State of New South Wales v Abed [2014] NSWCA 419

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Abed [2014] NSWCA 419 Hearing dates: 10 - 11 September 2014 Decision date: 05 December 2014 Before: Bathurst CJ at [1]; Macfarlan JA at [2]; Gleeson JA at [6] Decision: 1. Appeal by the State of New South Wales (the State) allowed in part. 2. Cross-appeal by the first respondent (Hayam Abed) allowed in part. 3. Cross-appeal by the third respondent (Khalil Younis) allowed in part. 4. Set aside the orders made by Sorby DCJ on 27 September 2013. 5. In lieu thereof order: (i) judgment for the plaintiff against the first defendant in the sum of $25,448.76; (ii) judgment for the plaintiff against the second and third defendants in the sum of $283,541.92; (iii) judgment on the amended first cross-claim for the cross-claimant against the first cross-defendant in the sum of $25,448.76; (iv) dismiss the amended first cross-claim against the second cross-defendant with costs; (v) the second and third defendants pay the plaintiff's costs of the proceedings in the District Court; (vi) the first cross-defendant pay the cross-claimant's costs of the amended first cross-claim. 6. Otherwise reserve questions of the costs below and in this Court. 7. In default of agreement as to costs or any further orders consistent with these reasons for judgment, direct: (i) the State to file and serve within 14 days of the date of delivery of judgment its proposed short minutes of order together with short written submissions; (ii) Ms Abed and Ms Younis and Mr Younis to file and serve their proposed short minutes of order, together with short written submissions in reply within 14 days after service on them of the State's written submissions contemplated by the previous order, with the State to have a further 7 days after receiving those submissions to reply. 8. Note that the Court will determine the issue of costs on the papers. [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 - False arrest and false imprisonment - Requirement to inform arrested person of the true ground on which the arrest is made - Whether respondent was given sufficient detail of the reason for arrest - Whether in the circumstances it was not reasonably practicable to provide further detail TORTS - Maliciously inducing arrest - Whether complainant, motivated by malice and without reasonable and proper cause, caused or procured the arrest TORTS - Malicious Prosecution - Whether prosecutor acted without reasonable and probable cause and acted maliciously - Reasonable and probable cause and malice are two separate issues and must each be proved - Whether primary judge erred in finding that the appellant acted maliciously - Whether prosecutor acted upon an improper purpose - Concept of malice requires that the sole or dominant purpose of the prosecutor was something other than the proper invocation of the criminal law TORTS - Malicious Prosecution - Procurement of prosecution - Whether complainant actively instigated and maintained the prosecution - Whether the discretion of the prosecuting officer was misled by false information from the complainant concerning facts relating to the alleged offence which were only within the knowledge of the complainant Legislation Cited: Bail Act 1978 (NSW) s 50(1) Civil Procedure Act 2000 (NSW) s 100(1) Crimes Act 1900 (NSW) ss 110, 112(2) Director of Public Prosecutions Act 1986 (NSW) s 10 Law Enforcement (Powers and Responsibilities) Act 2000 (NSW) ss 4, 201 Pt 9 Law Reform (Vicarious Liability) Act 1983 (NSW) Pt 4 Superannuation Guarantee (Administration) Act 1992 (Cth) Superannuation Guarantee (Administration) Amendment Act 2012 (Cth) Supreme Court Act 1970 (NSW) s 75A Uniform Civil Procedure Rules 2005 (NSW) r 6.12, 15.7, 15.8, 36.7, 51.53, Sch 5 Cases Cited: A v New South Wales [2007] HCA 10; 230 CLR 500 Abed v State of New South Wales (District Court (NSW), Sorby DCJ, 21 June 2013, unrep) Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 Bunyan v Jordan [1937] HCA 5; 57 CLR 1 Christie v Leachinsky [1947] AC 573 Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; 53 CLR 343 Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 Costa v The Public Trustee of NSW [2008] NSWCA 223 Cullen v Trappell [1980] HCA 10; 146 CLR 1 Davis v Gell [1924] HCA 56; 35 CLR 275 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Elite Protective Personnel v Salmon [2007] NSWCA 322 Fox v Percy [2003] HCA 22; 214 CLR 118 Gibbs v Rea [1998] AC 786 Graham v Baker [1961] HCA 48; 106 CLR 340 Gray v Motor Accidents Commission [1998] HC 70; 196 CLR 1 Hamod v State of New South Wales [2011] NSWCA 375 House v The King (1936) 55 CLR 499 Husher v Husher [1999] HCA 47; 197 CLR 138 Johnston v Australia and New Zealand Banking Group Ltd [2006] NSWCA 218 Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Lamb v Cotogno [1987] HCA 47; 164 CLR 1 MBP (SA) Pty Ltd v Gogic [1991] HCA 3 Mahon v Rahn (No 2) [2000] 1 WLR 2150 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Martin v Watson [1996] AC 74 Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 Mutton v Baker [2014] VSCA 43 Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 New South Wales v Hunt [2014] NSWCA 47 New South Wales v Radford [2010] NSWCA 276; 79 NSWLR 327 New South Wales v Zreika [2012] NSWCA 37 Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758 Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 Spautz v Butterworth (1996) 41 NSWLR 1 State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 State of New South Wales v Landini [2010] NSWCA 157 State of New South v Riley [2003] NSWCA 208; 57 NSWLR 496 Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Wilson v Peisley (1975) 50 ALJR 207; 7 ALR 571 Zorom Enterprises v Zabow [2007] NSWCA 106; 71 NSWLR 354 Texts Cited: John G Fleming, The Law of Torts (9th ed 1998, LBC Information Services) Category: Principal judgment Parties: State of New South Wales (Appellant) Hayam Abed (First respondent) Wafaa Younis (Second respondent) Khalil Younis (Third respondent) Representation: Counsel: J E Maconachie QC / D F Villa (Appellant) D Higgs SC / D Del Monte (First respondent) R M Sweet / F F F Salama (Second and third respondent) Solicitors: I V Knight - Crown Solicitor (Appellant) Kheir Lawyers (First respondent) Stojanovic Solicitors (Second and third respondents) File Number(s): 2013/319409 Publication restriction: No Decision under appeal Jurisdiction: 9101 Citation: Abed v State of New South Wales (District Court (NSW), Sorby DCJ, 21 June 2013, unrep) Date of Decision: 2013-09-27 00:00:00 Before: Sorby DCJ File Number(s): 2009/338335