Supreme Court New South Wales Medium Neutral Citation: Flowers v State of New South Wales (No 5) [2021] NSWSC 887 Hearing dates: 22, 23, 24, 25, 26, 29 March 2021 and 23, 27 and 28 April 2021 Decision date: 22 July 2021 Jurisdiction: Common Law Before: Rothman J Decision: (1) Proceedings dismissed; (2) The plaintiff shall pay the defendant's costs of and incidental to the proceedings. Catchwords: TORTS – malicious prosecution – collateral abuse of process – elements – heavy onus to prove negative – plaintiff has not satisfied onus to prove malice or absence of reasonable and probable cause – negligence not available – immunity relating to process of litigation. Legislation Cited: Civil Liability Act 2002 (NSW), s 5D(1)(b) Constitution Act 1902 (NSW), ss 53(2), 72, 73 Crimes Act 1900 (NSW) s 317 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 Crown Proceedings Act 1988 (NSW) First Statute of Westminster 1275 Law Reform (Vicarious Liability) Act 1983 (NSW) Magna Carta Libertatum 1215, cl 61, cl 39 New South Wales Act 1823, 4 George IV, c 96 (Imp) Oaths Act 1900 (NSW), schs 2, 4, s 6, Supreme Court Act 1970 (NSW), ss 22, 85 Uniform Civil Procedure Rules 2005 (NSW), r 29.2 Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Australian Capital Territory v Crowley (2012) 7 ACTLR 142; [2012] ACTCA 52 Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 Bonham's Case (1610) Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41 Clavel v Savage [2013] NSWSC 775 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30 Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92 Cumming v State of New South Wales [2008] NSWSC 690 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Dunlop v Woollahra Municipal Council [1982] AC 158 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773 Forster v MacDonald (1995) 127 DLR (4th) 185 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Gesah v Ross [2013] VSC 165 Goldsmith v Sperrings Ltd [1977] 1 WLR 478; [1977] 2 All ER 566 Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49; [1935] UKPCHCA 1 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Gregory v Portsmouth City Council [2000] 1 AC 419; (2000) UKHL 3 Groom v State of South Australia [2017] SASEFC 35 Halech v State of South Australia (2006) 93 SASR 427; [2006] SASEC 29 Hanrahan v Ainsworth [1990] 22 NSWLR 73 Harvey v Derrick [1995] 1 NZLR 314 Hill v Chief Constable of West Yorkshire [1989] AC 53 Imperial Oil Ltd v Attorney General of Québec [2003] 2 SCR 624 In re McC (A Minor) [1985] AC 528 Isaacson v Durant (1886) 17 QBD 54 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kable v State of New South Wales (2010) 203 A Crim R 66; [2010] NSWSC 811 Kirk v Industrial Court of New South Wales (2009) 239 CLR 531; [2010] HCA 1 Le Lievre v Gould [1893] 1 QB 491 Little v The Law Institute of Victoria [1990] VR 257 Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 292; [1983] HCA 17 Meissner v the Queen (1995) 184 CLR 132; [1995] HCA 41 Munnings v Australian Government Solicitor (1994) 68 ALJR 169; [1994] HCA 65 New South Wales v Klein (2006) Aust Torts Reports 81-862; [2006] NSWCA 295 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65 QIW Retailers Ltd v Felview Pty Ltd (1989) 7 ACLC 510; [1989] 2 Qd R 245 Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 Quintano v State of New South Wales [2002] NSWSC 766 R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22 R v Skinner (1772) Lofft 54; 98 ER 529 R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Re Patterson; ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; [1991] HCA 31 Rickard v State of New South Wales [2010] NSWSC 151 Rush v Commissioner of Police (2006) 150 FCR 165; [2006] FCA 12 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Saif Ali v Sydney Mitchell & Co [1980] AC 198 Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; [2003] HCA 72 Sirros v Moore [1975] 1 QB 118 Spautz v Gibbs (1990) 21 NSWLR 230 State of New South Wales v Landini [2010] NSWCA 157 State of Victoria v Richards (2010) 27 VR 343; [2010] VSCA 113 Sue v Hill (1999) 199 CLR 462; [1999] HCA 30 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Wilson v State of New South Wales [2001] NSWSC 869; 53 NSWLR 407 Zalewski v Turcarolo [1995] 2 VR 562 Texts Cited: Sappideen & Vines, Fleming's The Law of Torts (10th ed, 2011, Lawbook Co) Year Book, 20 Hen. VI, 10; Vin. Abr. Tit. "Privilege" Category: Principal judgment Parties: Mark Stephen Flowers (Plaintiff/Applicant) State of New South Wales (Defendant/Respondent) Representation: Counsel: Self Represented (Plaintiff/Applicant) A Williams (Defendant/Respondent) Solicitors: Self Represented (Plaintiff/Applicant) McCabe Curwood (Defendant/Respondent) File Number(s): 2019/117371 Judgment 1. HIS HONOUR: On 15 November 2019, the plaintiff, Mr Mark Stephen Flowers, filed a Further Amended Statement of Claim in which the State of New South Wales, the defendant, was sued pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW) and/or the Crown Proceedings Act 1988 (NSW), as the legally responsible person in relation to police officers, who were said to have misconducted themselves, thereby causing damage to Mr Flowers. The matter was listed for hearing with an estimate of five days, commencing 22 March 2021, but the evidence did not conclude in the five days allocated. 2. Further hearings occurred on 29 March 2021, 23 April 2021, 27 April 2021 and 28 April 2021 at which evidence was adduced. By agreement between the parties, submissions were dealt with in writing. 3. On 11 May 2021, the Court dealt with an application that the Court, as presently constituted, be disqualified from the hearing of the matter. There was also another application for trial by jury. 4. That Motion was dismissed, ex tempore, and the reasons for judgment on the disqualification application were reserved to be issued with the reasons for judgment in the substantive matter. The timetable for the written submissions on the substantive proceedings was to conclude on 15 June 2021. Nature of proceedings 1. The plaintiff was self-represented and, in the pleadings, there is a degree of imprecision that the Court has generally overlooked. The foregoing is not a criticism of the plaintiff, who showed himself to be both intelligent and articulate. 2. Those aspects of the Further Amended Statement of Claim that disclose a cause of action seem to be in the following category: 1. malicious prosecution; 2. collateral abuse of process; and 3. negligence. 1. The last-mentioned cause of action is not the subject of the express reference in the Further Amended Statement of Claim. However, the plaintiff alleges that the relevant police officers were under a duty to take reasonable care to avoid or minimise the risk to the plaintiff of suffering further emotional or mental harm, and, implicitly at least, it was breached. 2. Further, there is a reference to perverting the course of justice, which is a criminal offence. This is a civil proceeding and these reasons for judgment do not seek to deal with the commission of a criminal offence, other than as an allegation giving rise to civil liability. 3. Nevertheless, I have taken that reference to include collateral abuse of process, referred to above. The elements of the causes of action will be dealt with later in these reasons. It is necessary, prior thereto, to deal with the reasons for judgment in rejecting the application that I disqualify myself on the basis of bias or perceived bias, together with the renewed application for trial by jury. Bias and other issues on the Motion 1. By Motion, dated 5 May 2021, the plaintiff moved for three orders in the following terms: 1. "THAT the trial commencing on the 22nd [sic] March 2021 in the Supreme Court of New South Wales Sydney under [sic] Justice Rothman be declared a mistrial for 'Section 317 crime Act' [sic] participation by State and Court. 2. THAT these proceedings be tried by a jury in the interests of justice pursuant to s.85 of the Supreme Court Act 1970 No 52. 3. THAT the Hon Justice Stephen Rothman AM recuse himself for bias and Want of Jurisdiction." 1. An Affidavit was filed in support of the Motion. That Affidavit need not be recited but refers to the following circumstances or beliefs: 1. A belief by the plaintiff that his claim against the defendant "must be heard and judged by a Jury as the only acceptable and lawful tribunal in the interests of justice according to the Rule of Law and Due Process in the preservation of [his] inalienable rights and the appropriate punishment of wrongs committed against [him] and society". The plaintiff asserts, in support thereof, that he has not given "his consent" to be without a jury which "unequivocally" deprives the Court of any jurisdiction to proceed summarily. 2. A belief that any judicial officer "who has swore [sic] an Oath or Affirmation of Allegiance to 'well and truly serve' the Crown cannot judge a case against the Crown and to say it would be a 'conflict of interest' is all too obvious". 3. The claim against the State of New South Wales is a proceeding against the Crown. 4. The subject matter of the plaintiff's claim against the State of New South Wales arises from "accusations of torts and criminal offences committed by persons in the service of the Crown" and the presiding judge commented that "no one is going to prison in this matter, that it was a civil matter regardless of any crimes uncovered". 5. That the presiding judge said "[the plaintiff] owe[d] an apology to the State of New South Wales". 6. That "the Supreme Court has failed to administer justice and is accused of blatant collusion with the State of NSW". 7. "The Supreme Court of New South Wales has participated in collusion with the State of NSW in a 'section 317 crime Act' [sic] commencing on 22 March 2021 under Justice Rothman". 8. The Supreme Court of New South Wales has "conspired to conceal closed file, which was closed without judgment, being file 2018/348865". 9. The presiding judge on 22 March 2021 "failed to hear or give any fair hearing of the filed grounds" relating to "TRANSCRIPT FRAUD", "conspiracy to conceal", "extra judicial killings and torture, and more most [sic] serious perversion of the course malicious prosecution to maintain this conspiracy". 10. On 22 March 2021, the presiding judge failed to appropriately deal with a motion of 3 December 2020 "seeking clear explanation" for "concealing the main evidence in this case filed on 15/4/2019 then archived to be hidden by the court" at which point the trial "should of [sic] been adjourned" and the presiding judge acted "in collusion with the state he is not impartial". 11. A list of concerns, which is not repeated but is contained in [14] of the aforesaid Affidavit and particularised in letters thereafter. 1. A further Affidavit of the plaintiff was filed on 7 May 2021. The 7 May Affidavit refers to the fixing of the trial date on 22 March and following. The date was fixed in October 2020. 2. By 7 May 2021 the majority of the evidence had already been adduced. Nevertheless, the Affidavit asserts as follows: 1. That the plaintiff did not consent to the Registrar fixing, on 21 October 2021, the hearing of the matter on 22 March 2021 and following; 2. That proceedings on 14 December 2020 occurred in the absence of the plaintiff in circumstances where the plaintiff had communicated with the Court, and the Registrar, before whom the hearing was to occur, claiming medical grounds for non-appearance and providing a medical certificate; 3. A complaint that the plaintiff had not consented to the hearing of a Notice of Motion relating to "transcript fraud" to be heard on 22 March 2021, including the closing of the file without judgment; 4. The "vehement" opposition by the plaintiff to the Registrar and Button J to the hearing of a Motion relating to transcript fraud and closure of the file on 22 March 2021 at a hearing on 17 February 2021; 5. The Registrar of the Court has been "maliciously denying" the plaintiff fairness and interfering with the administration of justice to conceal transcript fraud including of proceedings on 16 November 2020 for which it was said, apparently by the Court, that there were no audio recordings of the proceedings about which complaint had been made. 1. A second Affidavit annexes some correspondence between the Registry and the plaintiff. Principles on perceived bias 1. The general principle is that a judge should not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it. [1] It is inappropriate for a judicial officer to take "the easy option" and accede to such an application without coming to the conclusion that it is necessary. Judicial officers (and most members of most tribunals) are under a duty to hear and determine matters allocated to them. [2] 2. The avoidance of "the easy option" is best illustrated by the judgment of the High Court in Re Polites, supra. There, a Deputy President of the Australian Industrial Relations Commission, who had provided advice, on the issue to be determined by the Commission, to a party to the proceedings before the Commission, disqualified himself on the basis that there was a reasonable apprehension that he could not bring an impartial mind to the determination of the issues in the proceedings. The High Court determined that he was required, in the circumstances, to sit, to hear and to determine the proceedings allocated to him as a member of the Full Bench hearing the appeal. The High Court issued mandamus to achieve that result. 3. As tempting as it may be, in some cases, to avoid presiding over a particular case by acceding to an application to disqualify, fundamentally the judicial officer's duty and oath of office requires the judicial officer to preside over those matters allocated to the judicial officer, unless the law and/or some factual circumstance that emerges prevents it. 4. The law would prevent it if there would be a reasonable apprehension of bias. That requires that a fair-minded lay observer, properly informed, might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the issues in the proceedings. [3] 5. In Ebner, supra, the High Court [4] outlined the philosophy that underpinned the principle, when it said: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 1. Often the difficulty arises as a result of the discernment of the "fair-minded lay observer, properly informed". As has been commented, referring, somewhat tongue in cheek, to the "ordinary reasonable citizens on the Emu Plains omnibus", [5] such an assessment may be a matter of some contention and should not be confused with the reasonable apprehension of an onlooker judicial officer. [6] 2. The other aspect that needs to be noted is that it is the conduct of the judge that is scrutinised for prejudice and/or lack of impartiality. Bias must be real. The judicial officer must have engaged in conduct that gives rise to a bias inconsistent with the fair performance of the duties that are required to be performed or that a substantial distrust of the result would be apprehended in the minds of a reasonable onlooker. [7] Factual circumstances relating to application for disqualification and other issues on the Motion 1. The first aspect that needs clarification is the reliance, by the plaintiff, upon the provisions of s 317 of the Crimes Act 1900 (NSW). As would be suspected, s 317 of the Crimes Act establishes an offence, the maximum penalty for which is 10 years' imprisonment. The offence is generally known as tampering with evidence. It is in the following terms: "317 TAMPERING ETC WITH EVIDENCE A person who, with intent to mislead any judicial tribunal in any judicial proceeding: (a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or (b) fabricates false evidence (other than by perjury or suborning perjury), or (c) knowingly makes use of fabricated false evidence, is liable to penal servitude for 10 years." 1. The first aspect is that whatever conduct is said to be, or amount to those matters described in paragraphs (a), (b) and (c) of s 317 of the Crimes Act, it is necessary for that conduct to be engaged in with a particular intent, namely, "to mislead any judicial tribunal in any judicial proceeding". It is difficult to envisage, even if it were otherwise relevant, how the conduct of a judicial officer in a proceeding would ever amount to conduct that was done with an intent to mislead the judicial tribunal in the judicial proceeding over which the relevant judicial officer is presiding. 2. Secondly, the offence relates to the suppression, concealment, destruction, alteration and falsification of anything that may be required as evidence. As I understand the submission on this question, that which is said to be falsified et cetera was a transcript of proceedings in an interlocutory application. 3. On its face, such transcript would not, ordinarily, be required as evidence in any judicial proceeding. That comment relates to that which would be covered by each of the paragraphs to s 317 of the Crimes Act. The reliance by the plaintiff, on the provisions of s 317 in relation to conduct of the Court, or a particular judicial officer, is misplaced. 4. Consideration of Motion 5. Nevertheless, I will seek to deal, as best as I can, with the matters that have been raised by the plaintiff in relation to this application. It is necessary, without rehearsing the reasons already provided in other interlocutory judgments delivered in these proceedings by the Court as currently and otherwise constituted, to deal with the allegation that the plaintiff did not consent to the hearing dates or to a trial without jury. 6. First, in relation to at least some of the hearing dates on which this matter has proceeded, the plaintiff had agreed to those dates as dates upon which he was available. In so doing, the plaintiff, usually expressly, reserved his right to argue, and did argue, for a trial by jury and on some occasions as to the State of New South Wales making certain witnesses available. 7. Secondly, an order that the matter be fixed for a particular date five months in advance does not require the consent of the parties. Ordinarily, the availability of parties will be a matter considered by the Court in fixing a date, but consent for the date is not a requirement. 8. If a party is unavailable and cannot be available even after trying, then application can be made to vacate the hearing and alter the hearing dates. No such application was made in these proceedings on the basis of the unavailability of the plaintiff. 9. Even in the Motion with which the Court is now dealing, the plaintiff does not say that he was "unavailable" for the hearing commencing 22 March 2021. The plaintiff appeared in the proceedings. 10. Next, in civil matters in the Supreme Court, other than defamation proceedings, the ordinary course is that a hearing will be without jury. In order for a party to obtain a jury trial in civil proceedings, other than defamation, pursuant to the terms of s 85 of the Supreme Court Act 1970 (NSW), the party is required to file a motion and a requisition for a jury, in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "UCPR"), r 29.2. 11. In the case of a plaintiff, such a requisition and notice of motion must be filed "within 56 days after service on the defendant of the statement of claim". [8] I do not understand that such a requisition was made within time. 12. Whether or not the requisition and motion was filed in time, nothing has been put in any proceedings, including the proceedings before Harrison J that dealt with this issue, [9] which warranted the course of a civil hearing with a jury, as distinct from the ordinary course, being a trial by judge alone. Even more to the point, these issues were agitated and dealt with by Harrison J in interlocutory proceedings from which the plaintiff has not sought to appeal nor sought leave to appeal. 13. Apart from the failure to abide by the UCPR requirements as to the requisitioning of a jury trial, the provisions of s 85 of the Supreme Court Act make clear that civil proceedings in any Division will be without a jury, unless otherwise ordered by the Court. 14. Such an order can be made, pursuant to the terms of s 85(2), if a requisition for a trial is filed; the fee is paid; and the Court is satisfied that the interests of justice require a trial by jury. Nothing has been put by Mr Flowers to the Court as presently constituted that would suggest that the interests of justice require a trial by jury. 15. In the absence of the Court being satisfied that the interests of justice require a trial by jury, the discretion reposed in the Court by s 85(2) is unavailable. One of the statutory preconditions is the satisfaction of the Court. 16. This aspect was dealt with at length by Harrison J in an earlier interlocutory proceeding. In the earlier interlocutory judgment Harrison J also dealt with the validity or otherwise of s 85 of the Supreme Court Act. [10] 17. In the foregoing interlocutory judgment, Harrison J overlooked the absence of a timely requisition for trial by jury or the payment of the prescribed fee. On one view at least, these are statutory preconditions to the exercise of the Court's discretion to order trial by jury. They are not conditions prescribed by the UCPR, which may more readily be waived. 18. Notwithstanding the foregoing, the Court could, presumably, waive the payment of the fee, or waive the prescription of the amount and fix it at nil, and allow a requisition to be in a form that is not consistent with the UCPR and allow it to be made orally. Whether there is jurisdiction to waive the procedural requirements of s 85 of the Supreme Court Act, being the amount of the fee and/or form of the requisition, is not necessary to explore as no such application for such an indulgence has been made. 19. The next factual circumstance with which the Court is required to deal is the allegation that the Court required of the plaintiff an apology to the State of New South Wales. The comment, relied upon by the plaintiff, was not a requirement, but an expression of opinion based on the events in Court on the day. 20. The circumstances that gave rise to the exchange, which will be recited shortly, are contained in the Transcript of the proceedings of 23 March 2021. The Court was in the process of dealing with objections to material that was contained in the Joint Court Books. 21. The first issue to be noted is that the State of New South Wales compiled the Joint Court Books on the basis of material provided, in part, by the plaintiff and which the plaintiff sought to have placed in the Joint Court Books. In the course of that process, the plaintiff sought to press for the admission of complaints made against a court-appointed psychiatrist in relation to other proceedings. 22. The Court enquired as to the document which formed an Annexure to an Affidavit of Mr Flowers that he sought to have before the Court. [11] Annexed to that Affidavit as Annexure U [12] was a redacted report of Dr Westmore of March 2012. 23. Dr Westmore is a Forensic Psychiatrist. There is also reference to a redacted report of a Clinical Psychologist, Mr Dino Cipriani. 24. The Court enquired of Mr Flowers as to the relevance of the redacted report of Dr Westmore. The following exchange occurred: "PLAINTIFF: Firstly, they're not redacted. They've been provided in full to the State of New South Wales, your Honour, through-- HIS HONOUR: Where is p 5 of the report? PLAINTIFF: I don't know what they've done to the court books. WILLIAMS [Counsel for the State of New South Wales]: There is an unredacted version in the court book, your Honour, but - I'll be clear it's at p 674. That's in the defendant's part of the court book, but the relevance objection to be pressed, in any event. … HIS HONOUR: … Well, where did the redacted version come from? Mr Williams? WILLIAMS: This is annexed to the plaintiff's affidavit, your Honour. So, from the plaintiff." [13] 1. There is then an exchange relating to the prominence of the redacted psychiatric report and the exchange continued with a question to the plaintiff: "HIS HONOUR: Where do you say p 5 is? This is a document you filed. PLAINTIFF: You're asking me two questions, your Honour. One, you're asking about this particular document, 15 April 2019, I answered in regard to last week providing this-- HIS HONOUR: No, no. Listen to me. Listen to me. You accuse the State-- PLAINTIFF: Yes. HIS HONOUR: --of not producing the full material that you had presented. They have put in the court book the affidavit that you filed on 15 April 2019, with a redacted version of Dr Westmore's report. PLAINTIFF: Yes. HIS HONOUR: And frankly, I think you owe the State an apology. PLAINTIFF: Not at all. HIS HONOUR: All right, you proceed." [14] 1. The redacted version of the report was filed by the plaintiff as an annexure to his Affidavit dated 15 April 2019. The State of New South Wales reproduced the affidavit as filed, as was its duty. The un-redacted version of the report was provided to the State of New South Wales the week before the compilation of the Joint Court Book and was also included. 2. Ultimately, the Court ruled that the redacted version of the report would be rejected, inter alia, because the full version of the report is otherwise in the Joint Court Book. The plaintiff relies upon that part of the foregoing Transcript or exchange in which the Court remarked "[a]nd frankly, I think you owe the State an apology". As is clear, the suggestion from the Court arose: first, from that which had occurred in court; and, secondly, because the plaintiff was suggesting some impropriety by the defendant in attaching the redacted version of the report. 3. This latter aspect related to the accusation made by the plaintiff that, notwithstanding that the plaintiff had provided the State, in the week prior, with an un-redacted version of the report, only the redacted version was provided by the State. In fact, the State of New South Wales included in the Joint Court Books the Affidavit that was originally filed on 15 April 2019, which included the redacted version of the report of Dr Westmore, and, separately, included the un-redacted version provided by the plaintiff in the week prior to the compilation of the Joint Court Book. 4. The Court put to the plaintiff the proposition that the plaintiff accused "the State … of not producing the full material that you had presented". [15] With that accusation the plaintiff agreed. 5. That accusation was incorrect and implied or asserted improper conduct by the State of New South Wales or its lawyers. The State of New South Wales had reproduced in the Joint Court Book, as was required, the Affidavit of 15 April 2019, with annexures, in the form provided as part of the Affidavit, and, quite separately, provided an un-redacted version of the report of Dr Westmore. 6. The accusation that the State of New South Wales had not produced the full material presented to it by the plaintiff was, on the material before the Court, plainly wrong and it was, on that basis, that the Court expressed the view that it thought the plaintiff owed the State of New South Wales an apology. That statement reflects neither prejudgment nor prejudice or lack of impartiality. 7. To refer back to the extract of the judgment in Ebner, whether the view expressed by the Court was right or wrong, it was a reaction to the legal and factual merits of that which was put before the Court. It does not give rise to bias, on the principles required. 8. The evidence would not give rise to a reasonable apprehension, in the fair-minded, properly-informed lay observer, of an apprehension that the Court was dealing with the matter in any way other than on the basis of the material before it. 9. Ancillary to the application made in relation to bias and for a jury trial is the submission of the plaintiff that the Supreme Court had no jurisdiction to conduct the trial otherwise than with a jury and that any legislative provision to the contrary was invalid. This assertion was not developed by the plaintiff and was made in passing. 10. In earlier interlocutory proceedings, the plaintiff submitted that as a consequence of the invalidity of the appointment of every Governor-General and every Governor, the appointments of the judges of the Court were invalid and the Court had no jurisdiction. The invalidity of the appointment of the Governors and Governors-General seems to relate to the period from Federation. 11. Further, the plaintiff submits that the Court's, or the judge's, oaths preclude the judicial officer from hearing and determining proceedings against the State of New South Wales. I will deal with this latter issue first. 12. A judicial officer is required to swear an oath of allegiance and the judicial oath. Those oaths are prescribed by the second and fourth schedule to the Oaths Act 1900 (NSW). They are, respectively, in the following terms: "SCHEDULE 2 – OATH OF ALLEGIANCE I, , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her Heirs and Successors according to law. So help me God." "SCHEDULE 4 – JUDICIAL OATH I, , do swear that I will well and truly serve our Sovereign Lady Queen Victoria in the office of , and I will do right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill-will. So help me God." 1. By operation of s 6 of the Oaths Act, the naming of the current Sovereign is substituted in the aforesaid oaths from time to time instead of the name of Queen Victoria. Thus, assuming all current judicial officers, who are judges or acting judges of the Supreme Court of New South Wales, were sworn in after 1952, the word "Victoria", where used in the foregoing oaths, would have been "Elizabeth" in the oath taken and the words "judge of the Supreme Court of New South Wales" would be inserted after the word "office" in the judicial oath. 2. It seems, although only mentioned in passing, that the plaintiff relied upon rights purportedly conferred by the Magna Carta. The plaintiff did not particularise the version of the Magna Carta upon which he relied. 3. The first of the Magna Carta, otherwise titled Magna Carta Libertatum, of 1215 was a charter of rights agreed to by King John in which the rights of barons were prescribed. It was annulled. [16] 4. The original Magna Carta contained cl 61 which was a limited form of parliament, being 25 barons representative of the peerage. The annulment of the Magna Carta was confirmed by the Pope. 5. The Magna Carta was reissued in a different form in 1216 by Henry III. The second of the Magna Carta was significantly different. It contained only 42 clauses, compared with 63 clauses in the original document. 6. The Magna Carta was issued a third time in 1217, in a version that differed further from the original and differed from the second of the Great Charters. The Magna Carta was issued again in 1225. 7. The last version of 1225 differed only slightly from the third version in 1217. Often the Magna Carta is confused with the Forest Charter of 1225. 8. The plaintiff seems to rely on clause 39 of the first Magna Carta, which clause was repeated in subsequent versions. It was in the following terms (being the accepted modern translation/version): "39. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." 1. The reference to the lawful judgment of his equals, given that this was initially a guarantee by the monarch to the barons, was a reference to other members of the peerage. I do not deal with whether these proceedings would have the effect of seizing or imprisoning the plaintiff; stripping him of his rights, possessions; outlawing or exiling him; depriving him of his standing; proceeding against him by force; or sending persons to proceed against him. Even though it is the plaintiff that has commenced these proceedings, I will assume the clause operates more generally to grant a form of due process. 2. Nevertheless, to the extent that the clause guaranteed rights against arbitrary or capricious conduct, it remains a fundamental feature of democracy in the common law world or under the common law system. However, the clause, expressly, allows such conduct "by the lawful judgment of his equals or by the law of the land" (emphasis added). Thus, the law of the land operated to allow such conduct, independently of the right to a jury, assuming, for present purposes, that the lawful judgment of his equals equates to a jury trial. 3. As a consequence, cl 39 of the first Magna Carta, as re-enacted, and assuming it is binding upon courts and the people of Australia, does not guarantee a right to a jury trial. It guarantees that punishment or deprivation will not be exacted otherwise than in accordance with the law. 4. As to the appointment, valid or otherwise, of Governors or Governors-General, it seems to matter little to the issue of the jurisdiction of the court. The Supreme Court of New South Wales was proclaimed in 1824, which, as is obvious, was significantly prior to Federation and the enactment of the Constitution. 5. The proclamation of the Supreme Court of New South Wales in the Third Charter of Justice was a grant of all of the jurisdiction of the King's Bench, Common Pleas and Exchequer in England, as well as the jurisdiction in Chancery, Probate and in most ecclesiastical matters. There were some exceptions to the jurisdiction in ecclesiastical matters. 6. The proclamation, which was issued in 1823, was issued under the terms of the New South Wales Act 1823, 4 George IV, c 96 (Imp). The jurisdiction of the Court does not depend upon the appointment otherwise of Governors-General or Governors; it derives directly from the monarch. 7. Further, the Supreme Court Act did not create the Supreme Court of New South Wales. As is made abundantly clear by the provisions of s 22 of the Supreme Court Act, the Court, as formerly established, was continued. 8. The effect of s 73, and more generally Part III, of the Constitution requires the continuation of a Supreme Court in each State as part of the creation of the common law of Australia at the apex of which is the High Court of Australia, [17] and the implementation of the rule of law. 9. I turn then to the issues of bias relating to the fact that the defendant is the State of New South Wales and, as a judicial officer, I have sworn allegiance to the Crown. As already indicated, the plaintiff seeks for the Court, as presently constituted, to disqualify myself on the basis that I have sworn allegiance to the Crown and therefore I am, or there is a reasonable apprehension that I am, not impartial and/or independent in the determination of the outcome of the proceedings. 10. There are a number of answers to that submission. The first of them, to which I will refer, is the simplest. 11. The importance of the independence of the judge determining proceedings and the importance of the appearance of independence is trite. The bias rule, which most often refers to the reasonable apprehension of bias, prohibits the Court or tribunal determining rights from exercising its power in circumstances where it is actually or ostensibly biased. 12. As already explained, by reference to the judgment of the High Court in Ebner, the bias rule involves two steps, but it ultimately depends upon the appearance of the judicial officer to an observer who is fair-minded and informed of the circumstances. If such an observer considers that the judge will not, or there is a risk that the judge will not, bring an impartial mind to the determination of the issues in the proceeding, then there is an appearance of bias and the judicial officer should not preside. 13. The principle of impartiality or lack of bias is important not only for the particular parties in proceedings but also for the continued integrity of the Court and the proper administration of justice. Impartiality, however, does not include the proposition that a judge is unable to have opinions or experience of life. 14. In most instances, judicial officers would not be appointed were it not for the fact that they possess relevant experience and knowledge of the workings of government and the nature of society. That which is prohibited is a predisposition or prejudice against one party's case or evidence. [18] 15. Similarly, a judicial officer's view of the law, which, prior to argument that may be put, is inconsistent with the submission put by one or other party, does not give rise to apprehended bias. The judicial officer's view is either correct or incorrect. If it be incorrect, it is capable of being remedied on appeal (except, to the extent relevant, if the judicial officer is a member of a Full Court of the High Court). 16. Even in the absence of correction on appeal, a judicial officer who is true to the oath taken on appointment would, notwithstanding any earlier decisions on issues of law, weigh the submission to the contrary and determine the question on the basis of those submissions. The submissions may or may not alter the view previously expressed. 17. As earlier stated, the Court, in these reasons, will shortly deal, in more detail, with the history of independence of the Court. Nevertheless, to the extent that the issue of independence depends upon the oath of allegiance and the judicial oath, then all judicial officers, both State and Federal, including, in the case of State courts, acting judicial officers, are required, before their tenure, to take both oaths. No judicial officer is capable of sitting and determining matters, unless the judicial officer has taken the oath of allegiance and the judicial oath. 18. Notwithstanding the importance of impartiality and the appearance of impartiality, the doctrine of bias gives way to an exception in the case of necessity. 19. Where, for a proceeding to be determined, it is necessary for an officer to form an opinion and there is no alternative but that an officer with the same "bias" would preside, the rule against bias or the appearance of bias must give way to the necessity for the jurisdiction to be exercised. The foregoing does not accept that bias occurs as a result of the oaths. 20. Even if a jury trial were to be held, as is the primary submission of the plaintiff, a judge who had sworn an oath of allegiance and the judicial oath would be needed to preside over the trial. That judicial officer would determine the issues of law, including the admissibility of evidence in the proceedings, and, at the conclusion of the proceedings, instruct the jury as to the decision required to be made, being the elements of the proceeding which must be determined on the facts before them and the manner in which the jury is to approach the evidence. It would include, no doubt, an appropriate summary of the evidence. 21. As a consequence, there is no capacity for these proceedings to be determined otherwise than in circumstances where the presiding judicial officer will have sworn the oath of allegiance and the judicial oath. Moreover, the remedy, if granted, for such an application is that the trial would commence again before a judicial officer who had, similarly, taken the oath of allegiance and the judicial oath. This would involve great inconvenience to each of the parties and impact adversely on the administration of justice. [19] 22. In these proceedings, the doctrine of necessity would apply to any apprehension of bias relating to the taking of the judicial oath or the oath of allegiance, in circumstances where the proceedings are against the State of New South Wales, which, it is alleged, is the same as the Crown and/or the monarch. The immediately preceding sentence is not to be taken to accept that the Crown and the State of New South Wales are identical. Nor is it to be taken to accept that bias arises as a result of the oaths taken. 23. As to the reality of the suggestion that a judge of the Court, because of such oaths, would be other than independent in relation to matters involving the State of New South Wales, it is sufficient, as a practical demonstration denying such a suggestion, to note that the State of New South Wales is a significant litigant before the courts of New South Wales. I do not understand that there is any study that has calculated the number of times or percentage of times that the State of New South Wales has lost such cases. But there has never been any suggestion that cases involving the State of New South Wales that regularly come before the Supreme Court are determined otherwise than on the basis of the merit of the proceedings. 24. It is appropriate, also, to note that almost the entire administrative law jurisdiction of the Court involves proceedings against the State of New South Wales, a Minister of the State Government, or an agency or tribunal established by the State Government or legislature. It is inconsistent with the experience of anyone familiar with the administrative law jurisdiction of this Court (and other courts in relation to the federal government and other states) that any administrative law or other proceeding would be determined on the basis of the identity of the litigant, rather than the perceived merits of the proceedings before the Court. 25. Fundamentally, the suggestion misunderstands the relationship between the Court and the Government. It is probably unnecessary, but appropriate, to recount some of the history of that relationship. 26. Leaving aside the dispensing of justice by sheriffs and communal courts, continued after the Norman Conquest of England from the Anglo-Saxon process, prior to the 13th century there was no distinction drawn between political, legislative and judicial authority. All of it was dealt with, without regard to separation of powers, in the King's Court, being the group of courtiers that advised the King. 27. From approximately 1200, the distinction between the exercise of judicial power by the Curia Regis and the exercise of political power became noticeable. Thus, the Magna Carta refers to Common Pleas not following the King, because, at least at many points prior thereto, Westminster was not the only location at which the King's Court met and dispensed justice. 28. Certainly, from the recommencement of the Curia Regis in 1234 and following the minority of Henry III, the two principal courts of common law, being the Common Bench and the King's Bench, were evident. That early history is one of the reasons that a person can be in contempt of parliament and be punished as a consequence. 29. Indeed, the First Statute of Westminster (1275) is one of the reasons that writs for elections are issued, as writs were sent to the sheriffs and other knights and free persons to attend for the making of laws. And it was described in the preamble thereto as a "parliament". 30. At least by 1610, the separation of legislative and judicial power was complete. In Coke's Report of Dr Bonham's Case [20] , Coke CJ asserted that the common law "will control acts of parliament and adjudge them to be void as being against common right and reason, repugnant, impossible to perform", [21] which ultimately gave rise to what later became some, if not all, of the prerogative writs and judicial review. 31. While Coke's suggestion that the courts would strike down otherwise valid acts of Parliament was disavowed as the common law accepted the supremacy of Parliament, nevertheless it is an obvious piece of evidence of the separation between the courts and government. 32. Whatever be the history, judicial independence is seen as a fundamental aspect or principle underpinning democracy in Australia and the operation of the rule of law. It involves a proposition that, first, all persons are equal before the law; [22] and that, secondly, judges must be free to adjudicate fairly upon matters that come before them without any executive or legislative repercussions. It is for that reason that, initially, life tenure was a feature of the appointment of judges and that currently there is appointment to an age that is certain. 33. Further, a judicial officer can be removed only by the Governor on an address from both Houses of Parliament in the same session and only on a ground of proved misbehaviour or incapacity. [23] Federally, a judge may be removed by the Governor-General in Council, also on address from both Houses of Parliament in the same session, on a ground of proved misbehaviour or incapacity. [24] 34. Strictly speaking, the principle of separation of powers does not apply in New South Wales and judicial power may be exercised by bodies other than a court. However, as a result of the enactment of the Commonwealth Constitution, State judges and State courts, in which federal jurisdiction may be vested, may not be granted a jurisdiction that is inconsistent with the impartial and independent exercise of judicial power. 35. There may be, although there has never been reached a point where it became necessary to decide it, a restriction on Government, either State or Federal, in relation to the terms and conditions under which judicial office is performed, being such that the independence of the judiciary is compromised. 36. Thus, in an extreme case, it may well be that a failure to allow judicial salaries to keep their real value may, over an extended period, interfere with the notions of judicial independence. However, there is no single ideal model of judicial independence. [25] 37. Lastly on this issue, leaving aside the period in English history prior to the 13th century and bearing in mind that the development of independence between the 13th and 17th centuries was a gradual phenomenon, it can be emphatically reiterated that the independence of the judiciary from the State or the Government of the State is now a fundamental and entrenched aspect of the operation of Australian democracy, including democracy in New South Wales. 38. Judicial independence from the State enshrines the implementation of the rule of law with the effect that the State of New South Wales is, in all relevant aspects, bound by the law in the same way as any other body politic or person, natural or corporate. 39. The foregoing assumes the law is applicable to the State. For obvious reasons, some laws are not. Nevertheless, to the extent applicable, the State is bound by the law as determined, construed and enforced by the Courts, in the same way as every person is bound and, to the extent so bound, is to be treated by the courts equally to all other litigants. 40. Moreover, as can be seen from the recitation of the oaths above, the oath of allegiance requires allegiance to the monarch "according to law" and the judicial oath requires service and the performance of right "to all manner of people after the laws and usages of the State of New South Wales without fear or favour". The allegiance to the Queen or current monarch, to which reference these reasons will deal a little later, must be in accordance with law. 41. To the extent that one may take a view that "allegiance" to the Sovereign is anything other than loyalty, nevertheless, adherence to the oath would require the judicial officer to owe allegiance only to the extent that the law allows it. 42. Since the law enshrines judicial independence and the rule of law is fundamental to democracy, the allegiance to the Queen cannot, as a matter of law, allow or permit a judicial officer to do other than administer fairly and equally the law of the land. The Oaths would not permit conduct that would require action other than the determination of matters in accordance with law and the rule of law. 43. Further again, the judicial oath to do "right to all manner of people after the laws and usages of the State of New South Wales without fear or favour" is the particular whereby services are rendered to the body politic represented by the monarch. Once more, service to the monarch to which a judicial officer has sworn allegiance under the judicial oath would not permit, let alone require, conduct which was inconsistent with doing "right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill-will." 44. The allegiance and service to which a judicial officer swears in the oath of allegiance and the judicial oath is allegiance to the monarch, not in his or her personal capacity, but, rather, to the body politic. [26] The allegiance, for example, would not apply to applying or enforcing Canadian law or English law. 45. The Crown as a body politic is "an abstraction", used in a metaphysical or metaphorical sense. [27] Hence, we speak of the Crown in the Right of New South Wales as a distinct entity from the Crown in the Right of Victoria. 46. As the High Court explained in Re Patterson, supra, the body politic is a creation of law and, as a consequence, the allegiance would be changed by any validly made law or by a lawmaking authority. The allegiance is to the body politic, being the State as an entity, not the government and not the monarch personally. [28] 47. On any analysis, properly informed, of the effect of the oath of allegiance and the judicial oath, neither requires or allows conduct by a judicial officer inconsistent with the judicial officer's duty to uphold the law and administer it and certainly does not allow favour, affection or ill-will towards the Government over the rights, under law, of the citizens of the State. 48. For the foregoing reasons, the Motion, the effect of which was to seek orders for a mistrial and order that the trial be recommenced by a judge and jury; for disqualification on account of the exchange relating to an apology; and the application for disqualification on account of the swearing of an oath of allegiance and judicial oath on the basis that each is inconsistent with an independent assessment of the merits of the proceedings, was dismissed ex tempore. Underlying proceedings 1. Some of the circumstances surrounding the underlying proceedings about which the plaintiff complains are, relatively, uncontroversial. By way of background, it is necessary to point out that Mr Flowers previously sued the New South Wales Police. Those proceedings were resolved favourably to the plaintiff and judgment entered against the State of New South Wales. Further, the plaintiff alleges that an officer of the police from the northern suburbs of Sydney was involved in a relationship with the plaintiff's wife. 2. The foregoing comments do not seem to impact upon the major issues raised by Mr Flowers, the plaintiff, in the current proceedings. The matters of complaint in these proceedings relate, essentially, to the conduct of officers stationed at, or operating from, Bathurst Police Station. 3. The substantive issues relate to charges preferred against the plaintiff for negligent driving and assault against a former neighbour, Mr Frost; an Apprehended Violence Order (hereinafter "AVO") in which the alleged person in need of protection was the same Mr Frost; and a charge, if that be an appropriate description of a Traffic Infringement Notice, of failing to exchange particulars, arising from a collision between the plaintiff and a vehicle in a car park. 4. After hearing, the assault charges were dismissed; and the negligent driving charge was the subject of a finding of guilt, with no conviction recorded and no other penalty imposed. The AVO was withdrawn, when the assault was dismissed; and the charge and/or traffic offence of failing to exchange particulars was the subject of a penalty notice and the penalty was paid by the plaintiff. 5. The plaintiff alleges that each of the foregoing was the result of malice on the part of relevant police officers, being those officers with primary responsibility for the investigation and/or charging or recommendation for charging of the plaintiff and, in the case of the assault, the charge of negligent driving and the AVO, the police prosecutor who had carriage of the matter in the Local Court at Bathurst. The assault and negligent driving charges 1. On 14 March 2016, the plaintiff lived in premises at Fitzgeralds Mount, approximately 25 km from Bathurst. One of his neighbours and/or a person living in the nearby vicinity, was Mr Frost. 2. Apparently, sometime before 14 March 2016, Mr Flowers had complained of gunfire, or noises that sounded like gunfire, emanating from an area near his residence. Apparently, there was a sign on the property occupied by Mr Frost that it was used for the discharge of firearms. 3. The complaint in relation to the firing of the firearms was not, on the allegation of Mr Flowers, which, for present purposes, I accept, investigated in any significant manner and no steps were taken by the Police to deal with what was alleged to be the conduct of Mr Frost. 4. On 14 March 2016, the plaintiff drove his vehicle from his residence at Fitzgeralds Mount. Put as neutrally as possible, there was a collision between the vehicle being driven by the plaintiff and a vehicle driven by Mr Frost. Police were called. 5. The police officers, Senior Constables Lodge and Hughes, attended the scene. One of the officers took a statement from the plaintiff. The other officer took a statement from Mr Frost. 6. The plaintiff alleges, and I accept it to be the case, that at some point Mr Frost leaned into the vehicle that had been driven by the plaintiff, removed the car keys that were in the ignition, and threw them into the bush on the side of the road. 7. When the police officers arrived, they, together with Mr Frost, searched for the keys that had been thrown into the bush and, after some time, the keys were located and returned to the plaintiff. On the evidence before the Court, it is more probable than not that the keys were located by Senior Constable Lodge. 8. As earlier stated, the plaintiff gave to a police officer an account of the events leading up to and causing the collision and the events subsequent to the collision. Mr Flowers did not sign the statement, but the statement is in evidence. Mr Flowers was informed that he could leave the scene of the collision, which he did. 9. As already stated, a statement was also obtained from Mr Frost. Mr Frost is not a police officer or any person for whom the State of New South Wales, the defendant in these proceedings, has legal responsibility. 10. Some weeks after the incident on 14 March 2016, an application for an Interim Apprehended Violence Order (hereinafter "Interim AVO") was attached to the farm gate of Mr Flowers' premises. It is unclear from some of the evidence whether that which was initially attached to the farm gate was an Interim AVO or an application for an Interim AVO. In the scheme of those matters that are before the Court, the distinction, at this time, is of little moment. It would appear, given that there was a contested hearing for the Interim AVO, that the document was the application. Nothing relevantly turns on the nature of the document. 11. Mr Flowers filed a response to the application for the AVO with the Bathurst Local Court. Over and above the application for an AVO, Mr Flowers was charged with assault of Mr Frost, as a result of that which was said by Mr Frost to have occurred on 14 March 2016, at the time of the collision. The details of these matters will be dealt with later in these reasons for judgment. 12. On 3 May 2016, it is alleged that Mr Flowers was driving a Land Rover and backed into another car in a car park, very close to Bathurst Police Station. Mr Flowers was contacted by Senior Constable Costelloe. As can be seen, this incident was approximately two weeks later than the incident involving Mr Frost. 13. Mr Flowers made a statutory declaration in relation to this accident in which he acknowledged that he had backed into another vehicle. Mr Flowers maintained that he was, at the time of the collision, unaware of the collision. Mr Flowers was not charged in relation to the accident. 14. However, notwithstanding correspondence between Bathurst Police, Senior Constable Costelloe, and legal representatives of Mr Flowers, Mr Flowers was charged with failing to exchange particulars in relation to the collision in the car park. Ultimately, and leaving aside all of the details to which greater reference will be made later, Mr Flowers paid the Traffic Infringement Notice, which alleged a failure to exchange particulars. 15. In the meantime, on 4 August 2016, on the recommendation of Senior Constable Hughes, charges were preferred against Mr Flowers relating to the event on 14 March 2016. Those charges, as stated, were for negligent driving and assault. 16. The assault charge was dismissed by the magistrate after hearing. The negligent driving charge, as already stated, was the subject of a finding of guilt, but was the subject of a s 10 Order pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), under which no conviction was recorded, and no further penalty was imposed. 17. The plaintiff, Mr Flowers, sues the State of New South Wales for malicious prosecution, amongst other causes of action, arising from these incidents and the maintenance and/or prosecution of the charges, including the traffic offence, and AVO, by Senior Constable Hughes, Police Prosecutor Pearce or Senior Constable Costelloe. 18. The foregoing is provided by way of background only and is not intended to be a complete summary of that which is alleged, and which is said to amount to the causes of action. The foregoing background is not intended to amount to findings on the issues before the Court; and they have been outlined in as relatively uncontroversial and/or neutral terms as possible. 19. The foregoing factual background is provided for the purpose of understanding the preliminary aspects of the reasons for judgment that now follow. Those preliminary aspects will include the elements of the causes of action upon which Mr Flowers relies and a brief outline of the overriding principles that, at the same time, limit recourse for that done in court proceedings and allow for causes of action for malicious prosecution and collateral abuse of process. The context of malicious prosecution and other causes of action 1. For centuries the common law has provided immunity from suit for conduct performed in the course of litigation by a variety of actors. That immunity provides a privilege of exemption from civil process. 2. Thus, a party or witness, at common law, was granted immunity from civil process for those things done in the course of that litigation or civil process. The history of this immunity is extremely ancient and, on my research, was first mentioned in the Year Book of Henry VI. [29] 3. The rule is based upon public policy and is almost universally recognised within the common law world. It exists independent of statutory exemption from liability and is seen to be a necessary aspect of the due administration of justice. 4. Historically, its origin stems from a time when persons were arrested in order to obtain surety upon the grant of bail to ensure their attendance at the particular Assizes, which, otherwise, had no power to require attendance. 5. Nevertheless, the public policy basis for the immunity has been emphasised, usually in respect to legal practitioners and witnesses, on a number of occasions. The immunity runs against civil process for that which is said to have been done in the course of civil proceedings. The immunity is subject to a number of specified exceptions: malicious prosecution; collateral abuse of process; and certain criminal offences arising from the conduct at trial, such as perjury, contempt of court and the like. 6. The rationale underpinning the immunity is consistent across all those engaged in the civil process, including jurors, judges, advocates and witnesses. It also applies to complainants. 7. It was the subject of discussion by the High Court in the context of barrister's immunity. [30] Notwithstanding that the High Court was, in those proceedings, referring to an advocate's immunity, an advocate's immunity from liability is, as earlier stated, part of the general immunity from civil liability that attaches to all persons in respect of their participation in proceedings before a court. This immunity runs to judges, jurors, court officials, witnesses, parties, counsel and solicitors. [31] 8. In discussing the immunity, albeit in relation to an advocate, the High Court [32] said: "[31] In Giannarelli, Mason CJ said that 'the barrister's immunity, if it is to be sustained, must rest on considerations of public policy'. His Honour explained that the term 'immunity' was used in a sense which assumed that rights and duties might otherwise exist at common law, but the immunity is sustained on considerations of public policy and 'the injury to the public interest that would arise in the absence of immunity'. Of the various factors advanced to justify the immunity, 'the adverse consequences for the administration of justice which would flow from the re‑litigation in collateral proceedings for negligence of issues determined in the principal proceedings' (emphasis added) was held to be determinative. The significance of the reference to the administration of justice is of fundamental importance to the proper understanding of the immunity and its foundation. [32] To adopt the language found in the cases considering Ch III of the Constitution, the central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities, or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the 'judicial branch of government' is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed. [33] As s 71 of the Constitution says, what is 'vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction' is the judicial power of the Commonwealth, that is, the judicial power of the national polity. No matter whether the judicial branch of government is separated from the other branches of government (as it is and must be at the federal level but, at least generally, is not at the State level) it is, in Quick and Garran's words, 'the third great department of government'. Finality [34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. [35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so‑called 'fresh evidence rule') are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: '[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial'. [36] The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit. Other immunities from suit [37] Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others – the judge, the witnesses, advocates – anyone other than the party whose case has been rejected. [38] This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16th and 17th centuries. [39] From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation: 'The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them.' (footnote omitted)." (Footnotes omitted.) [33] 1. I have included such an extensive outline of the principle associated with immunity from civil suit, notwithstanding that such a lengthy extract is unusual. I have done so for a number of reasons. 2. It is necessary for the parties to these proceedings to understand the fundamental nature of the immunity. The High Court in D'Orta-Ekenaike, supra, went on to discuss judicial immunity and the immunity of the other party. 3. Citing historical examples, the High Court made clear that immunity, as a matter of public policy and as a necessary concomitant of the finality of legal proceedings, was an essential element in the judicial system. The High Court cited Lord Mansfield [34] to the effect that "neither [sic] party, witness, counsel, jury, or [sic] Judge, can be put to answer, civilly or criminally, for words spoken in office". [35] 4. The immunity serves two related considerations, according to the discussion on the High Court, namely: "to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences"; and "the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment". [36] 5. As noted earlier, there are exceptions. First, finality gives way to the appellate process. Secondly, confined exceptions have been developed relating to malicious prosecution; collateral abuse of process; and certain criminal proceedings for conduct in the course of litigation. Those criminal proceedings include: perverting the course of justice; perjury; contempt of court (a common law offence); and the like. 6. In the current proceedings, as already stated, the plaintiff proceeds for malicious prosecution and, albeit not as clearly, collateral abuse of process. On one view of the material raised by the plaintiff, he may also be proceeding for negligence of the police officers and/or misfeasance in office. 7. Although the raising of a cause of action either in negligence or in misfeasance in office is not clearly articulated, the Court will briefly deal with each of those aspects. It should be stated that, it seems as a result of the plaintiff's lack of representation, none of the causes of action are clearly articulated. 8. The issue of the misfeasance in public office is raised by the Court only because there is an oblique reference to the duty of care of the police officers, including the prosecutor. The tort of misfeasance in public office is "well-established". [37] 9. To establish misfeasance in public office a plaintiff is required to prove, on the balance of probabilities: an invalid or unauthorised act; that is done maliciously; by a public officer; in the purported discharge of his or her public duties; which has caused loss or harm to the plaintiff. [38] 10. It has also been described as confined to a cause of action that extends to acts by public officers that are beyond power, including acts that are invalid for want of procedural fairness. [39] Their Honours made clear that in order to establish a cause of action in the tort of misfeasance in public office, it is not enough for a plaintiff to show the knowing commission of an act of an officer beyond power, which results in damage. 11. The tort is confined to those torts which impose liability for the intentional infliction of harm and it is a requirement on a plaintiff, in order to succeed in such an action, for the plaintiff to show actual malice and prove, at least on the balance of probabilities, conduct which is calculated in the ordinary course to cause harm or is done with reckless indifference to the harm that is likely to ensue. [40] 12. If, and it is not clear, the plaintiff claims a cause of action in negligence by asserting a want of due care that has caused damage, there are a number of hurdles that are required to be overcome. One is that it is necessary for the plaintiff to show that there is a duty of care owed. 13. Conduct which is careless and causes damage does not, without more, give rise to a cause of action in negligence. It may well be that the law recognises a duty of care to one's neighbour, but it confines neighbour to a person to whom the defendant owes a duty of care. 14. In that regard, it is necessary for there to be "proximity" between the person who has suffered damage and the person who has acted carelessly, where such carelessness has caused the damage. There are a number of ways in which that relationship has been described. Most instances of negligence refer to well-established relationships from which a duty of care is known to arise. 15. If the cause of action be in negligence, or arise from an allegation of want of due care, then it is a cause of action to which the provisions of the Civil Liability Act 2002 (NSW) applies. The foregoing statute applies, relevantly, to all claims relying upon a failure to exercise reasonable care and skill. 16. But it is not, as stated, every act of carelessness or negligence that gives rise to a cause of action. In the classic statement, "a man is entitled to be as negligent as he pleases towards the whole world if he owes them no duty". [41] 17. Moreover, for an action in negligence to be successful, under the provisions of the Civil Liability Act, it is necessary for a court to form the opinion that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. [42] If an investigating police officer or police prosecutor were to owe a duty to a person being investigated or a person charged with an offence and the scope of that duty included a liability in negligence to persons investigated or charged with an offence, it would render otiose the whole operation of a cause of action in malicious prosecution. 18. There is a necessity, in the operation of the law, for there to be a degree of cohesion. To hold an investigating police officer or a police prosecutor liable in negligence for want of due care towards a person being investigated or a person being prosecuted, in circumstances where the common law had established malicious prosecution as one of the few exceptions to the immunity from suit of persons involved in the legal process, would create an inconsistency in the operation of the law and render both the immunity and the carefully crafted exception for malicious prosecution wholly nugatory. 19. The foregoing relationship between negligence and malicious prosecution was the subject of comment by this Court in Wilson v State of New South Wales. [43] In that judgement, O'Keefe J said: "[43] The common law traditionally provides a limited remedy in respect of prosecutions instituted by police which arise out of their investigations. The action for malicious prosecution is the recognised remedy of the common law. For a plaintiff to succeed in such an action two conditions must be fulfilled. The first is absence of reasonable and probable cause; the second, malice. If police officers were to be liable to actions for negligence in connection with investigations that resulted in prosecutions that were unsuccessful, the tort of malicious prosecution would be unnecessary. It would be bypassed by the law of negligence. Malice would be irrelevant, yet it has always been an essential element to be proved by those seeking redress in respect of an unsuccessful prosecution. As a matter of principle this suggests that an action for negligence in relation to investigations that produce prosecutions does not lie, in much the same way as a barrister's immunity from malicious in-court slander suggests immunity from liability for the negligent conduct of a case in court, as Wilson J pointed out in Giannarelli v Wraith (1988) 165 CLR 543 at 573. [44] There are questions of public policy that militate against the extension of the law of negligence to investigations, prosecutions and other actions taken for the suppression of crime in the community. Some of these are the same as or analogous to the questions of public policy that militate in favour of a barrister's immunity for negligence in the conduct of a case in court. Giannarelli v Wraith (supra at 555 per Mason CJ; at 573 per Wilson J; at 579 per Brennan J; at 592 per Dawson J; at 600 per Toohey J with whom Deane and Gaudron JJ agreed)." [44] 1. This approach was confirmed in proceedings in which a plaintiff sued for psychological injury as a result of discovering parts of a deceased family member's foot and ankle and remnants of clothing at the scene of an accident. The family members sued the State of New South Wales, representing New South Wales Police, alleging negligence in failing to remove the remains of the deceased from the accident site and/or in failing to warn members of the family that the remains might still be a concern. [45] 2. The circumstances outlined above are much more likely to be the subject of a duty of care than circumstances arising from the investigation and conduct of proceedings, which have always been treated consistently with the immunity to which reference has already been made. The comments made in these reasons as to the unavailability of a claim in negligence against police officers and, through them, the State of New South Wales, is confined to the process of investigation, prosecution and carriage of proceedings against the plaintiff. It is not intended to be a general comment as to the scope of or existence of a duty of care in other circumstances. [46] 3. In the judgment of the Victorian Court of Appeal in State of Victoria v Richards, supra, Redlich JA identified four categories where no duty of care had been found: [47] 1. where police are investigating a crime and the offender, then known or unknown, harms the plaintiff; 2. where police, in the course of investigation, injure the person under investigation; 3. where police, in the course of investigation, injure the person under investigation and a family member of the person under investigation suffers indirect injury; and 4. where no police power has been exercised. 1. Over and above the foregoing, there are numerous examples of the dismissal of, or lack of success in, claims by persons based on the failure of police to respond effectively or expeditiously to calls for help, or based on allegedly negligent investigations. Each of those cases were dismissed, by and large, on the basis of a lack of duty of care. [48] 2. I turn then to the operation of the tort of malicious prosecution. Malicious prosecution is often confused with the tort of collateral abuse of process. Each of them will be dealt with in these reasons for judgment. 3. As already stated, malicious prosecution is one of the rare exceptions to the absolute privilege that attaches to that which is said or done in the course of judicial proceedings. Malicious prosecution, and the necessary elements to the cause of action, is a balance between, on the one hand, the interests of public justice by the immunity granted to participants in the judicial process, [49] and, on the other hand, compensation for the distortion of the judicial process for an ulterior or extraneous purpose. 4. Generally, the cause of action for malicious prosecution is understood to involve the following elements: 1. institution of criminal proceedings by the defendant; 2. termination of proceedings in favour of the plaintiff, if, from their nature, they were capable of so terminating; 3. absence of reasonable and probable cause for the institution of the criminal proceedings; 4. malice, or a primary purpose other than that of carrying into effect the law; and 5. damage suffered by the plaintiff. [50] 1. In A v State of New South Wales, [51] the High Court described the elements in the following terms: "For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause." [52] 1. The High Court proceeded to deal with the circumstance where a police officer or prosecutor was not personally aware of the circumstances that were said to give rise to the offence and said: "Where a prosecutor has no personal knowledge of the facts underlying the charge, but acts on information received, the issue is not whether the plaintiff proves that the state of mind of the prosecutor fell short of a positive persuasion of guilt. As explained earlier in these reasons, it is whether the plaintiff proves that the prosecutor did not honestly form the view that there was a proper case for prosecution, or proves that the prosecutor formed that view on an insufficient basis." [53] 1. In malicious prosecution, unlike collateral abuse of process, proof of damage is unnecessary and damage is presumed. Further, it is clear, on authority, that the reference to the institution of proceedings includes the maintenance of proceedings as well as setting them in motion. Nevertheless, it is necessary for the defendant to be actively instrumental in procuring the use of the legal process against the plaintiff. [54] 2. One can see from the difference between that cited with approval by the High Court from Bullen & Leake and the latest edition in Fleming's The Law of Torts that there may have been some controversy as to whether or not the tort of malicious prosecution was confined to the institution of criminal proceedings. It is now clear that some proceedings that are not strictly criminal in nature may give rise to a claim for malicious prosecution. Such proceedings will include certain disciplinary proceedings; [55] courts-martial; [56] and certain bankruptcy proceedings. [57] 3. It has been said that the discriminating nature, identifying non-criminal proceedings that may give rise to a claim for malicious prosecution, is that the impugned proceedings, by their very nature, damage the reputation and standing of the person accused. I am prepared, for present purposes, without deciding the issue, to assume that proceedings for an AVO are proceedings, albeit not criminal in the strict sense, that would give rise to malicious prosecution. 4. The High Court, in A v State of New South Wales, supra, proceeded to discuss the necessary requirements and confinement of a cause of action for malicious prosecution. It said: "[57] There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff's favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor. [58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. [59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light." (Footnotes omitted.) [58] 1. Lastly, it is necessary to explain that a cause of action for malicious prosecution, as stated above, requires that the prosecution has terminated favourably to the plaintiff. It does not matter whether the plaintiff can overwhelmingly and with certainty prove that the offence was not committed; such would not satisfy the element necessary for a successful proceeding for malicious prosecution. 2. The criminal proceeding (or any other proceeding covered by the cause of action) must have been terminated favourably to the plaintiff suing for malicious prosecution. Any other outcome would involve the court, in the later civil proceedings, determining an outcome which ultimately was in conflict with the decisions of the court in the criminal proceedings. 3. So long as there is an absence of any judicial determination of guilt in the criminal proceedings, or a relevant impugned civil proceeding, the malicious prosecution cause of action will, in relation to that particular aspect of the elements, be satisfied. [59] 4. For reasons that may already be obvious, given the brief outline of the proceedings upon which the plaintiff relies for this cause of action, it is necessary to discuss the effect of the dismissal of the negligent driving offence, after a finding of guilt, without recording a conviction and without further penalty. 5. Such an order is under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That provision allows a court, after a finding of guilt, to dismiss the relevant charge; not record a conviction; and either to impose a bond of some description, or to impose no other penalty. 6. Nevertheless, a finding of guilt is not, for the purposes of the elements in a cause of action in malicious prosecution, an outcome that is "favourable to the plaintiff". [60] As a consequence of the foregoing, the resolution of the negligent driving charge is not a resolution or outcome favourable to the plaintiff and upon which the plaintiff may rely for the purposes of establishing a malicious prosecution. 7. I then turn to the tort of collateral abuse of process. The tort of collateral abuse of process is often confused with malicious prosecution, but the tort of collateral abuse of process is not confined to criminal process that has been abused. The elements of the offence are: 1. a requirement that the party who has instituted the impugned proceedings has done so for a purpose or to effect an object beyond that which the legal process offers; 2. the purpose of the party instituting (or maintaining) the impugned proceedings is of crucial importance; 3. the abusive purpose of the impugned proceedings must be the predominant or effective purpose; and 4. the onus of proof on the plaintiff in order to succeed on a claim of collateral abuse of process is a heavy one. [61] 1. Fundamentally the term "abuse of process" describes a situation where proceedings, whether criminal or civil, have been instituted or employed for a purpose other than the attainment of the claim in the action. If the proceedings are instituted or maintained maliciously, which relevantly means for a purpose other than the enforcement of the law, for which they are, on their face, available, the defendant, who has instituted or maintained such action, is, thereby, acting outside the allowable remit of the legal process and it is regarded as an abuse of process. [62] 2. The availability of proceedings for damages for collateral abuse of process is a concomitant or corollary to the availability of proceedings for dismissal of proceedings for an abuse of process. Thus, if proceedings were to have been instituted or maintained for a collateral purpose, being a purpose other than the attainment of the outcome to which the original proceedings are directed, a party, aware of that collateral abuse, could move the court to dismiss the proceedings. If the proceedings are not dismissed prior to their conclusion, and even if they were to be so dismissed, the damaged party may sue for the cause of action in collateral abuse of process. 3. As already stated, collateral abuse of process, unlike the tort of malicious prosecution, is not confined to criminal proceedings, but may involve a broader category of proceeding. Further, it is unnecessary for the plaintiff in an action for collateral abuse of process to establish that the person who has instituted or maintained the impugned proceedings did so with an absence of reasonable or probable cause. 4. Lastly, it is not an essential element of the claim for collateral abuse of process that the impugned proceedings had been terminated in favour of the plaintiff. Thus, proceedings that may be successful may well have been instituted or maintained for a collateral purpose and, as a consequence, may still give rise to a successful cause of action in collateral abuse of process. 5. Also, unlike the tort of malicious prosecution, damage is not presumed. In a cause of action for collateral abuse of process, it is for the plaintiff to prove damage arising from that collateral abuse. Essentially, the cause of action for collateral abuse of process is not the lack of foundation for the impugned proceedings. 6. The essential aspect of the tort of collateral abuse of process is that the impugned proceedings have been used for an extraneous purpose, being a purpose extraneous to that for which the impugned proceedings were designed within the judicial process. [63] Thus, Lord Denning, MR said: "In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer." [64] 1. Notwithstanding the foregoing comment, ordinarily litigants are entitled to commence and to maintain arguable causes of action, if they so choose. As a consequence, the moving party, charged with the burden of proving a collateral or extraneous purpose as the effective reason for the commencement or maintenance of the proceedings that have been impugned, will be required to satisfy the Court of that purpose to a high degree. It is necessary for the plaintiff in such proceedings to demonstrate conduct extraneous to the court process, i.e. arising from an improper purpose, to be successful. [65] 2. In both malicious prosecution and the tort of collateral abuse of process, the fundamental element and aspect required to be proved by the plaintiff, is "malice", being a primary and motivating purpose other than that of carrying the law into effect as the impugned proceedings might otherwise have been intended. Particular issues arise where the defendant is not in a position to know personally the truth or otherwise of the allegation that gave rise to the impugned proceedings. 3. The foregoing summary of the principles, associated with a cause of action for malicious prosecution and/or a cause of action for collateral abuse of process, seeks to demonstrate that it is not necessary for a plaintiff in either cause of action to show malevolence on the part of the prosecutor or person instituting the proceedings, including, in that description, a person actively involved in maintaining the proceedings. The term "malice" refers to a purpose other than the enforcement of the law in the impugned criminal proceedings, or, in the case of impugned civil proceedings, the lawful rights of the moving party. 4. As stated, particular rules relate to persons in the position of a police officer who, generally, would not have personal knowledge of the circumstances giving rise to the proceedings. Such an officer is taking proceedings as part of the functions of the office on the basis of information provided. 5. Notwithstanding the foregoing, a police officer is not exempt from liability for malicious prosecution or collateral abuse of process. However, it is not necessary for such an officer, or a person in that position, to be convinced of guilt. [66] 6. In these proceedings, the State of New South Wales is vicariously liable for what is said to be the tort of the prosecutor in a public prosecution. It is necessary to identify the particular prosecutor and to examine the conduct of that individual in order to determine the liability of the State of New South Wales. 7. The identity of the prosecutor is, on one view, the most significant aspect, because it is the state of mind of the prosecutor, and the prosecutor's conduct that must be examined for the purpose of determining whether the tort of malicious prosecution (or collateral abuse of process) has been established. [67] 8. As I have sought to make clear earlier in these reasons, it is necessary to identify the particular person responsible for the institution of the proceedings. I have taken a broad view of the institution of the proceedings and included in that phrase the maintenance of proceedings commenced by another. 9. Nevertheless, ordinarily, the institution of proceedings includes prosecuting them, instigating them, or, as it is sometimes described, setting them in motion and requires the defendant to be actively instrumental in procuring the use of the legal process against the plaintiff. [68] The maintenance of proceedings, in the sense used in these reasons, includes prosecuting them in a manner that may be broader than the institution of the prosecution. 10. As has been recited above, by reference to the High Court judgment in A v State of New South Wales, supra, circumstances usually arise, in criminal prosecutions, where a prosecutor or police officer institutes proceedings and the prosecutor has no personal knowledge of the facts underlying the charge. As was made clear by the High Court, such an officer is entitled to act on information received by the officer and, in those circumstances, it is not to the point that the prosecutor's state of mind fell short of a positive persuasion of guilt. 11. That which is necessary for a plaintiff to succeed in either cause of action is that the prosecutor, in circumstances where the prosecutor is unaware from personal knowledge of the facts underlying the charge, did not honestly form the view that there was a proper case for prosecution or, alternatively, the plaintiff must prove that the prosecutor did not have a sufficient basis for forming the view that there was a proper case for prosecution. 12. The onus is a difficult one. The plaintiff in a cause of action of this kind is required to establish the absence of reasonable and probable cause and proving the negative always has greater difficulty. The High Court expressed it in the following passages: "[60] It is important to recognise that, in an action for malicious prosecution, the plaintiff must establish a negative (the absence of reasonable and probable cause). The forensic difficulty of proving a negative is well known. At least some of the questions presented in this appeal arise because there is an inevitable tendency to translate the negative question – whether the defendant prosecutor acted without reasonable and probable cause – into the different question – what will constitute reasonable and probable cause to institute criminal proceedings. The logical relationship between the two forms of question tends to obscure first, the importance of the burden of proof, and secondly, the variety of factual and forensic circumstances in which the questions may arise. … [77] There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not 'honestly believe' the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?" [69] 1. Often the onus of proving the negative, difficult though it may be, is satisfied by the tender of the Brief of Evidence in the impugned proceeding, which the Court, hearing the claim in tort, determines was not a reasonable and probable cause for the institution of the impugned proceedings. I reiterate that "institution", in the foregoing sentence, is not confined to the steps taken at the outset of the prosecution, but includes steps taken during the course of the prosecution if, at the time that active steps were required, there was a lack of reasonable and probable cause, including an honest belief in the case that had been instituted or maintained. [70] 2. Thus, the absence of reasonable and probable cause may be established either by an absence of the subjective belief as to the case instituted or maintained or objectively by proving the absence of a sufficient basis for such an honest belief. This was expanded in comments of the High Court in the following way: "[58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. … [70] There are several questions bound up in the proposition that absence of reasonable and probable cause requires an examination of what the prosecution 'made' or 'should have made' of the material available to the prosecutor when he or she decided to prosecute, or to maintain an existing prosecution. As has already been noted, two kinds of inquiry are postulated: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material). Does proof of the absence of reasonable and probable cause require proof of the absence of a state of persuasion (a 'belief') in the mind of the prosecutor? What is the subject‑matter of the state of persuasion that is to be considered? Is it a persuasion about the likelihood of a particular outcome of the prosecution (the conviction of the person prosecuted)? Is it a persuasion about what the material considered by the prosecutor reveals ('guilt' or 'probable guilt' of the person prosecuted)? Or is it a persuasion about that material's sufficiency to warrant setting the processes of the criminal law in motion? What, if any, weight may be given by the prosecutor to the existence of various checks and balances, like the interposition of committal proceedings and the assignment of particular functions to the Director of Public Prosecutions, that form an integral part of the system of criminal justice? [71] Those questions should be answered as follows. If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject‑matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff." [71] 1. There are two other aspects that need noting. First, it is insufficient for a plaintiff to provide facts from which a suspicion arises that the dominant purpose of the prosecution was not the proper application of the criminal law. 2. The extraneous purpose must be the sole or dominant purpose that gives rise to the prosecution or its maintenance and, even in a circumstantial case, proof of the malicious view of the prosecutor and/or the absence of reasonable and probable cause for an honest belief must be before the Court. The Court is required to be satisfied of that element on the balance of probabilities. 3. While it is unnecessary to prove the lack of a belief or the lack of reasonable and probable cause beyond a reasonable doubt, it is also insufficient to leave that element to suspicion or conjecture. [72] 4. The foregoing principles are to be applied to the proceedings before the Court and require the Court to examine the evidence adduced in order to determine whether it satisfies the requirements for a successful cause of action. Unusually, in these proceedings, the plaintiff adduced evidence from a number of the police officers whose conduct is impugned. 5. This was done as a result of a request by the plaintiff to examine the said officers. Given the circumstances in which that request was made, the Court requested the State of New South Wales to make the persons available. 6. The request was not a direction, but the State of New South Wales made those persons available. Two of the persons sought to be examined could not be located. Evidence 1. As can be seen from the brief summary earlier in these reasons, the initial event, from which impugned proceedings arose, was the motor vehicle collision that occurred at or near the plaintiff's residence. The driver of the other vehicle was, as has been stated, Mr Frost. Mr Frost did not give oral evidence in the proceedings before the Court. 2. The plaintiff, Mr Flowers, filed Affidavits and was cross-examined. Oral evidence was adduced from Senior Constable Hughes; Senior Constable Jessica Lodge; Sergeant Simon Robinson; Senior Constable Mark Simpson; Senior Constable Matthew Holden; Sergeant Darren Pearce; and Senior Constable Michael Costelloe. 3. The Affidavits sworn by Mr Flowers contain a number of assertions and some facts. They also attach documents, some of which are relevant to the merits of the proceedings that were conducted before the magistrate in Bathurst Local Court and which have been impugned in these proceedings. 4. The Joint Court Books consist of Affidavits of the plaintiff, sworn: 15 April 2019; 2 May 2019; 6 August 2019; 9 August 2019; two Affidavits of 13 August 2019;; 11 September 2020; 4 February 2021; 18 February 2021; 1 March 2021; and three Affidavits of 9 March 2021, entitled First, Second and Third Affidavit respectively. 5. A document, Marked for Identification 2 in the proceeding, sets out the material upon which the plaintiff asserts he relies. That material includes a Statement of Claim and Affidavit in file number 2018/00348865; an Affidavit of David Hugh Porter sworn 7 November 2018; Discovery Summons filed by David Hugh Porter on 22 November 2018 in file number 2018/00348865; a Further Amended Statement of Claim in file number 2019/00117371 of 15 November 2019; an Affidavit of Special Circumstances filed 13 August 2019; an Affidavit of Apprehension of Bias sworn 13 August 2019; a Requisition for Trial by Jury filed 13 August 2019; an Affidavit as to the Right to Trial by Jury sworn 9 August 2019; a Notice of Motion filed 9 August 2019; a Notice of a Constitutional Matter, pursuant to s 78B of the Judiciary Act, of 19 July 2019; a Reply to Particulars of 2 July 2019; an Amended Statement of Claim of 27 May 2019; an Affidavit, already specified previously, going to requirement for a jury, of 2 May 2019; an Amended Statement of Claim sought to be relied upon, dated 27 May 2019; an Amended Reply to Further and Better Particulars Requested by the Defendant dated 21 October 2019; Particulars requested by the defendant dated 20 January 2020; a Notice of Motion dated 22 June 2020; an Affidavit and Application for Disqualification dated 22 June 2020; a Notice of Motion seeking amendments to the Statement of Claim and Affidavit in support thereof, each dated 11 September 2020; a marked up version of the Amended Statement of Claim and the Submissions of the plaintiff before Justice Harrison relating to trial by jury; a Notice of Motion alleging fraud in the Transcript of 3 December 2020 and an Affidavit in support thereof; an Affidavit alleging injury of post-traumatic stress disorder and torture by the State of New South Wales of 4 February 2021; an Affidavit relating to the perverting of the course of justice dated 1 March 2021; an Affidavit setting out a witness list for subpoena dated 9 March 2021; an Affidavit regarding denial of full discovery by the defendant dated 9 March 2021; an Affidavit relating to material completing an earlier Affidavit of 19 April 2016, dated 9 March 2021; an Affidavit relating to an allegation of false instrument dated 15 March 2021; an Affidavit relating to the denial of subpoena dated 15 March 2021; and an Affidavit relating to the absence of consent to the hearing that had been listed dated 17 March 2021. 6. Much of the foregoing material was rejected as evidence. Some of the material was admitted as a history of the allegations that had been made by the plaintiff and the Affidavit of 15 March 2021 was admitted as evidence of the police officers that were said to have been involved in conduct that gives rise to the claim for malicious prosecution. 7. As earlier stated, the form of the Affidavits would not, were it not for the fact that Mr Flowers was not legally represented, ordinarily have been admitted. Much of the material is an expression of opinion by the plaintiff and was taken as a submission, the strength of which would depend upon the evidence that was ultimately before the Court. The material is extremely repetitive. 8. The plaintiff relies, it seems by way of motive, on the judgment of the District Court, being a consent judgment noted as being without admission of liability, under which the State of New South Wales was to pay an amount (redacted in the document) inclusive of costs and disbursements to the plaintiff. That judgment arose out of proceedings numbered 2009/332550. The cause of action did not relate to any of the matters impugned and which arose in or in the area of Bathurst. 9. Some understanding of the nature of the Affidavits may be obtained by a recital of the contents of the Affidavit of 15 April 2019. The opening paragraph asserts that the Affidavit contains evidence of the plaintiff regarding "believed malicious prosecution against him by the Bathurst NSW Police Force" relating to the events on 14 March 2016. It then purports to "document evidence" of a history that spans 13 years. The second paragraph then recites a list of annexures supporting the Affidavit and Statement of Claim. [73] 10. The list of annexures includes: the consent judgment to which reference has just been made, of 12 February 2014; an Affidavit filed in the Bathurst Local Court on 19 April 2016 in the proceedings relating to the AVO, of 71 pages; an eight-page Annexure being the Transcript of the Bathurst Local Court AVO sought by Mr Frost; a four page Annexure being submissions of the lawyers, then representing the plaintiff, being submissions to the Bathurst New South Wales Police; a five page annexure being submissions by barrister Justin Sibly to Bathurst New South Wales Police Force; a four page Affidavit being a "comprehensive historic Annexure List believed to demonstrate NSW Police Force and Correctional Services NSW systemic corruption Malfeasance in Public Office Perversion of the Course of Justice by providing the I.A.T. Riot Squad to Surry Hills Police Centre … for the believed intent to torture [the plaintiff] [sic]"; a ten page annexure being a letter dated 11 March 2011 to the Crown Solicitor's Office "explaining Correctional [sic] services failure to provide or comply with original SUBPOENA TO PRODUCE" [sic], which commences with a marked copy of a letter from Crown Solicitor's Office, dated 11 March 2011, [74] and includes a custodial history of two pages, a photograph of the 2006 "C" Watch Log Book, a diary entry of 19 September 2006 to 20 September 2006, and a letter from the plaintiff to Bartier Parry, of three pages; a six page annexure said be a letter to the Crown Solicitor's Office, dated 22 October 2012, relating to breaches of the Evidence Act and relating to alleged torture and perversion of the course of justice; a 14 page annexure being the Amended Statement of Claim in the District Court proceedings to which reference has already been made; a one page annexure relating to an alleged fabricated AVO breach said to have originated at Hornsby New South Wales Police Force; an 11 page annexure, being an amended summary of argument for family law proceedings; a five page annexure, being correspondence between the plaintiff and the Attorney General's Office, including a letter dated 7 May 2006 and replies thereto; a seven page annexure, being a series of allegations against the police force relating to events commencing on 3 May 2010 and seemingly related to deaths in custody; a letter from the plaintiff to the Police Integrity Commission of 14 February 2007; a letter to former Commissioner of Police Scipione, dated 21 June 2011 relating to an alleged death threat made on 5 May 2011; a three page letter, being part of correspondence with the Crown Solicitor, dated 8 December 2010; a historic District Court Affidavit of 20 pages of 18 April 2011, alleging conspiracy by the Police; a two page letter to the New South Wales Police Force Commissioner, dated 4 April 2011, relating to character assassination of two pages; allegations of "ongoing persecution" said to be sanctioned by the New South Wales Police Force of eight pages; evidence of "corrupt psychiatrists" used in the Federal Magistrates Court at Parramatta in a family law matter relating to Family Court proceedings involving the plaintiff and, it seems, dealing with custody; and a nine page annexure, being the report of Dr Westmore, to which earlier reference has been made, in this instance in a redacted form, but otherwise contained in the Joint Court Book in an un-redacted form. 11. From the foregoing described material, one can glean a number of facts that have been asserted. First, relevant to the current proceedings, the plaintiff reported "live firing rapid firing of guns bullet hole riddled signs" (sic) on his property, inferentially asserted to be from the property of Mr Frost. 12. Mr Frost, also referred to as GL Frost, is described as an "Orange NSW tow truck driver" who resides on a property neighbouring the plaintiff's property on Kellys Road, Fitzgeralds Mount some 2 km from the plaintiff's property. The firing of this automatic weapon, or what seemed to the plaintiff as automatic weapon fire, was reported to police. 13. Also reported to police were allegations relating to the slaughtering of animals that were dumped on his property, which, it seems, the plaintiff assumed was coming from Mr Frost. There were, according to the allegation, two occasions where trespass occurred on his property and two attempted arson events, which the plaintiff asserted threatened lives. The plaintiff maintains, and I accept, that no, or no serious, investigation of these allegations occurred. 14. Mr Flowers also referred to the collision on 14 March 2016. At the time, the plaintiff lived at Lot 6 Fitzgeralds Valley Way, along Kellys Road, between Bathurst and Blayney, Fitzgeralds Mount. 15. The plaintiff in Annexure A to the affidavit of 15 April 2019 described the collision in the following way, extracted verbatim: "As I approached great Western hwy on the Kellys rd a White sedan 4 door raised style, was coming in the opposite direction we passed each other with no problem. I continued a further 1 klm nearly reaching the {only exit cattle grid to highway} when the white car overtook AT SPEED on the grass and put his car in front of mine locked his tires and attempted to BLOCK my exit to hwy VERY AGGRESSIVELY. I realized this was a dangerous crazy stunt by the white car driver who was clearly THREATENING and because of recent past Police Events … i was naturally very concerned and in fear for my safety. I LOCKED MY TIRES TO TRY AND AVOID COLLISION, but still bumped the right rear quarter panel with my left front bumper. There was just enough space for my car to by pass the white car and exit from the AGGRESSIVE BLOCKING MANOEUVRE attempted by the driver of the white car, and I just managed to get through the Cattle grid exit to the Mid Western HWY in great fear of danger from the extremely aggressive overtake and BLOCK ENTRAP ATTEMPT by the white car BIS41B. The driver tried to deprive me of my liberty! I exited to the other side of HWYand parked, got out of my Landrover and walked to the back of my car, White Car BIS41B was still parked on angle across cattle grid exit partially blocking it, wheels pointed directly at cattle grid post stationery. Driver got out of his car and started running across the two lane HWY a distance of some 20 mtrs from his parked car, at me but towards my open door of my car {This person is now known as GL Frost an Orange NSW Tow truck Driver) who resides on a neighbouring property to my own… [sic] … I called out to him WHATS GOING ON HERE MATE, at first I thought he was a Police Officer he had {kit vests with gear attached looked official}, he was abusive and ran to my open door Landrover I called three times where are you going he ignored me went to open door driver side and entered my car, started patting my carry bag? And was trying to turn my engine off, I WARNED HIM 3 TIMES to GET AWAY FROM MY CAR he ignored i reluctantly came with in 2 mtrs again WARNED HIM TO STOP he ignored! And it must be noted he had crossed a busy 2 lane HWY to go about, the believed Unauthorised Entry of a Motor Vehicle. Being I had not given any permission." [Emphasis omitted.] [75] 1. The version continues and asserts that Mr Frost removed the keys out of his ignition and threw them into the bush. Mr Frost then, allegedly, started swinging punches at the plaintiff but missed. 2. The plaintiff countered this alleged aggression, defended himself and struck Mr Frost one time in self-defence. The plaintiff then, according to the plaintiff's version, backed away in fear for his safety, but remained alert. 3. The plaintiff says that Mr Frost pursued the plaintiff onto the highway, all the time the plaintiff seeking to keep his distance from Mr Frost. The plaintiff called 000 three times and eventually two constables arrived. 4. The plaintiff gave them a statement. The Annexure also records that the police asked the plaintiff whether he was injured, and he replied that he was not physically injured but that he was very shaken. 5. Photographs were attached to the Affidavit, which show what is alleged to be skid marks. The photographs are in black and white, but, assuming the correctness of the plaintiff's description, corroborate the story the plaintiff gives as to the manner in which the collision occurred. 6. There is also a photograph of the sign on the property, warning persons not to enter Mr Frost's property as it was being used as a live firing range. There are also photographs of what purport to be bullet holes in a real estate sign at or fixed to Lot 6, being the plaintiff's property. 7. Upon attendance at the scene of the accident, the two police officers took statements from each of the participants in the collision. The contents of the Brief of Evidence served in relation to the negligent driving and assault occasioning offences is in evidence. [76] 8. As would be expected that Brief of Evidence contains the statements taken by the officers. The statement from the plaintiff was taken by Senior Constable Hughes and is, essentially, in the following terms: "3:35 PM 14.3.16 Cottesbrook Honey RE: Collision TOI [time of incident]: 2:45 PM VIC [victim]: Mark Flowers DOB: 8/8/1964 ADD[ress]: Lot 6, Fitzgeralds Valley Way, Fitzgeralds Way [mobile phone number provided but deleted as is the licence number] Vehicle: Land Rover defender [number-plate deleted] POI: Greg Frost DOB: 08/9/1958 [other details deleted including vehicle identification] Driver was travelling west on Kellys dirt road heading toward the Mid-Western Highway. A white car was heading east and passed me on the dirt track. I continued towards exit to Mid-Western Highway. I noticed the same white vehicle passed me on my right side. He overtook me on the right side on the grass aggressively, pulled his vehicle in front of me, effectively blocking the exit cattle grid to the Mid-Western Highway. To avoid being blocked in this aggressive manoeuvre, I passed his vehicle at the cattle grid, clipping the right rear of his vehicle with the left front of mine. Then crossed Mid-Western Highway and parked my vehicle. I exited my vehicle, left my engine running and door open. I walked to the back of my vehicle and called out to the man whose vehicle aggressively blocked me, words to the effect of open 'what's going on mate?' He ignored me, walked towards my vehicle. I asked him 'what are you doing', at least 3 times. He proceeded directly to my drivers door which was open, ignoring my request to stop, put his arms inside my vehicle, rummaged at my bag, then put his arm near the ignition which was on the left side of the steering wheel. He turned my ignition off. At that point I got closer to my vehicle saying, 'get out of my car', at least 3 times. At that point we were within 5 feet/2 metres of [each other]. That distance closed to approximately one metre. He had pulled the keys out of the ignition, swung around and threw my keys on the other side of the road into the bush. He threw several punches at me at that point, all missed. I blocked and counter punched him to defend myself one time. He proceeded to throw punches at me wildly. We were now in the middle of the Mid-Western Highway, where he continuously tried to hit me. At that point we were 3 metres apart and we were de-escalating. Then he walked away telling me to 'piss off', and I was asking where he had thrown my keys. He walked away and then moved his car from the cattle grid exit to where police found it. That's when I called the police. At no time were our vehicles any closer to each other than they are now." [77] 1. Senior Constable Lodge took a statement from Mr Frost. That statement was converted by Senior Constable Hughes into a statement of the witness, which is contained in the Brief of Evidence. 2. The witness statement was made on 15 March 2016, the day following the collision at Fitzgeralds Way. The statement is lengthy and I do not repeat all of it. Relevantly, it is in the following terms: "[4] I had driven about two-thirds of the way down Kelly's Road when a white Land Rover Defender came up behind me. I knew it belonged to Mark FLOWERS who is a neighbour of ours because it is the only table top utility that has a green tarpaulin on the back of it and often has wooden signs attached to the car with written messages. I could see that there was one person in the vehicle and they were wearing a hat but I couldn't see him well as I was concentrating on the road. [5] I saw the vehicle drive very close to the rear of my vehicle, which was a White Hyundai Santa Fe with NSW Registration B1S41B. It would have been less than a metre from the rear of my car. I know that the driver often drives like this because he has often tail gated me and my family, and I know of other neighbours to which the same thing has happened. I was hoping that he would go around the outside of me because there was plenty of room but he stayed the same distance from the rear of my car until we approached the cattle grid to the Mid Western Highway. I was driving at approximately 80kph most of the way down Kelly's Road which is dirt road. [6] I slowed down for the cattle grid which marks the exit to Kelly's Road at the intersection of the Mid Western Highway when I felt an impact to the rear of my vehicle. As a result of being hit, my car veered off to the left hand side of the road where I stopped about 10 metres later. When I stopped, my car was about half way across the cattle grid but there was still plenty of room for the Land Rover to get passed me. [7] The Land Rover has continued through the cattle grid and turned right onto Mid Western Highway, stopping about 50 metres down the road. I got out of my car and crossed the cattle grid and walked across to where the car was stopped. [8] As I was walking over, I yelled out words to the effect of 'you're an idiot,' Then I said 'I want your licence and your rego number.' At this point I could see that it had been Mr Flowers driving the car whom I know to be the owner of the Land Rover. I saw him standing at the rear of his car and when I got close, he has made a fist and waved his hand in the air, telling me to 'Fuck off, prove it.' [9] I said to him 'Fine, we'll call the Cops.' instantly Mr Flower's punched me once to the left side of my head which connected with my ear. He then punched me a second time to the face, connecting with my mouth. We were standing on the shoulder of the Mid Western Highway; He tried to punch me a third time but I backed away, I said to him 'You're simply not worth it.' He repeated 'Well prove it I'm just gonna drive off.' [10] At that point I walked over to the Land Rover, took out his key from the ignition threw them to the other side of the road, l said to Mr Flowers again 'You're not worth it, we'll let the cops sort it out.' [11] I walked back to my car, reversed the car into the grassed area, turned on the air conditioning and waited for Police to arrive. I could feel blood running down my ear and could taste blood in my mouth. I had a look in the mirror and saw that my left ear was bleeding and the right side of my lip was swollen. Whilst I was sitting in the car I started feeling faint and started to get heart palpitations. … [14] About 30 minutes later, my Wife and I were on the Mid Western Highway on our way into Bathurst and passed the intersection of Kelly's Road. Again, we saw that Mr. Flowers was parked on the side of the road but he was standing near the letterboxes on the opposite side of the road. I found that strange because he does not have a letterbox there. I do not think he had any reason to be there, but I have grave concerns for the safety and welfare of myself and my family because of his erratic behaviour that I now know easily escalates to physical violence'." [78] 1. Mr Frost had sustained injuries in the altercation. There are photographs of the injuries sustained. 2. It is unnecessary to include photographs of the injuries, but they include swelling to the right upper lip; and laceration of the left ear, which was bleeding. The hospital notes are included in the Brief. 3. There are also photographs of Mr Frost's hands which it is said disclose injuries to Mr Frost, although the state of the photographs are such that it is impossible to determine whether they disclose defensive injuries or injuries sustained by punching someone or something. Mr Flowers does not allege that Mr Frost hit him, but only that he attempted to do so. That circumstance is consistent with both versions of the events on 14 March 2016 at the site of the collision. 4. During the course of the events following the incident, the plaintiff, Mr Flowers, was represented by solicitors, who corresponded with Bathurst Police. The solicitors were sent copies of the notebook entry and Mr Flowers' statement taken at the time. 5. The Brief of Evidence also includes a copy of a Report of Dr Bruce Westmore, Forensic Psychiatrist, dated 20 March 2012. This was provided as defence material not otherwise in the Brief of Evidence. 6. Dr Westmore diagnosed Mr Flowers to be suffering: Acute Stress Disorder which has become a Chronic Post-Traumatic Stress Disorder; Depressive Disorder (resolved); and bereavement following the recent death of his father, which Dr Westmore did not anticipate would become complicated or pathological in nature. [79] 7. The diagnosis of chronic Post-Traumatic Stress Disorder, which has developed from an Acute Stress Disorder, relates to an arrest, which occurred on 19 September 2006, as Dr Westmore makes clear. 8. On 30 July 2016, Senior Constable Hughes requested advice relating to whether charges should be laid against the plaintiff, Mr Flowers. [80] 9. It is unnecessary to recite all of the document. It is appropriate to recite two paragraphs of the typewritten request, under the heading "Comment": "I have compiled the attached brief outlining the circumstances of the incident. The matter is highly conflicting, and there are no independent witnesses to the incident. The Victim however provided Police with a statement, as well as medical records and photographs. The POI has made no attempt to follow up the incident and has refused to be interviewed about the matter. It is due to this that I am unable to disprove the allegations of the Victim against the POI. Of mention, the POI FLOWERS has successfully sued the NSW Police Force previously regarding an unlawful arrest. Based on the attached brief, I believe I have enough evidence to satisfy the proofs of the offences of; 1. S. 126 Road Rules 2014-drive behind other vehicle too closely to stop; 2. S. 59(1) Crimes Act 1900 Assault Occasioning Actual Bodily Harm, however I wish to seek clarification in the matter." [81] 1. The document is signed by Senior Constable Hughes. There are then comments by more senior persons in the process. Sergeant Robinson, described as a Team Supervisor, handwrites, on 31 July 2016, "charges to be laid". 2. Under the typed heading "Crime Manager, Chifley Local Area Command", there is a handwritten comment. The typewritten word "Crime", in the aforesaid heading, has been deleted and the word has been replaced with a handwritten word "Investigations". 3. There is a further comment from: Colin Cracknell, Chief Inspector. Each of the handwritten comments are in favour of the laying of charges. 4. As stated above, that advice was sought on 30 July 2016. As recited, Senior Constable Hughes notes that the plaintiff had "refused to be interviewed". That statement is not strictly accurate. 5. Mr Flowers was interviewed at the scene and a statement provided, the terms which have been recited above. Indeed, that statement was given to Senior Constable Hughes. Moreover, on 14 March 2016, the plaintiff rang Senior Constable Hughes at about 11:15 AM a note of which is contained in the Joint Court Book. [82] 6. That telephone conversation records that Senior Constable Hughes asked Mr Flowers to provide a formal statement and/or conduct an interview in relation to the assault, at which request Mr Flowers, it is said, became aggressive and accused Senior Constable Hughes of not appropriately performing her functions at the site on the day of the incident. By the time of that telephone conversation, it seems from the terms of the conversation, that Mr Frost had applied for an Interim AVO. 7. Beyond that, Senior Constable Hughes was contacted by solicitors representing Mr Flowers and on 17 May 2016 the solicitors wrote to the constable asking for extracts of the notebook. [83] 8. A further letter was sent on 27 May 2016, which, in part, expressed thanks for the sending of the notes that had been earlier requested. It refers to the fact that Mr Frost had commenced proceedings for an AVO. The applicant for the AVO is a matter of controversy in the proceedings. 9. The letter then refers to a response filed by Mr Flowers to the AVO application, which response sets out the details of the incident and asserts that the response and details are consistent with information provided to the Police by Mr Flowers at the scene. A copy of the response was enclosed with the letter. 10. As earlier stated, this was sent on 27 May 2016. Yet on 30 July 2016, Senior Constable Hughes asserted that Mr Flowers had made no attempt "to follow-up" the incident and had refused to be interviewed about the matter. I do not consider that a description of correspondence from solicitors, which included a full account of the incident from the position of Mr Flowers, was or could be reasonably described as a situation where "no attempt to follow-up the incident" had occurred on behalf of Mr Flowers. 11. It is accurate to say that, notwithstanding the provision of the statement by Mr Flowers, Mr Flowers had refused to be interviewed, at least in the telephone conversation to which earlier reference has been made. 12. Senior Constable Hughes responded to the letter from the solicitor and did so on 1 June 2016, confirming that she had received the Affidavit, which was, in content, similar to the version of events provided by Mr Flowers at the scene. Senior Constable Hughes made the point that the version received at the scene did "not constitute a statement in relation to the alleged assault" and also asserted that Mr Flowers refused to sign his notebook statement as a true and correct record of the events. 13. Given that the function in which Senior Constable Hughes was then engaged was a function of investigation, the response letter of 1 June 2016 then asserted that the Affidavit supplied by the solicitors for the plaintiff did "not meet the standard required by the Evidence Act 1995" and particularised the absence of a jurat; the absence of the age of the statement maker; the absence of the date of the statement; and the absence of the date it was declared before a witness. 14. As a consequence, Senior Constable Hughes expressed the view that she was "unable to accept Mr Flowers [sic] affidavit as a true and correct record of the events that occurred on 14 March 2016". 15. As at 1 June 2016, no charges had been laid. The advice had not yet been sought from superiors as to whether charges should be laid. It is unclear why it would be necessary for any statement to accord with the Evidence Act. 16. Moreover, the statement obtained from Mr Frost did not accord with the Evidence Act in that it would not have been admissible in any court of law on any issue arising from the incident. It may have been admissible if certain exceptions to the Evidence Act were satisfied, for example the unavailability of the witness; or the need to cross-examine the witness et cetera. 17. I hasten to add that the statement given by Mr Frost on 15 March 2016 did not have a jurat. Nor did it contain the date of birth of Mr Frost, although it did contain his age. Nor was the document in the form of an affidavit or statutory declaration. 18. Nevertheless, Senior Constable Hughes had both versions of the incident on 14 March 2016 and physical evidence of injuries to Mr Frost. Further, Senior Constable Hughes made clear that the circumstances of the incident are in dispute and "conflicting". 19. The foregoing deals with the substance of documentary material filed in relation to the incident on 14 March 2016 and the proceedings that occurred thereafter. There is other material, all of which has been read and considered. 20. On 20 October 2016, Senior Constable Hughes wrote to more senior persons in the Bathurst Police, or, more accurately, Chifley Local Area Command. [84] In the course of that note or memorandum, Senior Constable Hughes refers to the fact that: advice was sought through Chifley Local Area Command in relation to whether charges should be preferred against Mr Flowers; and that the adjudication was made by Inspector Cracknell that there was sufficient evidence to proceed with the matter. The matter was filed, being the two charges to which reference has already been made. 21. The 20 October 2016 memorandum refers to representations made by counsel and attaches the submissions filed. Those representations were for the matter to be withdrawn. The memorandum refers to counsel's acknowledgement that there is a prima facie case; and counsel's opinion that there "is no reasonable prospect of conviction"; and the representation of the matter proceeding is not in the public interest. 22. Somewhat presciently, Senior Constable Hughes refers to the opinion of the officer in charge that there was prima facie evidence but that he was unaware of legal arguments that may be made at trial and expressed the concern that litigation may occur as a result of the charges, if the prosecution failed. 23. The request for advice from Senior Constable Hughes was answered by the shift supervisor, Sergeant Beattie, who expressed the view that if there were a prima facie case, as was admitted, the matter should proceed for determination by the courts. That opinion is reiterated or agreed to by Acting Superintendent Rankin who, apparently, was the Crime Manager at Chifley Local Area Command. 24. It seems, that, as a consequence of the foregoing advice, the prosecutions continued and the matter came before the Court, being the Local Court at Bathurst. 25. The proceedings were heard, commencing 14 November 2016. Sergeant Pearce was the police prosecutor and counsel appeared for the plaintiff herein. 26. On the day the matter was first listed, there was an application for a change in venue, but otherwise the matter was adjourned for full hearing commencing 26 April 2017. On that date, Senior Constable Hughes gave evidence and read from her statement. It is unnecessary to repeat it or to summarise it. 27. Senior Constable Hughes was cross-examined by counsel. Most of the cross-examination is irrelevant for present purposes. 28. During the course of cross-examination, Senior Constable Hughes accepted that she had seen an Affidavit from Mr Flowers, being an affidavit tendered by the prosecutor. Senior Constable Hughes did not receive photographs attached, apparently, to that Affidavit. 29. Senior Constable Hughes was also asked whether she had caused enquiries to be made about a complaint concerning live firing incidents that were the subject of comment in the Affidavit received by the Constable. The Constable made clear that she had made no such enquiries nor examined police holdings or records relating to any such event or prior occurrence. 30. While Senior Constable Hughes accepted that she had received the Affidavit of the plaintiff sent to her, as remarked earlier, by the plaintiff's solicitor, she could not say when she had received it and thought it was "several months" after the investigation commenced. [85] 31. Mr Frost also gave evidence at the Local Court. His evidence-in-chief was in or to the same effect as his statement to which earlier reference has been made. Mr Frost was cross-examined by counsel. It is unnecessary to summarise that evidence. It is sufficient to say that the cross-examination was competent and extensive and dealt, amongst other things, with the photographs of skid marks, or that which was alleged to be skid marks, in order to undermine the credibility of the version given by Mr Frost. 32. The accused gave evidence in the Local Court and was cross-examined. 33. The learned magistrate issued ex tempore reasons in the course of which his Honour took the view, given the conflicting accounts of the incident, that the Crown had not proved, beyond a reasonable doubt, the charge of assault. 34. As to the negligent driving, the learned magistrate relied upon the evidence of Mr Flowers to the effect that Mr Frost's car had "come to a stop"; that Mr Flowers slowed his vehicle substantially; and, as a result of history between Mr Flowers and Mr Frost, causing Mr Flowers some anxiety and apprehension, Mr Flowers undertook what Mr Flowers referred to as a "radical overtaking manoeuvre", during which time his vehicle came into contact with the stationary vehicle of Mr Frost. 35. Without seeking to be unfair to the learned magistrate, on that basis, the learned magistrate found that the negligent driving charge had been proved and clarified that his finding of negligent driving was confined to the issue of seeking to circumvent the motor vehicle that had stopped, and in so doing, coming into a minor collision with it. As a consequence of that finding, the magistrate dismissed the charge without conviction. 36. At the conclusion of that proceeding, the prosecutor referred to the AVO, on questioning from the magistrate, and said: "It's a matter where the application has been taken out by the police. Your Honour, I'll just get some instructions from-and speak to my friend about an issue-I have instructions from the PINOP as to- … Your Honour, based on the passage of time and the current location of the respondent, I would seek to withdraw the AVO application your Honour." [86] 1. The Transcript records his Honour as saying, as the decision in the matter: "I WILL NOTE NO RESIDUAL FEARS. APPLICATION IS MARKED WITHDRAWN AND DISMISSED. INTERIM ORDER TO DATE REVOKED." [87] 1. In the proceedings before the Court, in this matter, as earlier stated, Mr Flowers gave evidence through the Affidavit to which reference has already been made and was the subject of cross-examination. [88] In the course of that oral evidence, Mr Flowers confirmed that he had not met Senior Constable Lodge prior to 14 March 2016 and had not met Senior Constable Hughes. He also confirmed that he attended the proceedings before Bathurst Local Court and that Senior Constable Lodge did not give evidence in the course of the proceedings. 2. Mr Flowers referred to a telephone conversation with Senior Constable Hughes in which Senior Constable Hughes informed him that charges were to be preferred against him and that he had not had dealings with Senior Constable Hughes either before or after the proceedings, other than the dealings on 14 March 2016 and the telephone conversation. 3. Mr Flowers denied that Senior Constable Hughes asked him, in the course of the telephone conversation that occurred on or about 16 May 2016, to provide a formal statement or to conduct an interview. 4. Mr Flowers also confirmed he had never met Officer Simpson and never had any dealings with him of any kind. The plaintiff, in the course of cross-examination, confirmed that he had met Officer Holden when Officer Holden visited the plaintiff's property in 2014, relating to the complaint as to a neighbour using automatic weapons. The plaintiff confirmed that Officer Holden had no role in respect of the prosecutions in the Local Court. 5. Mr Flowers confirmed that Senior Constable Hughes spoke with him at the accident scene and that he gave a statement to the Constable. He also confirmed that Senior Constable Lodge spoke with Mr Frost. 6. Mr Flowers maintained he did not read the notebook entry on the day of the incident and did not sign the entry. He cannot now remember whether he read the notebook but is certain that he did not sign it. 7. It was put to Mr Flowers that he was asked to read and sign the document, which proposition he denied. Although, Mr Flowers later clarified that the denial was as to the signing of the document and Mr Flowers was unsure whether he read the document at the time. [89] 8. Mr Flowers confirmed that he was charged by Court Attendance Notice on 4 August 2016. Mr Flowers also confirmed that, on his understanding of that which he heard in the course of the proceedings before the Bathurst Local Court, the magistrate found him guilty of negligent driving, but found him not guilty of assault. Mr Flowers confirmed that no criminal record or traffic antecedents or criminal antecedents were tendered to the magistrate in the course of the proceedings. [90] 9. In cross-examination, Mr Flowers was taken to the Transcript of proceedings before the Local Court Magistrate in Bathurst on 4 April 2016, which seems to be the first time that the proceedings for the AVO were before the Court. At that time Mr Frost appeared for himself and Mr Flowers was also self-represented. 10. Mr Flowers conceded that the proceedings, at least at that time, were not conducted by a police prosecutor and no police prosecutor had anything to do with the proceedings at that time. [91] Further, Mr Flowers conceded that the AVO application was brought by Mr Frost well before the police charged Mr Flowers with any offences. An interim AVO was ordered on 4 April 2016. [92] 11. Mr Flowers has a copy of the application for the AVO somewhere in his possession but has not sought to locate it and did not tender it for the purposes of these proceedings. 12. It is clear that at the time the proceedings for the assault and negligent driving came before Bathurst Local Court, the proceedings for a final AVO were also listed, not for hearing, but for mention. The prosecutor, Sergeant Pearce, notwithstanding his comment as to the applicant, obtained instructions from the alleged person in need of protection. 13. All the material before the Court satisfies the Court, at least on the balance of probabilities, that the AVO was sought by Mr Frost and the hearing of the matter was taken over by the police prosecutor to be heard at or after the time that the proceedings for assault were heard and/or determined. The police prosecutor, after the verdict of not guilty as to the assault, withdrew the application for AVO, on instructions. 14. The proposition that Mr Frost commenced the AVO proceedings is consistent with the nature of the proceedings on 4 April 2016; the assertions by Mr Flowers' solicitors in correspondence, presumably in circumstances where the application was in their possession; and the only evidence to the contrary is the unguarded comment by the police prosecutor to which reference has already been made. 15. Mr Flowers contended that the AVO proceedings had been commenced by the Police, but Mr Flowers had the capacity, were he so to have chosen, to produce and tender the application for the AVO and did not do so. I make no criticism of Mr Flowers, particularly in circumstances where the AVO was mentioned during the course of the proceedings for the other charges and the statement of the police prosecutor, but it would seem that Mr Flowers' opinion was based upon the incorrect expression of opinion by the police prosecutor. 16. Mr Flowers was also cross-examined in relation to the proceedings, relating to the collision in the car park to which reference has been made. Those matters will be dealt with later in these reasons. 17. The other cross-examination of Mr Flowers dealt with an allegation of Mr Flowers that on 19 September 2006 he was arrested by police and, in particular, by Leading Senior Constable Warner, who, Mr Flowers claims, was, at the time, having an illicit relationship with his wife or former wife. 18. Mr Flowers maintained in cross-examination that he was brought to Hornsby Police Station under false pretences; arrested; and strip-searched. He also maintained that he was transported to Surry Hills Police Station and Silverwater Correctional Complex and, while in custody, was tortured by the Immediate Action Riot Team (IART). 19. Mr Flowers believes that police directed "energy weapons" at him and was asked a number of questions relating to his use of a Faraday Cage to protect him from such energy beams. He was shown a number of screenshots from his Twitter accounts being a photograph of a home constructed Faraday Cage, amongst others. 20. It was said, by the defendant, that these issues were relevant to the credit of the plaintiff. Mr Flowers maintained that the Police have a strong association with fortune-tellers; clairvoyants, who practise witchcraft; but he does not know whether the Police were permitting the use of witchcraft against him. [93] 21. Mr Flowers was taken through a number of complaints written to the Police over a period of time and, ultimately, Mr Flowers expressed the view that he believed that the prosecution against him for assault and negligent driving, arising from the incident on 14 March 2016, was a form of revenge by New South Wales Police for obtaining a judgment against them, being the consent judgment in the District Court, to which earlier reference has been made in these proceedings. The consent judgment issued shortly after the imprisonment of Mr Flowers in 2006. 22. During the course of his evidence, Mr Flowers also referred to a break-in to his mobile home in North Parramatta on or about 29 March 2020. Mr Flowers maintains that this was an attempt on his life and that the New South Wales Police were behind the attempt; that the New South Wales Police are seeking revenge on him; and that the New South Wales Police hate him. 23. Senior Constable Hughes was called by the defendant. She gave evidence generally consistent with the earlier recitation of facts in these reasons. Senior Constable Hughes has, and had, no personal knowledge of the events that occurred between Mr Flowers and Mr Frost on 14 March 2016. Senior Constable Hughes did have the statements that have been compiled. 24. Apparently, each of the parties, Mr Flowers and Mr Frost, had dialled 000 and reported the collision and the events that occurred thereafter. Senior Constables Hughes and Lodge attended and took statements. 25. Senior Constable Hughes testified that she gave Mr Flowers the opportunity to read the statement that he gave but believes that he did not read it and knows that he did not sign it. Mr Flowers, according to Senior Constable Hughes, left the location. Mr Frost was taken away in an ambulance. 26. Senior Constable Hughes entered the details of the incident into COPS and obtained a statement from Mr Frost on the following day. Senior Constable Hughes sought, in the following weeks, to contact Mr Flowers by phone to obtain a formal statement and managed to speak to him at some point in May 2016. 27. Evidence was adduced as to the conversation between Senior Constable Hughes and Mr Flowers in May 2016, with particular reference to the notes in Senior Constable Hughes' notebook. At the time of the call, Senior Constable Hughes believed that Mr Flowers would eventually be charged with assault, based on the evidence of injuries and the statement obtained by Mr Frost, but did not recall whether she had said that to him during the call. 28. It is unnecessary to summarise completely the evidence of Senior Constable Hughes. For present purposes it is most relevant to make clear that, in examination-in-chief, Senior Constable Hughes testified as to the advice she sought through the chain of command as to whether charges should be preferred by reference to the memorandum to which earlier reference has been made. 29. Further, Senior Constable Hughes confirmed that the comments made in the memorandum to the effect that she believed she had enough evidence to satisfy the proofs of the offences that were recommended, was a belief that she had at the time, taking into account all the material in her possession and that was ultimately contained in the Brief of Evidence. That belief also took into account the statements made by Mr Flowers when they first spoke. 30. Senior Constable Hughes testified that, other than in relation to these matters, she had no other dealings with Mr Flowers. 31. Senior Constable Hughes became aware, later, that Senior Constable Costelloe had dealings with Mr Flowers in relation to the offences of fail to stop collision or fail to exchange particulars, the details of which were not able to be recalled by Senior Constable Hughes. 32. Senior Constable Hughes was also aware that AVO proceedings involving Mr Flowers arose out of the incident on 14 March. Her understanding was that Mr Frost applied for an AVO at Bathurst Local Court and that, after the charges were preferred, the prosecutor, Sergeant Pearce, agreed that the AVO could proceed by way of the Police representing Mr Frost at the hearing. Senior Constable Hughes had no involvement in the pressing or maintaining of the AVO. 33. In cross-examination, Senior Constable Hughes accepted that she referred to Mr Flowers, initially in the statement taken at the site on 14 March 2016, as the victim. This is because procedurally or typically the first person to whom the Constable speaks is referred to by her as the victim. In hindsight, Senior Constable Hughes maintained that she should have referred to the parties as driver one and driver two. 34. Senior Constable Hughes was cross-examined about whether taking keys from a vehicle was stealing to which the Constable replied that she did not think it was stealing because "there was no intent to permanently deprive" Mr Flowers of property. Senior Constable Hughes confirmed that in reaching the view that Mr Frost was the victim, she used the statements from both parties, the medical records, ambulance records from Mr Frost and photos obtained on the day of the incident. 35. Senior Constable Hughes was cross-examined about the correspondence and the AVO proceedings. Senior Constable Hughes made clear that she was never a witness in the AVO proceedings. Nor was Senior Constable Hughes involved in discussions with the police prosecutor as to the police prosecutor taking over the representation in the AVO proceedings. 36. Senior Constable Hughes testified that she had no knowledge of Mr Frost prior to the incident and was unaware of any suggestion that Mr Frost was an informant for New South Wales Police. 37. There seem to be some inconsistencies in some of the evidence of Senior Constable Hughes. Some of that inconsistency may be a reflection of the time that has passed since these events occurred. 38. Nevertheless, the Court asked Senior Constable Hughes about a comment that she had not undertaken any investigation of Mr Flowers except when compiling antecedents for the court case. This seemed to be inconsistent with the briefing note given to senior officers in which Senior Constable Hughes comments that Mr Flowers had successfully sued the Police on an earlier occasion. 39. In re-examination, Senior Constable Hughes was reminded that she had been informed of the previous proceedings against New South Wales Police by the solicitors for Mr Flowers in the letter of 8 June 2016. On all of the evidence, the Court concludes that Senior Constable Hughes was the initiator of the assault and negligent driving charges. 40. After 14 March 2016, there were some passing comments and in particular, Senior Constable Hughes remembers a conversation with Senior Constable Costelloe in relation to a ticket for something to do with a collision in a car park. 41. A most unusual course was adopted by the Court. Mr Flowers was, as previously stated, unrepresented. He did not have the resources to locate and to call witnesses that he desired to examine. 42. As a consequence, the Court suggested to the defendant that, to the extent requested, they make available witnesses that Mr Flowers wished to examine who might otherwise have been considered in their "camp". As a consequence of that arrangement, the defendant made available a number of police officers or former police officers who were called and, despite the fact that they were called by Mr Flowers, were allowed to be cross-examined by him. 43. The first of those was Senior Constable Lodge who attended at the scene on 14 March 2016. Senior Constable Lodge was wholly unaware of the prosecution for the incident. She was examined about breath testing facilities, as had Senior Senior Constable Hughes been, but the evidence was of little or no relevance to the proceedings before the Court. It was clear from the evidence that Senior Constable Lodge had no involvement in the prosecution or maintenance of any proceedings against Mr Flowers. 44. The next witness made available under that arrangement was Sergeant Simon Robinson, who, on questioning, made clear that he was not in charge of the matter arising from the 14 March 2016 incident. In his view, the officer in charge was Senior Constable Hughes, but Sergeant Robinson was Senior Constable Hughes' direct supervisor and monitored her cases. 45. Further, Sergeant Robinson did not know who made the decision to charge Mr Flowers and he did not supervise the production of the Brief of Evidence. Nor did he see the Brief of Evidence. 46. Sergeant Robinson did not recall making an entry into the COPS database to the effect that, "If Flowers refuses interview, charge him". While Sergeant Robinson did not recall making such an entry, he did concede that it was possible that he may have. 47. Sergeant Robinson was cross-examined about the Brief of Evidence and the memorandum seeking advice as to charging. Sergeant Robinson's view was that Senior Constable Hughes had sought legal advice on whether to proceed with the matter. That advice had been sought through the chain of command at Bathurst Police Station. 48. Sergeant Robinson confirmed he had never seen the Affidavit of Mr Flowers of 19 April 2016 and clarified that he does not ordinarily have access to documents received at the Bathurst Local Court. 49. Sergeant Robinson was unaware of Senior Constable Holden attending the property occupied by Mr Flowers at Fitzgeralds Mount in regard to the complaint about automatic weapons. Other than as indicated above, Sergeant Robinson had no involvement in the prosecution of the proceedings against Mr Flowers. 50. The third witness in this category was Senior Constable Simpson, whose sole role in the incident relating to 14 March 2016 was to verify the charge number submitted for verification by then Senior Constable Hughes. 51. Senior Constable Simpson did not assess the charges before they were laid and did not approve or prosecute the charges. The charges were submitted on the computer system and Senior Constable Simpson gained access to the charges; read the fact sheet; and verified that the facts given supported that a charge could be laid. He was unaware of and could not attest to the truth or otherwise of the facts given in support of the charge. 52. Senior Constable Simpson confirmed that his role was such as to accept what Senior Constable Hughes had outlined in the facts and expressed the opinion that charges could be laid as a consequence of those facts. Senior Constable Simpson was unaware of the result of the court hearing. He was also unaware of the AVO proceeding or that it was withdrawn. 53. The defendant also made available for examination by Mr Flowers another witness, being Senior Constable Holden. Senior Constable Holden's involvement with Mr Flowers related to the firearm/automatic weapon discharge complaint that had been made. 54. Mr Flowers had apparently made a complaint by telephone; Senior Constable Holden attended the property with one other officer, the identity of whom he could not recall. There was a discussion regarding bullet holes in the signage on or around Mr Flowers' property and confirmed that no further investigations into the complaints were made. 55. Mr Flowers also examined Senior Constable Holden on the proposition that he was a supervisor of Senior Constable Hughes. Senior Constable Holden accepted that Senior Constable Hughes was on the team that he led and was, in that sense, under his supervision at the time. It was also possible that Senior Constable Holden was the Acting Supervisor of Bathurst Police Station on 14 March 2016. 56. As Acting Supervisor, assuming for present purposes that he was, Senior Constable Holden did not necessarily send Senior Constables Hughes and Lodge to the incident relevant to those proceedings. Such allocation was done semi-automatically over police radio. 57. The report would be radioed to Police and police officers close to the event would acknowledge it and attend. This was not done at the direction of Senior Constable Holden. 58. Because Senior Constable Hughes and Senior Constable Lodge were the only car crew operating on that day, procedurally, the event would be broadcast on the police radio and whichever police officers were available would take the job and respond. No direction was given. 59. Senior Constable Holden was unaware that Mr Flowers had sued the Police previously. He was also unaware of the result of such proceedings. 60. Late in the piece, given that his identity was revealed during the course of the proceedings, Mr Flowers also sought access to the police prosecutor, Sergeant Pearce, who, pursuant to the arrangement earlier described, was made available by the defendant. 61. Mr Flowers examined or cross-examined Sergeant Pearce. [94] He referred him to the email from Sergeant Pearce to Detective Chief Inspector Rankin relating to the review of the Brief of Evidence used to prosecute Mr Flowers for the incidents on 14 March 2016. 62. Sergeant Pearce made clear that it was not his role to prefer charges and his involvement with these charges commenced at the time that they were prepared by him for hearing, following the laying of the charges. Sergeant Pearce appeared in the proceedings to prosecute. 63. In Sergeant Pearce's view the charges would have been brought by Senior Constable Hughes. His recollection was that the material that he had was confined to the police Brief of Evidence. 64. The effect of Sergeant Pearce's evidence was that he adamantly maintained he was not involved with the prosecution until after the charges were preferred. 65. There was some cross-examination of Sergeant Pearce that did not seem to relate particularly to the role Sergeant Pearce played in the prosecution. In particular, some of the cross-examination on email chains seemed to be relevant to the question, if it were a question, of the Police receiving Mr Flowers' affidavit of 19 April 2016. 66. However, there does not seem to be an issue in the proceedings (and it certainly was not an issue raised by the defendant) that Police received the Affidavit filed by Mr Flowers in the AVO proceedings, being the affidavit of 19 April 2016, which had been sent to Senior Constable Hughes, as earlier mentioned, by solicitors acting for Mr Flowers. 67. There was also some examination of Sergeant Pearce as to the categorisation of the collision on 14 March 2016 as a "major motor vehicle collision". This was an issue taken up, as will become clear, in relation to the car park collision. 68. Sergeant Pearce confirmed that, as he understood it, the criteria for a major motor vehicle collision included: a driver being under the influence of drugs or alcohol; a failure to exchange particulars; or a vehicle requiring towing from the scene. If one of those criteria is met, then the matter becomes a major traffic collision, regardless of the damage caused or the nature of the collision itself. 69. Sergeant Pearce was also examined concerning the AVO proceedings. They were on foot, and before the court, seemingly for mention, at the hearing on 26 April 2017, but, as a result of the actions of Sergeant Pearce, were withdrawn. 70. Sergeant Pearce made it clear that he did not examine any of the material in the AVO proceedings and that he considered those proceedings to be civil proceedings. For the purpose of the hearing on 26 April 2017, he had only examined the material in the criminal proceedings. 71. Essentially that was all the evidence relating to the incident on 14 March 2016 and that which arose as a consequence. The only other matter about which Mr Flowers made relevant complaint was the collision that has been referred to in these reasons as the car park incident. 72. Mr Flowers complains that, while the issues were proceeding and/or being investigated relating to the incident on 14 March 2016, he was harassed by Bathurst Police and, in that respect, the charges and/or Infringement Notice were served at the instigation of Senior Constable Costelloe, relating to an incident on 3 May 2016. It would seem, on any objective analysis, that the incident was minor. 73. Apparently, the plaintiff, Mr Flowers, while reversing his motor vehicle in a supermarket car park about 100 m from Bathurst Police Station, collided with another vehicle. On the same date, 3 May 2016, Senior Constable Costelloe was informed of the incident and recorded it on the police system. 74. It is, it seems, conceded that Mr Flowers, after the collision, left the scene of the incident. Mr Flowers maintains, and there is no evidence to the contrary, that he was unaware that, while reversing, he caused minor damage to another vehicle. As a consequence, he left the premises, seemingly without knowledge of the collision. 75. Senior Constable Costelloe categorised the incident as "a major vehicle accident". As has been described, arising from the evidence of Sergeant Pearce, that is a category that does not necessarily involve the proposition that the vehicle collision caused major damage or the like. 76. There are criteria that determine the category into which a motor vehicle accident fit. Because Mr Flowers had left the scene without exchanging details, one of the criteria had been satisfied, and the incident was referred to as a "major vehicle accident". 77. In answer to a question from the Court, Senior Constable Costelloe made clear that he categorised the incident as a major vehicle accident because it "fits the criteria and, so, if one or more parties leaves the scene of an accident, without exchanging their details or particulars, it's classified as a major vehicle crash". [95] 78. The term "major vehicle collision" are words used internally in the Police and, in particular, in the context of an entry on the COPS records. It is not a term that would be communicated or contained in any traffic record. 79. The incident was, apparently, observed by some people. Correspondence ensued. 80. On 27 July 2016, solicitors acting for Mr Flowers wrote to Senior Constable Costelloe. [96] The letter attaches a statutory declaration of Mr Flowers which attests to the fact that Mr Flowers recalled reversing out of the parking position; looking in his rear vision and driver's side door wing mirror; observing that he was close to a car that was parked behind him; that his vision was obstructed by a canvas cage on the tray at the back of his vehicle; that he perceived that he was close to the vehicle behind him; that he exited his vehicle; that he could not see any contact between his vehicle and the vehicle behind; and then proceeded out of the car park carefully. There was, apparently, no person in the vehicle behind Mr Flowers. 81. The statutory declaration refers to a repair authority, being a quote for damage, and Mr Flowers makes clear that he was unaware of this damage at the time of the parking incident; that it must have been caused by brief contact with the rear of Mr Flowers' vehicle; and that he did not leave his contact details on the other vehicle before exiting the car park. The statutory declaration does not contain an address, telephone number, contact details or licence number for Mr Flowers. 82. Following communication between Mr Flowers' solicitor and the Senior Constable, a Traffic Infringement Notice was issued. Senior Constable Costelloe made clear in his evidence that he considered that the infringement had occurred because, notwithstanding the correspondence from the plaintiff's solicitors, there had been no provision of particulars of Mr Flowers and no attempt to provide those particulars to the owner of the vehicle that was purportedly damaged in the incident. [97] 83. The Infringement Notice is part of Exhibit B in the proceedings and is attached to a letter from Senior Constable Costelloe to Mr Flowers' solicitors dated 30 July 2016. In these proceedings, the plaintiff conveyed to the Court that he paid the Traffic Infringement Notice. 84. The foregoing is sufficient summary of the evidence in the proceedings to give an indication of the effect of the evidence and sufficient to allow an understanding of the conclusions to which the Court will come. 85. As is clear from the foregoing references, there are two volumes of Joint Court Book. Some of the material in those Joint Court Books was not the subject of tendering. Nevertheless, a liberal attitude was taken on account of the fact that Mr Flowers was unrepresented. 86. There are other affidavits and other material in which Mr Flowers asserts similar facts to those asserted and described above. Some of the material is asserted in terms that might not ordinarily be allowed as some of the material may be embarrassing or insulting. 87. Nevertheless, the primary facts upon which such conclusions or opinions are expressed were admitted for the purpose of the proceedings. During the course of the proceedings, it became clear that Mr Frost was a tow truck driver in Bathurst. This is a regional city in New South Wales with a population of approximately 25,000. [98] 88. Senior Constable Hughes attested to the fact that she did not know Mr Frost and each of the police officers gave evidence in or to the same effect. All of them attested to the fact that they did not know Mr Flowers, except to the extent necessary as a result of the incidents about which complaint has been made and these proceedings before the Court. 89. I find it difficult to accept that police officers in Bathurst, a small country city, would not have been in contact with a tow truck driver. Nevertheless, that is the evidence. 90. I have also commented that I consider the expression of opinion by Senior Constable Hughes that Mr Flowers "made no attempt to follow-up the incident" to be, at best, somewhat misleading, given the provision of correspondence from his solicitors and an Affidavit and version of events relating to the incident. Otherwise, I considered each of the witnesses truthful and, to the extent that they did not expressly state their lack of memory, reliable. 91. I also considered that Mr Flowers was truthful and, generally, reliable. I qualify the foregoing comment as to reliability by using the term "general", because the reliability of Mr Flowers is coloured by the obsession that he has expressed in the course of the proceedings. 92. There is no doubt that Mr Flowers genuinely perceives that he has been the subject of a malicious prosecution. Mr Flowers joins together the events in 2006; his perception that a police officer was involved in a relationship with his former wife; the events arising from the incident or 14 March 2016;and the car park incident on 3 May 2016 and concludes that there must have been a grand conspiracy by Police and the legal system against him. 93. As a consequence, each time a matter proceeds in a way that either does not suit Mr Flowers or which he expected, in his sense of absolute fairness, should have been dealt with differently, that matter then becomes an aspect which evidences the grand conspiracy which he alleges. Conclusions of fact 1. There are a number of facts, most of which are clear from the foregoing. Mr Flowers was involved in an incident on 14 March 2016 with Mr Frost. The circumstances of that incident are controversial. 2. Mr Frost alleged an assault and proved that he suffered injuries, the details of which are recited above. Mr Flowers alleges that the injuries were inflicted in self-defence, Mr Frost having thrown the first punches and behaved aggressively. Mr Flowers says he punched Mr Frost once. Yet there were two distinct injuries to Mr Frost: one to the ear; and one to the lip. 3. In these proceedings, Mr Frost did not give evidence. The proceedings were resolved, in relation to the charge of assault occasioning actual bodily harm, in a manner that was favourable to the plaintiff, Mr Flowers. As a consequence, that element of the requirements to show a good cause of action for malicious prosecution, in relation to the assault occasioning actual bodily harm, has been satisfied. 4. For present purposes, and bearing in mind that the Court has not heard Mr Frost, the Court accepts that Mr Flowers acted in self-defence. 5. Further, the AVO proceedings, if they are proceedings for which malicious prosecution will run, resolved favourably for Mr Flowers. Again, assuming AVO proceedings are proceedings for which malicious prosecution can be maintained, that element of the cause of action for malicious prosecution is satisfied in relation to the AVO proceedings. 6. On one view of the outcome for the negligent driving offence that was said to have occurred on 14 March 2016, it resolved favourably to the plaintiff. However, it did not resolve favourably in the sense utilised for the purpose of the element necessary for the maintenance of proceedings for malicious prosecution. 7. In the negligent driving proceedings, as already indicated, the magistrate found Mr Flowers guilty. The magistrate then dealt favourably with Mr Flowers in not recording a conviction and dismissing the proceedings without conviction and without penalty. That was done under s 10 of the Crimes (Sentencing Procedure) Act. 8. Nevertheless, the magistrate found that Mr Flowers was guilty. That finding was based upon the minor collision that occurred when Mr Flowers sought to manoeuvre his vehicle around Mr Frost's vehicle and collided with it, albeit in a minor manner. 9. The finding of guilt on the negligent driving and thereafter dealing with the matter pursuant to the terms of s 10 of the Crimes (Sentencing Procedure) Act does not satisfy the criterion necessary for malicious prosecution, namely, that the proceedings were resolved favourably to the plaintiff. 10. Similarly, if malicious prosecution were able to be maintained in relation to Traffic Infringement Notices, then the Traffic Infringement Notice lodged by Senior Constable Costelloe was not a proceeding that meets the criterion that the proceeding was resolved favourably to the plaintiff. The plaintiff paid the ticket. The payment of the ticket was an admission of guilt and is an admission of the minimum elements necessary to constitute the offence. [99] 11. In Meissner, [100] Dawson J said: "It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred." [101] 1. As a consequence, at least in relation to the cause of action for malicious prosecution, the only proceeding that is capable of giving rise to a successful cause of action by Mr Flowers is the proceeding for assault occasioning actual bodily harm. 2. As earlier indicated in the discussion of the elements necessary for a cause of action for collateral abuse of process, it is unnecessary, in such a cause of action, for the plaintiff to prove that the proceedings have resolved favourably to the plaintiff. Proceedings may be taken successfully against a person for an improper purpose. It is the nature of the purpose for the taking of the proceedings that gives rise to the cause of action for collateral abuse of process. 3. The question then becomes what is the evidence of purpose in taking the proceedings. This aspect affects not only the cause of action for collateral abuse of process, but also all the causes of action for malicious prosecution. 4. Even if the Court were incorrect in its conclusion that the Traffic Infringement Notice and the charge of negligent driving were not resolved favourably to the plaintiff, the plaintiff would still have difficulty with that element that requires improper purpose. 5. The Court has expressed some doubt as to whether Senior Constable Hughes was completely accurate in the memorandum to her superiors relating to the prosecution of the charges. There are other aspects of Senior Constable Hughes' evidence that cause doubt. The foregoing is not said as a criticism of Senior Constable Hughes. It is the nature of the proceedings that are before the Court. 6. However, the plaintiff must realise that there is a difference between a doubt in relation to some aspects of some evidence of one witness and proof, even on the lower standard of balance of probabilities, of improper purpose. 7. First, it is trite that the mere fact that a trier of fact does not believe evidence of a witness does not amount to evidence to the contrary of that to which the witness has testified. In other words, if the Court were not to believe a witness who testifies that she or he has travelled to the moon, in and of itself, that disbelief or conclusion that the evidence is unreliable or untrue, is not evidence that the witness has not travelled to the moon. 8. The evidence of Senior Constable Hughes is that she honestly and genuinely believed that the offence of assault occasioning actual bodily harm (and the negligent driving) had been made out. Her superiors were of the view that, notwithstanding the conflicting evidence, the assault was sufficiently serious, and there was sufficient evidence, that it was a matter that should be determined by the Court. That is a statement that asserts that the charges should be taken for the purpose of enforcing the law; not for a purpose that is extraneous to the enforcement of the law. 9. There is no evidence before the Court that any of the persons associated with prosecuting the assault, the negligent driving, or the traffic infringement relating to failure to provide particulars were motivated by a purpose other than the enforcement of the law. I am prepared, for present purposes, to accept that Sergeant Pearce was an initiator of proceedings. So too was Senior Constable Costelloe. 10. But the foregoing reference to failure by Mr Flowers to prove improper purpose, or "malice", is accurate in relation to each and every one of the persons whose motives were sought to be impugned. 11. The mere fact that Senior Constable Hughes made a mistake as to which of the two protagonists in the incident on 14 March 2016 was truthful, if a mistake were made, is not sufficient to give rise to a claim for malicious prosecution or collateral abuse of process. The doubt that the Court has expressed about the evidence of Senior Constable Hughes, is a doubt that may arise as a result of a different understanding of the requirements necessary for Senior Constable Hughes to take the matters into account. It does not suggest a lack of truthfulness; and it certainly does not suggest that Senior Constable Hughes had a motive in prosecuting the offences other than the achievement and enforcement of the law. 12. I have some sympathy for the feeling obviously held by Mr Flowers that he has been treated poorly. The traffic infringement notice for failing to provide particulars, in circumstances where there had been correspondence between the police and solicitors, seems to be taking the matter more seriously than was necessary in all the circumstances. Nevertheless, it does not involve improper motive. 13. Similarly, once Mr Frost had taken out an AVO and obtained an Interim AVO, the Court was armed with the necessary capacity to deal with the matter appropriately. It may have been unnecessary to charge for assault. 14. The event on 14 March 2016 was not one that, it would seem to me, warranted criminal prosecution, either for assault or for negligent driving. However, the Court is not here considering the exercise of the discretion of the police officers in preferring charges, except to the extent that those charges are preferred for a motive other than the enforcement of the law itself. 15. It is for the prosecutor, alone, to determine, in the exercise of the discretion conferred, whether and what charge is to be preferred. [102] Except as established in malicious prosecution or abuse of process, the Court does not interfere in that exercise. 16. The Court, as presently constituted, was, as is obvious, not present on the roadside on 14 March 2016 at or near Bathurst. The Court can only determine the event on the basis of the evidence before it. In terms of that which occurred, the learned magistrate had conflicting accounts and determined that he was not satisfied, beyond reasonable doubt, that Mr Flowers had assaulted Mr Frost. 17. That finding does not mean that the magistrate was satisfied that Mr Flowers did not assault Mr Frost. Nor does it mean that he was satisfied that Mr Frost assaulted Mr Flowers. It simply means that, on the evidence before the Local Court, the learned magistrate could not be satisfied, beyond reasonable doubt, that the offence had occurred. 18. This Court is in the same position. The magistrate dealt with the matter appropriately and properly. The magistrate saw and heard the evidence of each of the protagonists. 19. This Court is not concerned with the rights and wrongs of the events of 14 March 2016. Nor is it concerned with whether there was a failure to provide particulars after the minor collision on 3 May 2016 in the car park. 20. The Court is concerned with the cause of action that depends, at its heart, on improper motive on the part of those prosecuting or maintaining proceedings. The plaintiff has failed to prove, on the balance of probabilities, such an improper motive. 21. The Court makes the following orders: 1. Proceedings dismissed; 2. The plaintiff shall pay the defendant's costs of and incidental to the proceedings. ********** Endnotes 1. Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 292; [1983] HCA 17; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-263; [1976] HCA 39. 2. Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39; Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; [1991] HCA 31. 3. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345; [2000] HCA 63. 4. Ibid (Gleeson CJ, McHugh, Gummow, and Hayne JJ) at 345, [8]. 5. S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 376 (Kirby P). 6. Ibid; and Johnson v Johnson (2000) 201 CLR 488 at 509; [2000] HCA 48. 7. R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116; [1953] HCA 22. 8. UCPR r 29.2(4). 9. See Flowers v State of New South Wales [2020] NSWSC 883 and Flowers v State of New South Wales [2020] NSWSC 526. 10. Flowers v State of New South Wales [2020] NSWSC 526 at [17]. 11. Affidavit of Mark Stephen Flowers 15 April 2019, Joint Court Book, Volume 1 of 2, p 141. 12. Ibid p 362. 13. Tcpt, 23 March 2021, p 76(48)-77(14). 14. Ibid p 78(30)-(50) 15. Ibid p 78(40). 16. See generally: J C Holt, Magna Carta (3rd ed, 2015, Cambridge University Press). 17. Kirk v Industrial Court of New South Wales (2009) 239 CLR 531; [2010] HCA 1. 18. Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 at [28]; and in the Canadian context Imperial Oil Ltd v Attorney General of Québec [2003] 2 SCR 624 at 624-625. 19. Ebner, supra, at [359], [368] and [398]. 20. (1610) 8 Co. Rep. 107a at 118a; (1610) 77 ER 638. 21. Ibid, (1610) 8 Co. Rep. 107a at 118a; (1610) 77 ER 638 at 652 22. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. 23. Constitution Act 1902 (NSW) s 53(2). 24. Constitution s 72(ii) 25. North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 at [3] (Gleeson CJ). 26. Isaacson v Durant (1886) 17 QBD 54; Re Patterson; ex parte Taylor (2001) 207 CLR 391 at [224] (Gummow and Hayne JJ); [2001] HCA 51. 27. Sue v Hill (1999) 199 CLR 462 at 497 – 503; [1999] HCA 30 at [67] – [94] (Gleeson CJ, Gummow,and Hayne JJ) 28. Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; [2003] HCA 72. 29. Year Book, 20 Hen. VI, 10; Vin. Abr. Tit. "Privilege". 30. D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12. 31. Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41; Sirros v Moore [1975] 1 QB 118; Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 222, HL(E); In re McC (A Minor) [1985] AC 528; Munnings v Australian Government Solicitor (1994) 68 ALJR 169; [1994] HCA 65; Harvey v Derrick [1995] 1 NZLR 314. 32. D'Orta-Ekenaike, supra. 33. D'Orta-Ekenaike, supra, [31]-[39]. 34. R v Skinner (1772) Lofft 54 at 56; [1772] 98 ER 529 at 530. . 35. R v Skinner, cited in D'Orta-Ekenaike, supra, at [42]. 36. Ibid. 37. Dunlop v Woollahra Municipal Council [1982] AC 158 at 172. 38. Northern Territory v Mengel (1995) 185 CLR 307 at 370; [1995] HCA 65 at [23] (Deane J). 39. Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 at [38] (Gleeson CJ, Gaudron, Kirby and Hayne JJ). 40. Sanders v Snell, supra, at [38]; Northern Territory v Mengel, supra, at CLR 347. 41. Le Lievre v Gould [1893] 1 QB 491, at 497 (Lord Esher, MR); Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49 at 63-64; [1935] UKPCHCA 1 (Lord Wright). 42. Civil Liability Act s 5D(1)(b). 43. [2001] NSWSC 869; 53 NSWLR 407. 44. Wilson v State of New South Wales, supra, at [43]-[44]. 45. Fuller-Wilson v State of New South Wales [2018] NSWCA 218. 46. See Zalewski v Turcarolo [1995] 2 VR 562; Rush v Commissioner of Police (2006) 150 FCR 165; [2006] FCA 12; State of Victoria v Richards (2010) 27 VR 343; [2010] VSCA 113. 47. State of Victoria v Richards (2010) 27 VR 343; [2010] VSCA 113 at [14]. 48. Hill v Chief Constable of West Yorkshire [1989] AC 53; Wilson, supra; Quintano v State of New South Wales [2002] NSWSC 766; Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92; New South Wales v Klein (2006) Aust Torts Reports 81–862; [2006] NSWCA 295; Halech v State of South Australia (2006) 93 SASR 427; [2006] SASEC 29; Rush v Commissioner of Police, supra; Cumming v State of New South Wales [2008] NSWSC 690; Rickard v State of New South Wales [2010] NSWSC 151; Australian Capital Territory v Crowley (2012) 7 ACTLR 142; [2012] ACTCA 52; Gesah v Ross [2013] VSC 165; Groom v State of South Australia [2017] SASEFC 35. 49. Cabassi v Vila, supra. 50. Sappideen & Vines, Fleming's The Law of Torts (10th ed, 2011, Lawbook Co). 51. (2007) 230 CLR 500; [2007] HCA 10 at [1]. 52. A v State of New South Wales, supra, at [1], citing Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) at 350-356. 53. A v New South Wales, supra, at [118]. 54. Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30. 55. Little v The Law Institute of Victoria [1990] VR 257. 56. Forster v MacDonald (1995) 127 DLR (4th) 185. 57. Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674; QIW Retailers Ltd v Felview Pty Ltd (1989) 7 ACLC 510; [1989] 2 Qd R 245; and see generally the discussion in Gregory v Portsmouth City Council [2000] 1 AC 419; (2000) UKHL 3; and Kable v State of New South Wales (2010) 203 A Crim R 66; [2010] NSWSC 811. 58. A v State of New South Wales, supra, at [57]-[59] (Gleeson CJ, Gummow, Kirby, Hayne, Heyden and Crennan JJ). 59. Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17. 60. Clavel v Savage [2013] NSWSC 775 at [54]-[57] and the cases cited therein. 61. Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34. 62. Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46, cited with approval in Williams v Spautz, supra. 63. Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773. 64. Goldsmith v Sperrings Ltd [1977] 1 WLR 478; [1977] 2 All ER 566 at 574 (Lord Denning, MR). 65. Spautz v Gibbs (1990) 21 NSWLR 230; Hanrahan v Ainsworth [1990] 22 NSWLR 73. 66. See A v State of New South Wales, supra, at [118] (Brennan J), extracted above in these reasons. 67. Wood v State of New South Wales [2018] NSWSC 1247 at [580], and the cases cited therein. 68. Commonwealth Life Assurance Society Ltd v Brain, supra. 69. A v State of New South Wales, supra, at [60] and [77]. 70. State of New South Wales v Landini [2010] NSWCA 157 at [57], citing Fitzjohn v Mackinder [1861] 142 ER 199 at 210. 71. A v State of New South Wales, supra, at [58], [70] and [71]. 72. A v State of New South Wales, supra, at [91] and [93]. 73. Joint Court Book, Volume 1 of 2, p 142. 74. Joint Court Book, Volume 1 of 2, p 249. 75. Joint Court Book, Volume 1 of 2, p 156. 76. Join Court Book, Volume 2 of 2, p 598 and following. 77. Joint Court Book, Volume 2 of 2, p 612-616. 78. Joint Court Book, Volume 2 of 2, p 654-656. 79. Joint Court Book, Volume 2 of 2, p 608. 80. Joint Court Book, Volume 2 of 2, pp 736 and 737. 81. Ibid. 82. Joint Court Book, Volume 2 of 2, pp 643-645. 83. Joint Court Book, Volume 2 of 2, p 646. 84. Joint Court Book, Volume 2 of 2, pp 739 and 740. 85. Joint Court Book, Volume 2 of 2, p 843; Tcpt, 26 April 2017, p 15(19). 86. Joint Court Book, Volume 2 of 2, p 912; Tcpt, 26 April 2017, p 84(43). 87. Ibid; Tcpt, 26 April 2017, p 85(10). 88. Tcpt, 25 March 2021, p 206. 89. Tcpt, 25 March 2021, pp 213 to 214. 90. Tcpt, 25 March 2021, p 218. 91. Tcpt, 25 March 2021, p 221. 92. Joint Court Book, Volume 1 of 2, p 230. 93. Tcpt, 25 March 2021, p 236. 94. Tcpt, 27 April 2021, p 431. 95. Tcpt, 28 April 2021, p 497(38-40). 96. Joint Court Book, Volume 2 of 2, p 731. 97. Tcpt, 28 April 2021, p 508(29-32). 98. ABS statistics. 99. Meissner v the Queen (1995) 184 CLR 132 at 157; [1995] HCA 41. 100. Ibid. 101. Ibid at CLRs. 102. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22. Amendments 22 July 2021 - Typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2021