Solicitors for the Respondent Blake Dawson Waldron ORDER Appeal allowed JUDGE1 CLARKE JA The trial judge found that the appellant had proved 'arrest' and 'imprisonment' and that the respondent had failed to prove lawful justification. Accordingly he held that the appellant had succeeded in her claim for 'wrongful arrest' and 'false imprisonment'. When he turned to damages he cited a passage from the judgment of McDonald J in Myer Stores Limited v Soo [1991] VicRp 97; (1991) 2 VR 597, at 633, which essentially reproduced a passage from p 922 of "McGregor on Damages" (14th Ed) 1980.

"The plaintiff's evidence was that she was a retired public servant with no criminal record whatsoever. I accept her

evidence that she was greatly distressed, humiliated and embarrassed by the arrest outside a major store in her local area in the middle of the day in a public area with a lot of other people about, was then required to go back into the store,

was detained in the store security office, was questioned by the security officer and other employees of the defendant and

then by the police, was further formally arrested by the police and was taken out of the store again by two police officers and taken to the local police station, was charged, fingerprinted and photographed, then released on bail, then required to go back to the Local Court for an extension of the bail and then attend at the Local Court some months later for the actual hearing. Her evidence was that over a long period of time she 'felt awful, ashamed, worried about herself and what other people would think', and that her sleep had been greatly interfered with for a long period of time, and I accept that evidence and find that the plaintiff is entitled to significant damages."

The trial judge assessed those damages in the figure of $12,500 plus interest of $1,000.

The complaint is that the damages were inadequate.

While his Honour did not refer to any more evidence on the issue of damages the appellant did say, and it is clear from his Honour's approach to her evidence that his Honour accepted her as a truthful and reliable witness, that: "I feel that I have got a constant worry, I'm embarrassed, I feel that I shouldn't be ashamed, but I am, I am ashamed, I don't tell any of my friends about it, I even my relations I feel it would worry them too much if I told them what's happened. It's almost unbelievable and so I have just more or

less tried to protect them by keeping it but it has been a constant worry to me."

And later at the end of a lengthy answer she said: "I speak to them (the two people who she said knew about it), I am a constant bore to them because its always on my mind, I just - don't forget about it."

The case then is one of a spinster of impeccable character who had worked in the Public Service until 1978, having been falsely arrested and wrongfully imprisoned in 1984 following which she was charged with false pretences, tried and acquitted. In her claim for damages she was met with the defence of justification, that is, that she was in fact guilty of the offence of which she had been acquitted. On any view this must have been a harrowing experience and my clear conviction is that an award of $12,500 did not constitute the significant damages to which his Honour referred in respect of the matters his Honour set out in the judgment.

However, there is a further reason, in my opinion, for concluding that the award was inadequate and that is that the judge failed to take account of matters which were relevant on the question of the quantum of general damages. They appear most conveniently in the judgment of Lawrence LJ in Walter v Alltools Limited, (1944) 171 LT 371, at 372. In that judgment Lawrence LJ referred to Warwick and Foulkes ((1844) [1844] EngR 144; 152 ER 1298) and said: "In my opinion that case lays down that any evidence in a case of false imprisonment which shows, or tends to show, that the defendant is persevering in the charge which he originally made in bringing about the false imprisonment, is evidence which may be given for the purpose of aggravating the damages. In the same way, the defendant would be entitled to give any evidence which tended to show that he had withdrawn, or had apologised for having made, the charge on which the false imprisonment proceeded. The general principle, in my view, is that any evidence which tends to aggravate or mitigate the damage to a man's reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man's liberty; it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false."

That passage was cited without comment by the High Court in Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 immediately prior to its statement that the conduct of the defence may be taken into consideration as improperly aggravating the injury done to a plaintiff in a libel case if there is "a lack of bona fides in the defendant's conduct or it is improper or unjustifiable". Since Triggell there have been observations made in this Court which, in the context of libel, would tend to deny the correctness of what Lawrence LJ said in Walter. I refer in particular to Andrews v John Fairfax and Sons Ltd (1980) 2 NSWLR 225, at 243, and Mirror Newspapers Limited v Fitzpatrick (1984) 1 NSWLR 643, at 660. The question whether those observations are correct does not directly arise in this case but it may be that in view of the decision of the High Court in Coyne v Citizens Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 those observations may need to be reconsidered in the future.

The complexities surrounding concepts of ordinary compensatory damages and aggravated compensatory damages, as well as exemplary damages, have already been discussed by me in Australian Consolidated Press Limited v Ettingshausen (NSW Court of Appeal, 13 October 1993, unreported). I do not intend to repeat all I there said. It is necessary for present purposes to refer only to a passage from Lord Diplock's speech in Cassell and Co Ltd v Broome and Anor

(1972) AC 1050 at 1125 and the decision in Coyne. My purpose in referring to these passages is to emphasise the distinction between ordinary compensatory damages and aggravated compensatory damages and the correctness of taking into account the defendant's relevant conduct until the time of verdict in the assessment of ordinary, as opposed to aggravated, compensatory damages. I would add that in doing so I am aware that Lawrence LJ used the expression 'aggravating' but that is explicable because of the blurring between the different types of damages which could be awarded for torts such as defamation and false imprisonment found in the authorities prior to Broome and Rookes v Barnard [1964] UKHL 1; (1964) AC 1129.

The passage from Lord Diplock's speech which I have found to be persuasive is as follows: "The three heads under which damages are recoverable for those torts for which damages are at large are classified under three heads: (1) Compensation for harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment, or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the event tenor of life, as in many torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it. This Lord Devlin calls 'aggravated damages'. (3) Punishment of the defendant for his anti social behaviour to the plaintiff. This Lord Devlin calls 'exemplary damages'. ... The tort of defamation, to which Lord Devlin made only a passing reference in Rookes v Barnard [1964] UKHL 1; (1964) AC 1129, has special characteristics which may make it difficult to allocate compensatory damages between head (1) and head (2). The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people

are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages under head (1) itself even in cases in which there are no grounds for 'aggravated damages' under head (2). Again the harm done by the publication for which damages are recoverable under head (1) does not come to an end when the publication is made. As Lord Atkin said in Ley v Hamilton 153 LT 384, at 386: 'it is impossible to track the scandal, to know what quarters the poison may reach.' So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread. I venture to think that this is the rationale of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages. By doing so he prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial, as in Ley v Hamilton, extends the quarters that the poison reaches. The defendant's conduct between the date of publication and the conclusion of the trial may thus increase the damages under head (1). In this sense it may be said to 'aggravate' the damages recoverable as, conversely, the publication of an apology may 'mitigate' them. But this is not 'aggravated damages' in the sense that that expression was used by Lord Devlin in head (2). On the other hand the defendant's conduct after the publication may also afford cogent evidence of his malice in the original publication of the libel and thus evidence upon which 'aggravated damages' may be awarded under head (2) in addition to damages under head (1). Although considerations such as these may blur the edges of the boundary between compensatory damages under head (1) and compensatory damages under head (2) in the case of defamation, they do not effect the clear distinction between the concept of compensatory damages and the concept of exemplary damages under head (3)."

This passage was expressly referred to by Toohey J, who gave the majority judgment, in Coyne at 237 when he said: "It is not the case that every unsuccessful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it: Herald and Weekly Times Ltd v McGregor (p 263). I take this to be the sense in which Lord Diplock suggested that 'persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages': Broome v Cassell and Co ((1972) AC at p1125). But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v Pheeney, does not warrant an award of aggravated damages to the plaintiff."

To similar effect were the observations by McHugh J, who otherwise agreed with Toohey J. He said, at p 241: "Secondly, the jury were entitled to find that the hurt to the plaintiff and the harm which he suffered were increased by the defendant's defence, persisted in until the end, that the defamatory imputations made against the plaintiff were true in substance and in fact. Triggell v Pheeney is not to be taken as modifying in any way the principle that in a defamation action the jury are 'entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the (plaintiff), and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff"

What was said in Coyne should, in my opinion, be regarded as the law applicable both in defamation and, relevantly, wrongful arrest and false imprisonment and reflects what was said in Praed v Graham (1889) 24 QBD 53 by Lord Esher. His Lordship said: "... the jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his (the defendant's) conduct has been before action, after action and in court during the trial."

I do not take anything that was said in Carson v John Fairfax and Sons (1993) 178 CLR 45 as detracting from the above propositions advanced by Toohey J in Coyne. Indeed the reference by the majority to Triggell and the statement that they had difficulty in understanding how the mere absence of an apology can aggravate damages should be understood as directed to the additional compensatory damages which are discussed in head two in the speech of Lord Diplock. In my opinion the conditions expressed in Triggell should be seen as relevant to, and only relevant to, aggravated damages in the sense that that expression is used by Lord Diplock in head (2). Where a plaintiff is entitled to compensatory damages for wrongful arrest or false imprisonment it is, in my opinion, proper for the Court to take into account, in assessing the ordinary compensatory damages, the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person's feelings including the anxiety and uncertainty undergone in the litigation, the absence of apology and the reaffirmation of the truth of the matters complained of (see Cassell, at 1077). Those factors are relevant in my opinion as bearing on both the solatium and the injury to the plaintiff's reputation.

In the present case his Honour failed to take into account, as relevant to the solatium, the fact that the appellant had, following the arrest, suffered the hurtful experience of the trial which followed almost inevitably from the respondent's reporting of the incident to the police, the subsequent civil trial, the absence of any apology, the persistence in the false and hurtful allegations which were found not to be made out and, in my respectful opinion, overlooked the damage to the appellant's reputation. Although there may be a question about the anxiety caused to the appellant in the criminal trial (a factor I will disregard because of the absence of detailed submissions on the question) there could be no doubt that his Honour should have taken account of the other matters mentioned. It is no answer to say that the appellant didn't specifically mention all of these matters (see Andrews v John Fairfax and Sons Ltd (1980) 2 NSWLR 225, at 249).

Counsel for the appellant contended in this Court that his client was also entitled to aggravated compensatory damages failing within Lord Diplock's head (2). The fundamental basis for this allegation was the serious and unprovoked attack upon the appellant in cross-examination upon the ground that she was suffering from a mental illness, as well as the unjustifiable persistence in the claim that the appellant was guilty of false pretences.

The combination of these factors would have, in my opinion, justified the conclusion that the appellant was entitled to aggravated damages. The test to be applied is that expressed by Walsh A in Rigby v Associated Newspapers (1969) 1 NSWR 729, at 740: "The question is rather whether, in the end and in all the circumstances of the case as found by the jury, the conduct of the case was capable of being regarded by them as not 'bona fide' or not 'justifiable' on the part of the appellant, in its resistance to the claim of the respondent. ... a line of attack on a plaintiff may be followed out in such a way and to such a degree that it may in the end be open to a jury, upon finding that in fact it had no substance, to regard it as not being justifiable as between the parties, and as increasing the hurt done to the plaintiff."

If I had been the trial judge I would have concluded that it was open to conclude that the respondent's conduct was unjustifiable. On the other hand I do not think that it was open to the trial judge to find, as the appellant's counsel submitted, that the respondent's officer had fabricated the story that the appellant had swapped the price stickers. In that respect I would conclude that the finding by the trial judge was correct.

McCredie DCJ did not, however, award any aggravated damages. Nor did he advert to the subject. I would infer that was because no mention was made of it in the particulars furnished by the appellant, which were tendered as exhibits in the case, or in final addresses. In any event the factual findings necessary to support an award of that nature by this Court are absent. There is simply no finding of an absence of bona fides or lack of justifiability and I do not accept that this Court, which has not seen the witnesses, could make such a finding. Because this court has been asked only to re-assess the damages no question arises of a new trial. The court should assess the damages excluding any consideration of aggravated damages. In my opinion, the award made by McCredie DCJ, even limited to the considerations of which he took account, was inadequate and cannot stand. The inadequacy is even clearer if one has regard to those factors which his Honour overlooked.

It is, therefore, necessary for this Court to reassess the damages. In the exercise of that reassessment I would take into account those matters to which McCredie DCJ referred and those other matters to which I have adverted. In all the circumstances I would award the appellant $25,000 to which I would add interest at the rate of 2 per cent for the five years referred to by his Honour on the sum of $20,000, that is, $2,000.

I would propose the following orders: (1) Appeal allowed; (2) Judgment of McCredie DCJ set aside and in lieu thereof direct entry of judgment for the appellant in the sum of $27,000 to date from 21 August 1992;

(3) The respondent to pay the appellant's costs of the trial at first instance; and (4) The respondent to pay the appellant's costs of the appeal. JUDGE2 MEAGHER JA This is an appeal by a plaintiff, Miss McDonald, from a judgment and verdict entered in her favour by the late McCredie DCJ in an amount of $13,500. This amount was comprised of $13,500 general damages and $1,000 interest.

The facts out of which the case arises are easy enough to state. Miss McDonald was accused by the staff of K-Mart of obtaining goods by false pretences. According to K-Mart, Miss McDonald, seeking to buy a packet of spark-plugs, took the price tag off a four-plug packet and placed it over the price tag of a six-plug packet. She thus obtained, and paid for, a more expensive item at the cost of a less expensive item. An inhouse store detective said she observed this manoeuvre. Miss McDonald denied the charge with some vigour, although admitting that she knew a mistake had been made in pricing the goods she bought. His Honour found, on a balance of probabilities, that Miss McDonald was telling the truth.

Mr. Motby of counsel, who appeared for Miss McDonald, originally sought to press three grounds of appeal. The first was against the trial judge's refusal to permit Miss McDonald to amend her pleadings by adding a count of malicious prosecution to the count of false imprisonment on which she sued. This ground of appeal was abandoned during the course of the appeal.

The second ground of appeal concerned the order for costs. His Honour gave judgment, after a long trial, on 21 August 1992. In it he made no specific order for costs. What happened later on that morning is best described by his Honour: "the judgement did not specifically refer to the question of costs. Immediately, on handing down the judgement, I said that in the normal course costs would follow the event but in the circumstances I invited any submissions as to costs. The defendant's solicitor said that he wished the opportunity to consult with his counsel and the matter was left on that basis for a short time. Later that same morning, it is my recollection that the defendant's counsel and the plaintiff s solicitor both came back to Court and in open Court said that there were no further submissions to be made as to costs, and acordingly(sic), I there and then, in their presence, said words to the effect that "costs would follow the event and the defendant is ordered to pay the plaintiff s costs of the proceedings."

As far as this Court is concerned, I understood that was the end of the matter."

On 2 September the matter was re-listed before his Honour where counsel for Miss McDonald asked for an order that she be awarded costs on the highest scale, instead of costs on the third scale, which is all she would have been entitled to as matters stood: District Court Rules Part 39 rule 10(5D). His Honour did not accede to the request, stating that he was functus officio. Mr Motby appealed against this ruling, relying on District Court Act s. 148B, and District Court Rules Part 39 rule 1 and Part 1 rule 5. These do not avail him.

His Honour was correct. Once his Honour had specifically dealt with the question of costs and ordered that "costs would follow the event", that order, in the light of Part 39 rule 10(5D), amounted to an order that costs be allowed on the third scale. No attempt was made to rescind or revoke that order, so that on 2 September his Honour was truly functus officio. He had then no power to make any other order.

Mr Motby's remaining ground of appeal was more substantial. It concerned the quantum of damages awarded. He alleged that the damages were inadequate. One can sympathise with this submission, although I am not persuaded by it. Miss McDonald was an ex-public servant, who had retired from her vocation about five years earlier. She was a spinster. She had an excellent character and an unblemished record. His Honour accepted her evidence that she was greatly distressed, humiliated and embarrassed by the circumstances of her arrest. These circumstances involved being apprehended outside a major shopping store in the middle of the day, with many people about; being required to return to the store for questioning by the security officer of K-Mart and by other employees of that store, and being eventually handed over the police. His Honour also accepted her evidence that "she felt awful, ashamed, worried about herself and what other people would think". He also accepted her evidence that for a long time her sleep had been greatly interfered with. His Honour considered that she was entitled to "significant damages".

In addition, there were other factors which, in Mr Motby's submission, entitled his client to heavy damages. The chief of these was an assertion by Mr. Gregg who was counsel for K-Mart before his Honour, in the course of cross-examination, that Miss McDonald suffered from mental illness. This appears to have been made without instructions, and it is an intolerable accusation. All one can say about this deplorable incident is that it was provoked by an accusation that the staff of K-Mart were conspiring with the police against Miss McDonald. The incident, whilst noted by his Honour at the time it happened, could not have made any lasting impression on his Honour's mind, or he would have mentioned it in his judgment.

However, his Honour's award was $13,500. He apparently considered this sum "significant" in all the circumstances. I think an appellate court should be very reluctant to disturb a trial judge's findings on such a discretionary matter as general damages, whether the submission is that the damages are excessive or 'inadequate. In the present case, the damages are clearly not over generous; they may even tend a little toward the mean. To put the matter in perspective, one must remember that Miss McDonald's health was in no way seriously affected; no doctor was called to testify to any serious medical problem; there was no suggestion that her life had changed; she suffered no loss of reputation; no neighbours, or acquaintances shunned her company. Although "mental shock" was particularized, it was not proved. Moreover, his Honour might have taken into account the indolent pace at which the litigation was conducted, which did betoken extreme indignation. He might also have considered that Miss McDonald's behaviour in knowingly taking advantage of another's mistake, which whilst perfectly lawful, was not entirely meritorious.

In my view the appeal should be dismissed with costs. JUDGE3 POWELL JA Such difficulties as have arisen in the determination of the present proceedings appear to me to have been caused by the interaction of a number of differing factors, they being: - 1. the apparent inability of those advising the Appellant, first, to distinguish between the disparate torts of false imprisonment on the one hand and malicious prosecution - or as it seems now sometimes to be called, wrongful process of law (Salmond and Heuston on the Law or Torts 20 Ed (1992) Ch 19) - which, although once limited to the institution of criminal proceedings, appears now to have been extended to certain types of civil proceedings (Salmond and Heuston op cit pp. 405-407), second, the facts which a plaintiff will be called upon to establish if an action to recover damages in respect of either false imprisonment or malicious prosecution is to be successful; and) third, the matters to which regard might be had, in either case, in determining the amount of damages which might properly be awarded; 2. what appear to me to be deficiencies in the District Court Rules relating to pleading and particulars; 3. the form of the Statement of Claim filed in the District Court on behalf of the Appellants; which form appears to have been consequential upon each of the two matters to which I have just referred; 4. what appears to me to have been the rather less than competent way in which the Appellant's advisers conducted these proceedings on her behalf both before, and on, the hearing before the late McCredie DCJ, and on the hearing of this appeal.

I will seek to explain, in as short a manner as is possible, why this should have been so.

The tort of false imprisonment consists in the act of arresting, or imprisoning, any person without lawful justification, or otherwise preventing him, without lawful justification, from exercising his right of leaving the place in which he is. To constitute the tort there need be no imprisonment in the sense of incarceration, it being sufficient that the person in question has been deprived of his, or her, personal liberty for any time however short. While an arrest is complete if the person has been touched, and informed of the reason for his arrest, it is not necessary that he, or she, be brought under any form of physical control. Whether or not an arrest has been effected is a question of fact, so that, while voluntary compliance with a Police request to "come along and clear himself' may not necessarily amount to imprisonment (Alderson v Booth ((1) (1969) 2 QB 216) an actual, or implied, threat of force which leads to a person's involuntary submission is sufficient (Bird v Jones ((2) (1845) 7 QB 742, 748 per Williams J); Warner v Riddiford ((3) [1858] EngR 358; (1858) 4 CB(NS) 180); Myer Stores Limited v Soo ((4) [1991] VicRp 97; (1991) 2 VR 597).

As the tort of false imprisonment is derived from trespass, the gist of the action of false imprisonment is the mere imprisonment, and the plaintiff, once having established the imprisonment, is under no obligation to establish that it was unlawful, or malicious, and, in such a case, it is for the defendant, if he is to escape liability, to prove a lawful justification for the imprisonment, either at common law or by statute (McLaughlin v Fosbery ((5) [1904] HCA 55; (1904) 1 CLR 546); Watson v Marshall ((6) [1971] HCA 33; (1971) 124 CLR 621 (Walsh J); on appeal Marshall v Watson ((7) [1972] HCA 27; (1972) 124 CLR 640; Myer Stores Limited v Soo ((8) (supra). In the absence of any statutory justification, a private person has at common law the power to arrest in cases in which (inter alia) a felony has been committed or attempted and there is reasonable and probable cause of suspecting the person arrested, as the one who committed or attempted the felony (see, for example, Walters v W.H. Smith and Son Limited ((9) (1914) 1 KB 595).

Further, as the tort of false imprisonment is derived from trespass, a plaintiff need not prove actual damage, although any pecuniary loss which is not too remote is recoverable (see, for example, Childs v Lewis ((10) (1924) 40 TLR 870). The principal heads of damage to which, in the past, regard appears to have been paid are, the injury to liberty, the injury to the plaintiff s feelings, i.e. the indignity, mental suffering, disgrace and humiliation, with any attended loss of social status, and, where it can be demonstrated that the imprisonment has had a deleterious effect on the plaintiff's health, any resultant physical injury, illness or discomfort (Lowden v Goodrick (11) (1791) PEAKE 64; Pettit v Addington (12) (1791) PEAKE 87). In addition to damages failing under one or other of the heads to which I have just referred, the manner in which the imprisonment is effected may lead to an award of aggravated compensatory damages, as also may the subsequent conduct of the defendant, if it tends to show that the defendant is persevering in the charge (Warwick v Foulkes (13) 13 [1844] EngR 144; (1844) 12 M and W 507; Walter v Alltools (14) (1944) 61 TLR 39 (CA)), although it has been suggested (McGregor on Damages 15 Ed (1988) p. 1029) that an unsuccessful plea by the defendant that the plaintiff was guilty of the offence charged against him by the defendant should not lead to an aggravation of damages, unless it is shown the defendant made the charge mala fide.

Although it has some affinities with the tort of false imprisonment, the tort of malicious prosecution differs from the tort of false imprisonment in a number of significant respects. In order that an action may lie for malicious prosecution, the following conditions - the onus of establishing which lies on the plaintiff - must be fulfilled: -

1. the proceedings must have been instituted or continued by the defendant;

2. he must have acted without reasonable and probable cause;
3. he must have acted maliciously; and
4. the proceedings must have terminated in favour of the Plaintiff. Each of these conditions needs a little elaboration.

So far as the first is concerned, it must be established that the proceedings complained of were instituted by the defendant, that is to say, he must be the person who put the law in motion - either directly or by his agent

• against the plaintiff. It should, however, be noted, that while, if no more occurred than that the defendant gave information to a Police officer who exercised an independent discretion as to whether or not the plaintiff ought be charged, the defendant is not to be regarded as having instituted th proceedings, if it appears that, in truth, the situation was that the Police officer was not in a position to exercise any independent discretion, the defendant may be held to have instituted the proceedings (see, Commonwealth Life Assurance Society Limited v Brain (15) [1935] HCA 30; (1935) 53 CLR 343; Martin v Watson (16) (1995) 3 WLR 318 (HL) E).

No action lies for the institution of legal proceedings, however malicious, unless they have been instituted without reasonable and probable cause (Williams v Taylor (17) (1829) 6 Bing. 183, 186 per Tindal CJ). A reasonable cause - the existence of which is a question for the judge and not for the jury, if there be one

• means only a genuine belief based on reasonable grounds that the proceedings are justified, the defendant not being required to believe that the plaintiff was guilty. In Hicks v Faulkner (18) (1878) 8 QB 167,171; Hawkins J said: "I should define reasonable and probable cause to be an honest belief in the guilty of the accused, based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in a position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed.

Malice means the presence of some improper and wrongful motive that is to say, an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. It can be proved either by showing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. Although the question of whether any particular motive is proper or improper is a matter for the determination of the judge, as also is the question whether there is any reasonable evidence of malice fit to go to the jury, the question of whether or not there was malice is normally one to be determined by the jury."

No action for malicious prosecution will lie unless, and until, the prosecution has terminated in favour of the plaintiff. But if the prosecution has actually determined in any manner in favour of the plaintiff, it matters not in what way this has taken place - there need not have been an acquittal on the merits, for what the plaintiff requires for his action is not a judicial determination of innocence, but merely the absence of a judicial determination of guilt.

The principal heads of damage to which regard have conventionally been had in relation to a claim for malicious prosecution are injury to the plaintiff's reputation, injury to his feelings, i.e. for the indignity, humiliation and disgrace caused him by the fact of the charge being preferred against him, pecuniary loss as, for example, as a result of his being dismissed from his employment - and the expenses incurred in defending himself against the prosecution, or, where he has been awarded costs against the prosecutor, the amount by which the costs incurred exceeded the costs awarded. In addition, if the facts warrant it, an award of aggravated compensatory damages may be made.

So far as the second the matters to which I have earlier referred is concerned, it is to be noted that the Supreme Court Rules 1970 ("SCR") provide (inter alia) as follows: - 1. (Pt. 15) 7(1) A pleading of a party shall contain, and contain only, a statement in summary form of the material facts on which he relies but not the evidence by which those facts are to be proved.

(2) Subrule (1) has effect subject to this Pat and to Part 7 (which relates to originating process) and to Part 16 (which relates to particulars).

2. (Pt. 16) 3(1) A party pleading any condition of mind shall give particulars of the facts on which he relies.

(2) In subrule (1) "condition of mind" includes any disorder or disability of mind, any malice and any fraudulent intention but does not include knowledge.

5 Where a party pleading claims damages which include moneys which he has paid or is liable to pay, he shall give particulars of those moneys.

5A Where a party pleading claims exemplary damages, he shall give particulars of the facts and matters on which he relies to establish that claim.

5B Where a party pleading claims aggravated compensatory damages he shall give particulars of the facts and matters on which he relies to establish that claim.

So far as the provisions of SCR Pt. 15 r 7 are concerned, it is to be noted that all facts on which the cause of action, or defence, depend are material (see, for example, Darbyshire v Leigh (19) (1896) 1 QB 554; Re Rica Gold Washing Co. (20) (1879) LR 11 Ch 36; Belmont Finance Corporation Limited v Williams Furniture Limited (21) (1979) 1 Ch 250), it following that a Statement of Claim seeking to recover damages in a case of malicious prosecution must plead the facts establishing the four conditions to which I have earlier referred.

Although Part 9 - Pleading and Particulars of the District Court Rules ("DCR") provisions similar to those contained in SCR Pt. r.7 (cp DCR Pt. 9 r.3(1) and Pt. 16 r.5 (DCR Pt. 9 r.23), the DCR contain no rules equivalent to those contained in SCR Pt. 16 rr. 3, 5A and 5B. The result thus appears to be that, although it would be open to a plaintiff, or a defendant, to plead matters which go to aggravation or mitigation of damages (see, for example, Plato Films Limited v Speidel (22) (1961) AC 1090, Goody v Odhams Press Limited (23) (1967) 1 QB 333) in an action in the District Court, he, or she, is not obliged to do so.

So far as the third of the matters to which I have earlier referred is concerned, I record that the Statement of Claim which was filed on behalf of the Appellant on 28th March 1988 in order to commence the action was, in full, as follows: - "1. On the 12th September, 1984 the plaintiff was lawfully in

the defendant's department store at Chatswood in the State of New South Wales, when a servant or agent of the defendant

wrongfully arrested the plaintiff and wrongfully kept and detained her at the said store.

2. On the same date the plaintiff was taken from the defendant's store to Chatswood Police Station whom she was charged with obtaining goods to the value of $7.20 by false pretences.

3. On the 14th March, 1985 the said charged was heard by the Local Court at North Sydney In the said State when it was dismissed.

4. In the premises, the defendant wrongfully imprisoned the plaintiff and deprived her of her liberty.

5. By reason of the matters aforesaid the plaintiff sustained severe mental shock and she has suffered loss and damage.

15. It should be observed that, although Mr. S. J. Motbey, both on the hearing before McCredie DCJ, and in the early stages of the hearing of the Appeal, appeared to claim, on behalf of the Appellant, that the action, right from the start, raised two causes of action - that is to say, false imprisonment and malicious prosecution,

• the Statement of Claim failed to allege the facts which would support a claim for malicious prosecution and, further, did not contain any particulars of the costs which the Appellant was said to have incurred in defending the proceedings, which costs she sought to recover as part of her damages on the hearing.

16. So far as the fourth of the matters to which I have earlier referred is concerned, it should be noted that, although, in its Amended Notice of Grounds of Defence - which appears to have been filed on 14th April 1992, that is to say, some 2 months prior to the commencement of the hearing before McCredie DCJ the Respondent, after putting in issue paragraphs 1 to 5 inclusive of the Statement of Claim, pleaded - "4. The Defendant denies that it wrongly arrested or imprisoned the Plaintiff on the said date.

5. If (which is not admitted) the Defendant arrested or detained the Plaintiff in the said store, the Defendant says that: (a) shortly before the commission by it of the acts complained of, the Plaintiff was (and the Defendant had reasonable grounds to suspect that the Plaintiff was) in the act of committing an offence namely, obtaining property by false pretences punishable under an Act; (b) immediately after the Plaintiff had committed an offence namely of obtaining property under false pretences punishable under an Act the Defendant arrested the Plaintiff and she was taken before a Justice by the Police to be dealt with according to law; (c) at all material times the Plaintiff well knew that she was being arrested in relation to the said charge; (d) the period of the detention of the Plaintiff was not unreasonable."

which paragraphs, one would have thought, made it clear that no matter what was Mr. Motbey's understanding of the Appellant's case, the Respondent understood that case to be solely one of false imprisonment:- 1. no application to amend the Appellant's Statement of Claim was made until the third day of the hearing before McCredie DCJ, after the tender of the Appellant's solicitor's bill of costs for the prosecution had been rejected upon the ground that it did not go to any issue which was open on the pleadings;

the Appellant's advisers appear to have proceeded to a hearing of the action without having available any evidence to tender in order to establish that the Respondent's officers had instituted the proceedings in the Local Court or that, in doing so, they had acted maliciously and without reasonable cause;

even when an application for leave to amend was made to McCredie DCJ, the proposed Amended Statement of Claim, which was in the following form:

"1. The defendant is a company liable as such to be sued.

2. At all material times the defendant employed one MARGARET

MARY ASHDOWN as a security officer at, inter alia, its Chatswood 'K-Mart' Store.

3. On the 12th September, 1984 the defendant, by the said Margaret Mary Ashdown, did wrongfully arrest, keep and detain the plaintiff within the premises of the said store.

Whilst wrongfully detaining and imprisoning the plaintiff (as pleaded in paragraph 3) the defendant did, by the said Margaret Mary Ashdown, maliciously and (to its knowledge) falsely inform one Julie Anne Donovan (a Constable of Police

in the execution of her duties as such) that the plaintiff had been seen to commit the crime of obtaining by false pretences a packet of spark plugs by replacing the genuine price tag of $7.20 with a tag of $5.44 so as to wrongfully set the law

By reason of the malicious information pleaded in paragraph 4, the plaintiff was arrested by Constable Donovan, taken from the defendant's store to Chatswood Police Station where she was charged with obtaining goods by a false pretence as aforesaid.

On 14th March, 1985, the Court after hearing evidence from the said Margaret Mary Ashdown, the said charge was heard by the Local Court at North Sydney and dismissed.

In the premises the defendant wrongfully imprisoned and maliciously prosecuted the plaintiff and deprived her of her liberty.

By reason of the matters aforesaid the plaintiff sustained damages.

General damage to include humiliation, embarrassment, loss of sleep and general loss of enjoyment of life.

Special damages: $1,700 payable to a solicitor for representing

1. Damages, including punitive damages 2. Interest. 3. Costs."

could hardly be regarded as a shining example of the pleader's art, or even a particularly good example of the use of the English language.

4. when the application for leave to amend was first made (Appeal Book 190) and McCredie DCJ had indicated (Appeal Book 200) his tentative views as to the conditions upon which he might be disposed to grant the amendment, Mr. Motbey withdrew the application for leave to amend (Appeal Book 200);

5. despite this, and despite the fact that, when he made the further application to which I will now refer, both the Respondent's case, and the Appellant's case in reply, had been closed and submissions were about to commence, Mr. Motbey sought to renew his application for leave to amend (Appeal Book 225) which application, not surprisingly, was given rather short shrift by McCredie DCJ.

17. With that preface which, although long, I consider to have been necessary, I turn now to record such few facts as appear to me to be relevant to the determination of this appeal. They are as follows:
18. at some time between 2.30 p.m. and 3.00 p.m. on 12th September 1984, so she says (Appeal Book 9) the Appellant, having earlier had a snack in the cafeteria of the Defendant's K-Mart store in Chatswood Chase, went to the car accessory section of that store where she spent about 35 minutes looking to see whether there were spark plugs suitable for use on her Rover motor car. As the Appellant would have it, while she was in that section she noticed that there were suitable spark plugs packed in packages of 4 or 6, the price of the packets of 4 being $5.44 and the price of the packets of 6 being $7.20; however, among the packets of 6 the Appellant found one marked at $5.44 and so she decided to take it. She then went to the check-out with the packet of 6 spark plugs and a feeler gauge which she had decided to buy and handed to the check-out operator a $20.00 note which was sufficient to cover the price marked on each of the packet of spark plugs and the feeler gauge. She then passed out of the store;
19. when the Appellant had reached a point about 20 metres outside the K-Mart store, she was approached by a woman, who was the Respondent's store detective, and a young man, the woman asserting that she had not paid the correct price for the items in question and saying "I'll have to ask you to return to the shop with me". As to this, the Appellant, in her evidence (Appeal Book 11) said "... I realised then that there was something wrong and I felt a bit frightened. I felt that I didn't want to go back to the store with her but I thought I really had to. Like I was too frightened to be inside but I did go back into the store with her.";
20. the Appellant claims that, after she had returned to the car accessory section, and the Respondent's store detective had informed a man who appeared to be in some form of managerial position - who appears as if he may have been a Mr. Paget

• of what she claimed had happened, she, (the Appellant), told the man that she considered that there had been a marking error and that, in the circumstances, she believed she was entitled to have the spark plugs for the price marked on them, to which he had replied that that was so; 4. the Appellant claims that, this notwithstanding, the Respondent's store detective then telephoned the Police;

5. thereafter, two women Police officers, a Cst. Donovan and Cst. Byrne, came and, after she had identified herself and Cst. Byrne, Cst. Donovan said "I've got to ask you to come with me." - this was denied by Const. Donovan who claimed that she had first said "It has been alleged that you were seen in the auto section of K-Mart to select a packet of spark plugs containing 6, then remove a price tag off a packet of 4 worth $5.44 and then place them over the value of $7.20. Is that correct?" to which the Appellant replied, "I did not. They were all marked the same price. I didn't change it." following which, she, Cst. Donovan informed the Appellant that she was "under arrest for false pretences." (Appeal Book 98) The Appellant was then escorted by Cst. Donovan and Cst. Byrne through the store and taken to Chatswood Police Station in a police vehicle - at the time - which is said to have been getting on for 5.00

• so the Appellant says - the store was absolutely crowded and "we were the centre of attention"; 6. while at the Chatswood Police Station, the Appellant was photographed and fingerprinted. Then, despite the fact that she, according to Cst. Donovan, had earlier been given the conventional warning, the Appellant insisted on writing out a statement, only one page of which appears to have been reproduced in the Appeal Book (Appeal Book 294). Before starting to write her statement, so the Appellant says, she asked what she was being charged with, to which Cst. Donovan replied "Stealing, false pretences". Despite which assertion, at the head of the statement appears in the Appellant's writing "Accusation - stealing (changing price tag at KMart Chatsw'd)"; 7. after the Appellant had written her statement, in which she asserted (inter alia) that she noticed that the packet which she had taken was marked at a lesser price than all the others, her statement was witnessed by Sgt 1/c Hayward. Cst. Donovan appears then formally to have charged the Appellant, following which she was bailed to appear at North Sydney Local Court on 25th September 1984. It is by no means clear to me what was the exact nature of the charge against the Appellant for, although the charge sheet appears to have been tendered before McCredie DCJ (Appeal Book 82), the description of the charge as "false pretences" is apt to comprehend either the offence under s.178BA of the Crimes Act - "by any deception dishonestly obtaining any valuable thing or any financial advantage of any kind" - or the offence under s. 179 of the Crimes Act of "by any false pretence obtaining from any person any property with intent to defraud". The former offence, if tried on indictment, carries with it liability to imprisonment for 5 years - and, thus, is a misdemeanour - or, if tried summarily (s.496) carries a potential liability, in a case such as this was, of imprisonment for 12 months or a find not exceeding 20 penalty units, while the latter offence, if tried on indictment, carries a potential liability to penal servitude for 5 years

and, thus, is a felony - but, if tried summarily (Crimes Act s.496) carries a potential liability in a case such as this was said to be, to imprisonment for 12 months or a fine not exceeding 20 penalty units - the distinction is of some significant bearing in mind the limited nature of the power of arrest which is open to a private person (see p. 3 (above)).

8. the hearing of the charge against the Appellant appears to have been adjourned from September 1984 until 14 March 1985 when it came on for hearing before the North Sydney Local Court. At the outset, the Police Prosecutor applied to have the hearing further adjourned, or, alternatively, to have the evidence of such witnesses as he then had available taken and the matter then adjourned part-heard in order that further efforts might be made to locate the check-out operator at the K-Mart store to whom the Appellant had presented the spark plugs when she went to the check-out. That application was objected to by the Appellant's then solicitor and the matter proceeded. That application appears to have been made by the Police Prosecutor as the result of his belief that, in order to succeed, he needed to tender the evidence of the check-out operator so as to show that, in determining the price to be paid by the Appellant she, the checkout operator, relied on the price marked on the packet;
9. the evidence which was tendered in the Police case appears then to have been limited to that of Cst. Donovan and the Respondent's store detective, each of whom appears to have been cross-examined by the Appellant's solicitor. At the conclusion of that evidence, the Police Prosecutor renewed his application to have the hearing further adjourned, which application was again refused;
10. that having been done, the Appellant's solicitor, after earlier raising some other submissions, then submitted that, in the absence of the evidence of the check-out operator, no case to answer had been established. Despite the fact that the Magistrate appears (Appeal Book 272) to have regarded the Respondent's store detective's evidence as being strong, he acceded to the submission that, in the absence of the evidence of the check-out operator as to what was said and done at the time, no case to answer had been made out. That being so, the Magistrate appears to have then dismissed the Information;

11. despite that fact, these proceedings, as I have earlier noted, were not commenced until 28th March 1988 and were not brought on for hearing for another 4 years;
12. on the hearing before McCredie DCJ, each of the Appellant, Cst. Donovan and the Respondent's store detective was called to give evidence, and, in the case of the Appellant and the Respondent's store detective, cross-examined in some length;

13. in the course of her evidence in chief, the Appellant gave evidence as to her embarrassment and humiliation at what occurred on 12th September 1984 and as to her continuing embarrassment and humiliation in respect of what had then occurred and notwithstanding that the charge was later dismissed. In addition, the Appellant gave evidence as to her inability to sleep for many months after the incident had occurred;

14. in the course of the Appellant's cross-examination, and, as it would seem, in an attempt to counter what the Appellant had said (Appeal Book 60-61) was her belief that she was "being set up" and that there was "a conspiracy to get (her)" counsel then appearing for the Respondent asked a series of question directed toward ascertaining whether or not the Appellant had had a history of psychiatric illness, or a history of nervous disorder, or whether the Appellant was paranoid. These questions clearly disturbed McCredie DCJ, who asked counsel (Appeal Book 62) whether or not those questions were in accordance with counsel's instructions, to which counsel ultimately replied (Appeal Book 63): - "Your Honour will perhaps, the best way to answer your Honour is in my professional judgment and I've been at this Bar for 8 years, it was a proper and reasonable question when her testimony both in chief and in cross-examination was weighed against the totality of my instructions."

an answer which clearly did not satisfy McCredie DCJ who observed:- "I don't think we can take it any further. It always concerns me in this court to have unpleasant suggestions raised to people unless there is some proper basis."

15. in the course of her evidence in chief, the Respondent's store detective gave evidence (Appeal Book 126-127) of having observed the Appellant peeling a price tag from a packet of spark plugs and then placing that price tag over the price tag which was already on the packet of spark plugs which she was later to take to the check-out;
16. when he came to deal with the evidence which had been tendered on each side on the hearing before him, McCredie DCJ noted (Appeal Book 305) that the Appellant presented as a credible witness, as also did the Respondent's store detective who appeared in the witness box as a respectable and responsible person with a reasonably clear recollection of the relevant events (Appeal Book 306). In the end, however, McCredie DCJ stated (Appeal Book 312) that, for a variety of reasons, he preferred the evidence of the Appellant to that of the Respondent's store detective where it was in conflict with that of the Appellant on vital matters, and that, accordingly, he was not satisfied that the Respondent had established its primary submission that the Appellant "swapped the price stickers on the packet of spark plugs". His Honour's conclusion in this respect did not, however, deter Mr. Motbey, on the hearing of the Appeal, from asserting repeatedly, and at great length, that the Appellant had demonstrated, and that his Honour had found, that the Respondent's store detective had fabricated her story that she had seen the Appellant "swap the stickers" and that accordingly: -

"The damages in this case have to be assessed giving full weight to the circumstances just mentioned - the Appellant was not just the victim of mistake; she was the victim of malice."

in the event, McCredie DCJ, having accepted the Appellant's evidence as to the effect upon her, both immediately and deferred, of her arrest, found that she was entitled to "significant damages", which damages he assessed in the sum of $12,500.00, to which he added interest in the sum of $1,000.00, and, accordingly, entered a verdict for the Appellant in the sum of $13,500.00; 18. thereafter, there was filed on behalf of the Appellant a Notice of Appeal in respect of (inter alia) McGredie DCJ's decisions: - " (b) To fail to award the appellant damages for malicious prosecution; ... (d) Assessing the appellant's damages for false imprisonment at $13,500.00."

the grounds of appeal in relation to (inter alia) the first of these grounds including: - "2. His Honour erred, in refusing to allow the amendment, in failing to have regard to or afford due weight to, the fact that a case of malicious prosecution had been litigated;

3. His Honour erred, in refusing to allow the amendment, to have regard to, or afford due weight to, the fact that there was only one issue of fact for decision (whether the respondent's security officer had seen the appellant tamper with a price tag) and, depending upon the finding on that issue the appellant would establish both false imprisonment and malicious prosecution."

While the only ground of appeal taken in relation to the second of those decisions was that the award was inadequate.

So far as the first decision - the refusal of McCredie DCJ to grant leave to file an Amended Statement of Claim - was concerned, that challenge was eventually abandoned after the luncheon adjournment on the hearing of the Appeal (Transcript p. 22), as also (Transcript p. 22), not withstanding a later attempt to revive it (Transcript p.30), was the allegation of malice which was associated with it. So far as concerns the other decision of his Honour which was challenged - his Honour's declining to award the Appellant costs on the highest scale upon the ground that at the time when that application was made functus officio

• is concerned, I will say no more than that his Honour's decision on that matter was clearly right.

The remaining question thus is whether, in the light of all that I have set out above, it ought to be held that McCredie DCJ's award of damages was manifestly inadequate.

In approaching this question, I have borne in mind the following observations of Barwick CJ in Wilson v Peisley (24) (1975) 50 ALJR 207, 209; 7 ALR 571, 576:- "The setting aside of an award of damages in a trial which has not been irregular or unfair and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion, be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous in the circumstances, whether by being too great

or too small: and therefore of itself a demonstration of error present although otherwise undisclosed. The less ponderable the elements of damages under consideration, the less likely will there be a case for setting aside an award by a judge who has not overlooked any significant fact at the end of a trial not blemished by error or irregularity."

(see also Precision Plastics Pty, Limited v Demir (25) [1975] HCA 27; (1975) 132 CLR 362, 369; [1975] HCA 27; 49 ALJR 281, 285-186; [1975] HCA 27; 6 ALR 311, 317 per Gibbs J (as he then was), Gamser v The Nominal Defendant (26) [1977] HCA 7; (1976-1977) 136 CLR 145, 159; [1977] HCA 7; 51 ALJR 315, 321; [1977] HCA 7; 13 ALR 387, 399 per Aickin J). The reason for such an approach is, in my view, not difficult to discern: it is that, as there is generally so much room for individual choice as to the facts to be brought into account, and as to the weight to be accorded to such facts as are brought into account, the assessment of damages is more like an exercise of discretion than an ordinary act of decision, and, thus, may only be challenged successfully upon grounds akin to those upon which a discretionary judgment might successfully be challenged.

This notwithstanding, and notwithstanding that - as it appears not to have been argued on the hearing before McCredie DCJ

• I set to one side the question of whether or not this is a case in which it would have been proper to award aggravated compensatory damages, it seems to me that, in determining the amount of the "significant damages" to which he regarded the Appellant as entitled, McCredie DCJ appears not to have had regard to matters which I would regard as bearing upon that question. I do not, in this respect, include the fact that, on the hearing before McCredie DCJ, the Respondent sought to raise and to maintain a claim of justification, for it seems to me that given the basis upon which the Magistrate dismissed the information and the views which McCredie DCJ expressed as to the credibility of the Respondent's store detective, this is not a case in which the raising of a plea of justification ought to be regarded as increasing what would otherwise be an appropriate amount of damages. However, as it is appropriate in assessing damages, in a case such as this, to look at the whole of the conduct of a defendant up to an including the defendant's conduct in court during the trial, what seems to me to have been the rather snide, and, in the circumstances, grossly offensive suggestion - said to have been based on counsel's instructions, but apparently totally lacking in any foundation in fact - that the Appellant had a history of mental illness, or mental disorder, is a matter to which, in my view, McCredie DCJ ought to have, but did not have had, regard when coming to determine the question of the quantum of damages. This being so, it appears to me that it is open to this Court to intervene.

Although, if the question had been one for me alone, I would not have been disposed to make an award of damages in the amount suggested by Clarke JA in his Judgment, which I have read in draft, the fact that Clarke JA and I would, while Meagher JA, whose Judgment I have also read in draft, would not, intervene, suggests to me that, in order to produce a result which most closely conforms with the view of the majority of the Court, I should concur in the Orders which have been proposed by Clarke JA for the disposition of the Appeal and I accordingly do so.