Burton v Office of the Director of Public Prosecutions

BELL P: This case involves an application for leave to appeal from a decision of Hatzistergos DCJ (the primary judge) in which his Honour summarily dismissed a claim for compensation brought by Mr Paul Robert Burton (the applicant) against the Office of the Director of Public Prosecutions (the respondent) for the tort of collateral abuse of process.

Insofar as the primary judge held at [51] of his judgment that the applicant’s amended statement of claim (ASOC) did not contain or allege an improper purpose, I agree with what McCallum JA has said at [95]-[98] of her reasons below. The purpose of criminal proceedings is to decide whether the accused has engaged in conduct which amounts to an offence and is deserving of judgment: Jago v District Court of New South Wales (1989) 168 CLR 23 at 47-48; [1989] HCA 46; Williams v Spautz (1992) 174 CLR 509 at 530, 538; [1992] HCA 34 (Williams v Spautz). The bringing of criminal proceedings to vex or harass a defendant, if that can be established (and it would be a most serious allegation), is plainly outside the scope of the purpose of criminal proceedings. Such proceedings would properly be characterised as having been brought for an improper purpose but, as shall be seen, whilst the existence of such an improper purpose may be sufficient to obtain a stay of proceedings, it is not sufficient alone to establish the commission of the tort of collateral abuse of process.

In the present case, the applicant’s claim, in essence, was that the tort had been committed by the institution and maintenance of proceedings against him in the Local Court of NSW in respect of three offences under s 16 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Court Suppression Act). That section relevantly provides:

The relevant non-publication order was one that had been made in the Children’s Court of New South Wales on 25 May 2017 in the following terms:

Section 7 of the Court Suppression Act provides:

The applicant had been charged on 21 December 2017 with the three offences. The prosecution of these charges was the subject of the alleged tort of collateral abuse of process. On the same day, the applicant was also charged with three further offences under s 16(1) of the Court Suppression Act and four offences under s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Those latter two sets of charges formed no part of the applicant’s civil claim for compensation for the tort of collateral abuse of process.

The gravamen of the applicant’s civil claim is that the three offences, the prosecution of which is at the heart of the civil claim for the tort of collateral abuse of process, are incapable of being made out and that, from this fact, it is to be inferred that the purpose of bringing those charges was simply to vex and harass the applicant.

The reason why the applicant says that the three particular offences are incapable of being made out is that the particular non-publication order made on 25 May 2017, and which is alleged to have been breached, did not stipulate a time duration, contrary to what is required by s 12 of the Court Suppression Act which relevantly provides as follows:

Paragraph 7 of the applicant’s ASOC in the District Court is in the following terms:

On the face of it, the applicant may have a good argument that he could not have committed any of the three offences alleged to have involved a breach of the non-publication order made on 25 May 2017 because that order failed to comply with the requirement in s 12 of the Court Suppression Act that an order should specify a duration for its operation. In this context, I agree with McCallum JA’s analysis at [99]-[114] below and her Honour’s conclusion that the order of 25 May 2017 extracted at [4] above was, despite its heading, not an interim order within the meaning of the Court Suppression Act, and that the primary judge erred in holding that it was.

Whether or not the institution of proceedings that may fail, or indeed that are bound to fail, means that the purpose of the party initiating those proceedings was in some way improper, however, does not follow.

It may be, for example, that the party initiating the proceedings was not cognisant of the defective nature of the order said to have been breached, or did not consider that that defective nature may have consequences for the order’s validity or enforceability. (In the context of the Court Suppression Act, what might follow from a finding that an order made, or purportedly made, under s 7 failed to comply with the temporal requirement in s 12 is a question of statutory construction that need not be resolved here).

I agree with McCallum JA’s observations at [82] below that the applicant’s “basis for alleging vexatiousness as the purpose of the prosecution appears tenuous.” The effect of an action may be vexatious, or perceived by the target of the action as vexatious, but that will not necessarily have been the purpose of the actor in initiating proceedings. No doubt many defendants feel vexed by being sued, but that does not mean that the plaintiff has committed the tort of collateral abuse of process simply by suing them.

The present case illustrates the need for clarity and coherence in the identification of the elements of the tort of abuse of process or collateral abuse of process as it is sometimes, and in my view more helpfully, called. It was so described by the majority in Williams v Spautz at 522.

This is important even though, as the paucity of the case law demonstrates, the tort has never established a particularly large foothold in the jurisprudence of either Australia or England, and examples of parties succeeding on the basis of the tort are few and far between, as Gaudron J observed in Williams v Spautz at 553. That having been said, the tort, “after a long period of quiescence, has recently received a considerable amount of judicial attention”: RP Balkin and JLR Davis, Law of Torts (5th ed, 2013) at [25.22].

Unless properly understood and delimited, the continued existence of the tort of collateral abuse of process could lead to the proliferation of litigation based on the “mere occurrence of the earlier litigation with an added assertion of improper motive or absence of legitimate purpose in bringing or defending the proceedings”: Butler v Simmonds Crowley & Galvin [2000] 2 Qd R 252; [1999] QCA 475 at [38] (Butler). In this context, Lord Sumption has referred to “a principled reluctance on the part of the courts to countenance civil liability for invoking the jurisdiction of the court”: Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366; [2013] UKPC 17 at [157] (Crawford).

Professor Burrows has observed, as noted by Mummery LJ in Land Securities plc v Fladgate Fielder [2010] Ch 467 at 500; [2009] EWCA Civ 1402 at [105] (Land Securities), that “[t]he exact shape of this tort [of abuse of process] remains uncertain and even its existence has been viewed with scepticism”. Lord Toulson (with whom Lady Hale and Lords Kerr and Wilson agreed) observed in Willers v Joyce [2018] AC 779; [2016] UKSC 43 at [25] (Willers v Joyce) that Grainger v Hill (1838) 4 Bing (NC) 212; 132 ER 769 (Grainger v Hill), the case most commonly identified as spawning the tort:

The close relationship between the two torts (which may be the subject of alternative claims: see, for example, QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245) makes the need for clarity in the identification of the proper ambit of the tort of collateral abuse of process of particular importance. Coherence in the articulation of common law principle, not least tort law, is an inherently important value: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [50]-[55]; C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott (2009) 239 CLR 390; [2009] HCA 47 at [39]-[42]; Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 at [15], [74]; Ibrahimi v Commonwealth of Australia (2018) 366 ALR 341; [2018] NSWCA 321 at [256]-[258]. Considerations relating to the need for coherence in the development of the law may particularly be seen in the powerful dissenting judgments of Lords Mance, Neuberger and Sumption in Willers v Joyce, a decision concerning whether the tort of malicious prosecution in England extends to civil proceedings.

In Williams v Spautz, speaking in the context of the tort of collateral abuse of process, the majority was conscious of the need to keep “the concept of abuse of process within reasonable bounds” and cautioned that “[t]o say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept”: at 526 (emphasis added). This observation was not to deny the importance of the purpose of a party instituting proceedings, but it was to accept that the tort will not be established simply as a result of the identification or existence of an improper purpose. This is discussed more fully at [25]-[30] below.

In England, in Land Securities, the Court of Appeal refused to extend the tort of abuse of process to a case where the plaintiff sought the recovery of pure economic loss said to have arisen from judicial review proceedings whose institution was alleged to have entailed a collateral abuse of process. Moore-Bick LJ noted (at [100]) that the tort of abuse of process may have taken a different path of development in Australia from that which it had taken in England, before going on to observe that:

His Lordship went on to note that “the abolition of arrest in support of civil proceedings and the introduction of a power to award costs when it is in the interests of justice to do so means that the tort of abuse of process now has a much reduced role”: Land Securities at [101].

The discussion of the tort of collateral abuse of process in textbooks is frequently fleeting and sometimes accompanied by an insufficient appreciation of the fact that, whilst proceedings may be or may amount to an abuse of process and be liable to be stayed or dismissed for that reason, it does not follow from that fact alone that the tort of collateral abuse of process has been committed. This is a subtle but important distinction. As Spigelman CJ said in Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90 at [31]:

This distinction is not always sufficiently appreciated in the case law either. One example is the decision of Vanstone J in Catto v Hampton Australia Ltd (In Liq) (No 3) (2004) 89 SASR 234; [2004] SASC 242 at [142] where her Honour attributed to Hunt J (as he then was) in Spautz v Williams [1983] 2 NSWLR 506 at 539 a description of the tort of abuse of process when, in truth, his Honour was only describing the inherent jurisdiction of the Supreme Court to prevent an abuse of process.

I turn now to consider the elements of the tort of collateral abuse of process.

The first point to note, which is important to appreciate at the outset, is that the tort will not have been committed simply by reason of the fact that the purpose of the person instituting or initiating the proceedings is improper, even assuming that that can be responsibly pleaded and proved.

Clear authority for the proposition that more than improper purpose or motive is required for the tort of collateral abuse of process is supplied by the decision of Clarke JA in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 123 (Hanrahan v Ainsworth) who said:

Earlier, Clarke JA had said that “the institution of proceeding[s] with an ulterior motive is not enough – proof of the misuse, or attempted misuse, of the process is necessary”: Hanrahan v Ainsworth at 122.

So much may also be gleaned from the observation of the majority in Williams v Spautz that “the existence of an unworthy or reprehensible motive for bringing the action [is] not enough”: at 525. The majority went on to differentiate between motive and purpose, a distinction which is sometimes elusive. Purpose in this context is used in the sense of the object sought to be effected by the proceedings: see Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509 at 521-522 (Isaacs J); [1915] HCA 56.

In Gordon v Treadwell Stacey Smith [1996] 3 NZLR 281 at 292; [1996] NZCA 110 (Gordon), the New Zealand Court of Appeal said:

Most recently, in Crawford at [158], Lord Sumption put the matter with characteristic succinctness in the context of a consideration of whether certain proceedings which involved baseless allegations of fraud amounted to the tort of abuse of process, stating that “[i]t is true that the allegation of fraud was both baseless and malicious, but neither baselessness nor malice are relevant to this cause of action.” A baseless allegation is appropriately treated by way of an application for summary dismissal and will often attract the sanction of an indemnity costs order.

The second point to note, as emerges from Maxwell-Smith at [54], is that:

It is true that in Williams v Spautz, the majority contemplated (at 528) that “the commencement of the proceedings may be described as a ‘use’ of them”, but continued by stating that:

Thirdly, it is not sufficient, for the tort to be established, that proceedings simply have a vexatious or oppressive effect on the defendant in those proceedings, noting that the terms “vexatious” and “oppressive” are often associated with or used interchangeably in relation to the concept of abuse of process: see, in this regard, Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554; [1990] HCA 55; CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 391; [1997] HCA 33; Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 at [71]. This is because the proceedings must have been brought in order to “coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate...": Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91 (Isaacs J); [1911] HCA 46 (Varawa).

The “coercion” to which Isaacs J referred in Varawa (at 91) will invariably be designed to yield up for the moving party in the impugned proceedings some advantage or benefit which is “entirely outside” (or, in England at least, not “reasonably related to”: Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 503) that afforded by the legal process invoked, hence the frequent description of the tort as one of collateral abuse of process. Such a purpose is an improper one and, if it is the party’s predominant purpose, may warrant a stay of proceedings and also give rise to an action in tort: Land Securities at [89] per Moore-Bick LJ.

It is critical to appreciate, however, that a party may have an improper purpose, and further or seek to effectuate it by the commencement of proceedings, without seeking to secure a collateral advantage or benefit thereby. The existence of the improper purpose in this circumstance, so long as it is the dominant purpose, may justify a stay of proceedings but it will not, in my opinion, “without more”, to use the language of Williams v Spautz (see [19] above) give rise to an action in damages for the commission of a tort. This is the only way to reconcile those cases such as Hanrahan v Ainsworth and Gordon which state, or are to the effect, that the existence of an improper purpose is not sufficient to found the tort of collateral abuse of process.

That the seeking of a collateral advantage is an element of the tort is supported by the decision in Grainger v Hill, generally said to be the case that established the tort. In that case, a writ of capias was issued to secure attendance at trial in respect of a loan that had not then fallen due and in respect of which no cause of action for its recovery had arisen. The process was found to have issued to secure under the pressure of the writ (and prospect of arrest for non-compliance) the register of a vessel upon which the defendant’s loan had been secured. The action succeeded and the plaintiff in the case successfully sued for profits that had been lost as the result of the inability to undertake profitable sea voyages.

In Land Securities, it was pointed out at [41] and [81] that the only other decision in England where a party has successfully sued to recover damages for the tort of abuse of process was Gilding v Eyre (1861) 10 CBNS 592, where the purpose of the impugned proceedings (which involved the arrest of the plaintiff under the writ of capias ad satisfaciendum) was to extort property from the plaintiff.

Further, in Crawford at [149], Lord Sumption said:

Most importantly, in the context of discussing the boundaries of abuse of process, the majority in Williams v Spautz, having noted (at 526) that “[t]o say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept”, and having given an example of a case which would not amount to the commission of the tort, went on to say (at 526-527) that:

In my opinion, it is therefore necessary for a party alleging the commission of the tort of collateral abuse of process to identify the advantage that was being sought to be achieved by the moving party in the impugned proceedings, beyond that which the court process would otherwise offer to a moving party. The “overt act or threat” which Barrett JA referred to in Maxwell-Smith (at [54]) will often identify the collateral advantage sought to be obtained.

Fourthly, as McCallum JA has pointed out, the current state of authority in New South Wales also requires the pleading and particularisation of special damage where the tort is alleged: Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 375.

In summary, the elements of the tort of collateral abuse of process, as I understand them to be, are:

I agree with McCallum JA’s analysis and conclusion at [116]-[119] below in dismissing the notice of contention on the basis that the primary judge did not err in his finding that an earlier decision of Harrison AsJ, in relation to the interim order, did not generate an issue estoppel.

There was no indication of the collateral advantage sought to be obtained in the impugned criminal proceedings pleaded by the applicant in the present case. That was a deficiency in the pleading. But that and other deficiencies in the pleading, such as the tenuous nature of the allegation that just because a cause of action may be unlikely to succeed, the plaintiff must have brought the proceedings in order to vex or harass the defendant (see [12] above) and the absence of any plea of special damage, did not warrant the summary dismissal of the proceedings.

The proceedings could and should have been struck out, but any strike out order should have been accompanied by a grant of liberty to replead.

I agree with the orders proposed by McCallum JA.

WHITE JA: The circumstances giving rise to this application for leave to appeal are set out in the reasons of McCallum JA that I have had the advantage of reading in draft. The Director of Public Prosecution sought summary dismissal of Mr Burton’s proceedings pursuant to r 13.4(1)(b) or (c) of the Uniform Civil Procedure Rules 2005 (NSW) or UCPR 14.28(1)(a) or (c). In either case it was necessary for the DPP to show that Mr Burton’s amended statement of claim did not disclose a reasonable cause of action.

There are not many authorities of intermediate courts of appeal, let alone decisions of the High Court, dealing with the principles and parameters of the tort of collateral abuse of process. It was common ground that the DPP had to meet the high hurdles in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; [1964] HCA 69 and Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] and [25] (Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200]). Of particular significance in the present case are the observations of Kirby P in Wickstead v Browne (1992) 30 NSWLR 1 at 5-6; [1992] NSWCA 272 (with whose reasons the High Court generally agreed (1993) 10 LEG Rep PSL 2) and those of French CJ and Gummow J in Spencer v The Commonwealth at [25]. In Wickstead v Browne Kirby P said (at 5-6):

And in Spencer v The Commonwealth French CJ and Gummow J said (at [25]):

These observations are equally applicable to the application for summary dismissal under r 13.4 or to strike out the pleading under r 14.28.

The primary judge reminded himself of this principle, but concluded at [49]-[51] quoted by McCallum JA below at [92], that the applicant’s assertion that the prosecution for the three offences in question was brought for the purpose of vexing the applicant did not amount to an object outside the lawful scope of the process.

I agree generally with McCallum JA’s reasons at [97] for concluding that the primary judge was wrong in finding that the improper purpose alleged by the plaintiff, namely that the charges were brought for the purpose of vexing him, did not amount to an object outside the lawful scope of the process as described in Williams v Spautz (1992)174 CLR 509; [1992] HCA 34.

The question was whether it was arguable that the identified improper purpose could amount to an object outside the lawful scope of the process as described in Williams v Spautz. But if the purpose or the dominant purpose of the DPP in bringing the charges in question were to vex the applicant and the DPP did not intend to pursue the charges to a conclusion, that would clearly be an abuse of process (Williams v Spautz at 522). The precise nature of the DPP’s purpose would be a matter for trial.

The applicant alleged that it should be inferred that the purpose of the DPP in bringing the relevant charges was to vex him because the DPP could not have considered that there was any basis to charge him with offences for publishing material contrary to the order of Magistrate Skinner of the Children’s Court of 25 May 2017. The DPP submitted that it could properly be contended at the trial of the charges that the order in question was an interim order under s 10. For the reasons given by McCallum JA, that must be at least highly doubtful. There are strong prima facie reasons for concluding that the charges are not maintainable, as the applicant pointed out in a letter to the DPP of 13 August 2017 to which there was no response. Counsel for the DPP, when pressed, could advance no plausible argument to support the charges.

It does not necessarily follow that the DPP was acting with an improper purpose or motive. There was a triable question as to whether the DPP’s purpose is as the applicant alleges. If that purpose were established it would be but a short step also to conclude that the DPP did not intend to pursue the charges to a conclusion.

In Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 Barrett JA referred to:

It was in this context that his Honour referred to the plaintiff’s in a tort action for collateral abuse of process being required to prove deployment of the relevant process in furtherance of the improper purpose by way of an overt act or threat, distinct from pursuit of the proceeding itself (at [54]).

The primary judge rejected the DPP’s reliance on Maxwell-Smith v S & E Hall Pty Ltd at [54] that it was necessary for the plaintiff to allege and ultimately prove an overt act in addition to an improper purpose.

The DPP did not challenge this latter conclusion in its notice of contention.

In the present case it is not the institution of a prosecution per se that is alleged to constitute the tort of collateral abuse of process, but rather the inclusion of charges that are said to be bound to fail as, it is said, the DPP must recognise. It may well be that the elements of the tort would not be established unless the applicant establishes both improper purpose and the intention to use the charging of those three offences in some way to achieve a collateral purpose. It is not hard to envisage what in some criminal prosecutions such a purpose might be. Thus prosecutors are sometimes accused of laying charges higher than those warranted by the evidence to seek to put pressure on an accused to plead to a lesser charge. There is no allegation that the DPP was in any way so motivated and no evidence that it was. But such an allegation if established might establish that the DPP laid the relevant charges for the purpose of obtaining an advantage outside the proper purpose of the proceeding (Williams v Spautz at 626-627). Arguably, no other overt act would be required.

Because the application before the primary judge was for summary dismissal of the proceedings, these questions need not and should not be pursued.

I am in general agreement with Bell P’s reasons and his Honour’s summary of the elements of the tort of collateral abuse of process at [107], with the caveat that because the appeal is from an application for summary dismissal where the facts have not been found, the present case is not a desirable vehicle for the formulation of authoritative principles of law.

Further, the legal process attacked in the present case is not the entirety of the prosecution, but the inclusion in the prosecution of three charges that are said to be untenable. In the present circumstances, the reference to the “legal process” being misused, or for the need for the “legal process” to be used in furtherance of the tortfeasor’s improper purpose with the possibility that proof of such deployment requires proof of a separate overt act, may need qualification. Without deciding the question, it is arguable that if the applicant can properly allege and prove that the charging of three untenable offences was intended to secure a collateral advantage in respect of the prosecution of other charges, that no separate overt act or threat is required. On a trial where full evidence is led, other issues might emerge that did not emerge on the hearing of the appeal.

There was no argument as to whether the applicant would need to show that he suffered special damage before he could recover damages for the tort alleged. There was no argument as to whether aggravated or exemplary damages could be obtained. The applicant claims compensatory damages for distress, humiliation, loss of reputation, stress and hurt feelings and also aggravated and exemplary damages. In the absence of any submissions in relation to the recoverability of any of these heads of damages, I prefer to express no opinion on their recoverability if the applicant ultimately succeeds.

I would allow the appeal on the basis that the applicant’s claim ought not to have been summarily dismissed because it is arguable that the applicant has an underlying cause of action, albeit, one that has not been sufficiently pleaded (O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71; (2013) 16 BPR 31,705 at [24] and [68]).

I agree with McCallum JA for the reasons her Honour gives that the DPP’s notice of contention has not been established.

For these reasons I agree with the orders proposed by McCallum JA.

McCALLUM JA: Paul Burton faces ten criminal charges arising from his publication of material on Facebook concerning the case of a child in respect of whom care proceedings were brought in the Children’s Court. The publications are alleged to have contravened both the Children and Young Persons (Care and Protection) Act 1998 (NSW) and non-publication orders made by the Children’s Court.

Mr Burton contends that three of the charges cannot possibly succeed and that it may accordingly be inferred that they are being maintained for an improper purpose. On the strength of that contention, he brought proceedings in the District Court against the Office of the Director of Public Prosecutions seeking damages for the tort of collateral abuse of process.

On the application of the DPP, the proceedings were summarily dismissed. Mr Burton seeks leave to appeal from that decision. The appeal faces a requirement for leave because the order was interlocutory: s 127(2)(a) of the District Court Act 1973 (NSW). The appeal was initially listed for separate hearing of the question of leave. However, shortly before the hearing, the Court informed the parties that they should be prepared to argue the matter as if on appeal.

I am of the view that leave to appeal should be granted and that the appeal should be allowed. These are my reasons for reaching that conclusion.

The care proceedings attracted considerable public attention involving an unfortunate measure of animosity. The child with whom the proceedings are concerned is not related to Mr Burton but he has taken it upon himself to take a stand against the decision of authorities to remove the child. Some of the background of Mr Burton’s interest in the child’s case is addressed in my judgment in another matter involving him: Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21.

For present purposes, it is enough to explain that the degree of animosity in the public discussion of the case was perceived to be contrary to the interests of the child. During the course of the proceedings in the Children’s Court, two orders were made under the Court Suppression and Non-Publication Orders Act 2010 (NSW). The first, made on 25 May 2017, prohibited the publication of information that would identify or tend to identify certain persons. The second, made on 31 May 2017, prohibited the publication of information that comprised evidence or information about evidence given in the proceedings.

Each order was expressed to be made pursuant to s 7 of the Court Suppression and Non-Publication Orders Act. I will return to the significance of that fact.

In addition to the prohibitions imposed by the two orders under the Court Suppression and Non-Publication Orders Act, the care proceedings were governed by s 105 of the Children and Young Persons (Care and Protection) Act, which prohibits the publication of information that identifies or is likely to lead to the identification of the child with whom care proceedings are concerned.

Section 16 of the Court Suppression and Non-Publication Orders Act makes it a criminal offence to engage in conduct that constitutes a contravention of an order under that Act if the person is reckless as to whether the conduct constitutes a contravention of the order. Contravention of s 105 of the Children and Young Persons (Care and Protection) Act is also an offence: s 105(2). In December 2017, Mr Burton was charged with ten offences of contravening those provisions. The charges were based on material posted on Facebook between 31 May 2017 and 14 July 2017.

The three charges which Mr Burton contends cannot possibly succeed (referred to as sequences 2, 5 and 9) allege contravention of the order of the Children’s Court made on 25 May 2017. The other seven charges allege contravention of the later order or else contravention of s 105 of the Children and Young Persons (Care and Protection) Act.

In October 2018, Mr Burton commenced the proceedings in the District Court claiming compensatory damages on the basis that the use of the court’s process to maintain the prosecution of sequences 2, 5 and 9 amounts to a collateral abuse of process. The other seven charges are not included in the complaint; the action is based on features of the order of the Children’s Court of 25 May 2017.

As already noted, the defendant in Mr Burton’s action is “the Office of the Director of Public Prosecutions”. In Kable v New South Wales [2012] NSWCA 243; 268 FLR 1 at [116], Basten JA noted that the defendant to an action for collateral abuse of process must be the party who actually instituted the proceedings, which in the present case was a police officer. However, the primary judge recorded that the DPP had raised no issue about that. Counsel appearing for the DPP at the hearing of the appeal confirmed that no such point is taken because it is accepted that the DPP is now conducting the prosecution.

The pleading considered by the primary judge was an amended statement of claim filed on 16 November 2018. After being served with that pleading, the DPP filed a notice of motion seeking to have the proceedings dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) on the basis that no reasonable cause of action was disclosed and alternatively that the proceedings were an abuse of process. Alternatively, the DPP sought to have the pleading struck out under r 14.28 on the same basis.

The tort of collateral abuse of process was discussed by the High Court in Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34. Mr Burton’s pleading reflected the language of that decision at [27], alleging at par 7 that the charges were instituted “for a purpose other than that which the legal process offered”. The pleading alleged that the purpose for which the Court’s process is being used is “vexatiousness” (par 7C of the amended statement of claim).

The basis for alleging vexatiousness as the purpose of the prosecution appears tenuous. It is based on the contention that the prosecution of the three charges alleging contravention of the non-publication order of 25 May 2017 cannot possibly succeed. That contention may well be sound, for reasons I will explain. It is the next step that is tenuous. Mr Burton argues that, if the prosecution cannot possibly succeed, the only logical conclusion is that it was brought for a predominant purpose other than to secure a conviction. He infers that the collateral purpose is to vex him. Of course, an alternative inference is that the DPP has maintained the prosecution because he does not accept the premise that it cannot possibly succeed and is rather of the view that it can.

In any event, returning to the difficulty with the three criminal charges, Mr Burton argues that the prosecution must fail because the non-publication order of 25 May 2017 was not operative at the time of the alleged contraventions (if at all). The reason it is said not to have been operative is that it failed to specify either the place where it would apply or the period for which it would operate. In my view, there is force in that argument.

As to the place where the order would apply, s 11(1) of the Court Suppression and Non-Publication Orders Act provides:

It follows in accordance with the plain language of that section that an order which specifies no place has no application.

As to the duration of the order, s 12 of the Court Suppression and Non-Publication Orders Act provides:

Again, subject to an argument addressed below, it follows that an order which specifies no period has no operation.

There is no contest about the basal premise of Mr Burton’s argument. The order of 25 May 2017 does not specify its place of application or period of operation. The order was in the following terms:

The DPP contends that it does not matter that the order did not specify its duration because it was an “interim order”. The DPP further contends that the characterisation of the order as an interim order is a finding that has already been made against Mr Burton. That was the basis for the summary dismissal application insofar as it contended that Mr Burton’s proceedings were an abuse of process.

The argument was based on the outcome of an application in the Local Court in which Mr Burton sought unsuccessfully to have the criminal proceedings dismissed and an application to the Common Law Division of the Supreme Court for judicial review of that decision, in which Mr Burton was also unsuccessful. The DPP argued that an estoppel or abuse of process arose as a result of those decisions. The primary judge rejected that argument. At the hearing of the appeal, the DPP was granted leave to file a notice of contention concerning that finding (the notice of contention is addressed below).

However, the primary judge upheld the DPP’s alternative argument that the amended statement of claim disclosed no reasonable cause of action. In considering that issue, his Honour had regard to the decision in Williams v Spautz.

The primary judge concluded at [49]-[51]:

It is clear from the judgment at [50] that the primary judge understood Mr Burton’s case to be that the criminal charges were instituted or at least were being maintained not for the purpose of securing a conviction but for the collateral purpose of causing vexation to Mr Burton. The burden of his Honour’s decision is that that is not a purpose that falls outside “the lawful scope of the process” described in Williams v Spautz.

The DPP further contended before the primary judge that the pleading was deficient because it failed to plead a further element of the tort of collateral abuse of process. The DPP submitted that the tort requires proof of an overt act in addition to an improper purpose, relying on the decision of this Court in Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146 at [54]. The primary judge held against the DPP on that issue, stating at [45] that he accepted that “the commencement of the proceedings can amount to an overt act consistent with Williams v Spautz”. Although the DPP’s submissions at the hearing of the appeal touched on that issue, it was not included in the notice of contention and accordingly it is not necessary to consider it further.

The first proposed ground of appeal is that the primary judge erred by finding that the statement of claim “did not contain an improper purpose”. The point sought to be made by that ground was that the judge erred in the finding at [51] set out above. That finding was framed in terms drawn from the decision of the High Court in Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; [1915] HCA 56, cited with approval in two places in Williams v Spautz. As I would understand the discussion in those passages, an important distinction is to be drawn between motive on the one hand and purpose or intention on the other. A person with a discreditable motive for bringing proceedings may yet successfully resist an accusation of improper purpose, provided that the “object sought to be effected by the process” falls within its lawful scope. The inquiry is directed to the outcome sought to be achieved by use of the process, not the state of mind with which the person prosecuting the action seeks that outcome.

The decision in Dowling was concerned with insolvency proceedings. There was no doubt that the creditor in that case sought to obtain a sequestration order against the debtor. His motive for doing so was extraneous (to obtain information from the debtor on examination) but his intention was to use the process for an allowed purpose (to obtain a sequestration order against a debtor).

Criminal proceedings are different at least to the extent that they do not offer any private remedy and are pursued in the public interest. Without purporting to be definitive, it may be accepted as a working premise for present purposes that the “lawful scope” of criminal proceedings is to secure the proof of a criminal offence and to have the defendant dealt with accordingly. I am unable to find any support in Williams v Spautz for the proposition that the institution or maintenance of criminal proceedings on charges that “could never be proved” for the purpose of vexing the defendant would not fall outside the lawful scope of criminal proceedings. With great respect to the primary judge, I am of the view that his Honour erred in so holding. In my respectful opinion, to institute or maintain criminal proceedings for the predominant purpose of vexing the defendant would plainly be an abuse of the criminal process.

It by no means follows that the pleading in the present case discloses a reasonable cause of action against the DPP. As already noted, the claim is based on the premise that the charges cannot be proved and the inference that there must accordingly be a collateral purpose for maintaining them. The strength of the inference turns, in part, on the extent to which the premise is contestable.

The DPP submits that the three charges based on the order of 25 May 2017 can be proved. The submission is based on the contention that failure to specify the duration of the non-publication order does not matter because it was an “interim order”.

The power to make a suppression order or non-publication order under the Court Suppression and Non-Publication Orders Act is contained in s 7 of the Act. There does not appear to be any doubt that such an order operates only in the place and for the period specified in accordance with sections 11 and 12 respectively.

The power to make an interim order is contained in s 10 of the Act, which provides (emphasis added):

The Act thus contemplates two kinds of order: an interim order under s 10 (which may be made without determining the merits of the application), which will have effect only until the application for a suppression order or non-publication order under s 7 is determined and the making of an order under s 7 (on the merits).

The primary judge found at [60] that, based on the evidence before him, the order of 25 May 2017 was an interim order. Mr Burton’s second ground of appeal in effect challenges that finding. The ground as framed in the draft notice of appeal approaches the issue obliquely, asserting that the primary judge erred by finding that the Court cannot look behind the (entered) copy of a court order to find whether it was accurately entered. However, as the argument was developed by Mr Burton in oral submissions, it was clear that the point sought to be made is that the finding that the order was an interim order under s 10 of the Court Suppression and Non-Publication Orders Act was wrong.

The primary judge’s finding was evidently based on the appearance of the order which, as entered, was recorded under the heading “interim order”. I am not persuaded that the heading can be taken to indicate that the order was made under s 10 of the Court Suppression and Non-Publication Orders Act, for a number of reasons (none of which was explored with the primary judge).

First, it may be doubted whether a heading preceding an order can properly inform the operation of the order.

Secondly, even if that is wrong, it may be doubted whether the heading reliably informed the question in the present case. The form on which the orders were recorded has the appearance of a standard form of order in care proceedings under the Children and Young Persons (Care and Protection) Act. That Act expressly distinguishes between interim and final care orders: see s 62 of the Act. In that context, the standard form of order requires the person recording the order to specify which kind of order was being made, as follows:

It would be preferable if that distinction were expressed in the order itself, rather than in a heading, for example, “the Court makes the following orders: (1) an interim order that the child…” etc.

In any event, the form was evidently drafted on the assumption that the orders it would be used to record would be orders under the Children and Young Persons (Care and Protection) Act. There were in fact no interim care orders made on 25 May 2017 but the point is that the heading in the present case must be approached with particular caution.

Thirdly, if the description of the order as “interim” was intended to indicate that the non-publication order was made under s 10 of the Court Suppression and Non-Publication Orders Act, it was at odds with the terms of the order itself, which expressly stated that the order was made pursuant to s 7(1)(a) of the Court Suppression and Non-Publication Orders Act. Although it does not inform this issue, it may be noted that the DPP’s defence in the primary proceedings asserts that the orders were made pursuant to s 7, as does the statement of facts provided by police in support of the criminal charges. Section 7 does not confer any authority to make an interim order.

Finally, if the description of the order as “interim” was intended to indicate that the non-publication order was made under s 10 of the Court Suppression and Non-Publication Orders Act, in my view it misconceived the operation of that Act. The Act makes no express provision for “final” orders. As already noted, it does allow a court to make an interim order under s 10. However, that power is conferred for a limited purpose. In Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 865 at [15], I expressed the view that s 10 allows the court to make an interim order so as to maintain the efficacy of an application for a suppression order by protecting the material the subject of the application pending determination of the application on the merits. I also said at [41] that s 10(2) makes plain that an interim order should endure only so long as is necessary to determine the merits of the substantive application for a suppression order or non-publication order under s 7 of the Act. That decision was upheld by this Court without any qualification of that analysis: Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217.

On my understanding of those provisions, the Act contemplates that an interim order under s 10 would ordinarily be made at the outset of an application for a suppression or non-publication order under s 7 and would remain in place only during the hearing of that application (ordinarily a matter of hours or at most days), at the conclusion of which the Court would either make an order under s 7 (which, as required by ss 11 and 12, would have to specify its place of application and duration) or dismiss the application.

If, as appears from the transcript of 25 May 2017, the non-publication order was made following a determination of the merits of making such an order, it was not properly characterised as an interim order under s 10 but rather invoked the power under s 7. In that event, the place of application and duration of operation of the order ought to have been specified.

Further, although an interim order is not required to specify its duration (because s 12 states that such an order is “to have effect, subject to revocation by the court, until the application is determined”), it must still specify a place of application in order to have efficacy in accordance with s 11.

For those reasons, in my respectful opinion, the order of 25 May 2017 was not an interim order within the meaning of the Court Suppression and Non-Publication Orders Act and the primary judge erred in holding that it was.

Mr Burton’s draft notice of appeal specifies a third ground which was not addressed in oral argument. Leave should not be granted in respect of that ground.

The Notice of Contention can be addressed briefly. The contention is “that the primary judge was incorrect in finding (at [30] and [33]) that the decision of Harrison AsJ in respect of the interim order cannot give rise to a binding estoppel”.

As already noted, after unsuccessfully applying to have the criminal proceedings dismissed, Mr Burton filed a summons in the Common Law Division of the Supreme Court seeking judicial review of that decision. The summons was dismissed by Harrison AsJ, who held, at [60]: “on the face of the Court order, it is an interim order.”

The DPP’s application for summary dismissal of Mr Burton’s action in the District Court was based first on an alleged estoppel arising from that finding. In my view, the primary judge was right to reject that argument. His Honour noted at [27] that the application before Harrison AsJ was concerned with the issue whether there was an error of law that appeared “on the face of the record” of the proceedings in the Local Court and noted that the review was confined accordingly. At [30] of the judgment, his Honour noted that the remarks of Harrison AsJ set out above referred to the order as it stood on the record. Confined to the record, the conclusion that the order was an interim order was inevitable; it was not possible for her Honour to go behind what appeared on the face of the order to determine whether or not it was in truth an interim order.

For those reasons, I would reject the point raised by the Notice of Contention.

Having regard to the fact that error in the decision to dismiss the proceedings summarily has been established, the prejudice suffered by Mr Burton in being ordered to pay the DPP’s costs and the importance of the point of construction of the Court Suppression and Non-Publication Orders Act raised by the application, I am of the view that leave to appeal should be granted.

It remains to consider what orders should be made. Even if it is accepted that Mr Burton is right in his contention that the three charges based on the order of 25 May 2017 are doomed to fail, there is a real question as to whether it is open to infer that the DPP has up to this point maintained those charges for the purpose of vexing Mr Burton. It is clear that different views have been taken as to the construction and operation of the Court Suppression and Non-Publication Orders Act. It could not be said that maintaining a contestable view as to the operation of the Act of itself reveals an absence of any proper purpose for maintaining the criminal proceedings.

An issue may arise as to whether the pleading of the cause of action is deficient for the further reason that no particulars of special damage are given: see Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 375A (Hunt J). That issue was not addressed before the primary judge or in the appeal.

Significantly, the primary judge indicated at [64] that, had a cause of action been disclosed, he would have allowed Mr Burton an opportunity to amend. It is not clear whether that would result in the production of a pleading in proper form. However, in my view, the appropriate course is to remit the proceedings so that they can resume at the point where they were stopped. For those reasons, I propose the following orders:

Since writing this judgment I have read the judgments of Bell P and White JA in draft. I respectfully share the reservation expressed by White JA as to the desirability of formulating authoritative principles of law in an application of the present kind, where the facts have not been found. In particular, with great respect to the President, I am not confident that the seeking of a collateral advantage is an element of the tort. The authorities considered by his Honour arguably support the proposition that the existence of an improper purpose together with misuse of the proceedings in furtherance of that purpose would suffice, whether or not the purpose was to obtain an advantage. I see no reason in principle why a collateral purpose of imposing a detriment, such as vexation, would not equally fall within the principles discussed, particularly where the relevant process is a criminal proceeding and the alleged tortfeasor is a prosecuting authority. In any event, it is not necessary to decide that question.