Burton v Babb [2023] NSWDC 103

Burton v Babb [2023] NSWDC 103

The plaintiffs failed to prove essential cumulative elements of malicious prosecution. The evidence did not show that either defendant personally initiated or actively instigated the prosecutions; the asserted inferences from documents were not available. The plaintiffs did not establish malice, including because alleged non-prosecution of Channel 7 did not prove malicious prosecution of the plaintiffs. They also failed to prove absence of reasonable and probable cause, as the enforceability of the 25 May Order turned on a contestable construction point on which reasonable minds had differed before the Court of Appeal decision. Finally, neither plaintiff gave evidence proving damage...

Jurisdiction
Australia
Judgment Date
19 April 2023
Procedural Posture
Civil Claim in Damages for Malicious Prosecution / Principal Judgment After Hearing
Outcome
Judgment and verdict for the defendants against the plaintiffs.
Legal Topics
['malicious Prosecution' 'identification of Prosecutor' 'malice' 'reasonable and Probable Cause' 'proof of Damage' 'burden of Proof' 'jones V Dunkel Inference']
['torts' 'civil Procedure'] ['malicious Prosecution' 'identification of Prosecutor' 'malice' 'reasonable and Probable Cause' 'proof of Damage' 'burden of Proof' 'jones V Dunkel Inference']

Case Brief

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Procedural Posture

Civil Claim in Damages for Malicious Prosecution / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendants or either of them initiated the prosecution of the plaintiffs for contravention of the 25 May Order.' 'Whether the defendants or either of them acted with malice in bringing or maintaining the prosecution.' 'Whether the prosecution was brought or maintained without reasonable and probable cause.' 'Whether the plaintiffs proved that they suffered damage as a result of malicious prosecution.']

Ratio Decidendi

The plaintiffs failed to prove essential cumulative elements of malicious prosecution. The evidence did not show that either defendant personally initiated or actively instigated the prosecutions; the asserted inferences from documents were not available. The plaintiffs did not establish malice, including because alleged non-prosecution of Channel 7 did not prove malicious prosecution of the plaintiffs. They also failed to prove absence of reasonable and probable cause, as the enforceability of the 25 May Order turned on a contestable construction point on which reasonable minds had differed before the Court of Appeal decision. Finally, neither plaintiff gave evidence proving damage...

Court Disposition

Judgment and verdict for the defendants against the plaintiffs.

Orders

  • ['That there be judgment and verdict for the defendants against the plaintiffs.']