State of New South Wales v Quirk [2012] NSWCA 216

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Quirk [2012] NSWCA 216 Hearing dates: 24 April 2012 Decision date: 20 July 2012 Before: Beazley JA at [1]; Hoeben JA at [2]; Tobias AJA at [3] Decision: (a) Appeal allowed. (b) Grant leave to the respondent to cross-appeal on the issue of damages for the assault and allow that cross-appeal. (c) Set aside the judgment of Grove AJ dated 3 June 2011 in the sum of $175,000 and in lieu thereof enter judgment for the respondent in the sum of $95,000. (d) Set aside the order for costs made by Grove AJ on 9 June 2011 and in lieu thereof order that the appellant pay 70 per cent of the respondent's costs of the proceedings at first instance. (e) The appellant to pay the respondent's costs of the appeal up to and including 23 April 2012 relating to the abandonment of Grounds of Appeal 1 and 2 on an indemnity basis. (f) Subject to the preceding order, the respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified. (g) The appellant to pay the respondent's costs of his summons for leave to cross-appeal and of the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - Malicious prosecution - Whether primary judge erred in finding that the plaintiff was the subject of malicious prosecution - Onus of proof on plaintiff to demonstrate absence of reasonable and probable cause in the prosecution of the relevant charges - Onus of proof not discharged - Primary judge erred in finding that the elements of the cause of action had been established - Appeal allowed.