District Court New South Wales Medium Neutral Citation: Burton v Babb [2023] NSWDC 103 Hearing dates: 13 and 14 February 2023 and 5 April 2023. Date of orders: 19 April 2023 Decision date: 19 April 2023 Jurisdiction: Civil Before: Weber SC DCJ Decision: (1) That there be judgment and verdict for the defendants against the plaintiffs. Catchwords: TORTS – Malicious Prosecution Legislation Cited: Childrens and Young Persons (Care and Protection) Act 1998 Civil Procedure Act 2005 Court Suppression and Non-Publication Orders Act 2010 Uniform Civil Procedure Rules 2005 Cases Cited: Burton v Local Court of NSW [2019] NSWSC Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120 Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245 A v State of New South Wales (2007) 230 CLR 500 Jones v Dunkel (1959) 101 CLR 298 Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 State of NSW v Landini [2010] NSWCA 157 Bailey v Director General Department of Natural Resources [2014] NSWSC 1012 Category: Principal judgment Parties: First Plaintiff: Paul Robert Burton Second Plaintiff: Andrew Katelaris First Defendant: Lloyd Babb Second Defendant: Michael Coutts-Trotter Representation: Counsel: Plaintiffs: Self Represented Defendants: G Bateman Solicitors: Plaintiffs: Self Represented Defendants: Crown Solicitors Office File Number(s): 2020/00191681 Publication restriction: None JUDGMENT Background 1. On 25 May 2017 the Children's Court made an interim order pursuant to s 57(1)(a) of the Court Suppression and Non Publication Act ("the Act"), The order prohibited the publication of information which orders could identify certain persons involved in proceedings before it ("The 25 May Order"). 2. The 25 May Order was in the following terms: "INTERIM ORDER 1. Pursuant to section 7(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 and relying on the grounds outlined in subsections 8(1)(c) and 8(1)(e) of the Act: there must be no publication or information that would identify or tend to identify individuals within the following groups of persons connected with proceedings..." 1. The 25 May Order was sought on the application of the Department of Family and Community Services (FACS). At all relevant times the second defendant was the Secretary of FACS. 2. At all relevant times the First defendant was the Director of Public Prosecutions for the State of NSW. 3. On 31 May 2017 the Children's Court made a further order pursuant to s 57 (1) designed to prohibit the publication of information which might compromise evidence in the proceedings before it. 4. The plaintiffs posted material on Facebook which on its face appeared to breach the 25 May Order. 5. On June 27, 2017, Catherine Samuels, the Director of Child Protection FACS Legal, sent emails to the Plaintiffs requesting that they remove any posts on their Facebook pages which were in breach of the 25 May Order. Both Plaintiffs refused to do so. The Subsequent Course of Litigation 1. In July 2017 proceedings were brought on behalf of the Second Defendant in the Equity Division of the Supreme Court. The Summons sought injunctive relief against the Plaintiffs, and orders requiring removal of the offending Facebook posts. Rein J in a judgment dated 18 July 2017 (PX 2), noted that the Plaintiffs did not dispute that their Facebook pages included the material about which the Secretary of FACS complained [26]. His Honour ordered that the plaintiffs remove the offending material. His Honour also enjoined the plaintiffs from any further publication of material which breached the 25 May Order [43]. 2. On 21 December 2017, both defendants were charged by way of Court Attendance Notices. The charged offences included offences relating to breaches of the 25 May Order. 3. On 6 April 2018, the first plaintiff filed an amended Notice of Motion seeking to have his Court Attendance Notice quashed, and the proceedings against him dismissed. The second defendant filed a similar motion on 30 April 2018. On 6 July 2018 both motions were heard and dismissed by Stone LCM. 4. The First Plaintiff then sought judicial review of the decision of Stone LCM. 5. The Judicial Review matter came on for hearing in the Supreme Court before Harrison AsJ. One of the arguments put forward by the first plaintiff was that the 25 May Order was not in reality an interim order, but rather was in fact a final order, and as such it required for its validity, a time stipulation as provided by section 12 of the Act. 6. According to this argument the charges against the plaintiffs in relation to the 25 May Order could not be sustained. Her Honour refused the first plaintiff's application and found, inter alia, that the 25 May Order was an interim order, as stated on its face, and not a final order. Her Honour found therefore the the 25 May Order did not require a time stipulation (Burton v Local Court of NSW [2019] NSWSC (8 March 2019). 7. Her Honour's construction of the 25 May Order was followed by Hatzistergos DCJ, when the issue was again raised by the First Plaintiff in proceedings before his Honour (Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120). These were proceedings in which the first plaintiff alleged that the charges which had been laid both under the Children and Young Persons (Care and Protection) Act and The Act constituted a collateral abuse of process. Hatzistergos DCJ dismissed the first plaintiff's claim. 8. The interpretation of the 25 May Order which found favour before Harrison AsJ and Hatzistergos DCJ however did not find favour in the Court of Appeal, which overturned the decision of Hatzistergos DCJ. The court did so in a judgment dated 11 October 2019 (Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245). The Court held that the 25 May Order was not an interim order, and that the primary Judge erred in so holding. The Court of Appeal found that as the 25 May Order lacked a time limitation or a reference to an application to be heard, it was therefore unenforceable. 9. As a consequence of the decision of the Court of Appeal, the charges against the Plaintiffs' relating to the 25 May 2017 Order were then withdrawn. The Proceedings 1. On 29 June 2020, the plaintiffs, who were both self represented, commenced these proceedings. The Statement of Claim which they filed was subsequently amended on 3 December 2021. The plaintiffs' claim against the defendants is in damages for malicious prosecution in respect of the charges brought against them which relate to the 25 May Order. The Elements in the Cause of Action 1. The elements of the cause of action in malicious prosecution are well-known. They are: "(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" (A v State of New South Wales (2007) 230 CLR 500 at [1]) 1. Of these five elements of the cause of action, the plaintiffs have clearly established the second element. The Contentious Elements 1. The contentious issues in these proceedings are therefore as follows: 1. Did the Defendants or either of them initiate the prosecution of the Plaintiffs for contravention of the 25 May Order? 2. Did the Defendants or either of them act with malice in bringing or maintaining the prosecution? 3. Was the prosecution brought or maintained without reasonable and probable cause? 4. Have the plaintiffs proved that they have suffered damage as a result of such malicious prosecution? 1. In order for the plaintiffs to succeed in the proceedings they must establish each of these matters, that is to say the elements are cumulative, such that a failure on any of them is fatal to the plaintiffs' cases. The Defendants Call No Witnesses 1. The defendants called no witnesses. This forensic decision was to be readily anticipated. The plaintiffs in their submissions make frequent criticism of the defendants for their failure to call any witnesses, which criticisms in my view, misunderstand the operation of the burden of proof, and the principles explained by the High Court in Jones v Dunkel (1959) 101 CLR 298. 2. An example of this is to be found in the first plaintiff's written submissions at P 23.26 – 23.29 where he submitted: "Further to this the Defendants appear to have taken a tactical position of not calling witnesses or evidence. Yet they could have called Mr Babb or Mr Coutts-Trotter to deny they instituted the charges or continued with the charges or that it was done without their knowledge or perhaps any other position but they did not. These were matters that were within their knowledge and they could have called them to testify and did not and the Court in accordance with Jones v Dunkell could find that even if they testified it would not have assisted them." 1. As is well known, the principles explained by the High Court in Jones v Dunkel, do not require a defendant to call evidence to fill in the gaps in a plaintiff's case. (Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 at [49]). 2. In these proceedings, the defendants were not confronted with "gaps" in the proof of the plaintiffs' cases. In my opinion, to call the evidentiary deficiencies in the plaintiffs' cases mere "gaps" would be to understate them, "yawning chasms" would be a better description. 3. It was for this reason, that I described the defendants' decision not to call witnesses as being one which was capable of being readily anticipated. 4. Faced with the decision of the defendants not to call witnesses, the plaintiffs asked the Court to draw inference from documents to establish each of the necessary elements of their cases. In my view, each of the inferences which the plaintiffs would have the court draw are simply not available on the documents upon which they rely. 5. The plaintiffs also confronted the difficulties in their cases which flowed from the decision of the defendants not to call witnesses by reference to arguments which in my mind were at times both lacking in logic, and contrary to legal principle. 6. One example of this was the erroneous recourse to Jones v Dunkel, to which I have earlier referred. 7. Another example was the first plaintiff's submission that UCPR Pt 14.14 precluded the defendants from challenging the proposition that the plaintiffs had not established the elements of the cause of action. This consequence was said to arise because the defendants did not plead an affirmative defence beyond denials or non admission of the contentious elements of the plaintiffs' cause of action. 8. The first plaintiff submitted: "Importantly it must be stated that the Defendants in their amended defence gave no information other than not admitting or bare denials. Rule 14.14 of the UCPR states 2) In a defence or subsequent pleading, a party must plead specifically any matter-- (a) that, if not pleaded specifically, may take the opposite party by surprise, or (b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or (c) that raises matters of fact not arising out of the preceding pleading. The defence did not do this. The Plaintiffs submit that the failure to do this prohibits the Defendants from challenging whether malice can be inferred on any point that challenges who the prosecutors were and in fact on any point denied or not admitted to in general, including the damages. Authority for this can be found in The City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor [2011] NSWSC 847 (8 August 2011) The evidence of collusion is clear. The lack of reasonable and probable cause is clear. The charges simply could never be sustained. They lacked the elements required." 1. This submission must be rejected. There was nothing in the defendants defence of the proceedings which would attract the application of Pt 14 Rule 14 of the UCPR. 2. As a consequence of what I consider to be the manifest problems with the plaintiffs' cases I shall deal with the contentious elements of the cause of action as briefly as I can, a course which I consider to be appropriate given the Overriding Purpose set out in s 56 of the Civil Procedure Act 2005. 3. I thus turn to the elements of the cause of action which were in dispute in the proceedings. The Identity of the Prosecutor 1. The first contentious element which the Plaintiff's must prove, is that the proceedings against them were initiated by the First and/or Second Defendants. 2. The importance of this element was explained in Fullerton J in Bailey v Director General Department of Natural Resources [2014] NSWSC 1012 where after referring to the High Court Decision in A v State of NSW, her Honour said: "[284] ... what the Court did emphasise was that it is important to properly identify the prosecutor in proceedings brought to recover damages for the tort of malicious prosecution in order to ground and focus the critical enquiry into whether the plaintiff has proved that person (or, if more than one prosecutor those people) acted maliciously and without reasonable and probable cause in initiating and maintaining the proceedings ..." 1. What is required to be established by a plaintiff in respect of this element, is that the defendants played "an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion" (A v State of NSW at [34]). 2. In my view, the Plaintiffs have singularly failed to establish this element. In the evidence before me, neither Defendant has been identified as having any personal involvement in the prosecution. 3. The Plaintiffs ask the Court to draw inferences from the documentary evidence to establish this element which are not warranted. I shall not deal with each of the plaintiff's invitations to draw inferences from the documentary evidence, beyond saying that each submission lacked substance. 4. A good example of the paucity of the plaintiffs' case on this element can be found in paragraph 2 of the first plaintiff's submissions (page 3) The first plaintiff asserts that; "The email from Mr Mills on 12 July shows clearly that Mr Coutts-Trotter had already referred the matter to Mr Babb with the view to laying criminal charges against the Plaintiffs..." 1. Perusal of that email (PX1 Item 3) shows that the words closest to this interpretation are, "As discussed, referrals have been made by the Crown Solicitors Office to the DPP for consideration of prosecution of these individuals..." 1. It can be seen therefore that the inference sought to be drawn is not available from the text of the email. 2. Similarly, and contrary to the submissions of the first plaintiff, there is no evidence of any conversation, or indeed any other form of contact between the defendants in relation to the proceedings. 3. In paragraph 9 of his written submissions (on page 5) the First Plaintiff suggests that Ms Samuels' emails to him (PX5 Tab 8 and Tab 9) show the second defendant's involvement from the instigation of the proceedings, and his contemplation of a criminal prosecution. This contention, in my view, is simply misplaced. 4. Whilst Ms Samuels first email dated 27 June 2017 was expressed to be forwarded by her, "On behalf of the Secretary of the NSW Department of Family and Community Services" the views as to a breach of the law which she expresses, and the request for the removal of the Facebook posts are clearly those of Ms Samuels herself. This can be clearly seen in the use by her of first person singular pronouns. 5. In my view, it was only natural that Ms Collier would commence her email as being forwarded by her "on behalf of the Secretary", given the Secretary's important position in the operation of the Childrens and Young Persons (Care and Protection) Act 1998 ("the Children's Act"). 6. The Secretary's cardinal role in the operation of the Children's Act however does not lead to a conclusion that the Secretary is personally involved in all decision making in respect of every decision made in his name under that Act. 7. The plaintiffs refer to the fact that the defendants in their defence admit that they held their respective positions at the relevant time. The plaintiffs refer to this admission as if that admission, in and of itself, is sufficient to prove the first element of the cause of action upon which they sue. It is not. As I have earlier indicated, the plaintiffs must prove the defendants active involvement in the instigation and prosecution of the charges (see A v State of NSW at [34]). 8. In my view, the failure to appreciate this fact is at the heart of the plaintiffs' misconceptions as to this element of the cause of action, upon which they sue. 9. In paragraph 11 of his written submissions (at page 6) the First Plaintiff refers to Ms Collier as a departmental officer, "operating under the instruction of Mr Coutts-Trotter". This contention is also not borne out by the evidence, and indeed, the contention is expressly contrary to Ms Collier's evidence (evidence of the plaintiffs in chief), wherein she states that she had not discussed the case with Mr Coutts-Trotter, nor taken any directions from him, nor received any information from him that went into her affidavit (TP 77-78). 10. In summary therefore, the plaintiffs have failed to establish the first contentious element of the tort, and as such their cases must fail. I will however go on to deal with the other contentious elements of the cause of action, albeit briefly. Malice 1. To constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an "illegitimate or oblique motive" (A v State of NSW [91]). The improper purpose must be the sole or dominant purpose actuating the prosecutor. 2. The Plaintiffs' have submitted that the purpose for bringing the prosecution against them was to punish them for revealing the "illegal" seizure of a child by FACS which the Defendants, in particular the second defendant, wished to hide. 3. There are obvious problems with this contention, for example that: 1. The state of knowledge of either of the Defendants as to the legality or otherwise of the seizure of the child has not been established, and 2. It has not been proven, in any event, that the taking of the child by FACS was illegal or improper; and 3. Further, the prosecution, the subject of these proceedings, did not concern the underlying facts of the childcare matter in the Children's Court. On the contrary, the proceedings concerned an alleged breach of an adjectival order of the Children's Court, designed to protect the identities of various persons concerned with the underlying facts of the childcare case. 1. The Plaintiffs submit that further evidence of malice is demonstrated by the fact that Channel 7 broadcast a television program concerning the child concerned in the underlying proceedings (PX16). The plaintiffs say that this broadcast breached section 105 of the Children and Young Persons (Control and Protection) Act. This they contend occurred to the knowledge of the Second Defendant. They then go on to submit that no action was taken against Channel 7. 2. The failure to take action against Channel 7 the plaintiffs contend, proves malice in the prosecution of the plaintiffs. 3. The first difficulty with this submission is that there is no evidence that the second defendant had any relevant knowledge of the Channel 7 broadcast. 4. Secondly and in my view more fundamentally, is that fact that even if it is assumed that others have breached the legislation, and yet no action has been taken to prosecute them, malice on the part of the defendants towards the Plaintiffs is not proved. Put another way, in my opinion, inaction in taking proceedings against party A does not result in the proposition that the prosecution of party B is malicious. 5. The plaintiffs have not established malice. Absence of reasonable and probable cause 1. In my view, the Plaintiffs also face an insurmountable task in proving that the prosecutions were made without reasonable and probable cause. 2. As I trust is clear from the course of litigation, to which I have earlier referred, the Plaintiffs' success in the Court of Appeal in relation to five of the thirteen charges brought against them, depended upon an issue of the correct interpretation of the 25 May Order. 3. This issue of interpretation of the order was ventilated by the plaintiffs in various courts, but not resolved in their favour until the matter came to the Court of Appeal on 11 October 2019. 4. The issue of construction therefore was clearly an issue upon which reasonable minds could differ. 5. The plaintiffs in their submissions suggest that as a consequence of their success on the interpretation argument, the proceedings were doomed to fail from the outlet. They then argue that as a consequence, the prosecution lacked reasonable and probable cause. 6. The plaintiffs then seek to elide the issue of reasonable and probable cause with malice to say that as the proceedings were doomed from the outlet, they must necessarily have been actuated by malice (see First Plaintiffs written submissions at P24.30) 7. These arguments, to my mind are contrary to both logic, and to legal principle. The proposition that a prosecution which fails on a point of law is necessarily one lacking reasonable and probable cause, to my mind only needs to be stated to be rejected. The argument was in any event, an argument that was not favoured by the Court of Appeal in the judgment upon which the plaintiffs rely. 8. In the Court's judgment in that case, Bell P (as his Honour the Chief Justice then was) at [11] observed that: "Whether or not the institution of proceedings that may fail, or indeed that are bound to fail, means that the purpose of the party initiating those proceedings was in some way improper, however, does not follow." 1. To similar effect, McCallum JA at [121] said: "It is clear that different views have been taken as to the construction and operation of the Court Suppression and Non- Publication Orders Act. It could not be said that maintaining a contestable view as to the operation of the Act of itself reveals an absence of any proper purpose for maintaining the criminal proceedings." 1. As such the plaintiffs have failed to establish this element of their cause of action. Damages 1. Proof of damage is a further requirement in proceedings for malicious prosecution. (State of NSW v Landini [2010] NSWCA 157 at [20]). 2. Neither Plaintiff has given any evidence as to damage occasioned by the proceedings brought against them. Whilst a "Schedule of Damages" was prepared by the Plaintiffs, no evidence has been given as to any item referred to in that schedule. Conclusion 1. For the foregoing reasons, the plaintiffs' claims fail, and there should be judgment and verdict against them in favour of the defendants. Prima facie, costs should follow the event, however, the first plaintiff has indicated that he wished to be heard on costs. 2. I will accordingly hear the parties on costs should that become necessary Orders 1. That there be judgment and verdict for the defendants against the plaintiffs. ********** Amendments 24 April 2023 - Title 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: 24 April 2023