Foye Legal’s Criminal and Traffic division unpacks a recent decision in the NSW Court of Appeal.
The availability of the tort of malicious prosecution with respect to ADVO proceedings has been decided in the NSW Court of Appeal case of Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47 (‘Rock’).
The tort (civil wrong) of malicious prosecution is committed where proceedings are instituted against an individual for an improper, malicious purpose.
As held by the High Court in Beckett v NSW (2013) 248 CLR 432, a Plaintiff to the tort must prove:
- 1. That the Defendant was the person who initiated the prosecution;
- 2. That the prosecution was eventually terminated in their favour;
- 3. That the Defendant acted with malice, and
- 4. That the prosecution was without reasonable and probable cause.
It has long been held that the tort only has limited applicability to civil proceedings.
The Plaintiff in Rock claimed that he had been the subject of malicious prosecution as a result of ADVO proceedings which arose out of allegations made by his ex-wife and which ultimately resulted in the application for ADVO being dismissed by the Local Court.
Mr Rock made a claim for malicious prosecution in the District Court which failed on its merits. The matter was then subject to an appeal to the NSW Court of Appeal.
The key determination for the Court was whether the tort is available with respect to proceedings commenced under the civil jurisdiction of the
Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’). The Court found that the developed jurisprudence (both in the UK and Australia) suggested that a relevant consideration as to whether the tort of malicious prosecution would apply to a specific civil proceeding was whether or not there were other remedies available to the Plaintiff for the wrong they have suffered.
In this regard, the Court found that although there were minimal provisions to recoup costs in ADVO proceedings and that there was no offence for the making of a false statement in connection with an ADVO application (as there is for APVO’s), there was still limited opportunity for an aggrieved defendant to seek a remedy, namely, through defamation proceedings.
The Court further found that recognising the application of the tort to proceedings under the Act would ‘inevitably, spawn satellite litigation’. These secondary disputes, it was contended, would undermine the objects of the Act and pose a real risk that those who were fearful of the commission of violent conduct, would not pursue an ADVO.
It was also decided that proceedings of malicious prosecution, as relating to applications for ADVO’s would be lengthy, expensive, complex and detrimental to the well-established common law principle of the desirability of finality.
Ultimately, Mr Rock was unsuccessful on the basis that the tort of malicious prosecution is not available for applications for ADVO and that, nonetheless, the tort was not established in this case.
This case raises important issues with respect to the public interest in restricting avenues for litigation and whether stronger sanctions should be introduced with respect to the seeking of ADVO’s on the basis of false allegations, balancing with the protections that should be afforded victims of domestic violence.
