Young v Royal Society for the Prevention of Cruelty to Animals New South Wales t/as RSPCA

The background to the application

1. Before addressing the orders sought in the notice of motion, it is necessary to summarise the background to the proceedings in this Court, which were established by the affidavit of Bruce Burke sworn on 14 April 2020. There was no challenge to this evidence.

The prosecution of the plaintiff in the Local Court

1. On 18 July 2011, five court attendance notices were issued in and from the Local Court at Goulburn, naming the plaintiff as the defendant in relation to offences under the Prevention of Cruelty to Animals Act 1979 (NSW) (the Act). The RSPCA is empowered under the Act to bring such proceedings. The charges were heard by Beattie LCM who gave judgment on 11 December 2012. Her Honour found, beyond reasonable doubt, that the plaintiff had committed aggravated cruelty against a chestnut mare (contrary to s 6(1) of the Act); failed to provide necessary veterinary treatment to the chestnut mare (contrary to s 5(3)(c) of the Act); and failed to provide the chestnut mare with sufficient and proper food in circumstances where it was reasonably practicable for him to do so (contrary to s 8(1) of the Act).
2. After finding the charges proved beyond reasonable doubt, her Honour heard submissions on penalty. In respect of charges 2, 3, 4, and 5, her Honour, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), convicted the plaintiff but imposed no further penalty.
3. In respect of charge 1 (the aggravated cruelty charge), her Honour placed the plaintiff on a bond for two years pursuant to s 9 of the Crimes (Sentencing Procedure) Act. Her Honour then made costs orders.

The plaintiff's appeal to the District Court against his convictions

1. On 11 December 2012, the plaintiff filed a notice of appeal against his convictions pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). He was entitled to do so as sentence had already been imposed: s 11(2)(a) of the Crimes (Appeal and Review) Act. The sole ground of appeal identified by the plaintiff was that he was not guilty.
2. The appeal was determined by Jeffreys DCJ on 25 July 2016. The evidence did not reveal the reason for the delay, although Jeffreys DCJ noted in his reasons that the plaintiff suffered a serious head injury as a result of being kicked by a mare on 12 April 2012. Several medical reports by Dr Williams, psychiatrist, were tendered before Jeffreys DCJ. His Honour noted that, in a report dated 7 March 2016, Dr Williams said: "I reaffirm that: 1. Mr Young suffers from a mental illness or condition. 2. Treatment for his mental illness is available in a mental health facility. 3. Mr Young is not a mentally ill person as defined in the Mental Health Act."
3. In a subsequent report dated 16 June 2016, Dr Williams confirmed that this opinion remained current. On this basis, his Honour found that s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) applied.
4. Section 32 relevantly provides: "32 Persons suffering from mental illness or condition or cognitive impairment (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): … (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). … (3) The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate: (i) for assessment or treatment (or both) of the defendant's mental condition or cognitive impairment, or (ii) to enable the provision of support in relation to the defendant's cognitive impairment, or (c) unconditionally. (3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate. (3B) If the defendant fails to appear, the Magistrate may: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged. (4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise. (4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3). (4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section. …"
5. As referred to above, his Honour found, on the basis of the reports of Dr Williams, that the plaintiff fell within s 32(1)(a) of the Mental Health (Forensic Provisions) Act and continued to fall within that section at the time of the hearing. His Honour's reasons for being satisfied, pursuant to s 32(1)(b), that it would be more appropriate to deal with the defendant under that part of the Act rather than "otherwise in accordance with law" were as follows: "I have taken into account the seriousness of the offence when balancing the public interest in those charged with a criminal offence facing the full weight of the law against 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 my view, it is appropriate in this matter to divert the appellant from the criminal justice system. I have before me a treatment plan by Dr Williams. Accordingly, I propose to divert the appellant from the criminal justice system on a treatment plan, but it will be a condition of the treatment plan that he continue to see Dr Williams or such other medical practitioner as recommended by Dr Williams, that he continue any medical regime and counselling recommended by Dr Williams or such other medical practitioner, that he attend such counselling or other treatment as recommended by Dr Williams or such other medical practitioner."
6. On 25 July 2016 his Honour made the orders in the terms which are evident from the following extract from the reasons: "Accordingly, the appeals are upheld. The convictions, bonds and orders made by the learned Magistrate are set aside. Pursuant to s 32(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I order the charges be dismissed and the appellant discharged subject to the following conditions: • That he comply with and continue treatment with Dr Williams or such other medical practitioner as is recommended by Dr Williams. • That he comply with any medical regime prescribed by Dr Williams or such other medical practitioner. • That he attend counselling and other treatment as recommended by Dr Williams or other medical practitioner."

The plaintiff's claim for damages in the District Court

1. By statement of claim filed on 26 June 2019 (which was subsequently amended), the plaintiff claimed damages against the RSPCA, Ms Sprague, a lawyer who acted on the prosecution of the plaintiff in the Local Court, the Australian Broadcasting Corporation and Google Inc. The claims against all defendants other than the RSPCA and Ms Sprague have been dismissed. Accordingly, it is only necessary to address the claims against the RSPCA and Ms Sprague which were for malicious prosecution, abuse of process and defamation.

The defendants' motion to strike out in the District Court

1. The RSPCA and Ms Sprague moved the District Court to strike out the claims against them on various bases. They sought to have the plaintiff's claim for malicious prosecution summarily dismissed on the basis that the plaintiff could not establish the claim as he did not obtain a successful termination of the prosecution, that being an element of the cause of action for the tort of malicious prosecution.
2. The defendants' application was heard by Gibson DCJ on 28 November 2019 and determined on 17 December 2019: Young v RSPCA (No 2) [2019] NSWDC 754. Her Honour extracted the elements of the cause of action for malicious prosecution from A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1], which included "that the proceedings be terminated in favour of the plaintiff".
3. Her Honour located the decision of Grove AJ in Quirk v State of New South Wales [2011] NSWSC 341 (Quirk). Her Honour extracted the following passage from the judgment of Grove AJ: "[80] The defendant has submitted that the plaintiff has not pleaded (nor proven) favourable termination of the relevant charges. It is admitted on the pleadings that the charges were dismissed as above recounted on 2 November 2007 (sic 2 November 2006). At the risk of repeating comments made during the hearing about the quality of pleading, I am content to approach the issue on the basis that it was intended by the expression of dismissal to assert a relevant termination in the plaintiff's favour. [81] In support of its contention, the defendant drew attention to the remarks of Isaacs ACJ and Starke J in Davis v Gell (1924) 35 CLR 275 concerning proof of innocence where a prosecution had been brought to an end by the entry of a nolle prosequi. The observations in that case must be understood in the light of the later authority of Commonwealth Life- Assurance Society v Smith (1938) 59 CLR 527 where it was noted (at page 540) that, before Davis v Gell , no one appears to have supposed that, where the prosecution broke down before a magistrate a plaintiff was in a less favourable position than a plaintiff who had been acquitted after trial. The joint judgment (Rich, Dixon, Evatt and McTiernan JJ) proclaims that, except in the case of a nolle prosequi, the guilt or innocence of a plaintiff is not an issue going to the cause of action in malicious prosecution (at page 543). [82] Given the structure of the mental health provisions above noted, the plaintiff 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. I am satisfied therefore that the plaintiff has established the element of the tort that the proceedings terminated in his favour." [Emphasis added.]
4. It was accepted that although this decision had been appealed, the relevant point was not the subject of consideration by the Court of Appeal although Tobias AJA (Beazley and Hoeben JJA agreeing) said, "The proceedings with respect to those offences were relevantly terminated in favour of the respondent": New South Wales v Quirk [2012] NSWCA 216 at [3].
5. At the hearing before Gibson DCJ, Ms Chrysanthou sought to distinguish Quirk on the basis that, in that case, there had been no finding of guilt, whereas the magistrate had found the plaintiff guilty in the present case. Her Honour rejected that distinction.
6. Nonetheless, her Honour considered that she was obliged, notwithstanding Quirk, to find that the words "or otherwise" at the conclusion of s 32(4) of the Mental Health (Forensic Provisions) Act had the effect that the making of an order under s 32 could not be said to be either a favourable or an unfavourable termination of the proceedings. Accordingly, her Honour found that the claim for malicious prosecution ought be struck out on the basis that this element of the cause of action could not be established. It is plain from her Honour's reasons that she considered that Quirk was wrongly decided.

The proceedings in this Court

1. As referred to above, the plaintiff filed a summons seeking relief under s 69 of the Supreme Court Act. In substance, he seeks a declaration that the dismissal of the charges under s 32 of the Mental Health (Forensic Provisions) Act amounted to a final decision in his favour and an order remitting the matter to the District Court to be determined on that basis. In substance, his substantive argument is that Quirk was correctly decided and that, in any event, Gibson DCJ was bound to follow it.

The defendants' application

1. The RSPCA and Ms Sprague sought to strike out the proceedings on the basis that they amounted to an abuse of process. Ms Chrysanthou contended that, by invoking this Court's jurisdiction under s 69 of the Supreme Court Act, the plaintiff was plainly trying to get around the leave requirement which would apply if he were to seek to appeal against the decision of Gibson DCJ. She relied on decisions of the Court of Appeal where a party aggrieved by a decision of the Licensing Court had chosen to invoke the court's jurisdiction under s 69 of the Supreme Court Act at the same time as applying for leave to appeal under s 146 of the Liquor Act 1982 (NSW) (now repealed).
2. In Meagher v Stephenson (1993) 30 NSWLR 736, the appellant appealed against the dismissal of his claim for relief under s 69 of the Supreme Court Act and of his appeal under s 146 of the Liquor Act. The Court (Priestley, Handley and Cripps JJA) said, of present relevance: "Objectors in Liquor Act cases have increasingly sought to circumvent this requirement for leave by including a claim for judicial review in appeals under s 146. There is much to be said for the view that certiorari for non- jurisdictional error on the face of the record is not an "appropriate" remedy in such cases and the remedy by appeal is the 'most … convenient in the public interest': see also R v Elliott; Ex parte Elliott (1974) 8 SASR 329. It appears to us that a claim for certiorari that is joined to an appeal under s 146 of the Liquor Act merely for the purpose of securing an appeal as of right to this Court, may well be an abuse of process which could be struck out in accordance with the principles applied in O'Reilly v Mackman [1983] 2 AC 237 at 254, 285. While this principle has proved difficult of application in the United Kingdom in some judicial review cases (see Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624) no such difficulties appear to arise in cases such as the present. Indeed, it may also be open to a respondent to apply to strike out an appeal as of right on the same principles. It may be that there are cases where it is appropriate to take proceedings of the prerogative kind rather than to appeal pursuant to s 146 but there seems no justification, indeed it could be an abuse of process, to take both simultaneously."
3. In this passage, the Court deprecated the simultaneous bringing of proceedings while accepting that, in some cases, it might be more appropriate to seek relief in the nature of prerogative relief rather than to appeal. This does not support the proposition for which Ms Chrysanthou contended: namely, that an application under s 69 of the Supreme Court Act is necessarily an abuse of process if there is a right of appeal with leave.
4. Ms Chrysanthou also relied on Hill v King (1993) 31 NSWLR 654 in which the appellant appealed from a decision of Smart J refusing prerogative relief and dismissing an appeal under s 146 of the Liquor Act. The Court (Clarke, Handley and Sheller JJA) said at 659: "Where the same court has both appellate and supervisory jurisdiction in respect of the same order and the grounds for challenging that order, if established, would support the grant of either prerogative or appellate relief the court must decide which form of relief will be granted. If the order were set aside on the appeal there would be nothing left for the court to prohibit or quash and vice versa. The case would be one where the party aggrieved had alternative and inconsistent remedies. Accordingly, proceedings in the nature of prohibition and certiorari directed to the Licensing Court in circumstances where appellate relief is or was also available are necessarily discretionary. In our opinion, therefore, a judge hearing an appeal under s 146 of the Liquor Act who is faced with claims for prerogative relief has a discretion to refuse that relief, even where jurisdictional error is alleged. Ordinarily, a second summons claiming prerogative relief should be struck out as an abuse of process."
5. Although the Court said that a second summons claiming prerogative relief (there being already a summons for leave to appeal under s 146 of the Liquor Act) would be an abuse of process, I do not discern any indication that a summons for relief in the nature of prerogative relief would be, without more, an abuse of process.

Whether the proceedings in this Court amount to an abuse of process

1. It was submitted by Ms Chrysanthou that, in the absence of any explanation as to why the plaintiff had chosen to proceed under s 69 of the Supreme Court Act, it can be assumed that he did so in order to circumvent the leave requirement in s 127(2)(a) of the District Court Act 1973 (NSW) which applies to appeals from interlocutory decisions, including summary dismissal of a claim: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA, Kirby P agreeing). I am not satisfied that this was the reason for the plaintiff's choice of which jurisdiction to invoke.
2. However, whatever be the reason for the plaintiff's choice, he has invoked the jurisdiction of the Court under s 69 of the Supreme Court Act. While there may be some forensic advantages to him, since leave is not required, there are also potential disadvantages arising from the limits on the jurisdiction and the circumstance that relief might be refused on discretionary grounds because of the existence of a statutory avenue for appeal.
3. I am not satisfied, in these circumstances, that the proceedings are an abuse of process.

Whether there is a reasonable cause of action disclosed

1. The second basis on which the defendants sought to have the summons dismissed was that there was no arguable jurisdictional error or error of law on the face of the record identified in the decision of Gibson DCJ to dismiss the claims for malicious prosecution. Ms Chrysanthou sought to have me decide the question of whether Quirk was correctly decided in determining her argument on the notice of motion. I am not persuaded that this would be an appropriate course since this is a substantive matter to be determined after argument and is the foundation of the plaintiff's application pursuant to s 69 of the Supreme Court Act. Further, the doctrine of precedent applies and there are significant limits on the extent to which single judges can depart from previous decisions.
2. In my view, the question whether it was open to Gibson DCJ to find that the plaintiff would not be able to establish the element of the tort of malicious prosecution that the proceedings be determined in his favour, could involve a question, and therefore, an error, of law, since it would appear to be at odds with the decision of Quirk. This is not to say that the facts are unimportant but I am not satisfied that this is a case where the law is so clear that the proceedings ought be summarily dismissed on this basis.

Whether the summons ought be struck out on the basis of embarrassment and delay

1. Ms Chrysanthou also submitted that the form of the summons was so opaque that it ought not be permitted to stand. She contended that I ought strike out the summons in its entirety pursuant to UCPR, r 14.29(1)(b) and refuse the plaintiff leave to replead.
2. There are allegations in the further amended summons that would fall outside the Court's jurisdiction under s 69 of the Supreme Court Act, including several complaints about the procedures of the Court below and allegations that particular witnesses have perjured themselves. However, to strike out the present summons and not permit leave to replead would deprive the plaintiff of his right to invoke the Court's jurisdiction. As Sperling J said in Australian Securities and Investments Commission v Farley (2001) 51 NSWLR 494; [2001] NSWSC 326 at [24]: "An appeal pursuant to s 104 [of the Justices Act 1902 (NSW)] would have been preferable, but I think that the day has passed when rights were lost because of the form of proceedings."
3. To strike out the further amended summons and permit leave to replead would not necessarily advance the proceedings. The Court which hears the substantive matter will be confined by the limits of s 69 of the Supreme Court Act in any event, whatever extraneous matters are raised in the summons.

Conclusion

1. For the reasons set out above, I propose to dismiss the defendants' notice of motion.

The further conduct of the proceedings

1. As set out above, these proceedings ought to have been commenced in the Court of Appeal. Although I was satisfied that it was appropriate to hear and determine the defendants' notice of motion, I infer that the parties' enthusiasm for this course was in part a result of the fact that the matter had been listed for hearing before me, the jurisdictional point not having been taken by the Court or by the defendants in the directions hearings before the Registrar. I am not, however, persuaded that it would be appropriate for the proceedings to remain in this Division. There is much to be said for their removal to the Court of Appeal. First, the point raised by the plaintiff requires consideration of the correctness of Quirk. Whether it is to be approved or overruled is a matter for the Court of Appeal. Secondly, if the matter were determined in this Division, there would appear to be a right of appeal to the Court of Appeal. This would add another layer to the proceedings, which would not be conducive to their efficient disposition.
2. As I have not heard the parties on the removal of the proceedings to the Court of Appeal, I will make provision for any submissions to be provided to me in the orders set out below.

Costs

1. Although Mr Young appeared for himself, and thus would not appear to have incurred any costs, it is nonetheless appropriate to order costs, in the event that some have been incurred. There would appear to be no reason why costs ought not follow the event in accordance with the general rule in UCPR, r 42.1.

Orders

1. For the reasons given above, I make the following orders: 1. Dismiss the defendants' notice of motion filed on 14 April 2020. 2. Order the defendants to pay the plaintiff's costs. 3. Subject to order (4) below, order, pursuant to s 51(1)(b) of the Supreme Court Act 1970 (NSW) that the proceedings be removed into the Court of Appeal and list the matter before the Registrar of the Court of Appeal at 9am on Monday 10 August 2020. 4. If either party opposes the order for removal in (3) above, direct such party to send to my Associate by email any submissions on which he, she or it proposes to rely, by 5pm on 4 August 2020, in order that the question of whether order (3) ought be vacated can be determined on the papers before the listing date in order (3).

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