New South Wales

Court of Appeal

  • 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]).’