Burton v Babb

1. [1]

   ADAMSON JA: Paul Burton (the applicant) seeks leave to appeal against the judgment entered against him and Andrew Katelaris (together, the plaintiffs) by Weber SC DCJ (the primary judge) in the District Court (the Court below) on 19 April 2023. The respondents in this Court are Lloyd Babb, who was at relevant times the Director of Public Prosecutions (NSW), the first defendant in the Court below, and Michael Coutts-Trotter, at relevant times the Secretary of the Department of Family and Community Services (FACS), the second defendant in the Court below.

Background to the proceedings

1. [2]

   The background to the proceedings in the Court below can be shortly summarised.

2. [3]

   In May 2017, a child suffering from significant health conditions was removed from premises in Newcastle and placed into the care of FACS at a hospital where the child was examined. Care proceedings were brought in respect of the child in the Children’s Court.

3. [4]

   On 25 May 2017, the Children’s Court made an order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), which was expressed to be an interim order, prohibiting the publication of information that would tend to identify individuals connected with proceedings in that court (the 25 May order). Another order under the Act was made on 31 May 2017.

4. [5]

   The plaintiffs posted material on Facebook which appeared to breach the 25 May order. The plaintiffs refused to remove the posts notwithstanding a request by a representative of FACS.

5. [6]

   In July 2017, the second defendant, who was then the Secretary of FACS, brought proceedings in the Equity Division of the Supreme Court, seeking orders against the plaintiffs to require them to remove the Facebook posts. Orders to that effect were made by Rein J on 18 July 2017.

6. [7]

   On 21 December 2017, both plaintiffs were charged by Court Attendance Notice (CAN) with breach of the 25 May order. Each plaintiff’s challenge to his CAN was dismissed by Magistrate Stone on 30 April 2018.

7. [8]

   In 2018, the plaintiffs commenced proceedings in the Common Law Division of the Supreme Court for judicial review of the dismissal. The basis of their challenge was that the 25 May order did not include a time specification for the duration of the order, as required by s 12 of the Act. On 8 March 2019, Harrison AsJ dismissed their summons, holding that the 25 May order was an interim order and therefore did not require its duration to be stated: Burton v Local Court of New South Wales [2019] NSWSC 191. The plaintiffs’ appeal to this Court against that dismissal was upheld: Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245 (Bell P, White and McCallum JJA) (Burton CA). This Court found that the 25 May order was not an interim order and, as the duration of the order was not stipulated, it was unenforceable. As a consequence, the charges against the plaintiffs for breach of the 25 May order were withdrawn.

The proceedings in the Court below

1. [9]

   On 29 June 2020, the plaintiffs commenced proceedings against the defendants in the District Court for damages for malicious prosecution. The primary judge heard the proceedings on 13 and 14 February and 5 April 2023. The defendants called no witnesses. At the conclusion of the evidence on 14 February 2023, the primary judge ordered the parties to file and serve written submissions, to which they would have an opportunity to speak on 5 April 2023.

2. [10]

   On 5 April 2023, the applicant began his oral submissions. At some stage, it was discovered that the court recording system was not functioning. This led to the court moving to another courtroom where the applicant resumed his oral address, which was recorded.

The judgment of the Court below

1. [11]

   On 19 April 2023, the primary judge entered judgment against the plaintiffs in favour of the defendants on the basis that the plaintiffs had not established any of the elements of the tort of malicious prosecution apart from the element that the criminal proceedings terminated in their favour.

2. [12]

   The primary judge identified the elements of the cause of action for malicious prosecution and what was in contention as follows:

3. [13]

   The primary judge found that the defendants’ forensic decision to call no witnesses could be “readily anticipated” ([22]) and the defendants were not obliged to adduce evidence to prove the plaintiffs’ cases.

4. [14]

   The primary judge said:

5. [15]

   When addressing the element of malice (which is relevant to proposed ground 3), the primary judge said:

6. [16]

   The primary judge addressed the element that the proceedings be brought or maintained without reasonable or probable cause as follows:

7. [17]

   The primary judge addressed the element of damages (which is relevant to proposed ground 8) as follows:

8. [18]

   In conclusion, the primary judge found that the plaintiffs had not established that:

   1. (1)

      either of the first or the second defendants was a prosecutor for the purposes of the tort; or

   2. (2)

      their dominant purpose in bringing the prosecution by filing the CANs was other than the proper invocation of the criminal law; or

   3. (3)

      the prosecutions were brought or maintained without reasonable or probable cause; or

   4. (4)

      the damage which they alleged they had suffered.

The costs of the proceedings in the Court below

1. [19]

   In the Court below, the plaintiffs submitted that there ought be no order for costs. The defendants sought an order that the plaintiffs pay their costs of the proceedings, as well as an order, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that they be paid in a gross sum. The primary judge determined these applications on the papers.

2. [20]

   On 23 May 2023, the primary judge rejected both the plaintiffs’ application that there be no order as to costs and the defendants’ application that the costs be paid in a gross sum. His Honour acceded to the defendants’ application that the plaintiffs be ordered to pay their costs of the proceedings: Burton v Babb (District Court (NSW), Weber SC DCJ, 23 May 2023, unrep) (the Costs Judgment).

3. [21]

   The primary judge gave the following reasons for rejecting the applicant’s submission that there ought be no order as to costs:

4. [22]

   The primary judge, accordingly, found that there was no reason not to order the plaintiffs to pay the defendants’ costs of the proceedings in accordance with the general rule that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

The application for leave to appeal

1. [23]

   The application for leave in this Court was listed to be determined in advance of any hearing of the appeal. Although the applicant argued in both his written and oral submissions that he had a right of appeal, the only application before this Court is his summons for leave to appeal. The summons would appear to have been filed on the basis of s 101(r) of the Supreme Court Act 1970 (NSW) (namely, that the applicant has not established that the appeal “involves a matter at issue amounting to or of the value of $100,000 or more”).

2. [24]

   The principles which apply to a grant of leave are as follows. Leave to appeal will generally only be granted when the appeal involves an issue of principle, a question of public importance or a reasonably clear injustice: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; see also, Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46].

3. [25]

   The applicant’s draft grounds of appeal are as follows:

Consideration

1. [26]

   The proposed first ground arises from the malfunction in the sound recording equipment referred to above at [10]. The applicant submitted that it was an error of law for the Court below, as a court of record, not to keep a full record of proceedings and that the lack of a full transcript would compromise this Court’s capacity to review the matter.

2. [27]

   Section 8(2) of the District Court Act 1973 (NSW) provides that the District Court “shall be a court of record.” However, the legislation does not stipulate the records that must either be created or maintained.

3. [28]

   There is no suggestion that the malfunction in the recording equipment deprived the primary judge of the opportunity of hearing and having regard to all the oral submissions which were made during the period of the malfunction. Its only consequence was that a portion of the plaintiffs’ oral submissions was not transcribed. It is not uncommon for District Court judges to hear and decide matters without the benefit of transcript, although a transcript of all matters is created.

4. [29]

   The effect of the temporary malfunction is that this Court does not have a full transcript of the oral submissions made by the applicant to the Court below. However, as the error was discovered while the applicant was still making submissions, he had the opportunity to repeat or recapitulate what he had said when a functional recording system was available.

5. [30]

   There may be instances where loss of transcript, particularly of crucial oral evidence, has compromised a parties’ right of appeal such that the only remedy to cure the injustice is to set aside the orders of the Court below and order a re-trial. I am not persuaded that the gap in the recording of the applicant’s submissions amounts to a basis for impugning the decision of the Court below in circumstances where the primary judge heard all the submissions and what was said in the Court below was not in contention. This ground of appeal does not raise any question of principle or any basis for suggesting that any reasonably clear injustice arose.

6. [31]

   The applicant contended that the primary judge had failed to give adequate reasons for judgment. He particularly relied on the passages from his Honour’s reasons at [25] and [33] (extracted above).

7. [32]

   The purposes of the judicial obligation to give reasons that explain why a decision has been reached include that the unsuccessful party is entitled to know why he or she has lost and also whether any error might warrant a challenge to the decision by an appeal: Pettitt v Dunkley (1971) 1 NSWLR 376 at 382 (Asprey JA) and 388 (Moffit JA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (McHugh JA). The length and detail required of reasons, accordingly, depends on the issues to be determined.

8. [33]

   In the present case, where the plaintiffs had adduced no evidence to establish a number of the elements of the cause of action which they propounded, the primary judge was not required to do more than identify each element and explain why he considered proof to be deficient. In the circumstances of the present case, the applicant has failed to identify any respect in which the primary judge’s reasons were inadequate.

9. [34]

   In support of the proposed third and fifth grounds, the applicant relied on evidence which was said to establish that “the child in this case was removed on known false grounds and without delegated authority.” In his written submissions in this Court, the applicant said in part:

10. [35]

    The primary judge addressed the question of malice at length (see the passages extracted from [52]-[59] of his Honour’s reasons). Of significance, there was no evidence that any “malice” could be sheeted home to either of the defendants, even if one or both of them could be shown to be a prosecutor for the purpose of the tort of malicious prosecution.

11. [36]

    This point can be illustrated by the decision of this Court in State of New South Wales v Spedding [2023] NSWCA 180 (Bell CJ, Ward P and Adamson JA) (Spedding) where this Court held that the Office of the Director of Public Prosecutions, although found to be one of the “prosecutors” for the purposes of the tort of malicious prosecution, did not have the requisite malice (the improper purpose being confined to the police officers who had been involved in charging the respondent).

12. [37]

    The identity of the “prosecutor” for the purposes of the tort alleged was crucial to the cause of action. The positions held by the defendants at the relevant time were insufficient to establish that matter since, for the purposes of the tort of malicious prosecution, “the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor”: Davis v Gell (1924) 35 CLR 275 at 282; [1924] HCA 56 (Isaacs ACJ).

13. [38]

    In Spedding, this Court said at [15]:

14. [39]

    Even if it could be said that either of the defendants was, relevantly, a prosecutor, the applicant’s claim for damages was bound to fail because of the dearth of evidence to establish either malice or absence of reasonable and probable cause.

15. [40]

    Proposed ground 4 does not raise an issue of principle since it was a factual question. Nor does it give rise to any reasonably arguable injustice.

16. [41]

    In this Court, the applicant relied on an argument in support of these grounds which had been put and rejected in the Court below (as set out in the extracts from the primary judge’s reasons above). It does not follow from the fact that the characterisation of the 25 May order as an interim order turned out (with the benefit of this Court’s judgment in Burton CA) to be incorrect that there was any malice or lack of reasonable or probable cause in the prosecution of the plaintiffs for breach of the order which the prosecutors can be taken to have believed to be lawful at the time.

17. [42]

    The applicant has failed to identify any issue of principle, question of public importance or reasonably clear injustice which arises either from the primary judge’s reasons, the orders made or the grounds of appeal.

18. [43]

    In support of ground 8, the applicant argued that he had confirmed, at the outset of the proceedings in the Court below, that he was not claiming “special” damages. He submitted that he was, nonetheless, entitled to an award of damages “[e]specially in regards to the exemplary damages.”

19. [44]

    In State of New South Wales v Landini [2010] NSWCA 157, this Court confirmed, by reference to High Court authority, that damages is an element of the cause of action for malicious prosecution at [20]:

20. [45]

    In Davis v Gell, Isaacs ACJ said, at 285:

21. [46]

    The primary judge found that the tort was not made out as other elements (anterior to the question of damages) were not established. It is, accordingly, neither necessary nor desirable for this Court to address damages which, in the present case, could only be hypothetical. This ground does not provide a warrant for a grant of leave.

22. [47]

    The applicant argued, as he had argued in the Court below, that because neither of the defendants had personally incurred a liability to pay the Crown Solicitor’s Office (CSO), the solicitor on the record for the defendants, for legal fees and costs, no order for costs in their favour ought be made. That argument was rejected by the primary judge for the reasons his Honour gave in the passage extracted from the Costs Judgment set out above.

23. [48]

    The effects of s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) are that the State of New South Wales (the State) is vicariously liable in respect of torts committed by persons in the service of the Crown in the performance or purported performance of functions in the course of their service with the Crown and that the State is obliged to indemnify an employee or officer who, in the execution of duty, commits a tort in respect of which damages are awarded. As both defendants occupied public office, the State is vicariously liable for torts committed by them in the course of their public service (whether or not it was joined as a defendant) and obliged to indemnify them against any award of damages in favour of the plaintiff or any costs.

24. [49]

    Section 44 of the Legal Profession Uniform Law Application Act 2014 (NSW) provides that the Crown Solicitor for NSW (namely, the CSO) may act as solicitor for the State or any officer or employee in the service of the State. The applicant accepted that the CSO was entitled to act as the solicitor for each or both of the defendants.

25. [50]

    Each of the defendants was a “Covered Individual” for the purposes of the State government’s internal self-insurance arrangement. In these circumstances, as the primary judge found, the insurer had a right of recovery of the costs incurred for the benefit of the Treasury Managed Fund under the Statements of Cover, as well as by reference to the principles of subrogation. In these circumstances, whether the defendants are personally liable for the costs is not to the point.

26. [51]

    The applicant further argued that, in the absence of evidence that either one of the defendants had instructed the CSO to act on his behalf, this Court ought conclude that the CSO was acting without their instructions and in contempt of this Court.

27. [52]

    In support of this submission, the applicant relied on an internal CSO document which recorded that the CSO had been instructed to act on behalf of the Office of the Director of Public Prosecutions (ODPP) on 23 July 2020 and to act on behalf of the Department of Communities and Justice (DCJ) on 26 August 2020. I understood it to have been accepted that the first defendant had been the DPP at the time of the prosecution of the applicant in the Local Court and the second defendant was Secretary of FACS at the time of the prosecution, although he later became the Secretary of the DCJ.

28. [53]

    In addition, the applicant relied on this Court’s decision in Burton v Babb [2020] NSWCA 331 in support of his submission that the CSO was in contempt of this Court by purporting to act on behalf of the defendants, notwithstanding that the defendants had not instructed them to do so and was, he alleged, acting on the instructions of the State. He argued that the State was, in substance, running the case for itself.

29. [54]

    In Doulaveras v Daher [2009] NSWCA 58, Campbell JA (Giles and Macfarlan JJA agreeing) said, of present relevance, at [138]:

30. [55]

    The party challenging a legal practitioner’s retainer bears the onus of proving that the legal practitioner has not been retained. However, depending on the quality of the challenger’s evidence, an evidentiary onus may move to the legal practitioner in relation to particular factual issues: Hawksford v Hawksford [2005] NSWSC 463; (2005) 191 FLR 173 at [55] (Campbell J). The applicant has not adduced any evidence to discharge the onus apart from the internal CSO document, which revealed no more than that the CSO had been instructed by those entities.

31. [56]

    The communications between, on the one hand, the CSO, and, on the other, the defendants and the State are protected by client legal privilege which has not been waived. In these circumstances, the applicant’s contention that the CSO “never had instructions” to act on behalf of the defendants has not and cannot be made out. Indeed, inferences to the contrary are available from the circumstance that the State is not only vicariously liable for any liability established against either of the defendants, but it is also the (self-)insurer of this liability.

32. [57]

    The proposed grounds 9 and 10 raise no issue of principle (since the applicable principle is well-established) or reasonably clear injustice.

Conclusion

1. [58]

   For the reasons given above, none of the proposed grounds of appeal raises an issue of principle or gives rise to an injustice which is “reasonably clear”, rather than merely arguable. None of the grounds raises a real question as to the correctness of either the judgment in favour of the defendants or the order for costs in their favour.

Proposed orders

1. [59]

   For the reasons given above, I propose the following orders:

   1. (1)

      Refuse leave to appeal.

   2. (2)

      Order the applicant to pay the respondents’ costs of the application.

2. [60]

   SIMPSON AJA: I agree with Adamson JA.