Clavel v Savage [2015] NSWCA 61

Clavel v Savage [2015] NSWCA 61

The appeal was dismissed because the appellants failed to show any material error in the primary Judge's conclusions. The delay and any possible unfairness in general credibility findings about Mr Clavel did not affect the issues against the State. For the First, Third and Fourth Prosecutions, the material available to police was sufficient to defeat proof of absence of reasonable and probable cause, and malice was not established. For the Sixth Prosecution, the appellants failed to identify the relevant prosecutor or instigator and in any event did not prove absence of reasonable and probable cause. The collateral abuse of process claims failed because the pleaded predominant improper...

Jurisdiction
Australia
Judgment Date
24 March 2015
Procedural Posture
Appeal in Tort Proceedings for Malicious Prosecution and Collateral Abuse of Process / Appeal From Supreme Court of New South Wales, Common Law Division Judgments in Clavel V Savage [2013] NSWSC 775 and Clavel V Savage (no 2) [2014] NSWSC 463
Outcome
Appeal dismissed.
Legal Topics
['malicious Prosecution' 'reasonable and Probable Cause' 'malice' 'collateral Abuse of Process' 'apprehended Violence Orders' 'delay in Delivery of Judgment' 'calderbank Offer' 'indemnity Costs']
['torts' 'civil Procedure' 'costs'] ['malicious Prosecution' 'reasonable and Probable Cause' 'malice' 'collateral Abuse of Process' 'apprehended Violence Orders' 'delay in Delivery of Judgment' 'calderbank Offer' 'indemnity Costs']

Case Brief

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Procedural Posture

Appeal in Tort Proceedings for Malicious Prosecution and Collateral Abuse of Process / Appeal From Supreme Court of New South Wales, Common Law Division Judgments in Clavel V Savage [2013] NSWSC 775 and Clavel V Savage (no 2) [2014] NSWSC 463

Legal Issues

  1. 1 ["Whether the delay in delivery of the primary judgment resulted in unsafe findings of fact, especially concerning Mr Clavel's credibility." 'Whether the primary Judge erred in dismissing malicious prosecution claims because absence of reasonable and probable cause and malice had not been proven.' 'Whether the primary Judge erred in finding that the appropriate prosecutor or instigator had not been identified in relation to the Sixth Prosecution.' 'Whether the primary Judge erred in dismissing collateral abuse of process claims because improper purpose had not been proven.' "Whether the primary Judge erred in making costs orders based on the State's Calderbank offer."]

Ratio Decidendi

The appeal was dismissed because the appellants failed to show any material error in the primary Judge's conclusions. The delay and any possible unfairness in general credibility findings about Mr Clavel did not affect the issues against the State. For the First, Third and Fourth Prosecutions, the material available to police was sufficient to defeat proof of absence of reasonable and probable cause, and malice was not established. For the Sixth Prosecution, the appellants failed to identify the relevant prosecutor or instigator and in any event did not prove absence of reasonable and probable cause. The collateral abuse of process claims failed because the pleaded predominant improper...

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' 'The appellants pay the costs of the third respondent (State of New South Wales) of the appeal.']