A v State of New South Wales [2007] HCA 10

A v State of New South Wales [2007] HCA 10

A plaintiff may establish absence of reasonable and probable cause against a public prosecutor by showing the prosecutor did not honestly form the view there was a proper case for prosecution, or formed that view on an insufficient basis; malice is made out where the dominant purpose for prosecution is something other than enforcing the law, such as succumbing to improper pressure. The trial judge's findings that these elements were satisfied regarding the charge against C were supported by the evidence and not to be disturbed; the findings regarding the charge against D did not establish absence of reasonable and probable cause. The Court of Appeal erred in overturning the trial judge's...

Parties
Appellant: A; First Respondent: State of New South Wales; Second Respondent: John Floros
Jurisdiction
Australia
Judgment Date
21 March 2007
Procedural Posture
Civil Appeal / Final Appeal to High Court of Australia From NSW Court of Appeal
Outcome
Appeal allowed in part
Legal Topics
Malicious Prosecution, Absence of Reasonable and Probable Cause, Malice, Public Prosecution, Police Powers, Vicarious Liability
Torts Malicious Prosecution Absence of Reasonable and Probable Cause Malice Public Prosecution Police Powers Vicarious Liability

Case Brief

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Parties

A

Appellant

State of New South Wales

First Respondent

John Floros

Second Respondent

Procedural Posture

Civil Appeal / Final Appeal to High Court of Australia From NSW Court of Appeal

Legal Issues

  1. 1 What is the correct test for absence of reasonable and probable cause in the tort of malicious prosecution where the prosecutor acts without personal knowledge?
  2. 2 What suffices as 'malice' for the purpose of malicious prosecution against a public prosecutor?
  3. 3 Did the trial judge or the Court of Appeal apply the correct test and make sustainable findings in respect of each charge?

Ratio Decidendi

A plaintiff may establish absence of reasonable and probable cause against a public prosecutor by showing the prosecutor did not honestly form the view there was a proper case for prosecution, or formed that view on an insufficient basis; malice is made out where the dominant purpose for prosecution is something other than enforcing the law, such as succumbing to improper pressure. The trial judge's findings that these elements were satisfied regarding the charge against C were supported by the evidence and not to be disturbed; the findings regarding the charge against D did not establish absence of reasonable and probable cause. The Court of Appeal erred in overturning the trial judge's...

Court Disposition

Appeal allowed in part

Orders

  • Paragraph 1 of the orders of the Court of Appeal of 2 September 2005 varied by adding 'with costs' after 'dismissed'.
  • Paragraphs 2 to 7 of the Court of Appeal orders set aside.