Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318 Hearing dates: 15-16 July 2015 Decision date: 14 October 2015 Before: Basten JA at [1]; Gleeson JA at [121]; Leeming JA at [122] Decision: (1) Dismiss the appeal with respect to the dismissal of the first appellant's claim for damages for malicious prosecution. (2) Order that the first appellant pay the respondents' costs of the appeal on liability. (3) Dismiss the appellants' appeal from the orders made by the trial judge as to the costs of the trial. (4) Order that the appellants pay the respondents' costs of the appeal with respect to the costs of the trial. Catchwords: TORT – malicious prosecution – elements of tort – whether prosecution instituted and maintained without reasonable and probable cause – whether proceedings commenced for improper purpose – whether prosecutor lacked reasonable belief in the guilt of the appellant

PLANNING AND ENVIRONMENT – interrelation between the Native Vegetation Conservation Act 1997 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 1994 (NSW) and State Environmental Planning Policy 46, Sch 3 – appellant prosecuted for clearing native vegetation without consent – whether the exemption under s 12(f) of Native Vegetation Conservation Act 1997 (NSW) only applied to otherwise lawful developments – whether exemption for "rural structures … (such as farm dams)" included a 90 ha reservoir

COSTS – respondents awarded costs to be assessed on indemnity basis – whether offer of compromise compliant with Uniform Civil Procedure Rules 2005 (NSW) – whether a compromise – whether costs of undetermined issues should be refused