Young v Royal Society for the Prevention of Cruelty to Animals New South Wales

Court of Appeal (NSW)|2020-11-13|Before: Leeming JA, Preston CJ

Introduction The question in these proceedings is whether a judge of the District Court (the primary judge) erred in making an order that a claim of malicious prosecution by the plaintiff, Mr Gary Young (Mr Young), be dismissed summarily. Mr Young's claim was made against the respondents, the Royal Society for the Prevention of Cruelty to Animals New South Wales (the RSPCA) and Ms Jean Sprague (the Prosecutor), in an amended statement of claim filed in the District Court on 23 October 2019 (the Statement of Claim). By amended summons filed on 30 June 2020, Mr Young seeks judicial review, under s 69 of the Supreme Court Act 1970 (NSW), of the decision of the primary judge to dismiss his claim. Before dealing with the issues raised in the proceedings, it is desirable to say something about the prosecution in question.

The Prosecution

By court attendance notices issued at the behest of the Prosecutor, acting on behalf of the RSPCA, Mr Young was charged with five offences under the Prevention of Cruelty to Animals Act 1979 (NSW) (the Cruelty Act). [1] The offences concerned the alleged treatment by Mr Young of a chestnut mare between 29 July 2010 and 21 August 2010 (the Mare). On 11 December 2012, Mr Young was found guilty of all five offences by a magistrate of the Local Court of New South Wales (the Magistrate). The Magistrate considered that the criminality of the offences fell "within the middle of the range" of the offences charged and dealt with the conviction by placing Mr Young on a bond requiring him to be of good behaviour for a period of two years. The Magistrate ordered Mr Young to pay the costs of the prosecution. On 11 December 2012, Mr Young lodged a notice of appeal to the District Court from the convictions by the Magistrate. The notice of appeal said that he was appealing "because I am not guilty".
After considerable delay, occasioned principally by Mr Young's medical condition, Mr Young's appeal was heard by a judge of the District Court (the Appeal Judge) on 25 July 2016. The merits of Mr Young's appeal were not considered by the Appeal Judge, who dealt with the matter as an application under s 32(1)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Mental Health Act).
Section 32(1)(a) of the Mental Health Act relevantly provides that if, at the commencement or at any time during the course of the hearing of proceedings before a magistrate, it appears to the magistrate that the defendant is suffering from mental illness or is suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, that it would be more appropriate to deal with the defendant in accordance with the provisions of Pt 3 of the Mental Health Act than otherwise in accordance with law, the Magistrate may take the action set out in s 32(3).
Under s 32(3), the magistrate may make an order dismissing the charge and discharge the defendant on the condition that the defendant attend on a person specified by the magistrate for assessment or treatment (or both) of the defendant's mental condition. However, under s 32(4) a decision under s 32 to dismiss charges against a defendant does not constitute: "a finding that the charges against the defendant are proven or otherwise." As appears below, the RSPCA attaches some significance to that provision.
Before addressing the question raised under the Mental Health Act, the Appeal Judge briefly set out the facts relating to the charges under the Cruelty Act concerning the Mare. His Honour said that, on 31 August 2010, neighbours of a property belonging to Mr Michael Butz became aware of a horse that they believed belonged to Mr Young. The neighbours met Mr Young at the gate of the property, where they observed the Mare to be lethargic, to be in a poor condition and dehydrated and to appear to have been down for quite a while. His Honour said that the neighbours took the Mare home for veterinary treatment and then called Dr Wright, a veterinary surgeon. Dr Wright examined the Mare on 1 September 2010 and observed rain scald, heart murmur, urine building, a sunken rectal perianal area, extreme malnourishment and emaciation, lice, ocular discharge, unsteady gait, worn teeth, and an ulcerated tongue.
The Prosecutor, who is an inspector of the RSPCA, attended the Mare at the request of Dr Wright and made similar observations as to the condition of the Mare. On 2 September 2010, Mr Doherty, an equine veterinary surgeon, examined the Mare and observed that it had very poor body condition. On the following day, Dr Wright, accompanied by Dr Johnson, examined the Mare again and formed the view that it was cruel to keep the Mare alive and the Mare was then euthanised. A post mortem examination later that day disclosed a heavy internal parasite burden, extremely worn teeth and chronically ulcerated tongue, which were long-term conditions.
The Appeal Judge made no findings as such. More importantly, his Honour did not address the question of the mental element that would have been entailed in the offences with which Mr Young was charged. Rather, his Honour proceeded immediately to deal with the possible application of s 32(1)(a) of the Mental Health Act. His Honour said that he had taken into account the seriousness of the offence with which Mr Young was charged when balancing, on the one hand, the public interest in those charged with a criminal offence facing the full weight of the law, against, on the other hand, the public interest in treating or regulating, to the greatest extent practicable, the conduct of individuals suffering from any of the mental conditions referred to in s 32(1). In his Honour's view, it was appropriate in the case before him "to divert [Mr Young] from the criminal justice system".
Against that background, the Appeal Judge ordered that Mr Young's appeals be upheld and that the convictions, bonds and orders made by the Magistrate be set aside. His Honour ordered, pursuant to s 32(1)(a) of the Mental Health Act, that the charges against Mr Young be dismissed subject to conditions that Mr Young:

comply with and continue treatment with Dr Williams, a psychiatrist, or such other medical practitioner as is recommended by Dr Williams;
comply with any medical regime prescribed by Dr Williams or such other medical practitioner; and
attend counselling and other treatment as recommended by Dr Williams or any other medical practitioner.

The Appeal Judge did so on the basis that he had several reports from Dr Williams that Mr Young had suffered a serious head injury by being kicked in the head by a mare on 12 April 2012. In a report of 7 March 2016, Dr Williams reaffirmed his earlier reports that Mr Young suffers from a mental illness or condition, that treatment for that mental illness was available in a mental health facility and that Mr Young is not a mentally ill person as defined in the Mental Health Act. His Honour was satisfied that, at the time of the hearing of the appeal, Mr Young came within s 32 of the Mental Health Act.

Proceedings in the District Court

In the Statement of Claim, Mr Young alleged, relevantly, that:

from late 2011 and through 2012, he was maliciously criminally prosecuted by the RSPCA and the Prosecutor, culminating in his criminal conviction on 11 December 2012 by the Magistrate, and
his appeal from the conviction was upheld in the District Court on 25 July 2016, when the conviction was reversed and "the matter dismissed" by the Appeal Judge.

The RSPCA and the Prosecutor moved the District Court for summary dismissal of the Statement of Claim on the ground that it was embarrassing, frivolous or vexatious and an abuse of process and liable to be dismissed or struck out. One basis for their contentions was that one of the essential requirements for the tort of malicious prosecution could not be made out, because the proceedings on appeal from the Magistrate's orders had not been terminated in Mr Young's favour.

Reasons of the Primary Judge

The primary judge observed that the basis upon which the RSPCA and the Prosecutor sought summary dismissal of the malicious prosecution claim was that Mr Young did not obtain a successful termination of the prosecution. Her Honour observed that the contention advanced on behalf of the RSPCA and the Prosecutor was that Mr Young was not acquitted, that the offences under the Cruelty Act were in fact proved, although the charges were dismissed with conditions, pursuant to s 32 of the Mental Health Act and that the prosecution did not terminate in Mr Young's favour. [2] Her Honour observed that Mr Young relied on the orders made by the Appeal Judge that the convictions were set aside, with the consequence that there was a finding that no crime had been proved. [3] The Prosecutor and the RSPCA asserted that the facts set out in his Honour's judgment clearly demonstrated that the offences were proved beyond reasonable doubt. [4]
The primary judge then referred to the decision of Grove AJ in Quirk v State of New South Wales [2011] NSWSC 341, in which Grove AJ said that, given the structure of the Mental Health Act, a plaintiff who is dealt with under s 32(3) is not in jeopardy of further prosecution and, to the extent that it might be sought to argue its relevance, the plaintiff possesses a presumption of innocence in respect of the charges. His Honour was therefore satisfied that the plaintiff in that case had established the element of tort, that the proceedings had terminated in his favour. [5] Grove AJ referred specifically to s 32(4) as the basis for that conclusion, since it provided that the dismissal of the charges against the defendant "does not constitute a finding of the charges against the defendant are proven or otherwise". In that regard, s 32(3D) is also relevant in that it provides that, if a magistrate discharges a defendant subject to a condition under s 32(3), and the defendant fails to comply with the condition within six months of the discharge, the magistrate may deal with the charges as if the defendant had not been discharged. Thus, at least for a period of six months, a plaintiff dealt with under s 32(3) may still be in jeopardy of further prosecution.
The primary judge considered that the purpose of s 32(4) was to ensure that a decision to dismiss charges did not constitute a finding that the charges against the defendant are proven or otherwise. Her Honour said that that would mean that the judgment appealed from, which results in the orders, would similarly not stand as proof of anything. Her Honour considered that s 32(4) operated to ensure that a decision to dismiss the charges under s 32 does not constitute a finding that the charges are proven. However, her Honour then considered that the words "or otherwise" were "the key" and concluded that the words "or otherwise" in s 32(4) deprived Mr Young of an entitlement to a finding of a favourable termination. Her Honour considered that, while the RSPCA and the Prosecutor could not say that it was an unfavourable termination, Mr Young could not say that he had a favourable termination either. [6]
The primary judge accepted that s 32(4) means what it says, namely, that no conclusions or proofs arise at all where findings are made under s 32. Her Honour was satisfied that Grove AJ was "plainly wrong" to determine that there had been a favourable termination in the case before him. The primary judge also noted that, if the Court of Appeal was understood as endorsing the approach of Grove AJ, the decision of the Court of Appeal was similarly wrong. [7] Her Honour was satisfied that the s 32 orders did not constitute proof of successful termination and therefore that Mr Young's claim for malicious prosecution "accordingly fails". [8]

The Proceedings in this Court

By his amended summons filed on 30 June 2020, Mr Young seeks orders as follows: 1. Remand the matter to the District Court of New South Wales for hearing. 2. Judicially notice the prejudices the plaintiff has suffered in this action and require that suitable adjustments be made to ensure the plaintiff has equal access to the Court. 3. Declare that the dismissal referred to in the summons pursuant to s 32 Mental Health Act is a "… final decision in plaintiff's favour …" for the purposes of meeting the requirements of "… an element …" in an action for malicious prosecution. 4. Declare that the plaintiff must have the right of "… discovery …" of the defendants in the matter before the District Court of New South Wales.
The summons was filed in the Common Law Division of the Supreme Court. By notice of motion filed on 14 April 2020, the RSPCA sought summary dismissal of Mr Young's claim or, in the alternative, that the Court "wholly strike out" the summons. On 31 July 2020, for the reasons published on that day, [9] Adamson J ordered that the notice of motion be dismissed and that the proceedings be removed into this Court. This Court has now heard full argument in relation to the summons from Mr Young as well as from the RSPCA and the Prosecutor.
The elements required to establish the tort of malicious prosecution by a defendant are as follows:

proceedings being brought by the defendant;
the proceedings being of a kind to which the tort applies, being generally but not always, criminal proceedings;
termination of the proceedings in favour of the plaintiff;
the defendant acting maliciously in initiating or maintaining the proceedings; and
the defendant acting without reasonable and probable cause. [10]

The third element is critical. Several rationales have been advanced for the requirement, which is one of policy. The rationales evince the concern of the law with the consistency of judicial determinations, a concern that is distinct from proof of actual innocence or guilt. A plaintiff who is wrongfully convicted of an offence cannot maintain an action for malicious prosecution notwithstanding that there is irrefutable proof of innocence. [11]
Thus, a plaintiff must show that the prosecution ended in favour of the plaintiff. If it did, it does not matter how that came about, whether by a verdict of acquittal, by the reversal of a conviction on appeal, discontinuance of the prosecution, quashing of the indictment for a defect in the indictment or because the proceedings were judicial proceedings. [12] Favourable termination of the prosecution signifies, not that the accused has been acquitted, but that there has been no conviction. The rationale for the requirement for favourable termination is to eliminate the risk of diverse determinations by different courts on the same facts between the same parties. [13] The requirement that the prosecution has terminated avoids the possibility of conflict in the decisions of the Court hearing the criminal charge and the Court hearing the civil action.
A termination that does not result in conviction is favourable to the plaintiff for the purposes of the civil action. Thus, prosecutions may terminate in a number of ways without a verdict. For example, a magistrate may decide not to commit for trial. The Director of Public Prosecutions may not find a bill of indictment. The Director of Public Prosecutions may direct that no further proceedings be taken after a bill has been found or the Attorney General may enter a nolle prosequi. It might be arguable that a nolle prosequi is insufficient because it leaves the accused liable to be indicted afresh on the same charge. On the other hand, a plaintiff has no control over the termination of the proceedings in any of those ways and, in those circumstances, it would be unjust to deprive him or her of the ability to recover for the tort. Thus, the plaintiff is not required to demonstrate a judicial determination of his or her innocence. It is sufficient if the plaintiff can demonstrate the absence of any judicial determination of his or her guilt. [14]
The essence of Mr Young's contention is that the primary judge erred in concluding that he could not possibly succeed in establishing that the prosecution proceedings terminated in his favour. In that regard, it is essential to identify, at the outset, the relevant proceedings. The RSPCA points to the findings made by the Magistrate and the convictions entered by the Magistrate in the Local Court. However, that approach distracts attention from the proceedings in the District Court before the Appeal Judge. Pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (NSW), an appeal from a conviction in the Local Court to the District Court is by way of rehearing on the basis of the evidence given in the Local Court. However, while the fact that a conviction was secured at first instance may be strong evidence that there was reasonable and probable cause for the prosecution, that is a different question from whether the proceedings terminated in favour of the plaintiff accused person. Indeed, it would not even be conclusive as to reasonable and probable cause. [15]
The rationale for the requirement that the proceedings be terminated in favour of the plaintiff is primarily to avoid inconsistency of judgments. In effect, the RSPCA and the Prosecutor seek to go behind the orders made by the Appeal Judge in order to contend that the convictions by the Magistrate were not, in substance, set aside. It is significant that, as I have said, there was no examination by the Appeal Judge of all of the elements of the offences under the Cruelty Act with which Mr Young was charged. His Honour simply set out the facts as found by the Magistrate as the background against which to consider the discretion conferred by s 32 of the Mental Health Act. That is to say, in dealing with the application for the matter to be dealt with under s 32, his Honour assumed, for the purpose of the exercise of his discretion, that those facts were true, without necessarily making any findings.
The question before this Court is whether Mr Young has established that the primary judge erred on the face of the record, which includes her Honour's reasons, in dismissing the malicious prosecution claim summarily simply on the basis that there could be no doubt that the proceedings were not terminated in favour of Mr Young. It is clear that the charges against Mr Young were dismissed by the Appeal Judge, albeit on conditions. On that basis, the proceedings were terminated in favour of Mr Young. The primary judge erred in concluding to the contrary.
The RSPCA and the Prosecutor contend that, even if this Court were to accept that the primary judge erred in dismissing Mr Young's claims of malicious prosecution summarily, this Court ought, as a matter of discretion, decline any relief under s 69 of the Supreme Court Act 1970 (NSW), or alternatively, strike out the summons as an abuse of process.
First, the RSPCA contends that this Court should refuse relief under s 69 of the Supreme Court Act 1970 (NSW) in circumstances where another procedure was open to Mr Young to impugn the decision of the primary judge. Thus, it would have been open to Mr Young to seek leave to appeal to this Court on a question of law pursuant to Pt 51 of the Uniform Civil Procedure Rules 2005 (NSW) and obtain the same relief. The RSPCA complains that, had Mr Young proceeded in that manner, he would have been required to seek leave to appeal because the orders made by the primary judge were interlocutory. The RSPCA and the Prosecutor also contend that the quantum of damages to which Mr Young would be entitled, if the convictions were set aside, would be well below the threshold of $100,000, another reason why leave would be required. Further, the RSPCA and the Prosecutor contend that Mr Young would gain the collateral advantage of avoiding the time limitations on making applications for leave and that the process adopted by Mr Young amounts to abuse of the Court's process.
The RSPCA and the Prosecutor have in fact had the same opportunity to make the submissions that they would have if Mr Young had sought leave to appeal. Senior Counsel for the RSPCA accepted that all contentions that would have been advanced against a grant of leave to appeal were also advanced against the grant of relief under s 69. Thus, they were able to complain about issues such as the small quantum of damages to which Mr Young would be entitled and the time limits that would otherwise have been applicable. They did so in the context of the submissions against the Court exercising its discretion to order relief under s 69 of the Supreme Court Act.
Thus, the RSPCA did not lose any opportunity to oppose the grant of relief that they would otherwise have possessed if Mr Young had proceeded by seeking leave to appeal. Mr Young appeared in person without any legal representation. In the circumstances, the RSPCA's contentions are not a basis for refusing relief.
Secondly, the RSPCA and the Prosecutor supported their opposition to the grant of relief on the basis that the primary judge erred in rejecting the contention that Mr Young could not possibly establish a different element of the tort of malicious prosecution, namely, that the RSPCA and the Prosecutor acted without reasonable and probable cause in initiating the prosecution in the Local Court. The primary judge struck out the Statement of Claim but said that, had she not dismissed the claim summarily, she would have granted him leave to replead the element of the absence of reasonable and probable cause. If this Court is otherwise of the view that the primary judge erred in relation to the question of termination of the proceedings in favour of Mr Young, there is no basis for concluding that the primary judge would have erred in the exercise of the discretion had she granted Mr Young leave to replead his claim in malicious prosecution.

Conclusion

The primary judge erred in dismissing Mr Young's claim for malicious prosecution summarily. That is not to say that, in the result, it might be found that the tort has not been established. Whether that is by reason of want of termination of the proceedings in favour of Mr Young will be a matter for the trial judge.
It is by no means clear that the basis upon which the above orders are made was a basis that was advanced by Mr Young, who incurred no legal costs. There should be no orders as to costs of these proceedings in this Court. The costs in the District Court should be reserved for the District Court following the final disposition of the motion for summary dismissal.
In the light of those conclusions, I agree with the orders proposed by Leeming JA.
PRESTON CJ OF LEC: I agree with Leeming JA and Emmett AJA that the primary judge erred in dismissing Mr Young's claims of malicious prosecution summarily. The primary judge's reason was that Mr Young could not establish the element of the tort of malicious prosecution that the criminal proceedings against him for five offences under the Prevention of Cruelty to Animals Act 1979 were terminated favourably to Mr Young. As Emmett AJA explains, the primary judge erred in interpreting and applying to the facts this element of the tort of malicious prosecution. I add to Emmett AJA's fuller reasons, the following brief reasons.
First, the proceedings were terminated. Initially, the proceedings were terminated by a magistrate of the Local Court finding Mr Young guilty of the five charges, convicting him, sentencing him under s 9 of the Crimes (Sentencing Procedure) Act 1999, and ordering him to pay costs.
On appeal, the District Court, in exercising the function the Local Court had under s 32(3) of the Mental Health (Forensic Provisions) Act 1990, by dint of s 28 of the Crimes (Appeal and Review) Act 2001, made orders quashing the convictions and orders of the Local Court, dismissing the charges and discharging Mr Young on certain conditions.
This appellate intervention by the District Court had the consequence of terminating the proceedings in a different way to how the Local Court had terminated the proceedings, but it still effected a termination of the proceedings prosecuting Mr Young for the five offences.
Secondly, the proceedings were terminated favourably to Mr Young, the plaintiff in the civil action.
For a termination of proceedings to be favourable to the plaintiff, it is not necessary for the plaintiff to have been acquitted or proven his innocence: Beckett v State of New South Wales (2013) 248 CLR 432; [2013] HCA 17 at [58], [59].
Any termination of proceedings that does not result in conviction is favourable to the plaintiff for the purposes of the civil action: Beckett v State of New South Wales at [6]. Prosecutions may terminate in a number of ways without verdict: see the examples given in [6] of Beckett v State of New South Wales. No "merit assessment" of the guilt or innocence of the accused, who is later the plaintiff in the civil action, is required. The termination of a prosecution for a technical reason unconnected to the strength of the prosecution case is none the less one favourable to the plaintiff: Beckett v State of New South Wales at [50].
In the present case, although the prosecution did result in convictions in the Local Court, a result that was not favourable to Mr Young as the plaintiff in the civil action, the convictions were set aside and the charges dismissed by the District Court, a result that was favourable to Mr Young as the plaintiff.
In result, therefore, the proceedings were terminated favourably to Mr Young. The primary judge erred in concluding to the contrary.
I agree with the orders proposed by Leeming JA.

Endnotes

Relevantly, ss 6(1), 5(3)(c), 5(3)(o) and 8(1).
Primary Judgment at [21]-[22].
Primary Judgment at [24]-[25].
Primary Judgment at [26].
Wayne Quirk v The State of New South Wales [2011] NSWSC 341 at [82].
Primary Judgment at [40].
See State of New South Wales v Quirk [2012] NSWCA 216.
Primary Judgment at [44]-[46].
Young v Royal Society for the Prevention of Cruelty to Animals New South Wales t/as RSPCA [2020] NSWSC 1001.
See A v State of New South Wales (2007) 230 CLR 500 at 502-503; [2007] HCA 10 at [1] and Beckett v State of New South Wales (2013) 248 CLR 432 at 438; [2013] HCA 17 at [4] ("Beckett").
See Beckett at 438-439; at [5].
See J Goudkamp and D Nolan, Winfield and Jolowicz on Tort (Sweet & Maxwell, 20th ed, 2020) at [20-010] ("Winfield").
Ibid.
See Beckett at 439; at [6].
See Winfield at [20-011], fn 42.

Amendments 24 December 2020 - Representation: "N Nolan" changed to "N Olson" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2020

Mental Health (Forensic Provisions) Act 1990(NSW)

Young v Cooke [2018] NSWSC 588 Young v Royal Society for the Prevention of Cruelty to Animals New South Wales t/as RSPCA [2020] NSWSC 1001 Texts Cited: J Goudkamp and D Nolan, Winfield and Jolowicz on Tort (Sweet & Maxwell, 20th ed, 2020) W Holdsworth, A History of English Law (Sweet & Maxwell, 2nd ed, 1937) vol viii Category: Principal judgment Parties: Gary Young (Applicant) Royal Society for the Prevention of Cruelty to Animals New South Wales (First Respondent) Jean Sprague (Second Respondent) Representation: Counsel: Applicant in person S Chrysanthou SC with N Olson (First and Second Respondents)

Solicitors: Banki Haddock Fiora (First and Second Respondents) File Number(s): 2020/12872 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 754 Date of Decision: 17 December 2019 Before: Gibson DCJ File Number(s): 2019/198201

Too many interlocutory applications?

There has been troublingly extensive litigation between Mr Young and Mr and Mrs Cooke over the last ten years, with a heavy focus on interlocutory applications.
An early decision was that of the District Court on 23 November 2011, striking out but giving leave to Mr Young to replead claims against Mr and Mrs Cooke and the RSPCA, based on Mr Young's claim that some of the defendants had unlawfully cut locks to gain entry to Mr Young's land. This Court dismissed an application by Mr Young for leave to appeal: Young v Cooke [2013] NSWCA 79.
That litigation also concerned a cattle dog which Mr Young claimed was his and was unlawfully in the possession of Mr and Mrs Cooke. Young v Cooke [2016] NSWSC 408 at [7] refers to the interlocutory decisions in 2011, leading finally to a two day hearing in the Local Court in September and December 2014 and the dismissal of Mr Young's claims in June 2015. It was not clear to the Supreme Court in 2016 whether Mr Young had sought to exercise a right of appeal under ss 39 or 40 of the Local Court Act 2007 (NSW) or this Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW): see at [30]-[41]. The judgment was not on the merits, but rather dismissed the Cookes' application for summary judgment of the Supreme Court proceedings. The Court referred Mr Young to the Registrar for referral for pro bono assistance.

Procedural aspects of this litigation

The procedural history has been reproduced by Emmett AJA. That is not free from complexities, which are largely attributable to Mr Young's lack of legal representation and seeming determination to do things his own way. Before turning to Mr Young's substantive complaint concerning the summary dismissal of his action for malicious prosecution against the RSPCA and Ms Sprague in the District Court, on the basis that the primary judge considered the decision of Quirk v State of New South Wales [2011] NSWSC 341 to be plainly wrong, it is best to deal with the procedural complexities, so that they may be put to one side.
Rather than moving on a summons for leave to appeal from the interlocutory decision of the District Court, pursuant to s 127 of the District Court Act 1973 (NSW), Mr Young filed a summons in this Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW). He declined the Registrar's advice as to the appropriate means of invoking this Court's appellate jurisdiction.
The RSPCA pointed to a number of factors which, it was submitted, told against the exercise of the discretion invoked by Mr Young. They are summarised by Emmett AJA, and I agree with his Honour that they are of no avail.
The RSPCA maintained that the primary judge's decision should have been affirmed because her Honour should have dismissed the cause of action for malicious prosecution on the further basis that it was hopeless for him to establish an absence of reasonable and proper cause. That submission had been rejected by the primary judge at [54]-[55]. There is no basis to interfere with her Honour's contingent exercise of discretion on that point. Only in the clearest cases should a claim be dismissed on a basis turning on the facts without going to trial.
The RSPCA also pointed to the low value of the claim, the fact that the prosecution had happened many years ago, and the fact that the decision was one on practice and procedure and otherwise unremarkable. But there is a question of principle, in relation to which the District Court considered that the decisions of the Supreme Court were clearly wrong and chose not to follow them. To be fair, her Honour was not assisted as well as she was entitled. The RSPCA applied for summary dismissal, informing the primary judge that there were no decisions on point. It is to her Honour's credit that nonetheless she identified Quirk v State of New South Wales, and gave the parties an opportunity to be heard on that.
Ms Chrysanthou candidly accepted that her client was in no way prejudiced by the fact that Mr Young had invoked this Court's supervisory jurisdiction, as opposed to its appellate jurisdiction. As a general rule, a further fact telling against the exercise of the discretionary jurisdiction pursuant to s 69 is the availability of a right of appeal (including a right to seek leave to appeal). It should not be thought that by the device of a summons pursuant to s 69, a disappointed litigant can outflank or in any way obtain an advantage beyond the right of appeal conferred by statute. However, in the present case, Mr Young is unrepresented and at least in the past has suffered serious injury. In those unusual circumstances, Mr Young should not be denied relief because of the form of his originating process.

Further submissions by the RSPCA after judgment was reserved

The hearing in this Court took somewhat more than an hour, and judgment was reserved before noon on Friday 13 November. By email sent at 7.12pm that evening, Friday 13 November 2020, Mr Burke, the solicitor for the RSPCA, provided a substantial submission. It was sent directly to all Associates of the judges constituting the Court, to senior and junior counsel and to Mr Young. The body of the email was as follows: "During the hearing today, the Court asked Ms Chrysanthou SC about the nature of an appeal against conviction from the Local Court to the District Court. Ms Chrysanthou answered that the appeal was a hearing de novo. On further consideration, we wish to correct this answer. Pursuant to s 18 of the Crimes (Appeal and Review) Act 2001, an appeal against conviction from the Local Court to the District Court is by way of rehearing on the basis of the evidence given in the Local Court. A link to the relevant legislation is here, for the Court's convenience - https://www.legislation.nsw.gov.au/view/html/inforce/current/act-2001-120#sec.18 The writer has attempted to obtain the consent of Mr Young to send this note by emailing and telephoning him but has had no response to the email and was only able to leave a telephone message which has not yet been returned. We and counsel considered it important to correct the position urgently in order to ensure that the court was not misled by counsel's response as referred to above. Mr Young is obviously copied into this email as well."
Not unpredictably, Mr Young responded, on Sunday afternoon. He advised that he had been away from home on business on Friday afternoon and that his mobile phone had been flat after the hearing. He said that at no time whatsoever was he expecting a call from Mr Burke. He said that had he been given notice of the submission, he would have advised Mr Burke that "he was against sending further material to the Court after the conclusion of the appeal hearing". He observed, with respect correctly, that "given that Mr Burke has already sent the material to the Court it is simply impossible to unsend it". He thereafter advanced a further submission of his own that he wished to make to the Court. His email concluded: "Appellant is still suffering the severe effects of the almost fatal horse kick to the head and the daily very heavy doses of prescribed psychotropic drugs still being used to treat that condition have a slowing down effect on appellant[']s mental speed and reaction times".
My Associate contacted the parties on Monday morning advising that Mr Burke's email should not have been sent. That should have been obvious to the experienced solicitor and counsel briefed.
The email sent on behalf of the RSPCA amounted to a substantive submission, after judgment was reserved, without leave, and without the permission of the other side. Instances where this has been described as "unsatisfactory", "impermissible" and "misconceived", by either the High Court or this Court, were collected in Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [49] (three decisions of the High Court, five decisions of this Court). The judgment continued at [51] as follows: "The position is a fortiori when counsel's opponent is unrepresented. Some unrepresented litigants are themselves prone to provide material to the court without leave after judgment is reserved. Their culpability may be less than that of a legal practitioner, for they may not be expected to be familiar with basic precepts of practice which have been stated and restated by the High Court and this Court."
In my opinion, the conduct is worse when, to the knowledge of the RSPCA, the unrepresented litigant claims to suffer, and has been held by a court to be suffering from, a mental illness following a serious physical injury to his head.
What occurred on Friday evening after judgment was reserved should not have occurred. Nor should it have been necessary in these reasons to repeat the basal precepts in the previous two paragraphs.

Orders

It follows that order 1 made by the District Court on 17 December 2019 should be set aside.
The primary basis advanced in the District Court by the RSPCA was the point addressed in this Court's reasons. That has been resolved adversely to it. The RSPCA also advanced other submissions, which were rejected by the primary judge at [48]-[61]. It follows that insofar as the respondents' notice of motion sought dismissal of Mr Young's cause of action for malicious prosecution, it should have been dismissed.
Where in the exercise of this Court's supervisory jurisdiction, the orders which were made at first instance are set aside and there is only one order that may be made in its place, there is power to make such an order: Wende v Howarth (No 2) (2015) 91 NSWLR 588; [2015] NSWCA 416 at [19], Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [99]-[101] and Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [47]. To the extent there may be any doubt about that, in any event, as noted above, Mr Young could and should have exercised a right of appeal pursuant to s 127 of the District Court Act in which case it would have been clear that there was power to make the order which should have been made by the court at first instance.
Mr Young has incurred no costs, and his summons extended beyond the point on which his success has been based. There is no occasion to make any order as to the costs in this Court. The balance of the summons should be dismissed.
The primary judge reserved the question of the costs of the first, second and third defendants on the application (which had been heard simultaneously with their application to dismiss Mr Young's claim of abuse of process). So far as I am aware, no order has been made (if that is wrong, it will be clear from this Court's decision that the costs discretion will need to be re-exercised). No further order is required to be made by this Court.
I propose these orders:
Set aside order 1 made on 17 December 2019, and in lieu thereof, dismiss the application for summary dismissal of Mr Young's cause of action for malicious prosecution.
Otherwise dismiss the amended summons filed on 30 June 2020 in this Court.
No order as to the costs of the proceedings in this Court, with the intention that the parties bear their own costs.
Note that the costs of the application for summary dismissal in the District Court are reserved in the District Court for the later consideration of that Court.
EMMETT AJA:

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