plaintiff. Notice of Motion (filed 21 May 2020) dismissed; proceedings not summarily dismissed under Part 13.4.
Key principles
An application under Part 13.4(1) of the Uniform Civil Procedure Rules to dismiss proceedings summarily requires a high degree of certainty that the plaintiff's case is hopeless...
The tort of malicious prosecution requires proof that the defendant initiated or instigated the criminal proceedings, the proceedings terminated in the plaintiff's favour, the...
A person who is not formally the prosecutor may nevertheless be liable for malicious prosecution if he or she was 'actively instrumental' or the 'real prosecutor' in bringing...
On a Part 13.4 application the court must take the plaintiff's evidence at its highest and proceed on the basis that the plaintiff would be able to prove the facts averred in the...
Issues before the court
Whether the defendant's Notice of Motion under Part 13.4(1)(b) (no reasonable cause of action disclosed) should be granted to dismiss the malicious...
Whether the pleaded allegation that the defendant 'instigated and was actively instrumental in the commencement and maintenance of the prosecution'...
Plain English Summary
The defendant sought to summarily dismiss the plaintiff's malicious prosecution claim under the uniform rules on the basis that the claim disclosed no reasonable cause of action. The judge applied established principles on malicious prosecution and the high threshold for summary dismissal. Although the plaintiff's case faces evidentiary difficulties, his affidavit (taken at its highest) and the pleadings left live factual disputes and reasonable inferences to be drawn. Because the claim was arguable and not hopeless, the court refused to dismiss the proceedings and ordered the defendant's Notice of Motion dismissed.
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Deep Dive
1,900 words · generated 01/07/2026
What happened
The dispute arises from a physical altercation between two brothers, Roderick Moore (plaintiff) and Steven Moore (defendant), on 31 May 2014. During that altercation part of the defendant's ear was removed; there is a contested factual account whether it was deliberately bitten off or dislodged accidentally in the struggle (see the pleadings and the plaintiff's affidavit, particularly the plaintiff's description at paragraph 19 of his affidavit).
Moore v Moore [2020] NSWDC 402 | Case summary | Zoe
Cited legislation
2 cited instruments linked from this judgment.
The defendant attended Belmont Police Station and reported the injury; he provided an initial oral report and later a written statement (22 June 2014). Police arrested and charged the plaintiff by indictment with causing grievous bodily harm with intent, the indictment and the Facts Sheet being annexed to the defendant's affidavit material (the Facts Sheet identifies arresting officers and informants).
The criminal matter went to trial before North J and a jury in 2016. The plaintiff was acquitted by verdict of not guilty.
Following acquittal the plaintiff commenced an action in the District Court alleging the tort of malicious prosecution, filing a Statement of Claim on 11 November 2019. The pleading expressly alleges that the defendant "instigated and was actively instrumental in the commencement and maintenance of the prosecution" and that he made "deliberately false allegations to Police ... with the intention of causing the Police and the DPP to arrest, charge and prosecute the Plaintiff" (Statement of Claim paras 12 and 15 as relied upon in the judgment).
The defendant filed a Defence and, on 21 May 2020, moved under Part 13.4 of the Uniform Civil Procedure Rules for summary dismissal of the proceedings on grounds including that no reasonable cause of action was disclosed (the Notice of Motion, supported by affidavits read to the Court).
The Court, Dicker SC DCJ, heard the Notice of Motion on 13 August 2020. The defendant relied on two affidavits, the plaintiff relied on his affidavit sworn 24 May 2020 (the plaintiff did not tender further affidavit material). The defendant argued the material showed a lack of dishonest instigation or that the plaintiff could not establish the necessary falsity and malice to make out malicious prosecution.
The judge considered authorities on the elements of malicious prosecution and the stringent standards for summary dismissal under Part 13.4. Taking the plaintiff's affidavit at its highest, the Court found the plaintiff's case to be arguable and that factual disputes and necessary inferences meant the claim was not hopeless. The Notice of Motion was dismissed; the malicious prosecution proceedings remained on foot.
Why the court decided this way
The controlling procedural point is the high threshold for summary dismissal under Part 13.4. The judge repeated appellate guidance that a court should only summarily determine a proceeding in a "clear case", where there is a high degree of certainty that the claim will fail (references to AD v Commissioner, Comninos, Fan, Burton, Spencer, Agar v Hyde). The Court must therefore be cautious where there are factual issues in dispute that are capable of being disputed and are material to the outcome.
On the substantive tort, the judge applied the orthodox four-element test for malicious prosecution (A v State of New South Wales): (1) proceedings were initiated against the plaintiff by the defendant (or the defendant was the 'real prosecutor' or actively instrumental), (2) proceedings terminated in plaintiff's favour, (3) the defendant acted maliciously in initiating/maintaining the prosecution, and (4) the defendant acted without reasonable and probable cause.
The judge gave particular attention to the principle that a person who is not the formal prosecutor may nevertheless be liable if they were the person "in fact instrumental in prosecuting the accused" or "actively instrumental in putting the law in force" (Johnston v ANZ; Brain). This permitted a claim against the informant if that person misled the prosecuting authority with false information, thereby undermining the officer's independent discretion.
Applying the Part 13.4 test, the judge read the plaintiff's affidavit "at its highest" (the correct approach on interlocutory summary dismissal) and concluded that, although the plaintiff faces a difficult task, his version contained material that, if proved, could support the pleaded allegation that the defendant instigated the prosecution by making false allegations. The trial transcript and other exhibits relied on by the defendant did not establish dishonesty beyond doubt or show the prosecutorial discretion was exercised independently of any misleading input from the defendant.
Because the plaintiff's claim was arguable and required factual inferences that could only be resolved at trial, the Notice of Motion could not succeed.
Before and after state of the law
Before:
The governing legal principles were already well established. On the tort of malicious prosecution the High Court's articulation in A v State of New South Wales is authoritative: the four elements must be proved.
The authorities (Johnston, Brain) had long recognised that non-prosecutors could be liable where they were the real instigators, particularly where false information prevented an independent exercise of prosecutorial discretion.
On Part 13.4-summary dismissal, appellate authorities demand caution: summary disposal is limited to clear cases where continuing the proceeding would be futile (Agar v Hyde, AD v Commissioner, Comninos, Fan, Burton, Spencer). The plaintiff's case must be taken at its highest on the affidavits when resolving such interlocutory applications.
After:
Moore v Moore applies those established authorities to deny summary dismissal where there is an arguable pleaded case of instigation and material facts in dispute. The decision reinforces two points:
The high threshold for Part 13.4 relief will preclude dismissal where the plaintiff's affidavit, taken at its highest, provides a plausible alternative factual narrative capable of supporting necessary inferences; and
Malicious prosecution pleadings alleging active instrumentality/instigation will not be summarily dismissed merely because the prosecution proceeded by police and DPP; the question whether the defendant misled or practised on prosecuting authorities is a matter for trial where contested.
The decision does not change the law substantively. It applies existing principles to find that the defendant had not established a clear case for summary dismissal.
Key passages with plain-English translation
Key passage: "It thus may be seen that it is alleged that the defendant ... instigated and was actively instrumental in the commencement and maintenance of the prosecution, and that he deliberately made false allegations to the police ..." (judgment text summarising the pleading)
Plain English: The plaintiff's claim is that the defendant told the police lies about the incident (including that the plaintiff bit off his ear), and those lies led to the plaintiff being charged.
Key passage: "On his version of the incident, set out in paragraph 19 of his affidavit, it is clear, in my view, that the plaintiff faces a difficult road to establish the tort."
Plain English: The judge accepts the plaintiff's account is not easy to prove at trial; proving malicious prosecution will be challenging.
Key passage: "In my view, the case is not a clear one such that the case brought by the plaintiff is hopeless and doomed to fail. In my view, the plaintiff's case is arguable, but will require some inferences to be drawn from established facts."
Plain English: Even though the plaintiff might have a tough case, it is not hopeless; there is enough evidence to justify a full hearing rather than immediate dismissal.
Key passage: "Having taken into account ... the transcript in the trial, I am not satisfied that this application should succeed."
Plain English: After looking at the evidence the defendant relied on, the judge decided the defendant had not shown the claim should be thrown out now.
Key passage: "The Notice of Motion is dismissed."
Plain English: The defendant's application to dismiss the case was refused; the plaintiff's malicious prosecution claim continues.
What fact patterns trigger this precedent
Cases where the plaintiff sues for malicious prosecution after acquittal and alleges that a private individual (not police or DPP) instigated or supplied false information leading to the prosecution.
Situations in which the factual account of the alleged instigator and the accused differ substantially, and the plaintiff has provided an affidavit offering an alternative explanation for the events alleged to have led to prosecution (for example, an account that a body part was dislodged accidentally rather than deliberately bitten off).
Instances where the defendant seeks summary dismissal under Part 13.4 on the grounds that the claim discloses no reasonable cause of action, but the plaintiff’s affidavit, taken at its highest, leaves live factual disputes and requires inferences that can only be resolved at trial.
In short: where resolution rests on contested facts about what the would-be instigator told the police and whether the police acted on independent judgment or were misled, Moore v Moore instructs caution against summary dismissal.
How later courts have treated it
Moore v Moore is a first-instance District Court judgment. It primarily applies existing appellate and High Court authorities (A v State, Johnston, Brain, Comninos, Fan, AD v Commissioner, Spencer) to a straightforward interlocutory question.
Later courts considering similar Part 13.4 applications will likely treat Moore v Moore as an application of orthodox principles: if affidavit material leaves arguable factual disputes and reasonable inferences in favour of the plaintiff, summary dismissal should be refused. Because Moore v Moore did not create new law, higher courts would prefer to treat it as an example of applying established thresholds rather than as a precedent that alters the test.
Practitioners may cite Moore v Moore at the District Court level to support the proposition that a malicious prosecution claim against an informant will not be dismissed at the interlocutory stage where the plaintiff's affidavit provides an alternative account raising inferences of a dishonest instigation.
Still-open questions
Precise limits on the concept of being the 'real prosecutor' or 'actively instrumental' remain fact-sensitive. Johnston and Brain provide guiding formulations, but the line between supplying information (which may be innocuous) and practising on prosecutorial discretion (which exposes civil liability) remains contested and will turn on the detail of the communications and the subjective state of mind of informants and officers.
How detailed the plaintiff's affidavit must be at the interlocutory stage to defeat Part 13.4 remains an open question. Moore v Moore accepts an affidavit that gives an alternative version may suffice, but difficult borderline cases will require close analysis.
The judgment recognises that tactical decisions in criminal trials (for example, the accused not giving evidence) can complicate the evidentiary picture at civil interlocutory stages. How courts should treat references in criminal transcripts (and when those references amount to concessions) in Part 13.4 applications will continue to present issues.
Finally, although Moore v Moore refused summary dismissal, it leaves open how the trial judge should direct a jury on issues of inference, credibility and the application of Briginshaw-type caution in a civil claim alleging serious dishonesty. Those are matters for trial and potential appellate scrutiny.
This deep dive is grounded in the District Court ex tempore reasons of Dicker SC DCJ in Moore v Moore [2020] NSWDC 402 (decision 13 August 2020). Wherever specific paragraph references or quoted pleadings are referred to, they are drawn from the judgment text (including the Statement of Claim paras 12 and 15 and the plaintiff's affidavit para 19 as summarised by the Court).
HIS HONOUR: Before the Court is a Notice of Motion filed on 21 May 2020 by the defendant in the proceedings seeking an order that the proceedings be dismissed generally pursuant to Part 13 r 4 of the Uniform Civil Procedure Rules 2005 (NSW) and related relief. Part 13.4 of the Uniform Civil Procedure Rules provides as follows:
"13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
In support of the application, the defendant/applicant read the affidavits of Mr Neumann, affirmed 21 May 2020, and of the plaintiff himself, sworn 24 May 2020. The plaintiff/respondent on the motion did not read any affidavit evidence or tender any evidence.
The defendant relied on each subparagraph of Part 13.4(1), although the argument was directed towards subparagraph (b): "no reasonable cause of action is disclosed". It seems to me that if a reasonable cause of action is disclosed, and it is appropriate not to dismiss the proceedings, that deals with the other matters in Part 13.4(1). There were no separate submissions relating to those matters from the defendant. Part 13.4(1) makes clear that the Court may receive evidence on the hearing of the application for an order, and, as indicated, the defendant has read two affidavits.
[3]
Factual Background
The factual background in the matter is set out in the affidavit evidence, and the annexures to it, and also in the pleadings.
The proceedings were commenced by a Statement of Claim filed 11 November 2019, and are essentially proceedings alleging the tort of malicious prosecution. The matter substantially arises out of an incident on 31 May 2014, when an altercation occurred between the plaintiff and the defendant brothers.
It is not in dispute that within that altercation part of the defendant's ear was "removed", to use an uncontroversial word. It seems to be in some dispute as to whether the plaintiff deliberately bit off part of the defendant's ear in the course of the altercation, or whether part of the ear was dislodged in the course of the altercation, not deliberately.
Following the injury to the defendant, he attended Belmont Police Station in an injured state, and, following inquiries, the police brought proceedings by way of an indictment in this Court alleging that "on 31 May 2014, at Swansea Heads in the State of New South Wales, [the plaintiff] did cause grievous bodily harm to [the defendant] with intent to cause grievous bodily harm". The indictment was annexed to Mr Neumann's affidavit, as was the Facts Sheet relied upon for the purposes of the charge. The Facts Sheet makes clear that the arresting officers were Senior Constable Chaffey and Constable Young, with the informants being Constable Young and Sergeant Murphy. What followed was a trial before North J with a jury in relation to the charge. A verdict of not guilty was entered in relation to the charge in 2016.
The allegation of the tort of malicious prosecution is set out in the Statement of Claim filed on 11 November 2019. There has been some criticism in relation to the pleading. A Defence has been filed on 9 January 2020. As a result of orders relating to the filing of evidence, the plaintiff has filed his affidavit sworn 24 May 2020, which the defendant tendered on the application.
A number of paragraphs should be noted in relation to the Statement of Claim. Paragraph 3 provides as follows:
"3. On 31 May 2014, the Defendant attended Belmont Police Station alleging the Plaintiff had bitten off his ear and had assaulted him. The Defendant later produced a Statement on 22 June 2014, confirming his original verbal statement.
3.1. He alleged that he was visiting his mother when the Plaintiff arrived and began verbally abusing him which then led to a physical altercation between the parties.
3.2. The Defendant alleged that the Plaintiff bit his ear off.
3.3. The Defendant alleged that he notified his mother, Ms Jean Moore that he was going to attend Belmont Police Station."
[4]
Tort of Malicious Prosecution
The requirements for a plaintiff to establish the tort of malicious prosecution have been stated in a number of cases. In A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [1], six judges of the High Court stated as follows:
"1. This appeal raises issues concerning two of the four elements of the tort of malicious prosecution. For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause."
Accordingly, the plaintiff must establish, relevantly to the current application, that the proceedings are of a kind to which the tort applies, being criminal proceedings, and they were initiated against the plaintiff by the defendant. A v State of New South Wales has been followed in later cases: see Beckett v New South Wales [2013] HCA 17 at [4]; (2013) 248 CLR 432. It should be noted in paragraph 4 of Beckett that the High Court specifically uses the phrase "malicious instigation or maintenance of the prosecution", which, having used the word "instigation", is similar to that used by the plaintiff in paragraph 12 of the Statement of Claim. It is clear that these principles stated by the High Court are followed in this State: see Wood v New South Wales [2019] NSWCA 313 at [45] per Gleeson JA, Payne JA and Simpson AJA.
[5]
Instigation or Initiation of a Prosecution
The question therefore arises as to what the principles are relating to an alleged initiation or instigation by the defendant against the plaintiff of criminal proceedings which are said to found the tort of malicious prosecution. They have been considered in a number of cases.
The most convenient statement of the principles is in Johnston v Australia and New Zealand Banking Group Limited [2006] NSWCA 218. There, Basten JA (with whom Giles JA and Santow JA agreed) stated as follows in paragraphs 36 to 40:
"36 That a person who is not legally a party to a prosecution may nevertheless be sued is beyond doubt. In Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 282, Isaacs ACJ stated:
"For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge ... . The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position."
37 The availability of the tort in such circumstances followed naturally from its early life which was based upon the fact of a conspiracy between two or more persons to procure the indictment of the plaintiff for treason or felony, so that his life was in danger: Davis v Gell, 35 CLR at 284 (Isaacs ACJ). The fact that two persons were necessary for a conspiracy suggests that more than one person can be 'the real prosecutor' for the purposes of the modern tort of malicious prosecution. Such a conclusion is consistent with the approach of Lopes J in Danby v Beardsley (1880) 43 LT 603 at 604 that a prosecutor for the purposes of the tort is a person "actively instrumental in putting the law in force". In Evans v London Hospital Medical College [1981] 1 WLR 184, the plaintiff was the mother of a five month old son who had died from "sudden infant death syndrome". A post mortem analysis carried out on the infant, by the defendant hospital (the first defendant), through an employed medical officer (the second defendant) resulted in specimens being sent for toxicological analysis, which was carried out by the third and fourth defendants. Their reports were provided to the police and formed the basis for the laying of a murder charge against the plaintiff, on the basis that the child had died from morphine poisoning. A subsequent analysis by a pathologist briefed on behalf of the plaintiff suggested that there had been no morphine in the baby's body at the time of death. Nevertheless, the charge was not retracted, but when the matter came on for hearing at the Central Criminal Court, the prosecution offered no evidence and the plaintiff was acquitted. Proceedings were initially commenced against the defendants in negligence, but an amendment was sought to introduce a cause of action for malicious prosecution against each, because they had "caused the law to be set in motion". Drake J dismissed the application to amend on the basis that all that was alleged was the placing of reports before the police which was not in itself sufficient to constitute the tort. However, there appears to have been no dispute that the several defendants could have been liable for malicious prosecution if it could have been established that each was involved in actively, and maliciously, putting the criminal process in motion. In any event, no argument was presented in the present case to suggest that the multiplicity of defendants was an obstacle to a properly pleaded claim.
38 The modern action thus grew out of one for a kind of abuse of process, namely setting the criminal law in motion inappropriately and thereby causing damage. The criteria by which the involvement of persons not party to the prosecution might find themselves liable to suit, have not been clearly defined. This point was made by Dixon J in Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343 at 379:
"The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on the ground of indefiniteness. It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority ... . But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible ... . The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him."
39 I do not read the last sentence as qualifying the propositions which came before: in other words, it is not a necessary condition for the effective pursuit of an action for malicious prosecution that the actual prosecutor himself was party to the wrongdoing. The prosecution in that case was made by a Detective Sergeant Lawrence, but apparently on the authority of a senior officer. At p 381-382, Dixon J stated:
"It is true that the detective-inspector sanctioned the prosecution. But upon his evidence it was open to the jury to take the view that he did not in the exercise of an independent judgment direct the prosecution, but, upon an account of the matter given to him by Lawrence with the view of obtaining his assent to a course already agreed upon between Lawrence, Clifford and Inch, as Lawrence's superior officer, he authorised him to proceed."
40 It is thus apparent that the nominal informant may have been party to the tort, but not the police officer who authorised the prosecution. As a matter of principle, there is no reason why the nominal prosecutor, or the person authorising the prosecution, should be a joint tortfeasor: nor do the relevant authorities suggest such a limitation. Dixon J may be understood as discussing the facts of the case before him, rather than imposing a novel limitation on the tort. This view is consistent with subsequent authority: see, eg, Mahon v Rahn (No. 2) [2000] 1 WLR 2150 at [255] (Brooke LJ). Otherwise, the statement of principle in Brain sufficiently identifies the relevant criteria."
[6]
Principles Relating to Part 13.4
There has been extensive consideration of the principles applicable to an application under Part 13.4. Mr Glissan of counsel referred me to a number of authorities. It is unnecessary to set out those principles in detail. However, I refer to Comninos v Buckley [2019] NSWSC 968 at paragraphs 77 and following, where Hallen J helpfully sets out the principles.
More recently, Walton J in Fan v South Eastern Sydney Local Health District [2020] NSWSC 1038, a decision dated 10 August 2020, set out a similar statement of principles at paragraphs 43 to 44, referring to his Honour's judgments in earlier cases. It is helpful also to refer to a couple of recent Court of Appeal cases. In AD v Commissioner of the Australian Federal Police [2018] NSWCA 89, President Beazley, with whom Meagher and Gleeson JJA agreed, stated the principles in paragraph 10, although in the context of an appeal. Her Honour referred to Jackamarra v Krakouer (1998) 195 CLR 516 at paragraphs 32 and following, where the principles were stated by Brennan CJ and McHugh J.
Their Honours stated:
"Although various expressions have been employed in this context, all of them may be seen as different ways of saying that a court should not exercise its powers of summary determination of a proceeding, except in clear cases".
At paragraph 34, their Honours stated:
"We do not think it useful to fasten on one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail, and in that sense it is not "arguable" or "fairly arguable"."
While that was a reference to an appeal, similar principles would apply to a trial at first instance.
In Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245, White JA, in his judgment, set out the principles applicable. In paragraphs 48 and following, his Honour referred to the "high hurdles" that an applicant must overcome. There was specific reference to Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [25], where French CJ and Gummow J stated:
"Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue".
[7]
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Decision last updated: 07 September 2020
Notice of Motion (filed 21 May 2020) dismissed; proceedings not summarily dismissed under Part 13.4.
In paragraph 12 of the Statement of Claim, it is pleaded that by virtue of the above, referring to paragraphs 1 to 11, "the Defendant instigated and was actively instrumental in the commencement and maintenance of the prosecution until it was terminated by the verdict of not guilty".
The important paragraph for present purposes is paragraph 15, which provides as follows:
"15. The Defendant made the above pleaded deliberately false allegations to Police concerning the Plaintiff, being the allegations by him in paragraphs 3.1 and 3.2 above, with the intention of causing the Police and the DPP to arrest, charge and prosecute the Plaintiff and thereby to cause distress, damage and loss to the Plaintiff."
It thus may be seen that it is alleged that the defendant made the allegations to the police against the plaintiff, which are pleaded to be "deliberately false allegations", with the intention of causing the police and the DPP to arrest, charge and prosecute the plaintiff. Specific reference is made to paragraphs 3.1 and 3.2 in paragraph 15, which relate to the alleged arrival of the plaintiff at the place where the altercation occurred, and a pleading that he verbally abused the defendant, and also an allegation by the defendant that the plaintiff bit his ear off.
It seems to me that it is quite clear from paragraph 2.1, and paragraphs 12 and 15 when read together, that it is alleged that the defendant, Mr Steven Moore, instigated and was actively instrumental in the commencement and maintenance of the prosecution, and that he deliberately made false allegations to the police, particularly in relation to his allegation that the plaintiff bit his ear off, which resulted in the police charges.
The principles which emerge from this case appear to be as follows:
1. A person who is not legally a party to a prosecution may nevertheless be sued for the tort;
2. The person in fact instrumental in prosecuting the accused may be the real prosecutor for the tort,
3. The substance and not the legal form in all cases must govern;
4. A prosecutor for the purposes of the tort is the person "actively instrumental in putting the law in force";
5. Several defendants may be liable for the tort of malicious prosecution, if it can be established that each was involved in actively and maliciously putting the criminal process in motion;
6. The criteria by which the involvement of persons not party to the prosecution might find themselves liable to suit has not been clearly defined;
7. If the discretion of a Prosecutor is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who brought about the prosecution are responsible. That is particularly the case where those who caused the actual Prosecutor to institute proceedings do so by dishonestly prejudicing his or her judgment;
8. It is not a necessary condition for the effective pursuit of an action for malicious prosecution that the actual Prosecutor himself was party to the wrongdoing;
9. The nominal informant may be party to the tort, but not the police officer who authorised the prosecution.
The question is whether the police exercised their discretion in the matter, or effectively relied on false or misleading statements from the alleged instigator in the Court. In Johnston, the Court of Appeal relied in particular on the statement by Dixon J in Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343 at 379. It is noted in that case that the party who provided the information for the offence was sued, as in Johnston, where the mortgagee of a rural property, and a liquidator and his employed staff member, were sued, not any one within the police.
The principles in Johnston were expressly followed by the Court of Appeal in Sahade v Bischoff [2015] NSWCA 418. The facts in that case involved an alleged assault, somewhat similar to here, of two persons living in valuable premises at Wolseley Road in Point Piper. The statement of principles was given by Gleeson JA, with whom Basten JA and Beech‑Jones J agreed: see at paragraphs 108 to 121, where Johnston and Brain were followed. His Honour also referred to Mahon v Rahn (No 2) [2000] 1 WLR 2150 at [255], where Brooke LJ, with whom Mantell and Laws LJJ agreed, stated:
"If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information".
That principle has been frequently referred to in the authorities, including by Hallen J in Comninos at paragraph 81.
It is important to consider the statements of principle in both Comninos and Fan. Their Honours in both judgments go through a number of appellate authorities which show that there must be a high degree of certainty that the case will fail, there must be a clear case, the case must be doomed or seen as hopeless.
As the High Court stated in the case of Agar v Hyde (2000) 201 CLR 552 at [57], ordinarily a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way after taking advantage of the usual interlocutory processes. Their Honours referred to a need for a high degree of certainty. This was emphasised again by Leeming JA in Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] 94 NSWLR 83 at [30].
Mr Glissan submitted that on all the evidence before the Court, there was that degree of certainty in the outcome of the proceedings. It is said that the plaintiff's evidence in his affidavit, which Mr Glissan read on the application, does not establish clearly that there was dishonesty by the defendant in the steps he took to inform the police of what had occurred. He said that it is difficult to establish the tort of malicious prosecution and there is simply no evidence before the Court which gives any indication of the degree of falsity and deliberate dishonesty which is necessary.
It is said that the plaintiff's affidavit simply does not put forward documents from the defendant showing that, or any other relevant material. It is also submitted that the trial transcript in the criminal trial shows that counsel retained on behalf of the plaintiff did not challenge a number of propositions including that the plaintiff had bitten off the defendant's ear in the course of the altercation. It is said in particular that the evidence given by Chief Inspector Cox at p 61 of the criminal transcript was to the effect that the plaintiff said to him words to the effect: "He mustn't have liked me biting his ear off": T61.6. It is submitted that this was the matter, it should be inferred, which led to the charge. It is said that the plaintiff's case is hopeless, untenable, and it is not in the interests of justice for it to continue, and that the requirements of Part 13.4 have clearly been established.
Mr Rollinson, on behalf of the plaintiff, points to aspects of the pleading, which it is submitted plead the required falsity of the information provided by the defendant, and establish a cause of action on the face of the pleading. It is pointed out that the affidavit of the plaintiff, sworn 24 May 2020, in paragraphs 15 and following, sets out the plaintiff's version of the altercation. Reliance is particularly placed on paragraph 19, which provides as follows:
"At one point, his head smashed me in my face and his ear went into my mouth as I was trying to breath. In his thrusting around, he ripped his ear on my teeth. He then grabbed me and threw me into the freezer, and I fell to the floor."
It is said that that is inconsistent with a deliberate biting off of part of the ear, which allegation gave rise to the criminal charge. It is said that the various references relied upon in the criminal transcript do not advance the matter. It is said that they have to be seen in the context of a criminal proceedings.
The plaintiff, as the accused, was not obliged to give evidence. It is submitted that tactical or strategic approaches were taken as to cross-examination, which gave rise to the defence of the claim, and that there was no formal concession that the ear had been deliberately bitten off, or that it had been bitten off at all. It is said that the evidence of Chief Inspector Cox does not take the matter any further, because it has to be seen in the light of the fact it was criminal proceedings. I note that it is not stated by Chief Inspector Cox that the plaintiff's alleged statement, "he mustn't have liked me biting his ear off", was the reason why the charge was brought by Senior Constable Chaffey.
I have carefully considered the submissions, which have been put to me by the various parties, for which I am grateful. I note the caution which must be exercised, which is emphasised by many appeal courts, in relation to dismissing a matter summarily. As Hallen J states in paragraph 86 of Comninos: "… the case advanced by the Plaintiff must be approached on the basis that … the evidence sought to be relied on must be taken at its highest … and that the Court should proceed upon the basis that the Plaintiff would be able to prove the facts to which he averred in the affidavits read on the Notice of Motion". That statement is in the plaintiff's favour.
On his version of the incident, set out in paragraph 19 of his affidavit, it is clear, in my view, that the plaintiff faces a difficult road to establish the tort. Although it is on the balance of probabilities, the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, and in s 140 of the Evidence Act 1995 (NSW), must be taken into account in any hearing. It seems that the plaintiff is relying on inferences, which are to be drawn from the statements, which he annexures to his affidavit, and from the transcript in relation to the evidence given at the trial.
Having taken into account all of the matters that the defendant has brought to my attention, and particularly the transcript in the trial, I am not satisfied that this application should succeed. In my view, the case is not a clear one such that the case brought by the plaintiff is hopeless and doomed to fail. In my view, the plaintiff's case is arguable, but will require some inferences to be drawn from established facts.
I repeat the comment of French CJ and Gummow J in Spencer v The Commonwealth at paragraph 25, to which I have earlier quoted. That is not to say that I have formed the view that the plaintiff is unlikely to succeed on the factual issue. However, even if I were of the view that the plaintiff was unlikely to succeed in the underlying case on the evidence before me, that is not sufficient. The plaintiff has put forward an alternative version, and in my view, the conduct of the criminal case does not make the position clear and beyond doubt.
For all of those reasons, I make the following order.
In relation to the Notice of Motion, filed 21 May 2020:
1. The Notice of Motion is dismissed.