Court of Appeal

Supreme Court

New South Wales

Case Name: Young v Royal Society for the Prevention of Cruelty to

Animals New South Wales

Medium Neutral Citation: [2020] NSWCA 360

Hearing Date(s): 13 November 2020

Decision Date: 24 December 2020

Before: Leeming JA at [1];

Emmett AJA at [56];
Preston CJ of LEC at [89]

Decision: 1. 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.

2. Otherwise dismiss the amended summons filed on

30 June 2020 in this Court.

3. No order as to the costs of the proceedings in this

Court, with the intention that the parties bear their own
costs.

4. 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.

Catchwords: ANIMALS — prevention of cruelty to animals —

private prosecution under Prevention of Cruelty to
Animals Act — guilty verdict — charges subsequently
dismissed under Mental Health (Forensic Provisions)
Act 1990 (NSW), s 32

TORTS — malicious prosecution — malicious criminal

proceedings — elements of tort — application for
 summary dismissal — whether s 32 dismissal
constitutes a termination of proceedings in favour of a
plaintiff

JUDGMENT
1 LEEMING JA: Mr Gary Young was diagnosed, in 2012 and 2016, to have been
suffering from a mental illness or mental condition within the meaning of s 32 of
the Mental Health (Forensic Provisions) Act 1990 (NSW). On that basis, the
District Court hearing Mr Young’s appeal in 2016 quashed his 2012 Local
Court conviction for aggravated cruelty to an animal and ordered him to comply
with specified medical treatment. Mr Young subsequently brought proceedings
alleging that he had been maliciously prosecuted by the respondent RSPCA.
Those proceedings have not been heard on their merits. Rather, the District
Court summarily dismissed them, on the basis that earlier decisions of this
Court on point were “plainly wrong”. By summons invoking this Court’s
supervisory jurisdiction, Mr Young challenges that conclusion.
2 Beneath the procedural and precedential complexities of this litigation is a short
question of law: is the element of the tort of malicious prosecution that the
proceedings terminate in the plaintiff’s favour satisfied when orders are made
under s 32 of the Mental Health (Forensic Provisions) Act? I share the view of
Emmett AJA and Preston CJ of LEC that the primary judge erred and that her
Honour’s decision should be set aside. I agree with their Honours’ reasons. I
supplement those reasons in order to emphasise some additional points,
principal amongst which are some procedural aspects of this litigation. What
follows presupposes familiarity with Emmett AJA’s reasons, although for
simplicity I shall refer to both respondents as the RSPCA.
Overview of procedural background
3 Mr Young is unrepresented in this Court, as he was before the primary judge.
He was represented for some but not the entirety of the prosecution in the
Local Court in 2012 which has given rise to this litigation.
4 The prosecution commenced by five Court Attendance Notices. Mr Young
pleaded not guilty. The Local Court sitting in Goulburn found Mr Young guilty of
one charge of aggravated cruelty contrary to s 6 of the Prevention of Cruelty to
Animals Act 1979 (NSW), an offence carrying a maximum penalty of
imprisonment for two years. The other charges for lesser offences were
disposed of pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999
(NSW).
5 The Magistrate recounted that Mr and Mrs Cooke, who like Mr Young live near
Goulburn, saw a chestnut mare on property belonging to a neighbouring
property. They believed that the mare was owned by Mr Young. They took the
horse to a vet, where it was treated for two days. The Magistrate appears to
have quoted from the vet’s notes, which disclosed a range of serious health
issues. The RSPCA was called on the third day, and the horse was
euthanased.
6 The main issue addressed in the Magistrate’s reasons on conviction was
whether Mr Young had the care and control of the horse. It had not been found
on Mr Young’s property, and her Honour noted that it was “basically agreed in
the prosecution case that all the other horses that he agrees [Mr Young] owns,
there are no issues in relation to them having lack of food or being in ill health
or state of neglect”. Her Honour’s reasons leading to the finding that Mr Young
had the care and custody of the mare were based on the evidence of Mr and
Mrs Cooke, Ms Sprague (an officer of the RSPCA), and what were said to be
some written and oral admissions by Mr Young, occupying pp 2-7 of the
reasons.
7 Relying on the medical evidence, the Local Court found the other elements of
the charge made out, and found Mr Young guilty.
8 Having regard to the absence of any other conviction of this nature on Mr
Young’s record, the Court imposed a good behaviour bond for two years.
9 The issue which occupied a greater part of the Magistrate’s reasons than any
other was the decision to order costs of some $115,000 against Mr Young. The
amount reflected, in part, the fact that the RSPCA had appeared in the Local
Court’s summary criminal jurisdiction by senior and junior counsel. The
application appears to have been elaborately presented, including by serving a
report of a costs consultant, although the transcript was not reproduced. Her
Honour’s acceding to an order, pursuant to s 215 of the Criminal Procedure Act
1986 (NSW), that the entirety of the costs claimed were “just and reasonable”,
occupied pp 13-18 of the reasons.
10 Mr Young exercised his right of appeal to the District Court against conviction.
At all material times, s 18 of the Crimes (Appeal and Review) Act 2001 (NSW)
provided:
“(1) An appeal against conviction is to be by way of rehearing on the basis of
evidence given in the original Local Court proceedings, except as provided by
section 19.
(2) Fresh evidence may be given, but only by leave of the District Court which
may be granted only if the Court is satisfied that it is in the interests of justice
that the fresh evidence be given.”
11 Section 19 provided for limited circumstances in which testimonial evidence
might be given in person, requiring “special or substantial” reasons to be made
out.
12 Mr Young had sustained a serious injury to his head from being kicked by a
horse in April 2012, prior to his trial in the Local Court. There was expert
evidence from 2012, and again in 2016, that he suffered from a mental illness
or mental condition. (I infer that the medical evidence from 2016 was admitted
pursuant to s 18(2); the transcript of the District Court appeal does not appear
to have been put into evidence, nor is it clear from the record whether this was
controversial.)
13 The primary judge gave an oral judgment which Emmett AJA has summarised.
There were in fact, according to JusticeLink, two orders made in each of the
five appeals determined by the District Court on 25 July 2016 (one from the
conviction on the main charge of aggravated cruelty, and four concerning the
 back-up charges). The first order was “Appeal upheld, convictions, bonds &
orders of Local Court are quashed”. The second was “Pursuant to s 32(3)(a) of
the Mental Health (Forensic Provision) Act, 1990 I order the charges be
dismissed and the appellant discharged pursuant to [conditions concerning
treatment by Dr Williams]”.
14 By proceedings commenced in 2019, Mr Young sues inter alia the RSPCA and
Ms Sprague for malicious prosecution and abuse of process. Those
defendants applied for summary disposal of both claims. The primary judge
struck out the latter, granting leave to replead; that is outside the scope of the
present application. The primary judge also struck out the former, refusing
leave to replead. Her Honour stated at [4] that:
“Although raising other issues (such as pleading problems and proportionality),
the first to third defendants principally argue that the plaintiff did not obtain a
successful termination of the prosecution.”
15 Mr Young complains in this Court that her Honour erred in striking out his claim
for malicious prosecution on the basis that he had not obtained a successful
termination of the prosecution.
…
Does an order under s 32 of the Mental Health (Forensic Provisions) Act 1990
satisfy the element of the tort of malicious prosecution?
35 Section 32 of the Mental Health (Forensic Provisions) Act relevantly provides
as follows:
“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):
(i) cognitively impaired, or
(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).
(2) The Magistrate may do any one or more of the following:
(a) adjourn the proceedings,
(b) grant the defendant bail in accordance with the Bail Act 2013,
 (c) make any other order that the Magistrate considers appropriate.
(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.
...
(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.
...
(6) In this section:
cognitive impairment means ongoing impairment of a person’s
comprehension, reasoning, adaptive functioning, judgment, learning or
memory that materially affects the person’s ability to function in daily life and is
the result of damage to, or dysfunction, developmental delay or deterioration
of, the person’s brain or mind, and includes (without limitation) any of the
following:
(a) intellectual disability,
(b) borderline intellectual functioning,
(c) dementia,
(d) acquired brain injury,
(e) drug or alcohol related brain damage, including foetal alcohol
spectrum disorder,
(f) autism spectrum disorder.”
Section 32 was applicable to the District Court when hearing and determining
Mr Young’s appeal: Crimes (Appeal and Review) Act 2001 (NSW), s 28.

36 As Emmett AJA has explained in more detail, in Quirk v State of New South
Wales [2011] NSWSC 341, Grove AJ held that proceedings which were
dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990
(NSW) were sufficient to satisfy the element of the tort of establishing that the
proceedings had terminated in the plaintiff’s favour. An appeal was dismissed:
State of New South Wales v Quirk [2012] NSWCA 216. The notice of appeal
did not challenge that aspect of Grove AJ’s decision. Nonetheless, Tobias JA,
with whom the other members of the Court agreed, said that “the proceedings
 with respect to those offences were relevantly terminated in favour of the
respondent”: at [3].
37 Mr Young maintained that her Honour had been bound by either or both of the
decisions of the Supreme Court constituted by Grove AJ or of the Court of
Appeal. That is not completely correct. The sentence in the reasons of Tobias
JA on a point not the subject of argument on no view forms part of the ratio of
the Court of Appeal’s decision and so did not bind the District Court. “[W]here a
proposition of law is incorporated into the reasoning of a particular court, that
proposition, even if it forms part of the ratio decidendi, is not binding on later
courts if the particular court merely assumed its correctness without argument”:
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13].
38 However, on one view the District Court was bound by the decision on a point
of law by the Supreme Court constituted by Grove AJ. McClellan CJ at CL said
in R v CB; MP v R [2011] NSWCCA 264; (2011) 291 FLR 113 at [114]:
“Of course, a judge of the District Court is bound by a decision of a single
judge of the Supreme Court or a decision of the Court of Criminal Appeal or
Court of Appeal on a point of law, given that the ‘administration of justice within
the hierarchy of courts is an ordered discipline’: Fleming v White [1981] 2
NSWLR 719 at 725-726.”
39 As presently advised, I respectfully think the reasons for that conclusion may
be more nuanced than there stated, for it is necessary to accommodate the
fact that the High Court of Australia constituted by a single Justice does not
bind other courts: see Chief Executive Officer of Customs v Tony Longo Pty
Ltd (2001) 52 NSWLR 458; [2001] NSWCA 147 at [51] and the authorities
there cited. Further, there may be room for argument that insofar as no
attention had been given to s 32(4), the first instance decision of Quirk was
decided per incuriam; evidently that was the view reached by her Honour. It is
not necessary for present purposes to consider these questions in any detail,
for they were not the subject of argument, and it is better to address the
substance of the point on its merits. However, the fact that the RSPCA was
inviting the District Court to distinguish or depart from a reasoned judgment of
the Supreme Court, in respect of which an appeal had been dismissed with this
Court stating the correctness of the point, was a powerful consideration tending
against summary judgment.
40 The primary judge based her conclusion on s 32(4), saying:
“The key is the words ‘or otherwise’. Orders under s 32 are a result, but are
not proof of a result which can be regarded as one of success or failure by the
plaintiff in the criminal proceedings, in terms of the requirement for a
favourable termination. This is not a right restricted to the proving of the
charges but to any finding, favourable or otherwise. The words “or otherwise”
in s 32(4), in my view, deprive the plaintiff of that entitlement. The first to third
defendants may not say that there is an unfavourable termination, but the
plaintiff may not say that he has a favourable termination either.”
41 Her Honour then proceeded as follows:
“There is no discussion of the words ‘or otherwise’ in Quirk v State of New
South Wales. Nor was this issue considered in any detail by the Court of
Appeal, despite clearly being a significant issue at first instance as well as a
 matter of some importance, in that this interpretation has ramifications for the
operation of s 32(4).
The plaintiff is entitled to rely upon both these judgments as being binding
upon this court. Ordinarily, that would be the end of the argument.
However, I propose to follow the course taken by Hoeben J in Kable v State of
New South Wales (albeit in relation to another element in the tort of malicious
prosecution), namely to focus upon the language of the statute. For the
reasons set out above, I accept that s 32(4) means what it says, namely that
no conclusions or proofs arise at all where findings are made under s 32.
I am accordingly satisfied that Grove AJ was plainly wrong to reject the
submissions of Mr Bodor QC and to determine that there had been a
favourable termination. The Court of Appeal, if endorsing that approach, would
similarly be wrong. If the Court of Appeal overlooked this issue entirely, as
appears likely to be the case, its decision may be disregarded, or treated as
plainly wrong for this reason.
In such circumstances, I am satisfied that the s 32 findings do not constitute
proof of a successful termination and the plaintiff’s claim for malicious
prosecution accordingly fails.”
42 Her Honour then proceeded to “set out, in brief terms, my reasons for rejecting
Ms Chrysanthou’s submissions that the malicious prosecution claim should be
struck out on the basis that the pleading is hopeless.” These have been
addressed when dealing with the RSPCA’s submission based on the refusal of
relief as a matter of discretion.
43 I respectfully disagree with the reasoning of the primary judge insofar as it
departed from Quirk. Her Honour focussed on the words “or otherwise”. True it
is that the effect of s 32(4) is that the decision of the District Court does not
constitute a finding that the charges are proven. Nor does it constitute a finding
that the charges have not been proven.
44 That does not deny that the proceeding was dismissed and the convictions of
the Local Court set aside. Neither the words “or otherwise” nor any other
aspect of s 32(4) bears on the point of present relevance, which is whether the
prosecution has terminated favourably to the plaintiff.
45 The formulation of the elements of the tort of malicious prosecution predated,
by some centuries, the enactment of statutes such as the Mental Health
(Forensic Provisions) Act. Some of the history is contained in W Holdsworth’s
A History of English Law (Sweet & Maxwell, 2nd ed 1937) vol viii, pp 385-391.
Holdsworth concludes that the tort was definitively formulated in 1699 by Holt
CJ in Savile v Roberts (1698) 1 Ld Raym 374 and Parker CJ in Jones v Givin
(1713) Gilb Cas 185; 93 ER 300. Both of those decisions appear to have
assumed that the prosecution had terminated in the plaintiff’s favour. It is
reviewed concisely by the Privy Council in Crawford Adjusters (Cayman) Ltd v
Sagicor General Insurance (Cayman) Ltd [2014] AC 366; [2013] UKPC 17.
46 There have long been concerns with the undesirable consequences attaching
to too liberal an approach to the tort. In Crawford Adjusters at [48], Lord Wilson
observed that Holt CJ had said that “though this action will lie, yet it ought not
to be favoured, but managed with great caution”. On the other hand, a number
of decisions, culminating in this country most recently in Beckett v State of New
 South Wales (2013) 248 CLR 432; [2013] HCA 17, suggest a more relaxed
approach to being satisfied of the termination of proceedings in the plaintiff’s
favour.
47 To that end, as Emmett AJA and Preston CJ of LEC have explained, the
element of termination in the plaintiff’s favour does not require any favourable
adjudication on the merits. It is not necessary for the accused to have been
acquitted. The position was authoritatively stated in Beckett at [6]:
“Any termination that does not result in conviction is favourable to the plaintiff
for the purposes of the civil action. Prosecutions may terminate in a number of
ways without verdict: the magistrate may not commit for trial; the Director may
not find a bill of indictment; the Director may direct that no further proceedings
be taken after a bill has been found; or the Attorney-General may enter a nolle
prosequi. The plaintiff has no control over the termination of the proceedings in
any of these ways and in those circumstances it would be unjust to deprive
him or her of the ability to recover for the tort. As Professor Salmond explained
it:
‘What the plaintiff requires for his action is not a judicial determination
of his innocence, but merely the absence of any judicial determination
of his guilt.’” (footnotes omitted).
48 An order dismissing a charge pursuant to s 32 of the Mental Health (Forensic
Provisions) Act is merely another way created by statute by which a
prosecution may be terminated without there being a determination of guilt.
49 The outcome of Mr Young’s appeal to the District Court was the removal of the
determination of guilt by the Local Court. The District Court’s orders quashed
Mr Young’s convictions. It was not to the point, contrary to the RSPCA’s
submissions, that the reasons of the District Court did not make findings as to
the elements of the offence. As is plain from the passage in Beckett
reproduced above, what matters is not the factual findings, but the absence of
a judicial determination of guilt.
Orders
50 It follows that order 1 made by the District Court on 17 December 2019 should
be set aside.
…
56 EMMETT AJA:
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
57 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”.
58 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).
59 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).
60 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.

61 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

1 Relevantly, ss 6(1), 5(3)(c), 5(3)(o) and 8(1).

 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.
62 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.
63 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”.
64 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.
65 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
66 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.
67 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
68 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
69 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

2 Primary Judgment at [21]-[22].

3 Primary Judgment at [24]-[25].
4 Primary Judgment at [26].
5 Wayne Quirk v The State of New South Wales [2011] NSWSC 341 at [82].
 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.
70 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
71 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
72 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.

6 Primary Judgment at [40].

7 See State of New South Wales v Quirk [2012] NSWCA 216.
8 Primary Judgment at [44]-[46].
73 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.
74 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
75 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
76 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.
77 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

9 Young v Royal Society for the Prevention of Cruelty to Animals New South Wales t/as RSPCA [2020] NSWSC
1001.
10 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”).
11 See Beckett at 438-439; at [5].
12 See J Goudkamp and D Nolan, Winfield and Jolowicz on Tort (Sweet & Maxwell, 20th ed, 2020) at [20-010]

(“Winfield”).
13 Ibid.
 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
78 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
79 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.
80 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.

14 See Beckett at 439; at [6].

15 See Winfield at [20-011], fn 42.
…
Conclusion
86 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.
87 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.
88 In the light of those conclusions, I agree with the orders proposed by
Leeming JA.

89 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….

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