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Malicious prosecution

Application of Malcolm Huntley Potier [2012] NSWCA 222. Basten JA.

In [33] "In particular, it is an essential element of the tort of malicious prosecution that the proceedings must have terminated unsuccessfully for the prosecution: A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [1].

 State of New South Wales v Zreika [2012] NSWCA 37. Sackville AJA

[59] There is no challenge to the finding of the primary Judge that the respondent had made out his case on malicious prosecution.

The elements of the tort of malicious prosecution were stated in the joint judgment in A v State of New South Wales [2007] HCA 10; 230 CLR 500, at 502-503 [1], as follows:

"the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally ... criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings were terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable cause."

In addition, the plaintiff must prove damage: New South Wales v Landini [2010] NSWCA 157, at [20] per Macfarlan JA. In the present case, there is no challenge to the award of $75,000 as compensatory damages for malicious prosecution.

 

 

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