Burton v Babb

Burton v Babb [2023] NSWCA 242
Court of Appeal of New South Wales
Adamson JA & Simpson AJA
Malicious prosecution – a child suffering from significant health conditions was removed from premises in Newcastle and placed into the care of Family and Community Services at a hospital where the child was examined – care proceedings were brought in respect of the child in the Children’s Court – the Children’s Court made an order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), expressed to be an interim order, prohibiting the publication of information that would tend to identify individuals connected with proceedings in that Court – the plaintiffs posted material on Facebook which appeared to breach this order, and refused to remove the posts notwithstanding a request by a representative of Family and Community Services – the Secretary of Family and Community Services brought proceedings in the Equity Division of the Supreme Court, seeking orders against the plaintiffs to require them to remove the Facebook posts – the Court made the orders sought – the plaintiffs were charged with breach of the suppression order made by the Children’s Court – a magistrate dismissed applications challenging these charges – the plaintiffs commenced proceedings in the Common Law Division of the Supreme Court, seeking judicial review of the magistrate’s decision – a single judge dismissed this application – the Court of Appeal upheld the plaintiffs appeal, on the basis that the Children’s Court order was not an interim order, and, as it duration was not stipulated, it was unenforceable – the charges were withdrawn – the plaintiffs then commenced proceedings for malicious prosecution against the Director of Public Prosecutions and the Secretary of Family and Community Services – the primary judge gave judgement for the defendants with costs 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 – one of the plaintiffs sought leave to appeal – held: there was no suggestion that the malfunction in the recording equipment during trial 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 – 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 – 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 – the primary judge addressed the question of malice at length, and 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 – the positions held by the defendants at the relevant time were insufficient to establish they were prosecutors for that purpose, as the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor – it did not follow from the fact that the characterisation of the Children’s Court order as an interim order turned out 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 – the primary judge had not erred in making the costs order – leave to appal refused with costs.
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