This chapter is concerned with the torts of assault, battery, false imprisonment and intimidation. Closely allied with these is a further tortious action, namely proceedings to recover damages for malicious prosecution.

The three torts that emerged from the concept of trespass to the person — assault, battery and false imprisonment are actionable per se — that is without proof of damage (although if the wrongful act, does result in injury, damages can be recovered for that injury as well). In malicious prosecution proceedings, however, it is necessary to assert and prove damage.

An assault is any direct and intentional threat made by a person that places the plaintiff in reasonable apprehension of an imminent contact with the plaintiff’s person, either by the defendant or by some person or thing within the defendant’s control: K Barker, P Cane, M Lunney and F Trindade, The Law of Torts In Australia, 5th edn, Oxford University Press, Australia and New Zealand, 2011 at 44 (“Barker et al”).

The gist of assault has been stated in J Fleming, Law of Torts, 9th edn, LBC Information Services, Sydney, 1998 (“Fleming”) as focusing on the apprehension of impending contact. Thus, the effect on the victim’s mind created by the threat is the crux, not whether the defendant actually had the intention or means to follow it up. The intent required for the tort of assault is the desire to arouse an apprehension of physical contact, not necessarily an intention to inflict actual harm.

In Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, the plaintiff was an excluded gambler who had unlawfully returned to the casino to play roulette. Employees of the casino saw him and identified him as an excluded person. He was approached and accompanied to an “interview room” where he was required to remain until police arrived sometime later. Mr Rixon unsuccessfully sued for damages for assault, battery and false imprisonment. In relation to the assault issue, the facts were that a casino employee had placed his hand on the plaintiff’s shoulder and, when he turned around, asked him: “Are you Brian Rixon?”. These actions were central to the question as to whether Mr Rixon had been the victim of an assault and, in addition, a battery.

Sheller JA (with whom Priestley and Heydon JJ agreed) stressed the distinction referred to in Fleming set out above. His Honour said that, on the facts of the case, the primary judge had been correct to find that the employee did not have the intention to create in Mr Rixon’s mind the apprehension of imminent harmful conduct. Moreover, the employee’s placement of his hand on the plaintiff’s shoulder did not constitute a battery. On the false imprisonment claim, the court found that the Casino Control Act 1992 and its regulations justified the plaintiff’s detention for a short period of time until the arrival of the police.

In State of NSW v Ibbett (2005) 65 NSWLR 168 the Court of Appeal upheld the trial judge’s factual findings while increasing the damages awarded. The circumstances of the case were that two policemen gave chase to Mr Ibbett, in the township of Foster, suspecting that he may have been involved in a criminal offence. They pursued him to a house where he lived with his mother, Mrs Ibbett. Without legal justification, one of the policemen entered the property and arrested Mr Ibbett. His mother came into the garage where these events occurred. The police officer produced a gun and pointed it at Mrs Ibbett saying, “Open the bloody door and let my mate in”. Mrs Ibbett, who was an elderly woman, had never seen a gun before and was, not unnaturally, petrified.

The trial judge held that both police officers had been on the property without unlawful justification and, additionally, the confrontation between the police officer and Mrs Ibbett was more than sufficient to justify the requirements of an immediate apprehension of harm on her part, so as to amount to an assault. The Court of Appeal agreed with the trial judge as later did the High Court. See also Clarke JA in Cowell v Corrective Services Commission (NSW) (1988)13 NSWLR 714.

Although threats that amount to an assault normally encompass words, they will not always do so. For example, actions may suffice if they place the plaintiff in reasonable apprehension of receiving a battery. As to words, in Barton v Armstrong [1969] 2 NSWR 451 a politician made threats over the telephone and these were held to be capable of constituting an assault. Given the explosion of modern methods of media communication, there is no reason why threats made in emails, text messages or on Facebook (so long as they satisfy the legal test) could not qualify. Importantly, the reasonable apprehension must relate to an imminent attack.

Note:

the requirement is for an imminent battery, not an immediate one.

This requirement means that an assault cannot be proved if the plaintiff is not aware of the threat. Moreover, the apprehension must be a reasonable one. Thus, if an unloaded gun or a toy pistol is pointed at the plaintiff, the defendant will not be liable where the plaintiff knows or has reason to believe that the gun is not loaded or is a toy: Logdon v DPP [1976] Crim LR 121.

A defendant who directly causes physical contact with a plaintiff (including by using an instrument) will commit a battery unless the defendant proves the absence of intent and negligence on their part, that is, that the defendant was “utterly without fault”: Croucher v Cachia (2016) 95 NSWLR 117. This case is also authority for the proposition that ss 3B(1)(a) and 21 of the Civil Liability Act 2002 (NSW) do not operate upon the particular cause of action pleaded, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act. It is necessary to look at the character of the underlying conduct, rather than whether the claim is in respect of an “intentional tort”.

Battery cases (sometimes wrongly referred to as “assault cases” — although the two often go hand in hand) often involve difficult factual disputes requiring the resolution of widely conflicting versions as to what happened during a particular occasion or event, whether domestic or otherwise.

The requisite intention for battery is simply this: the defendant must have intended the consequence of the contact with the plaintiff. The defendant need not know the contact is unlawful. He or she need not intend to cause harm or damage as a result of the contact.

A person who pulls the trigger of a rifle believing it to be unloaded may be found to be negligent, but will not be liable in trespass, because they did not intend that the bullet from the rifle should strike the injured plaintiff. The requisite intention will have been absent.

In most cases, it will be apparent that an intention to make contact can simply be inferred from the nature and circumstances of the striking. If I strike someone with an axe, it will be apparent, except in the most unusual circumstances, that I intended to make contact with the injured person.

Contact, as has been pointed out by academic writers (Barker et al at p 41), can take a variety of forms. Thus, spitting on a person, forcibly taking blood or taking finger prints would be regarded as contact. Similarly, shining a light into a person’s eyes will be regarded as contact: Walker v Hamm [2008] VSC 596 at [307].

The modern position, however, is that hostile intent or angry state of mind are not necessary to establish battery: Rixon v Star City Pty Ltd, above, at [52]. It is for that reason that a medical procedure carried out without the patient’s consent may be a battery.

On the other hand, it is not every contact that will be taken to be a battery. People come into physical contact on a daily basis. For example it is impossible to avoid contact with other persons in a crowded train or at a popular sporting or concert event. The inevitable “jostling” that occurs in these incidents in every day life is simply not actionable as a battery: Rixon at [53]–[54]; Colins v Wilcock [1984] 3 All ER 374 per Robert Goff LJ.

Defences to the trespass torts include necessity, for example, in the case of a medical emergency where a patient’s life is at risk and the obtaining of consent is not possible (Hunter New England Area Health Service v A (2009) 74 NSWLR 88); self-defence (Fontin v Katapodis (1962) 108 CLR 177); and consent.

In the case of self-defence in NSW, however, see Pt 7 of the Civil Liability Act 2002. This applies to any kind of civil liability for personal injury. The legislation places a restriction on the damages which can be awarded for disproportionate acts of self-defence. Reasonable acts of self-defence against unlawful acts will not be actionable at all.

In State of NSW v McMaster [2015] NSWCA 228, the NSW Court of Appeal affirmed the availability of self-defence in the civil context. It will be made out if the defendant believed on reasonable grounds that what he did was necessary for the protection of himself, or another. The defendant’s response to the threat is a factor to be taken into account but is not inherently determinative.

The court also held that the term “unlawful” in s 52 Civil Liability Act extends to tortious conduct such that the section may apply as a defence to liability for actions done in self-defence against the commission of a tort.

An interference or injury to which a person has consented cannot be wrongful. It is the responsibility of the defendant, however, to raise a defence of consent and to prove it: Hart v Herron [1984] Aust Torts Reports 80–201 at 67,814. If the defendant proves that the plaintiff has consented to the acts in question then a claim in assault, battery (or false imprisonment) will not succeed.

Medical practitioners must obtain consent from the patient to any medical or surgical procedure. Absent the patient’s consent, the practitioner who performs a procedure will have committed a battery and trespass to the person. However, consent to one procedure does not imply consent to another. Subject to any possible defence of necessity, the carrying out of a medical procedure that is not the procedure, the subject of a consent, will constitute a battery.

In Dean v Phung [2012] NSWCA 223, the plaintiff was injured at work when a piece of timber struck him on the chin causing minor injuries to his front teeth. His employer arranged for him to see the defendant, a dental surgeon. Over a 12-month period, the defendant carried out root-canal therapy and fitted crowns on all the plaintiff’s teeth at a cost of $73,640. In proceedings between the plaintiff and the dentist, the latter admitted liability but asserted that the damages were to be assessed in accordance with the Civil Liability Act 2002 (NSW). The trial judge accepted that submission, noting that the dentist had admitted liability in negligence but had denied liability for trespass to the person. Accordingly, damages were calculated in accordance with the formula in the Civil Liability Act 2002.

On appeal, the plaintiff claimed the primary judge had not adequately addressed the issue of trespass to person. His case was that the dental treatment had been completely unnecessary to address the problem with his teeth; and the dentist must have known that when embarking on the treatment. Advice that the treatment was necessary must have been fraudulent, consequently the fraud vitiated any consent given to the procedure. Accordingly, the plaintiff argued, the dentist was liable for battery in treating him without a valid consent. The Civil Liability Act 2002 s 3B excludes “civil liability … in respect of an intentional act that is done … with intent to cause injury”.

Basten JA (with whom Beazley JA agreed) held that “…the dentist probably did not believe at the time that he carried out the treatment that it was necessary…”. His Honour conducted a detailed examination of consent to medical treatment, including consideration as to who bore the burden of negativing consent. Basten JA at [61]–[64] expressed four principles supported by the authorities he had examined:

Applying these principles, Basten JA held that the dentist’s concessions were sufficient to show that the appellant did not consent to the treatment because it was not necessary for his particular condition. As a result, the treatment constituted a trespass to the person and s 3B operated to exclude the defendant’s liability from the operation of the Act.

If, however, some kind of fraud were required to vitiate consent, Basten JA considered that the dentist at the least had been reckless as to whether the treatment was either appropriate or necessary. Consequently, on either basis, the plaintiff was entitled to have his damages re-assessed and, in the circumstances, increased.

Macfarlan JA differed from Basten JA in only one respect. His Honour did not accept that the dentist’s concessions that the treatments were unnecessary indicated of themselves that the treatment constituted a trespass to the person. However, Macfarlan JA accepted that the dentist had acted fraudulently in the sense that he was reckless as to whether the treatment was either appropriate or necessary. The practitioner had performed the treatment to generate income for himself. This enabled a conclusion that consent was vitiated and a trespass had occurred.

In X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 the court was confronted with a difficult choice. A young man — only a few months away from his 18th birthday — had refused to receive his own treated blood products. The treatment was necessary to preserve his life. He had provided cogent reasons for his refusal, based on his religious beliefs. His refusal was fully supported by his parents who were of the same religious persuasion.

The court, exercising its “parens patriae” jurisdiction, essentially overrode these genuine beliefs, holding that the welfare of the patient required that the primary judge make the order permitting the treatment. The court acknowledged that, without the order, the proposed treatment would have constituted a battery upon the young man. The order was made, notwithstanding that in a few months time, the appellant would be, as an adult, entitled to refuse any further treatment for his condition.

The tort of false imprisonment is a form of trespass to the person. It is committed when there is a total deprivation of a person’s liberty, which is caused by the defendant’s voluntary and unlawful conduct. Whether the plaintiff has been imprisoned is a question of fact and it is not necessary to consider whether there may be detention or imprisonment in circumstances where the complainant is unaware of the restraint on his or her liberty: State of NSW v Le [2017] NSWCA 290 at [7]. It is irrelevant whether the defendant intended to act unlawfully or to cause injury. In Ruddock v Taylor (2005) 222 CLR 612 at [140], Kirby J (in dissent, but not on this point) described unlawful imprisonment as a “tort of strict liability”.

For example, where a prisoner is held in detention beyond the terms of their sentence as a consequence of an honest mistake, the defendant will nonetheless be liable for false imprisonment: Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714.

Traditionally the notion of false imprisonment related to arrest by police officers or other authorities. This is still a feature of the reported cases but the potential areas of “detention” have expanded. The following cases provide a range of illustrations of this contemporary enlargement of the notion of “imprisonment”.

In proceedings for false imprisonment, it is necessary to consider first whether the plaintiff was detained; and second, if so, whether there was a justification for the detention. The two issues need to be addressed separately. The applicant must first show that the imprisonment had occurred. If that is established, the onus then shifts to the respondent to show that the imprisonment had some lawful justification : Lewis v ACT (2020) 271 CLR 192 at [140]; Darcy v State of NSW [2011] NSWCA 413 at [141]–[148].

Where there is a requirement for a detaining officer or person to have “reasonable grounds” for suspicion or belief, there must be facts sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 104 at [112]. In addition, there must be some factual basis for either the suspicion or belief. The state of mind may be based on hearsay materials or materials which may otherwise be inadmissible in evidence. “[T]he assent of belief is given on more slender evidence than proof”: George v Rockett at [112].

What constitutes reasonable grounds for forming a suspicion or belief must be judged against “what was known or reasonably capable of being known at the relevant time”: Ruddock v Taylor (2005) 222 CLR 612 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ. In that sense, the criterion has an objective element to it: Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701 at 714.

The question of identifying the material sufficient to support an objective finding that an arresting officer had reasonable grounds for his or her belief has to be approached with practical considerations as to the nature of criminal investigations in mind: Hyder v Commonwealth of Australia (2012) 217 A Crim R 571 at [18]–[19] per McColl JA.

An example of wrongful arrest appears in State of NSW v Smith (2017) 95 NSWLR 662. Two police officers had arrested the respondent at his home, asserting that he had committed a “domestic incident”. The respondent was taken to the police station and retained there until his release on bail.

The State of NSW relied on two critical defences. The Court of Appeal agreed with the trial judge that neither of these defences had been made out. The first issue related to the police officer’s failure to state adequately the reason for the arrest. To describe the reason as “a domestic incident” was insufficient. This constituted a breach of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) s 201.

The second issue concerned a breach of s 99(3) LEPRA, as it then was, which required the police officer to suspect “on reasonable grounds” that it was necessary to arrest the person to achieve the purposes listed in s 99(3). There had been no basis to suspect, on reasonable grounds, that the arrest was necessary. In this regard the court accepted that the police officer’s decision to arrest the respondent was made essentially — for reasons of “administrative convenience” — namely to facilitate the process of issuing an AVO.

In State of NSW v Robinson [2016] NSWCA 334, the Court of Appeal held that for an arrest to be lawful, a police officer must have honestly believed the arrest was necessary for one of purposes in s 99(3) (repealed) and the decision to arrest must have been made on reasonable grounds: at [27], [44]. The word “necessary” means “needed to be done”, “required” in the sense of “requisite”, or something “that cannot be dispensed with”: at [43]. Although s 99(3) has since been repealed, the primary judge misconstrued important legislation which governs the circumstances in which people are lawfully arrested.

In construing s 99 LEPRA as it now stands, see New South Wales v Robinson [2019] HCA 46. In confirming the Court of Appeal’s decision (Robinson v State of NSW (2018) 100 NSWLR 782), the High Court held by majority, that an arrest under s 99 of LEPRA can only be for the purpose, as soon as reasonably practicable, of taking the arrested person before a magistrate and that the arrest in this case was unlawful. The arresting officer must form an intention at the time of the arrest to charge the arrested person. The majority in Robinson held that arrest cannot be justified where it is merely for the purpose of questioning. An arrest can only be for the purpose of taking the arrested person before a magistrate or other authorised officer to be dealt with according to law to answer a charge for an offence and nothing in LEPRA or any previous legislative amendment displaces that single criterion: at [63], [92]–[94], [109]–[111], [114]. See also Owlstara v State of NSW [2020] NSWCA 217 at [8], [65], [122].

At common law, a ship’s captain has the power to detain or confine a passenger if he or she has reasonable cause to believe, and does in fact believe, that confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or of persons or property on board: Hook v Cunard Steamship Co [1953] 1 WLR 682. The existence of a subjective belief that confinement is necessary is an essential element of the master’s authority at common law to detain or confine: Royal Caribbean Cruises Ltd v Rawlings (2022) 107 NSWLR 51 at [24]–[35]; [115]. In this case the respondent, who was on a cruise, was detained by the ship’s captain because he was accused of assaulting another passenger. The respondent claimed damages for wrongful detention and false imprisonment.

The Court of Appeal held that it is a correct statement of the Australian common law with respect to a master’s power or authority to detain that it must be established that the master has reasonable cause to believe, and does in fact believe, that the relevant detention or confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or persons or property on board: at [35]. The court held that the justification defence was made out for the whole of the relevant period in which the respondent was detained: at [112].

At common law, it is well established that a superior court judge is not liable for anything he or she does while acting judicially, which is generally taken to mean when acting bona fide in the exercise of his or her office and under the belief that he or she has jurisdiction.

There is also authority to the effect that “judges of courts other than superior courts are not immune if they act outside jurisdiction whether or not they did so knowingly (unless the excess of jurisdiction was caused by an error of fact in circumstances where the court had no knowledge of or means of knowing the relevant facts ...)”: Wentworth v Wentworth [2000] NSWCA 350 at [195].

In NSW and most other jurisdictions, judicial immunity is also conferred on judges and magistrates by statute: see ss 44A-44C of Judicial Officers Act 1986.

In Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020, it was admitted that the judge, in the particular circumstances of the case, made an order that he lacked the power to make. As he was a judge of an inferior court with no statutory immunity, he therefore acted without or in excess of his jurisdiction and was found liable for any loss or damage arising out of the unlawful imprisonment. The gross and obvious irregularity of procedure that infected the judge’s purported exercise of his contempt powers meant that he acted without or in excess of his jurisdiction in the requisite sense: at [358], [361], [368].

The tort of malicious prosecution is committed when a person wrongfully and with malice institutes or maintains legal proceedings against another. At the heart of the tort is the notion that the institution of proceedings for an improper purpose is a “perversion of the machinery of justice”: Mohamed Amin v Jogendra Bannerjee [1947] AC 322.

The tort is, in forensic terms, quite difficult to prove. Its constituent elements were stated by the plurality of the High Court in an extensive decision on the topic in A v State of NSW (2007) 230 CLR 500 at [1]. These were succinctly reformulated by the High Court in Beckett v NSW (2013) 248 CLR 432 at [4] as follows:

Beckett, above, has laid to rest an anomaly which had existed in Australian law since 1924. In Davis v Gell (1924) 35 CLR 275, the High Court stated that where proceedings have been brought to a close by the Attorney-General’s entry of a nolle prosequi, the plaintiff in a subsequent malicious prosecution case, is required to prove his or her innocence. The High Court, in Beckett, refused to follow Davis. The result is that, in all malicious prosecution cases, the plaintiff’s guilt or innocence of the criminal charge is not now an issue. All that must be shown is that the proceedings terminated favourably to the plaintiff, for example, where proceedings were terminated by the entry of a nolle prosequi or by a direction from the Director of Public Prosecutions under his statutory powers.

It might be noted that in Clavel v Savage [2013] NSWSC 775, Rothman J held that where a charge had been dismissed, without conviction, under the Crimes (Sentencing Procedure) Act 1999 s 10, this did not constitute a “termination of proceedings favourably to the plaintiff”. This was because the ultimate order had been preceded by a finding of guilt. See also Young v RSPCA NSW [2020] NSWCA 360, where it was found a s 32 order under the Mental Health (Forensic Provisions) Act 1990 (now repealed) did not constitute a finding that the charges were proven. A plaintiff must show the prosecution ended in favour of the plaintiff. If it did, it does not matter how that came about: at [76]. It is sufficient if the plaintiff can demonstrate the absence of any judicial determination of his or her guilt: at [77].

In HD v State of NSW [2016] NSWCA 85, the CA had under consideration a case where an interim ADVO was obtained by police against a father on behalf of his daughter. The evidence of a physical assault was reported to a friend, to a school teacher and the daughter was taken to hospital by ambulance and treated by doctors and social workers. Later she attended the local police station but denied she had been hit by her father. Nevertheless, the police initiated a serious assault charge against the father. The charge was dismissed in the Local Court, whereupon the father instituted proceedings for unlawful arrest and malicious prosecution. The trial judge dismissed all the father’s claims.

This decision was upheld by the CA. The prosecution was not activated by malice. Indeed the prosecution had no personal interest in the outcome and had been exercising a public duty. Secondly the trial judge had not erred in finding that the investigating police honestly concluded that the evidence warranted the institution of proceedings against the father. Thirdly, the whole of the circumstances demonstrated that this was not a case where there was an absence of reasonable and probable cause. This was not a case where a reasonable prosecutor would have concluded that the prosecution could not succeed. Reference was made to Gyles AJA’s decision in Thomas v State of NSW (2008) 74 NSWLR 34 which emphasised that a reasonable basis for a decision by an investigating officer to lay a charge is not to be equated with a magistrate’s decision or a judge’s ruling. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law.

In 2008 Gordon Woods was convicted of the murder of Caroline Byrne. He served a number of years in prison before the NSW Court of Appeal acquitted him on the murder charge. The court found that the verdict had been unreasonable. At the forefront of the decision was trenchant criticism of the Crown Prosecutor and the Crown’s expert witness.

The plaintiff brought proceedings for damages on the basis of malicious prosecution. (See Wood v State of NSW [2018] NSWSC 1247.) He argued that the proceedings had been maintained without reasonable and probable cause and that the prosecution had been brought “with malice for an ulterior purpose”. The plaintiff identified three prosecutors, namely the lead detective, the expert witness and the actual Crown Prosecutor.

Fullerton J agreed with the plaintiff’s contention that, from an objective point of view, the trial had been initiated and maintained without reasonable or probable cause.

Central to the Crown case had been the expert witnesses’ evidence that the deceased must have been thrown from the cliff to land where her body had been located. However, the theory and conclusion had been fundamentally flawed and left open the reasonable possibility of suicide. After an exhaustive analysis, Fullerton J concluded that neither the lead detective nor the expert witness could properly be categorised as “prosecutors”.

The primary judge was trenchantly critical of the Crown Prosecutor. She found that he had a profound lack of insight into the flawed approach he took to the plaintiff’s prosecution and that this caused great unfairness in the trial. Nevertheless, she dismissed the plaintiff’s case on the basis that the prosecutor’s failures, extensive though they were, were not driven by malice. An appeal to the Court of Appeal was dismissed: see Wood v State of NSW [2019] NSWCA 313.

This, together with the concept of malice, are the components of the tort most difficult to prove. This is especially so where a member of the public has given apparently credible information to the police and the police have then charged the plaintiff with a criminal offence. The question arises: how does a plaintiff go about establishing the negative — an absence of reasonable and probable cause?

Prior to illustrating the answer to this question by reference to decided cases, it is necessary to emphasise the High Court’s general strictures on the subject (A v State of NSW (2007) 230 CLR 500):

As has been pointed out (Barker et al p 91) there is an important temporal element in determining whether the defendant commenced or maintained the proceeding without reasonable or probable cause. This will first focus on the matters known at the time of institution of the proceedings, and then subsequently on fresh matters known as the proceedings continue. A prosecutor who learns of facts only after the institution of proceedings which show that the prosecution is baseless may be liable in malicious prosecution for continuing the proceedings: Hathaway v State of NSW [2009] NSWSC 116 at [118] (overruled on appeal [2010] NSWCA 184, but not on this point); State of NSW v Zreika [2012] NSWCA 37 at [28]–[32].

In A v State of NSW (2007) 230 CLR 500, the plurality examined the types of “extraneous purpose” that will suffice to show malice in malicious prosecution proceedings. They approved a general statement in Fleming at 685:

The plurality instanced cases of spite and ill-will; and cases where the dominant motive was to punish the alleged offender. Generally, there must be shown a purpose other than a proper purpose. However, strict proof will be required, not conjecture nor mere suspicion. The tort “is available only upon proof of absence of reasonable and probable cause and pursuit by the prosecutor of some illegitimate or oblique motive”: A v State of NSW at [95].

The plaintiff succeeded in A v State of NSW (on the malice issue) because he was able to show that the proceedings were instituted by the police officer essentially because he had been under extreme pressure from his superiors to do so, not because he wished to bring an offender to justice. In State of NSW v Zreika [2012] NSWCA 37, the police officer was motivated by an irrational obsession with the guilt of the plaintiff, despite all the objective evidence pointing to his innocence.

However, it is necessary to stress that the presence of malice will not of itself be sufficient to establish the tort, there must also be an absence of reasonable and probable cause. See also, HD v State of NSW [2016] NSWCA 85 at [5-7120].

In Spedding v NSW, above, the inference of malice could be more readily drawn in circumstances where the then Director and/or his delegates involved in the prosecution had not provided evidence addressing the allegation of malice, or any allegation for that matter: at [204]. On appeal, (in State of NSW v Spedding [2023] NSWCA 180), the Court held that the Office of the Director of Public Prosecutions, although found to be one of the “prosecutors” for the purposes of the tort of malicious prosecution, did not have the requisite malice, the improper purpose being confined to the police officers who had commenced proceedings.

Note:

a comprehensive and practical summary of all the relevant legal principles stated in A v State of NSW is to be found in the judgment of Tobias AJA in State of NSW v Quirk [2012] NSWCA 216 at [69]–[70].

The elements of the tort of Intimidation were identified in Sid Ross Agency Pty Ltd v Actors and Announcers Equity Assoc of Australia [1971] 1 NSWLR 760. These were identified as:

In Uber BV v Howarth [2017] NSWSC 54, Slattery J issued a permanent injunction to restrain a litigant in person who had engaged in the unusual tort of intimidation. His actions were made against Uber and consisted of a series of “citizens arrests”.

The tort of collateral abuse of process was discussed by the High Court in Williams v Spautz (1992) 174 CLR 509. The tort has not established a large foothold in the jurisprudence of Australia or England, and examples of parties succeeding on the basis of the tort are rare: see Williams v Spautz at 553 for examples and the discussion in Burton v Office of DPP (2019) 100 NSWLR 734 at [14]–[42]; [48]–[49], [60]; [124]. The exact shape of the tort remains uncertain and even its existence has been viewed with scepticism: A Burrows, Oxford Principles of English Law: English Private Law, 2nd edn, cited in Burton v DPP [2019] NSWCA 245 at [17].

The tort was established in Grainger v Hill (1838) 132 ER 769. That case “has been treated as creating a separate tort from malicious prosecution, but it has been difficult to pin down the precise limits of an improper purpose as contrasted with the absence of reasonable and probable cause within the meaning of the tort of malicious prosecution”: Willers v Joyce [2018] AC 779 at [25]. The tort of collateral abuse of process differs from the older action for malicious prosecution in that the plaintiff who sues for abuse of process need not show: a) that the initial proceedings has terminated in his or her favour; and b) want of reasonable and probable cause for institution of the initial proceedings. Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers. While an action for collateral abuse can be brought while the principal proceedings are pending, the action is at best an indirect means of putting a stop to an abuse of the court's process: Williams v Spautz, above at 520, 522-523 citing Grainger v Hill. See also Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 123.

The majority in Burton v Office of DPP, above, found it unnecessary to decide on an authoritative formulation of the elements of the tort (cf Bell P at [42]) in what was an appeal from the summary dismissal of proceedings seeking damages for breach of the tort. The matter was remitted to the District Court as the appellant’s claim ought not to have been summarily dismissed because it was arguable he had an underlying cause of action, albeit one that has not been sufficiently pleaded. However, in NSW v Spedding [2023] NSWCA 180, the Court of Appeal in a joint judgment upheld the trial judge’s finding of collateral abuse of process. The Court found that central to the establishment of this tort was the finding that the proceedings had been commenced for the dominant purpose which was outside the scope of the criminal process invoked: at [278]. The State was vicariously liable for the police officers’ conduct: at [276]. It was open to the Court to infer that the police officers shared the collateral and improper purpose in the commencement of proceedings, and that this was the dominant reason for the commencement of proceedings: at [274].

The tort of misfeasance in public office has a “tangled” history and its limits are undefined and unsettled. Aronson suggests that what has emerged over the last 50 or so years is in reality nothing less than a new tort to meet the needs of people living in an administrative State. Most of the modern changes to the tort have occurred through a series of cases in which judges have diluted the requirement of malice at the same time as they have expressed confidence that their changes leave sufficient protection for public officials against liability to an indeterminate class to an indeterminate extent: M Aronson, “Misfeasance in public office: some unfinished business” (2016) 132 LQR 427.

Only public officers can commit the tort, and only when they are misusing their public power or position. It is an intentional tort: it is not enough to prove gross incompetence, neglect, or breach of duty.

In Northern Territory v Mengel (1995) 185 CLR 307, Deane J summarised the elements of the tort as:

The authorities to date have not elucidated the boundaries of Deane J’s fourth element of the tort: Ea v Diaconu [2020] NSWCA 127 per Simpson JA at [147], [153].

The principles regarding the tort emerge from a number of decisions from Australia, the UK and New Zealand; see particularly: Northern Territory v Mengel, above; Sanders v Snell (1998) 196 CLR 329; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; Odhavji Estate v Woodhouse [2003] 3 SCR 263; Sanders v Snell (2003) 130 FCR 149 (“Sanders No 2”); Commonwealth of Australia v Fernando (2012) 200 FCR 1; Emanuele v Hedley (1998) 179 FCR 290; Nyoni v Shire of Kellerberrin (No 6) (2017) 248 FCR 311: Hamilton v State of NSW [2020] NSWSC 700.

Regarding the meaning of a “public officer” for the purpose of misfeasance, Bathurst CJ stated in Obeid v Lockley (2018) 98 NSWLR 258 at [103]:

It is also necessary to identify any public power or duty invoked or exercised by the public officer. In circumstances where what is alleged is acting in excess of power, it is necessary for the claimant to establish (amongst other things) that the public officers in question were acting beyond power, and that they actually knew or were recklessly indifferent to the fact that they were doing so: Toth v State of NSW [2022] NSWCA 185 at [51].

In Ea v Diaconu [2020] NSWCA 127, the applicant claimed the first respondent (an officer of the Australian Federal Police) committed misfeasance in public office by reason of her conduct in the court public gallery in view of the jury during his trial, including laughing, gesturing, rolling her eyes and grinning, which attempted to influence the outcome of the proceedings. As White JA held in Ea v Diaconu, the respondent’s alleged misbehaviour in court was not done in the exercise of any authority conferred on her, but was arguably the exercise of a de facto power, that is, a capacity she had, by virtue of her office, to influence the jury by her reactions to submissions and evidence: at [76]. It is arguable that the abuse of de facto powers, ie the capacity to act, derived from the conferral of powers that make the office a public office, are within the scope of the tort: at [127].

Further, as Mengel made clear, the tort is one for which a public officer is personally liable. Before one reaches the issue of the vicarious liability of the State, it is necessary for the plaintiff to identify which individual officer or officers performed the unauthorised act: Doueihi v State of NSW [2020] NSWSC 1065 at [32]. Damage is an essential element of the tort. It may be reputational harm as in Obeid v Lockley at [153]; Cornwall v Rowan (2004) 90 SASR 269 at [729]–[734]; Spedding v NSW, above, at [213]–[214]. Psychological injury is enough: De Reus v Gray (2003) 9 VR 432; Spedding v NSW, above, at [213].

Misfeasance in public office was made out in Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732. Minister for Agriculture, the Hon Joe Ludwig MP, made a control order in June 2011 that Australian cattle could not be exported to various Indonesian abattoirs that had been engaging in inhumane practices, unless the abattoir satisfied the Minister that its practices met internationally recognised animal welfare standards (“First Order”). Political pressure led to the Minister making a second control order that banned the export of livestock to Indonesia for a period of 6 months (“the Ban”). There was no “exceptions power” which would allow the Minister to make an exception if needed. Brett Cattle Company Pty Ltd (“BCC”) was a cattle exporter affected by the Ban. BCC claimed it lost the opportunity to sell more than 2,700 head of cattle into Indonesia in 2011 because of the Ban, and suffered losses of $2.4 million. BCC was the representative in a class action against the Minister. Both the First Order and the Ban were enacted under delegated legislation pursuant to s 7, Export Control Act 1982 (Cth).

Rares J held that the Ban was invalid as an absolute prohibition was not necessary nor reasonably necessary and it imposed unnecessary limitations on the common law right of persons to carry on their lawful business: at [329], [348]–[354], [358]-[361]. Rares J further held the Minister committed misfeasance in public office as he was recklessly indifferent as to: (i) the availability of his power to make the control order in its absolutely prohibitory terms without providing any power of exception, and (ii) the injury which the order, when effectual, was calculated to produce: at [373]–[386], [391]–[395]. To satisfy the test for the tort of misfeasance in public office, the office holder must have known, or been recklessly indifferent to, the fact that the plaintiff/applicant was likely to suffer harm. It does not suffice that there is only a foreseeable risk of harm. In addition, a finding that a Minister has committed misfeasance in public office should only be reached having regard to the seriousness of such a finding based on evidence that gives rise to a reasonable and definite inference that he or she had the requisite state of mind: at [280]–[284].