Court of Appeal
Rock v Henderson (No 2) [2025] NSWCA 47 (28 March 2025) – New South Wales Court of Appeal
‘Malicious prosecution’ – ‘Apprehended Domestic Violence Order (ADVO)’ – ‘Trespass’ – ‘Delay in giving reasons for judgment’ – ‘Alleged battery’ – ‘Relationship breakdown’ – ‘Stalking’ – ‘PTSD’-‘systems abuse’
Proceedings: Appeal of dismissed claims; application for leave to appeal dismissed claims.
Charges: Malicious prosecution x1, trespass x 1, battery x6
Facts: The applicant, Mr Rock, and the respondent, Ms Henderson were married and had two children [7]. Ms Henderson had provided material to Constable Pitt who applied for a provisional ADVO against Mr Rock. The material included an incident at Sydney Airport when Mr Rock had confronted Ms Henderson and the man she was travelling with [8]. Mr Rock consented to an interim ADVO pending a final hearing [12], at which the judge found that the test had not been met for a final ADVO to be issued [16].
Later, Mr Rock and the two children were returning from a holiday when they found Ms Henderson at their home [17]. According to Mr Rock, she was tampering with a fuse box. She left promptly, but was charged with contravening the ADVO that was in place against her. Mr Rock made claims for malicious prosecution in respect of the ADVO taken out against him by Ms Henderson, and for trespass in respect of Ms Henderson’s presence at the home [18]. Ms Rock, one of the children, brought a proceeding for six alleged counts of battery against Ms Henderson relating to separate events [21]. The two claims were heard together. Orders were made, with the reasons for the orders given 3 months later [23], [29].
Grounds of Appeal: The applicant raised several grounds on appeal. It is helpful to have reference to the court’s framing of these into three issues [34]:
1.
What consequences, if any, follow from the fact that the primary judge did not give her reasons for decision until 3 months and 4 days after delivering judgment?
2.
Is the tort of malicious prosecution available in respect of the procuring of an ADVO?
3.
Should the appeal succeed on its merits?
Ms Rock’s appeal relied on the same ground as the applicant regarding the delay in giving reasons after making orders. Her remaining grounds concerned liability and damages [35].
Decision and Reasoning: The Court reviewed the case law in respect of delays in delivering reasons for judgment. The Court found that, in general, a court should not make final orders without giving reasons (where reasons are required) unless there is sufficient cause to take that course, e.g. because of urgency [60]. The reasons are due “as soon as reasonably practicable after judgment is delivered” [60]. The Court found that the reasons in this case were not delivered “as soon as reasonably practicable”, but concluded that nothing came of this other than some delay in hearing of the appeal – this did not merit a retrial [65].
Regarding the tort of malicious prosecution and whether this tort would encompass taking out an ADVO, the Court again began by canvassing the case law and the Crimes (Domestic and Personal Violence) Act 2007 [66]. The Court held that the tort did not encompass taking out an ADVO [166]. The Court went on to explain why the applicant would not have been successful on the tort in any event [189]. The Court found that the trespass claim had been made out, but that since there had been no loss, the applicant was entitled to nominal damages only [215]. The grounds comprising Ms Rock’s appeal were either dismissed, or leave was refused in request of them [218].
Rahman v Rahman [2024] NSWCA 198 (8 August 2024) – New South Wales Court of Appeal
'Following, harassing and monitoring' – 'Stalking' – 'People with children' – ‘Systems abuse’ – ‘Jurisdictional error’ –‘telephone evidence’
Case type: Application for judicial review in the NSW Court of Appeal.
The applicant, Fahmid Rahman, challenged a decision of the District Court to dismiss his appeal against an extension of a final apprehended domestic violence order (‘ADVO’) made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The application was treated as seeking judicial review on grounds of jurisdictional error.
Charges: Stalking (x1); intimidation (x1) [NB: These were the previous convictions, please note the court did not consider these charges, the Court treated the matter as an application to review for jurisdictional error only.]
Facts:
1.
The applicant and the first respondent were formerly married. They have two children. The children are in the sole care of the applicant, Mr Rahman.
2.
On 17 February 2022, a final ADVO was made against Mr Rahman for the protection of Ms Rahman, prohibiting him from approaching her residence or workplace, including the former matrimonial home. Although Mr Rahman had previously been acquitted of assault, he was convicted of stalking and intimidation.
3.
Before the ADVO expired, Ms Rahman sought an extension under s 73(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), alleging ongoing fear of Mr Rahman and citing his controlling behaviour and continued litigation against her. Magistrate Swain extended the ADVO by two years. Mr Rahman appealed to the District Court, which dismissed the appeal after a rehearing, finding that the complainant continued to fear personal violence.
4.
The primary judge referred to the applicant’s litigation conduct as ‘systems abuse’ and upheld the extension.
5.
Mr Rahman then sought judicial review of the upholding of the extension in the Court of Appeal.
Grounds of Appeal: Mr Rahman relied on four grounds of alleged jurisdictional error.
1.
Denial of natural justice. This ground asserts jurisdictional error on the part of both the magistrate and the primary judge, that error being identified as denying the applicant natural justice.
2.
Failure to consider material considerations. This ground asserts a failure by the primary judge to consider a material consideration “being the reasons for the appellant’s failure to cross examine with proper identification/failure to attend court”.
3.
Procedural unfairness. This ground complains of procedural unfairness, describing this as “being not transparent in actions/decisions” and goes on to make a serious allegation that the decision was in bad faith.
4.
Consideration failures. This ground alleges that irrelevant considerations were taken into account and/or relevant considerations were not taken into account.
Decision: The NSW Court of Appeal (Ward P, Adamson and Stern JJA) dismissed the application, finding no jurisdictional error in the District Court proceedings. The Court ordered Mr Rahman to pay the respondent’s costs.
Reasoning:
Ground 1: The applicant alleged that both the magistrate and the primary judge committed a jurisdictional error by denying natural justice [32]. The Court first held that judicial review of the magistrate’s decision was not competent, as those orders had merged into and been superseded by the District Court’s orders on appeal [33].
As for the primary judge, the applicant argued that natural justice was denied because the judge allowed evidence from three telephone witnesses without proper identification or affidavit and failed to refer to section 73(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) [34]–[35]. These actions were said to breach procedural fairness and amount to a jurisdictional error under Craig v South Australia (1995) 184 CLR 163 at 177 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531 [36]–[37]. The Court rejected this. It confirmed that permitting telephone evidence, particularly where the applicant had introduced late evidence himself, did not breach procedural fairness. Further, there was no jurisdictional error, as the applicant’s own counsel had accepted the procedure at trial without objection [41].
The core argument advanced in oral submissions was that the primary judge failed to identify a “change in circumstances” as required by s 73(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The Court held this was misconceived; s 73(3) does not impose a jurisdictional condition, but merely allows a court to decline to hear an application where there has been no change, and it appears to be an appeal in disguise [45]–[47].
In any event, the judge did address the relevant facts, noting a proliferation of litigation and continued contact attempts through emails as evidence of changing circumstances, satisfying the test under s 73(1) that it was "proper in all the circumstances" to extend the order [48].
Ground 2: The applicant argued that the primary judge failed to consider a material issue, namely, his inability to cross-examine witnesses who gave evidence via telephone without “proper identification” [50]. The Court rejected this argument. The telephone evidence arose only because the applicant sought leave to rely on a late-served affidavit from Mr Syed. In response, the judge allowed the respondent to call three reply witnesses by phone to avoid prejudice from the late filing [52]–[54].
Before the affidavit was read, the judge confirmed with the applicant’s counsel that this course was understood and accepted. The applicant’s counsel raised no objection at the time and each witness was properly sworn, identified, and cross-examined [55]–[57].
The applicant’s later claim that he could not verify the identity of phone witnesses or cross-examine them effectively was inaccurate, his counsel conducted cross-examination and made no complaint during the hearing. The Court confirmed that admitting telephone evidence was within the judge’s procedural discretion and did not amount to a denial of procedural fairness or jurisdictional error [58]–[59].
Ground 3: The applicant claimed that the District Court proceedings were procedurally unfair due to a lack of transparency, that the decision was made in bad faith, and that the wrong legal test was applied when assessing whether to extend the ADVO. The Court firmly rejected all aspects of this ground [70].
First, the Court found no lack of transparency or procedural unfairness. While the primary judge’s reasons were brief and delivered ex tempore, they were adequate in context. The Court reiterated that when evaluating the sufficiency of reasons, it is essential to consider the nature of the proceedings and the constraints on the decision-maker, particularly where reasons are given orally at the conclusion of a full-day hearing with another matter the Court needed to hear (Wainohu v New South Wales (2011) 243 CLR 181 at [56]; NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578 at [70]) [62].
Second, the Court found no evidentiary basis for the serious allegation of bad faith. It warned that such assertions should not be made lightly and must be specifically pleaded and supported by evidence, especially where submission are made by or under the name of a solicitor, as an officer of the Court [64]–[65].
Third, the applicant contended that the judge erred by applying the balance of probabilities standard rather than a higher threshold. This was found to be legally incorrect. Under s 16(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the correct standard of proof is on the balance of probabilities. The Court explained that Briginshaw v Briginshaw (1938) 60 CLR 336 does not alter the standard but recognises that more serious allegations require stronger evidence to reach that standard (at 362–363). The judge had properly applied this principle, as well as s 140(2) of the Evidence Act 1995 (NSW) [66]–[68].
Finally, the Court held that the primary judge clearly indicated his independent state of satisfaction that the complainant feared the applicant, the core requirement under s 16(1) of the Act. No error, and certainly no jurisdictional error, was established [69].
Ground 4: The applicant argued that the judge erred by referring to outstanding costs orders and to the National Domestic Violence Bench Book. The Court held these were both permissible references. The costs orders were part of the procedural history and directly relevant to the respondent’s evidence about the stress and anxiety as a result of the proliferation of litigation [73]. The Bench Book was cited in relation to "systems abuse", in the context of the submission by the first respondent’s solicitor as to the persistence in the applicant’s pursuit of litigation against the first respondent. The Court affirmed that neither point gave rise to jurisdictional error [74].
Rock v Henderson [2021] NSWCA 155 (29 July 2021) – New South Wales Court of Appeal
‘Abuse of process’ – ‘Appeal’ – ‘Breach of protection order’ – ‘Children’ – ‘Family court proceedings’ – ‘Female perpetrator’ – ‘Improper purpose’ – ‘Malicious prosecution’ – ‘Protection order’ – ‘Separation’ – ‘Systems abuse’ – ‘Trespass’
Proceeding: Application for leave to appeal against striking out Statement of Claim in full.
Facts: The male applicant and female respondent were formerly husband and wife with financial and child proceedings pending in the Family Court. In 2018 there was an incident at Sydney Airport between them where it was alleged the applicant approached the respondent and her current partner and caused her humiliation and embarrassment [58]. The respondent made a written statement which led to the police obtaining a provisional protection order against the applicant [54]. It was dismissed in June 2019 [4].
The applicant sued the respondent for damages for malicious prosecution and for trespass to land. The malicious prosecution submission related to the protection order application [4]. The trespass to land submission related to the respondent entering the applicant’s property in July 2019 where the children, whom she was prohibited from approaching by a separate protection order, resided with him [4]. The respondent filed a Notice of Motion to the District Court seeking the claim be struck out, in full or in part pursuant to Uniform Civil Procedural Rules 2005 (NSW), rule 14.28 [5]. The primary judge ordered the applicants’ claim be struck out in full as the applicant commenced the proceedings for an improper purpose, namely to circumvent or derive some advantage in the family law proceedings. The applicant applied for leave to appeal.
Grounds of Appeal:
The Primary judge erred in finding the appellant’s actions for malicious prosecution and trespass were an abuse of process in that they were commenced for an improper or collateral purpose in that:
1.
there was an absence of evidence capable of supporting that finding; and
2.
as a matter of law, the purpose ascribed to the applicant was not an improper or collateral purpose as a matter of law.
Decision and Reasoning: Leave granted, appeal upheld.
Wright J considered the evidence that the claimed amount was the same as the proceeds from the sale of the Lilydale house provided no basis for a claim of circumventing the family law proceeding or obtaining an advantage [87],[91]. Naming the children in the claim for damages for trespass was not an improper purpose [92]. The evidence was insufficient to cross the high threshold to prove the proceedings were instituted for an improper or collateral purpose and therefore the primary judge erred in his judgement.
Wright J found that the elements of malicious prosecution were sufficiently clear and the minor defects in the applicant’s statement did not justify the claim being struck out [117]. Further, the distress caused to the applicant by the children’s distress was relevant to his claims for damages and therefore was not liable to be struck out as tending to cause prejudice, delay or embarrassment [117].
Brereton JA and Belle P agreed with the orders proposed by Wright J [50].
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001) – New South Wales Court of Appeal
‘Expert evidence’ – ‘General principles’ – ‘Negligence’ – ‘Opinion’
Appeal Type: General civil appeal.
Facts: This decision was not concerned with domestic and family violence but is relevant in relation to the admission of expert evidence in cases involving domestic and family violence. The plaintiff was injured after falling down the stairs at work and sued her employer for negligence. At trial, her employer was found to have breached their duty of care because the stairs were slippery and this was the reason the plaintiff fell. This finding of fact made at trial was largely based on expert evidence adduced by the plaintiff. The expert attested to the slipperiness of the stairs. The plaintiff was awarded damages. But for the expert’s report, ‘a conclusion that the stairs were not slippery would have been inevitable’ (see at [56]). The defendant appealed on the basis that, inter alia, the trial judge erred in accepting the expert evidence.
Issues: Whether the trial judge erred in accepting the opinion of the expert regarding the slipperiness of the stairs.
Decision and Reasoning: The appeal was upheld. All members of the Court of Appeal agreed that the trial judge ought not to have accepted the evidence. Importantly, this appeal was concerned with whether the evidence ought to have been accepted by the trial judge, not with its admissibility. Heydon JA firstly considered whether the expert’s testimony ‘(complied) with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions’ ([59]). It was in this context that his Honour engaged in general discussion about the admissibility of expert evidence. Expert evidence cannot usurp the role of the trial judge (or jury if present) in making findings of fact. The task of the tribunal of fact is to make an independent assessment of expert evidence in forming its own conclusion. It cannot do this, ‘if the expert does not fully expose the reasoning relied on’ (see at [67]). The Court is not obliged to accept the opinion of an expert, even if no other evidence is called to contradict it (see at [87]). This is important especially where the evidence goes to the ultimate issue in the case. Evidence which goes to the ultimate issue is not inadmissible for that reason (see s 80 of the Evidence Act 1995 (NSW)). Essentially, an expert gives opinion based on facts, and as such must prove ‘by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based’ (see at [64]).
See at [85] where his Honour summarises the general principles of the admissibility of expert evidence –
‘In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).’
Court of Appeal
Rock v Henderson (No 2) [2025] NSWCA 47 (28 March 2025) – New South Wales Court of Appeal
‘Malicious prosecution’ – ‘Apprehended Domestic Violence Order (ADVO)’ – ‘Trespass’ – ‘Delay in giving reasons for judgment’ – ‘Alleged battery’ – ‘Relationship breakdown’ – ‘Stalking’ – ‘PTSD’-‘systems abuse’
Proceedings: Appeal of dismissed claims; application for leave to appeal dismissed claims.
Charges: Malicious prosecution x1, trespass x 1, battery x6
Facts: The applicant, Mr Rock, and the respondent, Ms Henderson were married and had two children [7]. Ms Henderson had provided material to Constable Pitt who applied for a provisional ADVO against Mr Rock. The material included an incident at Sydney Airport when Mr Rock had confronted Ms Henderson and the man she was travelling with [8]. Mr Rock consented to an interim ADVO pending a final hearing [12], at which the judge found that the test had not been met for a final ADVO to be issued [16].
Later, Mr Rock and the two children were returning from a holiday when they found Ms Henderson at their home [17]. According to Mr Rock, she was tampering with a fuse box. She left promptly, but was charged with contravening the ADVO that was in place against her. Mr Rock made claims for malicious prosecution in respect of the ADVO taken out against him by Ms Henderson, and for trespass in respect of Ms Henderson’s presence at the home [18]. Ms Rock, one of the children, brought a proceeding for six alleged counts of battery against Ms Henderson relating to separate events [21]. The two claims were heard together. Orders were made, with the reasons for the orders given 3 months later [23], [29].
Grounds of Appeal: The applicant raised several grounds on appeal. It is helpful to have reference to the court’s framing of these into three issues [34]:
1.
What consequences, if any, follow from the fact that the primary judge did not give her reasons for decision until 3 months and 4 days after delivering judgment?
2.
Is the tort of malicious prosecution available in respect of the procuring of an ADVO?
3.
Should the appeal succeed on its merits?
Ms Rock’s appeal relied on the same ground as the applicant regarding the delay in giving reasons after making orders. Her remaining grounds concerned liability and damages [35].
Decision and Reasoning: The Court reviewed the case law in respect of delays in delivering reasons for judgment. The Court found that, in general, a court should not make final orders without giving reasons (where reasons are required) unless there is sufficient cause to take that course, e.g. because of urgency [60]. The reasons are due “as soon as reasonably practicable after judgment is delivered” [60]. The Court found that the reasons in this case were not delivered “as soon as reasonably practicable”, but concluded that nothing came of this other than some delay in hearing of the appeal – this did not merit a retrial [65].
Regarding the tort of malicious prosecution and whether this tort would encompass taking out an ADVO, the Court again began by canvassing the case law and the Crimes (Domestic and Personal Violence) Act 2007 [66]. The Court held that the tort did not encompass taking out an ADVO [166]. The Court went on to explain why the applicant would not have been successful on the tort in any event [189]. The Court found that the trespass claim had been made out, but that since there had been no loss, the applicant was entitled to nominal damages only [215]. The grounds comprising Ms Rock’s appeal were either dismissed, or leave was refused in request of them [218].
Rahman v Rahman [2024] NSWCA 198 (8 August 2024) – New South Wales Court of Appeal
'Following, harassing and monitoring' – 'Stalking' – 'People with children' – ‘Systems abuse’ – ‘Jurisdictional error’ –‘telephone evidence’
Case type: Application for judicial review in the NSW Court of Appeal.
The applicant, Fahmid Rahman, challenged a decision of the District Court to dismiss his appeal against an extension of a final apprehended domestic violence order (‘ADVO’) made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The application was treated as seeking judicial review on grounds of jurisdictional error.
Charges: Stalking (x1); intimidation (x1) [NB: These were the previous convictions, please note the court did not consider these charges, the Court treated the matter as an application to review for jurisdictional error only.]
Facts:
1.
The applicant and the first respondent were formerly married. They have two children. The children are in the sole care of the applicant, Mr Rahman.
2.
On 17 February 2022, a final ADVO was made against Mr Rahman for the protection of Ms Rahman, prohibiting him from approaching her residence or workplace, including the former matrimonial home. Although Mr Rahman had previously been acquitted of assault, he was convicted of stalking and intimidation.
3.
Before the ADVO expired, Ms Rahman sought an extension under s 73(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), alleging ongoing fear of Mr Rahman and citing his controlling behaviour and continued litigation against her. Magistrate Swain extended the ADVO by two years. Mr Rahman appealed to the District Court, which dismissed the appeal after a rehearing, finding that the complainant continued to fear personal violence.
4.
The primary judge referred to the applicant’s litigation conduct as ‘systems abuse’ and upheld the extension.
5.
Mr Rahman then sought judicial review of the upholding of the extension in the Court of Appeal.
Grounds of Appeal: Mr Rahman relied on four grounds of alleged jurisdictional error.
1.
Denial of natural justice. This ground asserts jurisdictional error on the part of both the magistrate and the primary judge, that error being identified as denying the applicant natural justice.
2.
Failure to consider material considerations. This ground asserts a failure by the primary judge to consider a material consideration “being the reasons for the appellant’s failure to cross examine with proper identification/failure to attend court”.
3.
Procedural unfairness. This ground complains of procedural unfairness, describing this as “being not transparent in actions/decisions” and goes on to make a serious allegation that the decision was in bad faith.
4.
Consideration failures. This ground alleges that irrelevant considerations were taken into account and/or relevant considerations were not taken into account.
Decision: The NSW Court of Appeal (Ward P, Adamson and Stern JJA) dismissed the application, finding no jurisdictional error in the District Court proceedings. The Court ordered Mr Rahman to pay the respondent’s costs.
Reasoning:
Ground 1: The applicant alleged that both the magistrate and the primary judge committed a jurisdictional error by denying natural justice [32]. The Court first held that judicial review of the magistrate’s decision was not competent, as those orders had merged into and been superseded by the District Court’s orders on appeal [33].
As for the primary judge, the applicant argued that natural justice was denied because the judge allowed evidence from three telephone witnesses without proper identification or affidavit and failed to refer to section 73(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) [34]–[35]. These actions were said to breach procedural fairness and amount to a jurisdictional error under Craig v South Australia (1995) 184 CLR 163 at 177 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531 [36]–[37]. The Court rejected this. It confirmed that permitting telephone evidence, particularly where the applicant had introduced late evidence himself, did not breach procedural fairness. Further, there was no jurisdictional error, as the applicant’s own counsel had accepted the procedure at trial without objection [41].
The core argument advanced in oral submissions was that the primary judge failed to identify a “change in circumstances” as required by s 73(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The Court held this was misconceived; s 73(3) does not impose a jurisdictional condition, but merely allows a court to decline to hear an application where there has been no change, and it appears to be an appeal in disguise [45]–[47].
In any event, the judge did address the relevant facts, noting a proliferation of litigation and continued contact attempts through emails as evidence of changing circumstances, satisfying the test under s 73(1) that it was "proper in all the circumstances" to extend the order [48].
Ground 2: The applicant argued that the primary judge failed to consider a material issue, namely, his inability to cross-examine witnesses who gave evidence via telephone without “proper identification” [50]. The Court rejected this argument. The telephone evidence arose only because the applicant sought leave to rely on a late-served affidavit from Mr Syed. In response, the judge allowed the respondent to call three reply witnesses by phone to avoid prejudice from the late filing [52]–[54].
Before the affidavit was read, the judge confirmed with the applicant’s counsel that this course was understood and accepted. The applicant’s counsel raised no objection at the time and each witness was properly sworn, identified, and cross-examined [55]–[57].
The applicant’s later claim that he could not verify the identity of phone witnesses or cross-examine them effectively was inaccurate, his counsel conducted cross-examination and made no complaint during the hearing. The Court confirmed that admitting telephone evidence was within the judge’s procedural discretion and did not amount to a denial of procedural fairness or jurisdictional error [58]–[59].
Ground 3: The applicant claimed that the District Court proceedings were procedurally unfair due to a lack of transparency, that the decision was made in bad faith, and that the wrong legal test was applied when assessing whether to extend the ADVO. The Court firmly rejected all aspects of this ground [70].
First, the Court found no lack of transparency or procedural unfairness. While the primary judge’s reasons were brief and delivered ex tempore, they were adequate in context. The Court reiterated that when evaluating the sufficiency of reasons, it is essential to consider the nature of the proceedings and the constraints on the decision-maker, particularly where reasons are given orally at the conclusion of a full-day hearing with another matter the Court needed to hear (Wainohu v New South Wales (2011) 243 CLR 181 at [56]; NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578 at [70]) [62].
Second, the Court found no evidentiary basis for the serious allegation of bad faith. It warned that such assertions should not be made lightly and must be specifically pleaded and supported by evidence, especially where submission are made by or under the name of a solicitor, as an officer of the Court [64]–[65].
Third, the applicant contended that the judge erred by applying the balance of probabilities standard rather than a higher threshold. This was found to be legally incorrect. Under s 16(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the correct standard of proof is on the balance of probabilities. The Court explained that Briginshaw v Briginshaw (1938) 60 CLR 336 does not alter the standard but recognises that more serious allegations require stronger evidence to reach that standard (at 362–363). The judge had properly applied this principle, as well as s 140(2) of the Evidence Act 1995 (NSW) [66]–[68].
Finally, the Court held that the primary judge clearly indicated his independent state of satisfaction that the complainant feared the applicant, the core requirement under s 16(1) of the Act. No error, and certainly no jurisdictional error, was established [69].
Ground 4: The applicant argued that the judge erred by referring to outstanding costs orders and to the National Domestic Violence Bench Book. The Court held these were both permissible references. The costs orders were part of the procedural history and directly relevant to the respondent’s evidence about the stress and anxiety as a result of the proliferation of litigation [73]. The Bench Book was cited in relation to "systems abuse", in the context of the submission by the first respondent’s solicitor as to the persistence in the applicant’s pursuit of litigation against the first respondent. The Court affirmed that neither point gave rise to jurisdictional error [74].
Rock v Henderson [2021] NSWCA 155 (29 July 2021) – New South Wales Court of Appeal
‘Abuse of process’ – ‘Appeal’ – ‘Breach of protection order’ – ‘Children’ – ‘Family court proceedings’ – ‘Female perpetrator’ – ‘Improper purpose’ – ‘Malicious prosecution’ – ‘Protection order’ – ‘Separation’ – ‘Systems abuse’ – ‘Trespass’
Proceeding: Application for leave to appeal against striking out Statement of Claim in full.
Facts: The male applicant and female respondent were formerly husband and wife with financial and child proceedings pending in the Family Court. In 2018 there was an incident at Sydney Airport between them where it was alleged the applicant approached the respondent and her current partner and caused her humiliation and embarrassment [58]. The respondent made a written statement which led to the police obtaining a provisional protection order against the applicant [54]. It was dismissed in June 2019 [4].
The applicant sued the respondent for damages for malicious prosecution and for trespass to land. The malicious prosecution submission related to the protection order application [4]. The trespass to land submission related to the respondent entering the applicant’s property in July 2019 where the children, whom she was prohibited from approaching by a separate protection order, resided with him [4]. The respondent filed a Notice of Motion to the District Court seeking the claim be struck out, in full or in part pursuant to Uniform Civil Procedural Rules 2005 (NSW), rule 14.28 [5]. The primary judge ordered the applicants’ claim be struck out in full as the applicant commenced the proceedings for an improper purpose, namely to circumvent or derive some advantage in the family law proceedings. The applicant applied for leave to appeal.
Grounds of Appeal:
The Primary judge erred in finding the appellant’s actions for malicious prosecution and trespass were an abuse of process in that they were commenced for an improper or collateral purpose in that:
1.
there was an absence of evidence capable of supporting that finding; and
2.
as a matter of law, the purpose ascribed to the applicant was not an improper or collateral purpose as a matter of law.
Decision and Reasoning: Leave granted, appeal upheld.
Wright J considered the evidence that the claimed amount was the same as the proceeds from the sale of the Lilydale house provided no basis for a claim of circumventing the family law proceeding or obtaining an advantage [87],[91]. Naming the children in the claim for damages for trespass was not an improper purpose [92]. The evidence was insufficient to cross the high threshold to prove the proceedings were instituted for an improper or collateral purpose and therefore the primary judge erred in his judgement.
Wright J found that the elements of malicious prosecution were sufficiently clear and the minor defects in the applicant’s statement did not justify the claim being struck out [117]. Further, the distress caused to the applicant by the children’s distress was relevant to his claims for damages and therefore was not liable to be struck out as tending to cause prejudice, delay or embarrassment [117].
Brereton JA and Belle P agreed with the orders proposed by Wright J [50].
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001) – New South Wales Court of Appeal
‘Expert evidence’ – ‘General principles’ – ‘Negligence’ – ‘Opinion’
Appeal Type: General civil appeal.
Facts: This decision was not concerned with domestic and family violence but is relevant in relation to the admission of expert evidence in cases involving domestic and family violence. The plaintiff was injured after falling down the stairs at work and sued her employer for negligence. At trial, her employer was found to have breached their duty of care because the stairs were slippery and this was the reason the plaintiff fell. This finding of fact made at trial was largely based on expert evidence adduced by the plaintiff. The expert attested to the slipperiness of the stairs. The plaintiff was awarded damages. But for the expert’s report, ‘a conclusion that the stairs were not slippery would have been inevitable’ (see at [56]). The defendant appealed on the basis that, inter alia, the trial judge erred in accepting the expert evidence.
Issues: Whether the trial judge erred in accepting the opinion of the expert regarding the slipperiness of the stairs.
Decision and Reasoning: The appeal was upheld. All members of the Court of Appeal agreed that the trial judge ought not to have accepted the evidence. Importantly, this appeal was concerned with whether the evidence ought to have been accepted by the trial judge, not with its admissibility. Heydon JA firstly considered whether the expert’s testimony ‘(complied) with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions’ ([59]). It was in this context that his Honour engaged in general discussion about the admissibility of expert evidence. Expert evidence cannot usurp the role of the trial judge (or jury if present) in making findings of fact. The task of the tribunal of fact is to make an independent assessment of expert evidence in forming its own conclusion. It cannot do this, ‘if the expert does not fully expose the reasoning relied on’ (see at [67]). The Court is not obliged to accept the opinion of an expert, even if no other evidence is called to contradict it (see at [87]). This is important especially where the evidence goes to the ultimate issue in the case. Evidence which goes to the ultimate issue is not inadmissible for that reason (see s 80 of the Evidence Act 1995 (NSW)). Essentially, an expert gives opinion based on facts, and as such must prove ‘by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based’ (see at [64]).
See at [85] where his Honour summarises the general principles of the admissibility of expert evidence –
‘In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).’