judged at the time that she made the statement. Evidence of what occurred subsequently, including the matters particularised in para 6 of the amended statement of claim, were not to the point.

Analysed in this way, it is apparent that the primary judge was correct to dismiss the claim on its merits, if not quite for the reasons her Honour gave. The critical material to emerge from Ms Henderson’s statement to the police is that she told the police that (1) she had separated from her husband; (2) they were going through a stressful divorce; (3) on three occasions following their separation, Mr Rock had, contrary to Ms Henderson’s requests, attended uninvited Ms Henderson’s place of work, where he raised questions about why they were getting a divorce and on at least one occasion, threatened an acrimonious divorce; (4) Mr Rock had confronted her at the airport shortly before her departure with a male friend for a weekend away; and (5) she was fearful that her husband remained jealous and controlling, she was fearful of his anger and that he would continue to confront her in public, as a result of which she did not feel safe.

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

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.

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

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”.

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

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.

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.

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.

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.

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.

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.

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.

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; [1984] HCA 80 at 6-7 (Gibbs CJ, Mason, Wilson and Deane JJ). 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.

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).

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; [1996] 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]:

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

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.

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 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:

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.

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.

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 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).

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.

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).

The grounds in question principally turn on findings of fact based on assessment of the 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.

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:

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.

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:

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]).

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.

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.

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.

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.

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.

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

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.

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.

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

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