Intentional torts

Acknowledgement: the Honourable A Whealy QC, former judge of the Supreme Court of NSW, prepared the following material. Commission staff are responsible for updating it.

[5-7000] Trespass to the person — the intentional torts

This chapter is concerned with the torts of assault, battery, false imprisonment and intimidation. Closely allied with these is a further tortious action, namely proceedings to recover damages for malicious prosecution.

The three torts that emerged from the concept of trespass to the person — assault, battery and false imprisonment are actionable per se — that is without proof of damage (although if the wrongful act, does result in injury, damages can be recovered for that injury as well). In malicious prosecution proceedings, however, it is necessary to assert and prove damage.

[5-7010] Assault

An assault is any direct and intentional threat made by a person that places the plaintiff in reasonable apprehension of an imminent contact with the plaintiff’s person, either by the defendant or by some person or thing within the defendant’s control: K Barker, P Cane, M Lunney and F Trindade, The Law of Torts In Australia, 5th edn, Oxford University Press, Australia and New Zealand, 2011 at 44 (“Barker et al”).

The gist of assault has been stated in J Fleming, Law of Torts, 9th edn, LBC Information Services, Sydney, 1998 (“Fleming”) as focusing on the apprehension of impending contact. Thus, the effect on the victim’s mind created by the threat is the crux, not whether the defendant actually had the intention or means to follow it up. The intent required for the tort of assault is the desire to arouse an apprehension of physical contact, not necessarily an intention to inflict actual harm.

In Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, the plaintiff was an excluded gambler who had unlawfully returned to the casino to play roulette. Employees of the casino saw him and identified him as an excluded person. He was approached and accompanied to an “interview room” where he was required to remain until police arrived sometime later. Mr Rixon unsuccessfully sued for damages for assault, battery and false imprisonment. In relation to the assault issue, the facts were that a casino employee had placed his hand on the plaintiff’s shoulder and, when he turned around, asked him: “Are you Brian Rixon?”. These actions were central to the question as to whether Mr Rixon had been the victim of an assault and, in addition, a battery.

Sheller JA (with whom Priestley and Heydon JJ agreed) stressed the distinction referred to in Fleming set out above. His Honour said that, on the facts of the case, the primary judge had been correct to find that the employee did not have the intention to create in Mr Rixon’s mind the apprehension of imminent harmful conduct. Moreover, the employee’s placement of his hand on the plaintiff’s shoulder did not constitute a battery. On the false imprisonment claim, the court found that the Casino Control Act 1992 and its regulations justified the plaintiff’s detention for a short period of time until the arrival of the police.

In State of NSW v Ibbett (2005) 65 NSWLR 168 the Court of Appeal upheld the trial judge’s factual findings while increasing the damages awarded. The circumstances of the case were that two policemen gave chase to Mr Ibbett, in the township of Foster, suspecting that he may have been involved in a criminal offence. They pursued him to a house where he lived with his mother, Mrs Ibbett. Without legal justification, one of the policemen entered the property and arrested Mr Ibbett. His mother came into the garage where these events occurred. The police officer produced a gun and pointed it at Mrs Ibbett saying, “Open the bloody door and let my mate in”. Mrs Ibbett, who was an elderly woman, had never seen a gun before and was, not unnaturally, petrified.

The trial judge held that both police officers had been on the property without unlawful justification and, additionally, the confrontation between the police officer and Mrs Ibbett was more than sufficient to justify the requirements of an immediate apprehension of harm on her part, so as to amount to an assault. The Court of Appeal agreed with the trial judge as later did the High Court. See also Clarke JA in Cowell v Corrective Services Commission (NSW) (1988)13 NSWLR 714.

[5-7020] Conduct constituting a threat

Although threats that amount to an assault normally encompass words, they will not always do so. For example, actions may suffice if they place the plaintiff in reasonable apprehension of receiving a battery. As to words, in Barton v Armstrong [1969] 2 NSWR 451 a politician made threats over the telephone and these were held to be capable of constituting an assault. Given the explosion of modern methods of media communication, there is no reason why threats made in emails, text messages or on Facebook (so long as they satisfy the legal test) could not qualify. Importantly, the reasonable apprehension must relate to an imminent attack.


the requirement is for an imminent battery, not an immediate one.

[5-7030] Reasonable apprehension

This requirement means that an assault cannot be proved if the plaintiff is not aware of the threat. Moreover, the apprehension must be a reasonable one. Thus, if an unloaded gun or a toy pistol is pointed at the plaintiff, the defendant will not be liable where the plaintiff knows or has reason to believe that the gun is not loaded or is a toy: Logdon v DPP [1976] Crim LR 121.

[5-7040] Battery

Last reviewed: December 2023

A defendant who directly causes physical contact with a plaintiff (including by using an instrument) will commit a battery unless the defendant proves the absence of intent and negligence on their part, that is, that the defendant was “utterly without fault”: Croucher v Cachia (2016) 95 NSWLR 117. This case is also authority for the proposition that ss 3B(1)(a) and 21 of the Civil Liability Act 2002 (NSW) do not operate upon the particular cause of action pleaded, but instead upon the particular act which gives rise to the civil liability and the intent of the person doing that act. It is necessary to look at the character of the underlying conduct, rather than whether the claim is in respect of an “intentional tort”.

Battery cases (sometimes wrongly referred to as “assault cases” — although the two often go hand in hand) often involve difficult factual disputes requiring the resolution of widely conflicting versions as to what happened during a particular occasion or event, whether domestic or otherwise.

The requisite intention for battery is simply this: the defendant must have intended the consequence of the contact with the plaintiff. The defendant need not know the contact is unlawful. He or she need not intend to cause harm or damage as a result of the contact.

A person who pulls the trigger of a rifle believing it to be unloaded may be found to be negligent, but will not be liable in trespass, because they did not intend that the bullet from the rifle should strike the injured plaintiff. The requisite intention will have been absent.

In most cases, it will be apparent that an intention to make contact can simply be inferred from the nature and circumstances of the striking. If I strike someone with an axe, it will be apparent, except in the most unusual circumstances, that I intended to make contact with the injured person.

[5-7050] Contact with the person of the plaintiff

Contact, as has been pointed out by academic writers (Barker et al at p 41), can take a variety of forms. Thus, spitting on a person, forcibly taking blood or taking finger prints would be regarded as contact. Similarly, shining a light into a person’s eyes will be regarded as contact: Walker v Hamm [2008] VSC 596 at [307].

The modern position, however, is that hostile intent or angry state of mind are not necessary to establish battery: Rixon v Star City Pty Ltd, above, at [52]. It is for that reason that a medical procedure carried out without the patient’s consent may be a battery.

On the other hand, it is not every contact that will be taken to be a battery. People come into physical contact on a daily basis. For example it is impossible to avoid contact with other persons in a crowded train or at a popular sporting or concert event. The inevitable “jostling” that occurs in these incidents in every day life is simply not actionable as a battery: Rixon at [53]–[54]; Colins v Wilcock [1984] 3 All ER 374 per Robert Goff LJ.

[5-7060] Defences

Defences to the trespass torts include necessity, for example, in the case of a medical emergency where a patient’s life is at risk and the obtaining of consent is not possible (Hunter New England Area Health Service v A (2009) 74 NSWLR 88); self-defence (Fontin v Katapodis (1962) 108 CLR 177); and consent.

In the case of self-defence in NSW, however, see Pt 7 of the Civil Liability Act 2002. This applies to any kind of civil liability for personal injury. The legislation places a restriction on the damages which can be awarded for disproportionate acts of self-defence. Reasonable acts of self-defence against unlawful acts will not be actionable at all.

In State of NSW v McMaster [2015] NSWCA 228, the NSW Court of Appeal affirmed the availability of self-defence in the civil context. It will be made out if the defendant believed on reasonable grounds that what he did was necessary for the protection of himself, or another. The defendant’s response to the threat is a factor to be taken into account but is not inherently determinative.

The court also held that the term “unlawful” in s 52 Civil Liability Act extends to tortious conduct such that the section may apply as a defence to liability for actions done in self-defence against the commission of a tort.

[5-7070] Consent

An interference or injury to which a person has consented cannot be wrongful. It is the responsibility of the defendant, however, to raise a defence of consent and to prove it: Hart v Herron [1984] Aust Torts Reports 80–201 at 67,814. If the defendant proves that the plaintiff has consented to the acts in question then a claim in assault, battery (or false imprisonment) will not succeed.

[5-7080] Medical cases

Medical practitioners must obtain consent from the patient to any medical or surgical procedure. Absent the patient’s consent, the practitioner who performs a procedure will have committed a battery and trespass to the person. However, consent to one procedure does not imply consent to another. Subject to any possible defence of necessity, the carrying out of a medical procedure that is not the procedure, the subject of a consent, will constitute a battery.

In Dean v Phung [2012] NSWCA 223, the plaintiff was injured at work when a piece of timber struck him on the chin causing minor injuries to his front teeth. His employer arranged for him to see the defendant, a dental surgeon. Over a 12-month period, the defendant carried out root-canal therapy and fitted crowns on all the plaintiff’s teeth at a cost of $73,640. In proceedings between the plaintiff and the dentist, the latter admitted liability but asserted that the damages were to be assessed in accordance with the Civil Liability Act 2002 (NSW). The trial judge accepted that submission, noting that the dentist had admitted liability in negligence but had denied liability for trespass to the person. Accordingly, damages were calculated in accordance with the formula in the Civil Liability Act 2002.

On appeal, the plaintiff claimed the primary judge had not adequately addressed the issue of trespass to person. His case was that the dental treatment had been completely unnecessary to address the problem with his teeth; and the dentist must have known that when embarking on the treatment. Advice that the treatment was necessary must have been fraudulent, consequently the fraud vitiated any consent given to the procedure. Accordingly, the plaintiff argued, the dentist was liable for battery in treating him without a valid consent. The Civil Liability Act 2002 s 3B excludes “civil liability … in respect of an intentional act that is done … with intent to cause injury”.

Basten JA (with whom Beazley JA agreed) held that “…the dentist probably did not believe at the time that he carried out the treatment that it was necessary…”. His Honour conducted a detailed examination of consent to medical treatment, including consideration as to who bore the burden of negativing consent. Basten JA at [61]–[64] expressed four principles supported by the authorities he had examined:


Consent is validly given in respect of medical treatment where the patient has been given basic information as the nature of the proposed procedure. If however, it could be demonstrated objectively that a procedure of the nature carried out was not capable of addressing the patient’s problem, there would be no valid consent.


It is necessary to distinguish between core elements of the procedure and peripheral elements, including risks of adverse outcomes. Wrong advice about the latter may involve negligence but will not vitiate consent.


The motive of the practitioner in seeking consent will be relevant to the question whether there is a valid consent.


Burden of proof will lie on the practitioner to establish the existence of a valid consent where that is in issue.

Applying these principles, Basten JA held that the dentist’s concessions were sufficient to show that the appellant did not consent to the treatment because it was not necessary for his particular condition. As a result, the treatment constituted a trespass to the person and s 3B operated to exclude the defendant’s liability from the operation of the Act.

If, however, some kind of fraud were required to vitiate consent, Basten JA considered that the dentist at the least had been reckless as to whether the treatment was either appropriate or necessary. Consequently, on either basis, the plaintiff was entitled to have his damages re-assessed and, in the circumstances, increased.

Macfarlan JA differed from Basten JA in only one respect. His Honour did not accept that the dentist’s concessions that the treatments were unnecessary indicated of themselves that the treatment constituted a trespass to the person. However, Macfarlan JA accepted that the dentist had acted fraudulently in the sense that he was reckless as to whether the treatment was either appropriate or necessary. The practitioner had performed the treatment to generate income for himself. This enabled a conclusion that consent was vitiated and a trespass had occurred.

In X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 the court was confronted with a difficult choice. A young man — only a few months away from his 18th birthday — had refused to receive his own treated blood products. The treatment was necessary to preserve his life. He had provided cogent reasons for his refusal, based on his religious beliefs. His refusal was fully supported by his parents who were of the same religious persuasion.

The court, exercising its “parens patriae” jurisdiction, essentially overrode these genuine beliefs, holding that the welfare of the patient required that the primary judge make the order permitting the treatment. The court acknowledged that, without the order, the proposed treatment would have constituted a battery upon the young man. The order was made, notwithstanding that in a few months time, the appellant would be, as an adult, entitled to refuse any further treatment for his condition.

[5-7100] False imprisonment

Last reviewed: December 2023

The tort of false imprisonment is a form of trespass to the person. It is committed when there is a total deprivation of a person’s liberty, which is caused by the defendant’s voluntary and unlawful conduct. Whether the plaintiff has been imprisoned is a question of fact and it is not necessary to consider whether there may be detention or imprisonment in circumstances where the complainant is unaware of the restraint on his or her liberty: State of NSW v Le [2017] NSWCA 290 at [7]. It is irrelevant whether the defendant intended to act unlawfully or to cause injury. In Ruddock v Taylor (2005) 222 CLR 612 at [140], Kirby J (in dissent, but not on this point) described unlawful imprisonment as a “tort of strict liability”.

For example, where a prisoner is held in detention beyond the terms of their sentence as a consequence of an honest mistake, the defendant will nonetheless be liable for false imprisonment: Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714.

[5-7110] What is imprisonment?

Last reviewed: December 2023

Traditionally the notion of false imprisonment related to arrest by police officers or other authorities. This is still a feature of the reported cases but the potential areas of “detention” have expanded. The following cases provide a range of illustrations of this contemporary enlargement of the notion of “imprisonment”.

Watson v Marshall and Cade: In Watson v Marshall and Cade (1971) 124 CLR 621, a police officer asked the plaintiff to accompany him to a psychiatric hospital. The plaintiff believed he would have been compelled to go along if he had refused. The High Court held that the plaintiff had a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force to go with the defendant. This restraint thereby imposed on the plaintiff amounted to imprisonment (per Walsh J at 625).

Whitbread v Rail Corporation of NSW: In Whitbread v Rail Corporation of NSW [2011] NSWCA 130, two brothers who were intoxicated and belligerent, attempted to travel from Gosford railway station in the early hours of the morning without tickets. There was an altercation between the two brothers and state rail transit officers. One of the transit officers was convicted of a criminal assault on one of the brothers. This assault occurred immediately before the officers made a so-called “citizen’s arrest”, the brothers were restrained by handcuffing and pinned to the ground until police arrived. The Court of Appeal agreed with the trial judge that the transit officers were entitled to “arrest” the brothers and that the degree of force used, and the duration of their being restrained, was not unreasonable. The brothers had been validly arrested and restrained because of their failure to comply with the transit officers’ lawful directions to leave the railway station. See also Nasr v State of NSW (2007) 170 A Crim R 78 where the Court of Appeal examined the issue of the duration of detention.

Darcy v State of NSW:Darcy v State of NSW [2011] NSWCA 413 demonstrates the width of the concept of imprisonment. The plaintiff was a young woman with severe developmental disabilities. She lived in the community but in circumstances where she had been in trouble with the police on occasions. Ultimately, the Local Court ordered that she be taken to Kanangra, a residential centre which accommodates and treats persons with intellectual and other disabilities, located in Morisett. The order required Ms Darcy to be taken there “for assessment and treatment”. The Department of Community Services intended that Ms Darcy should be returned to the community but difficulties of a bureaucratic and funding nature prevented this happening. Her case was an unusual one and, in the situation which developed, she remained at Kanangra for some six years before residential accommodation was arranged for her. The primary issue was whether the circumstances of her stay at Kanangra amounted to imprisonment. The secondary issue was whether the Public Guardian had consented to her remaining at the institution.

The Court of Appeal held that Ms Darcy had been detained at Kanangra. She did not wish to stay there and, while she had a relatively wide degree of freedom within the property, she was required to return there after any absence. The degree of latitude she had in being able to leave the premises, for example to visit her mother, was offset by the fact that she could only do so with permission, and on condition that she returned to the institute.

The court explored the issue of lawful justification for her detention at Kanangra. In this regard, the court, while acknowledging that the Public Guardian did not consent to Ms Darcy staying at the premises on a permanent basis, nevertheless consented tacitly to her remaining there while attempts were made to find her appropriate accommodation.

State of SA v Lampard-Trevorrow: In State of SA v Lampard-Trevorrow (2010) 106 SASR 331, the Full Court of the South Australian Supreme Court gave consideration to whether a member of the stolen generation, Bruce Trevorrow, had been falsely imprisoned. The circumstances were that, when he was about a year old, he was taken from hospital by an officer of the Aborigines Protection Board and later placed in long-term foster care without his parents knowing of the removal or the fostering. There was no maltreatment or issue of neglect or any other matter which justified the removal of the plaintiff from his family. The plaintiff lived in foster care until he was 10 years old. The Full Court unanimously held that, while neither the plaintiff nor his parents had consented to his foster placement, he was not falsely imprisoned during the period of his foster care. The fact that the plaintiff was an infant and needed care and nurture spoke against any finding of restraint. Any element of restraint, whilst he grew as a young child, was solely attributable to the obligation of his foster parents to care for him and also attributable to his immaturity. The court said:

We do not think it realistic to describe the care and protection given by the carer of a child a restraint on the child, in the relevant sense of the term.

It is significant however that the plaintiff’s claim of negligence against the State was upheld by the appeal court.

State of NSW v TD: In State of NSW v TD (2013) 83 NSWLR 566, the respondent was charged with robbery and assault with intent to rob. Her fitness to be tried was in doubt and a special hearing under the mental health legislation in New South Wales was held. A District Court judge found, on the limited evidence available, that she had committed the offence of assault with intent to rob. His Honour set a “limiting term” of 20 months and ordered that she be detained at Mulawa Correctional Centre. The Mental Health Review Tribunal determined that the respondent was suffering from mental illness. Accordingly, the District Court judge then ordered that the respondent be taken to and detained in a hospital. Contrary to this order, for some 16 days, the appellant was detained in a cell at Long Bay Gaol in an area which was not gazetted as a hospital.

The Court of Appeal had to determine whether she was entitled to damages for unlawful imprisonment. The court held that, as a consequence of the second order made, it became the only lawful authority for the continued detention of the respondent. In these circumstances, the State could not justify her detention in the particular area of Long Bay Gaol where she had been held. The order required her to be detained in a hospital and this was the only relevant order which determined her place of detention. The mere fact that she could and should have been detained in another place did not prevent the detention being unlawful. Consequently, the necessary elements of the claim were established.

This decision may be contrasted with the decision of the House of Lords in R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58. In that case, the House of Lords decided that prisoners lawfully committed to prison under the relevant legislation did not have a residual liberty which would entitle them to sue the Secretary of State for the Home Department or a governor of the prison if the prisoners were unlawfully confined in a particular area of the prison. However, in State of NSW v TD, the Court of Appeal held that the House of Lords’ decision was principally based on the terms of the legislation under consideration.

State of NSW v Kable: In State of NSW v Kable (2013) 252 CLR 118, the High Court of Australia held that a detention order which had been made by the Supreme Court (but under legislation which was later held invalid) provided lawful authority for Mr Kable’s detention. The trial judge had held that the detention order was valid until it was set aside. The High Court agreed that the original detention order provided lawful authority for the respondent’s detention and allowed the appeal by the State against the orders made in the New South Wales Court of Appeal.

Hyder v Commonwealth of Australia: In Hyder v Commonwealth of Australia [2012] NSWCA 336, the judgment of McColl JA contains a valuable discussion of the meaning to be given to the phrase “an honest belief on reasonable grounds”. The appellant had bought proceedings against the Commonwealth of Australia alleging that a federal police agent had arrested him without lawful justification and thereby falsely imprisoned him. There was no doubt that the police officer honestly believed that the respondent was a particular person of dubious background and that he had committed an offence for the purposes of the Crimes Act 1914 (Cth) s 3W. The critical issue at trial was whether the officer held this honest belief “on reasonable grounds”. Basten JA did not agree with McColl JA’s conclusion. However, Hoeben JA, the third member of the court, agreed with McColl JA that the officer’s belief was held on reasonable grounds. See also [5-7115] Justification.

The critical question turned upon the evaluation of the complex and thorough material obtained by the Australian Tax Office. The police officer relied on this information to form his belief that the respondent had been engaged in a fraudulent scheme. Hoeben JA also placed reliance on the surrounding circumstances and the source of information on which the officer had relied. His Honour agreed that the primary judge had not erred in concluding that the officer had reasonable grounds for his belief for the purposes of the Crimes Act 1914 s 3W(1).

Haskins v The Commonwealth: In Haskins v The Commonwealth (2011) 244 CLR 22, the High Court held that a member of the defence force who had been convicted by a military court of disciplinary offences and sentenced to punishment, including detention, could not succeed in a claim for false imprisonment. This was so notwithstanding that the relevant provisions of the Defence Force Discipline Act 1982 subsequently had been held to be invalid. A majority of the High Court held that while serving members of the defence forces retained the rights and duties of the civilians, it did not follow that an action for false imprisonment would lie as between service members in respect of the “bona fide execution of a form of military punishment that could be lawfully imposed”: at [57]. This is one of those rare cases where the court considered matters of public policy in deciding whether a cause of action for this tort would be available. The court said at [67]:

To allow an action for false imprisonment to be brought by one member of the services against another where that other was acting in obedience to orders of superior officers implementing disciplinary decisions that, on their face, were lawful orders would be deeply disruptive of what is a necessary and defining characteristic of the defence force.

State of NSW v Le: In State of NSW v Le [2017] NSWCA 290 the respondent was stopped by transport police at Liverpool railway station and asked to produce his Opal card. The card bore the endorsement “senior/pensioner”. He produced a pensioner concession card but could not supply any photo ID when asked. There was a brief interlude during which the officer checked the details over the radio. Mr Le was then told he was free to go. The respondent commenced proceedings in the District Court claiming damages for assault and false imprisonment. He was successful and the State sought leave to appeal in the Court of Appeal. The court held that all that was involved was “a brief interruption of the respondent’s intended progress … a temporary detention”. In this situation, the court’s task is to “assess what a reasonable person … would have inferred from the conduct of the officer.” In the circumstances, the court held that the officer was justified in detaining the respondent while the necessary checks were made. The appeal was upheld.

State of NSW v Exton: In State of NSW v Exton [2017] NSWCA 294, the issue related to a police officer directing a young Aboriginal man to exit a motor vehicle. Eventually the young man was arrested and charged with assault and resist arrest. The trial judge awarded damages to the respondent, relying in particular on the police officer’s direction “to exit the vehicle”. The Court of Appeal disagreed with the trial judge’s finding that the direction, without more, constituted the arrest of the respondent. In the circumstances, this finding was not open and should not have been made.

Lewis v ACT: In Lewis v ACT (2020) 271 CLR 192, the appellant was convicted and sentenced for recklessly or intentionally inflicting actual bodily harm, to be served by periodic detention rather than full-time imprisonment. The Supreme Court of the ACT found that he was unlawfully imprisoned in full-time detention for 82 days by reason of an invalid decision of the Sentence Administration Board to cancel his periodic detention after he failed to report on numerous occasions. He sought substantial damages to compensate him or “vindicatory damages”. The primary judge assessed damages at $100,000 but ordered that only $1 be paid because the periodic detention order would have been inevitably cancelled. The Supreme Court and the High Court dismissed an appeal. Despite the unlawful detention, it was decided since the same imprisonment would have occurred lawfully even if the Board had not made an invalid decision, there was no loss for which to compensate the appellant. Two justices (Kiefel CJ and Keane J) considered that this particular appeal failed at a point anterior to the application of the compensatory principle because the appellant's right to be at liberty was already so qualified and attenuated, due to his sentence of imprisonment together with the operation of the Act, that he suffered no real loss. In separate reasons, Gageler, Gordon and Edelman JJ agreed that while the imprisonment was unlawful, the appellant was not entitled to compensation. The court also held there is no basis in principle or practice for the development of a new head of “vindicatory damages” separate from compensatory damages.

Stradford (a pseudonym) v Judge Vasta: In Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020, the applicant established against the judge all the elements of the tort of false imprisonment. The applicant was imprisoned for contempt as a result of an imprisonment order made, and warrant issued, by the judge in a family law matter. The applicant’s imprisonment was not lawfully justified because the imprisonment order and warrant were infected by manifest jurisdictional error.

[5-7115] Justification

Last reviewed: December 2023

In proceedings for false imprisonment, it is necessary to consider first whether the plaintiff was detained; and second, if so, whether there was a justification for the detention. The two issues need to be addressed separately. The applicant must first show that the imprisonment had occurred. If that is established, the onus then shifts to the respondent to show that the imprisonment had some lawful justification : Lewis v ACT (2020) 271 CLR 192 at [140]; Darcy v State of NSW [2011] NSWCA 413 at [141]–[148].

Where there is a requirement for a detaining officer or person to have “reasonable grounds” for suspicion or belief, there must be facts sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 104 at [112]. In addition, there must be some factual basis for either the suspicion or belief. The state of mind may be based on hearsay materials or materials which may otherwise be inadmissible in evidence. “[T]he assent of belief is given on more slender evidence than proof”: George v Rockett at [112].

What constitutes reasonable grounds for forming a suspicion or belief must be judged against “what was known or reasonably capable of being known at the relevant time”: Ruddock v Taylor (2005) 222 CLR 612 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ. In that sense, the criterion has an objective element to it: Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701 at 714.

The question of identifying the material sufficient to support an objective finding that an arresting officer had reasonable grounds for his or her belief has to be approached with practical considerations as to the nature of criminal investigations in mind: Hyder v Commonwealth of Australia (2012) 217 A Crim R 571 at [18]–[19] per McColl JA.

An example of wrongful arrest appears in State of NSW v Smith (2017) 95 NSWLR 662. Two police officers had arrested the respondent at his home, asserting that he had committed a “domestic incident”. The respondent was taken to the police station and retained there until his release on bail.

The State of NSW relied on two critical defences. The Court of Appeal agreed with the trial judge that neither of these defences had been made out. The first issue related to the police officer’s failure to state adequately the reason for the arrest. To describe the reason as “a domestic incident” was insufficient. This constituted a breach of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) s 201.

The second issue concerned a breach of s 99(3) LEPRA, as it then was, which required the police officer to suspect “on reasonable grounds” that it was necessary to arrest the person to achieve the purposes listed in s 99(3). There had been no basis to suspect, on reasonable grounds, that the arrest was necessary. In this regard the court accepted that the police officer’s decision to arrest the respondent was made essentially — for reasons of “administrative convenience” — namely to facilitate the process of issuing an AVO.

In State of NSW v Robinson [2016] NSWCA 334, the Court of Appeal held that for an arrest to be lawful, a police officer must have honestly believed the arrest was necessary for one of purposes in s 99(3) (repealed) and the decision to arrest must have been made on reasonable grounds: at [27], [44]. The word “necessary” means “needed to be done”, “required” in the sense of “requisite”, or something “that cannot be dispensed with”: at [43]. Although s 99(3) has since been repealed, the primary judge misconstrued important legislation which governs the circumstances in which people are lawfully arrested.

In construing s 99 LEPRA as it now stands, see New South Wales v Robinson [2019] HCA 46. In confirming the Court of Appeal’s decision (Robinson v State of NSW (2018) 100 NSWLR 782), the High Court held by majority, that an arrest under s 99 of LEPRA can only be for the purpose, as soon as reasonably practicable, of taking the arrested person before a magistrate and that the arrest in this case was unlawful. The arresting officer must form an intention at the time of the arrest to charge the arrested person. The majority in Robinson held that arrest cannot be justified where it is merely for the purpose of questioning. An arrest can only be for the purpose of taking the arrested person before a magistrate or other authorised officer to be dealt with according to law to answer a charge for an offence and nothing in LEPRA or any previous legislative amendment displaces that single criterion: at [63], [92]–[94], [109]–[111], [114]. See also Owlstara v State of NSW [2020] NSWCA 217 at [8], [65], [122].

At common law, a ship’s captain has the power to detain or confine a passenger if he or she has reasonable cause to believe, and does in fact believe, that confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or of persons or property on board: Hook v Cunard Steamship Co [1953] 1 WLR 682. The existence of a subjective belief that confinement is necessary is an essential element of the master’s authority at common law to detain or confine: Royal Caribbean Cruises Ltd v Rawlings (2022) 107 NSWLR 51 at [24]–[35]; [115]. In this case the respondent, who was on a cruise, was detained by the ship’s captain because he was accused of assaulting another passenger. The respondent claimed damages for wrongful detention and false imprisonment.

The Court of Appeal held that it is a correct statement of the Australian common law with respect to a master’s power or authority to detain that it must be established that the master has reasonable cause to believe, and does in fact believe, that the relevant detention or confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or persons or property on board: at [35]. The court held that the justification defence was made out for the whole of the relevant period in which the respondent was detained: at [112].

[5-7118] Judicial immunity

Last reviewed: December 2023

At common law, it is well established that a superior court judge is not liable for anything he or she does while acting judicially, which is generally taken to mean when acting bona fide in the exercise of his or her office and under the belief that he or she has jurisdiction.

There is also authority to the effect that “judges of courts other than superior courts are not immune if they act outside jurisdiction whether or not they did so knowingly (unless the excess of jurisdiction was caused by an error of fact in circumstances where the court had no knowledge of or means of knowing the relevant facts ...)”: Wentworth v Wentworth [2000] NSWCA 350 at [195].

In NSW and most other jurisdictions, judicial immunity is also conferred on judges and magistrates by statute: see ss 44A-44C of Judicial Officers Act 1986.

In Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020, it was admitted that the judge, in the particular circumstances of the case, made an order that he lacked the power to make. As he was a judge of an inferior court with no statutory immunity, he therefore acted without or in excess of his jurisdiction and was found liable for any loss or damage arising out of the unlawful imprisonment. The gross and obvious irregularity of procedure that infected the judge’s purported exercise of his contempt powers meant that he acted without or in excess of his jurisdiction in the requisite sense: at [358], [361], [368].

[5-7120] Malicious prosecution

The tort of malicious prosecution is committed when a person wrongfully and with malice institutes or maintains legal proceedings against another. At the heart of the tort is the notion that the institution of proceedings for an improper purpose is a “perversion of the machinery of justice”: Mohamed Amin v Jogendra Bannerjee [1947] AC 322.

The tort is, in forensic terms, quite difficult to prove. Its constituent elements were stated by the plurality of the High Court in an extensive decision on the topic in A v State of NSW (2007) 230 CLR 500 at [1]. These were succinctly reformulated by the High Court in Beckett v NSW (2013) 248 CLR 432 at [4] as follows:

…the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause.

Beckett, above, has laid to rest an anomaly which had existed in Australian law since 1924. In Davis v Gell (1924) 35 CLR 275, the High Court stated that where proceedings have been brought to a close by the Attorney-General’s entry of a nolle prosequi, the plaintiff in a subsequent malicious prosecution case, is required to prove his or her innocence. The High Court, in Beckett, refused to follow Davis. The result is that, in all malicious prosecution cases, the plaintiff’s guilt or innocence of the criminal charge is not now an issue. All that must be shown is that the proceedings terminated favourably to the plaintiff, for example, where proceedings were terminated by the entry of a nolle prosequi or by a direction from the Director of Public Prosecutions under his statutory powers.

It might be noted that in Clavel v Savage [2013] NSWSC 775, Rothman J held that where a charge had been dismissed, without conviction, under the Crimes (Sentencing Procedure) Act 1999 s 10, this did not constitute a “termination of proceedings favourably to the plaintiff”. This was because the ultimate order had been preceded by a finding of guilt. See also Young v RSPCA NSW [2020] NSWCA 360, where it was found a s 32 order under the Mental Health (Forensic Provisions) Act 1990 (now repealed) did not constitute a finding that the charges were proven. A plaintiff must show the prosecution ended in favour of the plaintiff. If it did, it does not matter how that came about: at [76]. It is sufficient if the plaintiff can demonstrate the absence of any judicial determination of his or her guilt: at [77].

In HD v State of NSW [2016] NSWCA 85, the CA had under consideration a case where an interim ADVO was obtained by police against a father on behalf of his daughter. The evidence of a physical assault was reported to a friend, to a school teacher and the daughter was taken to hospital by ambulance and treated by doctors and social workers. Later she attended the local police station but denied she had been hit by her father. Nevertheless, the police initiated a serious assault charge against the father. The charge was dismissed in the Local Court, whereupon the father instituted proceedings for unlawful arrest and malicious prosecution. The trial judge dismissed all the father’s claims.

This decision was upheld by the CA. The prosecution was not activated by malice. Indeed the prosecution had no personal interest in the outcome and had been exercising a public duty. Secondly the trial judge had not erred in finding that the investigating police honestly concluded that the evidence warranted the institution of proceedings against the father. Thirdly, the whole of the circumstances demonstrated that this was not a case where there was an absence of reasonable and probable cause. This was not a case where a reasonable prosecutor would have concluded that the prosecution could not succeed. Reference was made to Gyles AJA’s decision in Thomas v State of NSW (2008) 74 NSWLR 34 which emphasised that a reasonable basis for a decision by an investigating officer to lay a charge is not to be equated with a magistrate’s decision or a judge’s ruling. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law.

In 2008 Gordon Woods was convicted of the murder of Caroline Byrne. He served a number of years in prison before the NSW Court of Appeal acquitted him on the murder charge. The court found that the verdict had been unreasonable. At the forefront of the decision was trenchant criticism of the Crown Prosecutor and the Crown’s expert witness.

The plaintiff brought proceedings for damages on the basis of malicious prosecution. (See Wood v State of NSW [2018] NSWSC 1247.) He argued that the proceedings had been maintained without reasonable and probable cause and that the prosecution had been brought “with malice for an ulterior purpose”. The plaintiff identified three prosecutors, namely the lead detective, the expert witness and the actual Crown Prosecutor.

Fullerton J agreed with the plaintiff’s contention that, from an objective point of view, the trial had been initiated and maintained without reasonable or probable cause.

Central to the Crown case had been the expert witnesses’ evidence that the deceased must have been thrown from the cliff to land where her body had been located. However, the theory and conclusion had been fundamentally flawed and left open the reasonable possibility of suicide. After an exhaustive analysis, Fullerton J concluded that neither the lead detective nor the expert witness could properly be categorised as “prosecutors”.

The primary judge was trenchantly critical of the Crown Prosecutor. She found that he had a profound lack of insight into the flawed approach he took to the plaintiff’s prosecution and that this caused great unfairness in the trial. Nevertheless, she dismissed the plaintiff’s case on the basis that the prosecutor’s failures, extensive though they were, were not driven by malice. An appeal to the Court of Appeal was dismissed: see Wood v State of NSW [2019] NSWCA 313.

[5-7130] Proceedings initiated by the defendant

Last reviewed: December 2023

Who is the prosecutor? Identification, for the purposes of the first element of the tort, of the proper defendant (“the prosecutor”) in a suit for malicious prosecution is not always straightforward. It is necessary that the plaintiff show that the named defendant played “an active role in the conduct of the proceedings, as by ‘instigating’ or setting them in motion”: A v State of NSW (2007) 230 CLR 500 at [34]: Stanizzo v Fregnan [2021] NSWCA 195 at [170]. Neither providing a statement in corroboration of events nor providing a witness statement (of itself) is playing an active role in the conduct of proceedings. Significantly more than that is required: Stanizzo v Fregnan at [224]. See further Burton v Babb [2023] NSWCA 242 at [37]–[40].

In A v State of NSW, the plurality of the High Court gave a detailed and historical narrative of the development of the tort of malicious prosecution. In the past, informations were laid privately, whereas in modern times prosecutions are generally in the hands of the police and subsequent prosecuting authorities, such as the Director of Public Prosecutions.

There is a “large question” as to whether the tort of malicious prosecution extends to the commencement and carrying on of civil proceedings. In A v State of NSW, above, the High Court expressed the first element of the tort as being “that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant”. See also Perera v Genworth Financial Mortgage Insurance Pty Ltd [2019] NSWCA 10 at [16] in which an appeal against the dismissal of an action for malicious prosecution in civil proceedings was refused.

The present position may be best comprehended by contrasting the situation in that case (A v State of NSW) with the facts in Coles Myer Ltd v Webster [2009] NSWCA 299 (although the latter case was concerned with wrongful imprisonment). In A v State of NSW, as is most often the case, it was a police officer who was the informant who laid charges against the defendant. It was his conduct and his state of mind at the relevant time that formed the basis of the plaintiff’s case against the State. On the other hand, in the Coles Myer case, the police had acted lawfully in detaining two men identified by a store manager as acting fraudulently in a department store. It was held that the store manager, however, had acted maliciously and had, without reasonable cause, procured, and brought about the arrest by involving the police. (See also Martin v Watson [1996] AC 74 at 86–7.) Consequently, the manager’s employer was vicariously responsible for the wrongful detention.

Generally, however, a person who provides the police with information, believing it to be true, will be held not to have initiated the proceedings. Rather, the proceedings will be regarded as instituted by and at the discretion of an independent prosecuting authority: Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343, at 379 per Dixon J.

A number of cases have held, or at least assumed, that an application for an ADVO is in the class of civil proceedings that may found a claim for malicious prosecution: HD v State of NSW [2016] NSWCA 85 at [69]; Rock v Henderson [2021] NSWCA 155 at [34]; [110]. See also Li v Deng (No 2) [2012] NSWSC 1245 at [169]; Clavel v Savage [2013] NSWSC 775 at [43]–[45].

[5-7140] Absence of reasonable and probable cause

This, together with the concept of malice, are the components of the tort most difficult to prove. This is especially so where a member of the public has given apparently credible information to the police and the police have then charged the plaintiff with a criminal offence. The question arises: how does a plaintiff go about establishing the negative — an absence of reasonable and probable cause?

Prior to illustrating the answer to this question by reference to decided cases, it is necessary to emphasise the High Court’s general strictures on the subject (A v State of NSW (2007) 230 CLR 500):

  • the question of reasonable and probable cause has both a subjective and an objective element

  • if the defendant did not subjectively believe the prosecution was warranted — assuming that could be proved on the probabilities — the plaintiff will have established the negative proposition,

  • however, even when the prosecutor did believe the prosecution was justified, the plaintiff may yet succeed if it can be shown that, objectively, there were no reasonable grounds for the prosecution.

As has been pointed out (Barker et al p 91) there is an important temporal element in determining whether the defendant commenced or maintained the proceeding without reasonable or probable cause. This will first focus on the matters known at the time of institution of the proceedings, and then subsequently on fresh matters known as the proceedings continue. A prosecutor who learns of facts only after the institution of proceedings which show that the prosecution is baseless may be liable in malicious prosecution for continuing the proceedings: Hathaway v State of NSW [2009] NSWSC 116 at [118] (overruled on appeal [2010] NSWCA 184, but not on this point); State of NSW v Zreika [2012] NSWCA 37 at [28]–[32].

[5-7150] Some examples

Last reviewed: December 2023

State of NSW v Zreika: In State of NSW v Zreika, above, the plaintiff succeeded in assault, wrongful arrest and malicious imprisonment claims against police. There had been a shooting at a home unit in Parramatta. Shortly after the shooting, the plaintiff was reported as having made some bizarre remarks at a nearby service station. The police officer investigating the shooting, when informed of this, became convinced that the plaintiff was the shooter and, five days later, arranged for his arrest and charging. However, a description of the shooter and his vehicle could not conceivably have matched the plaintiff. After the arrest, police learned the plaintiff had a credible alibi and that a witness had taken part in a “photo array” but had not identified the plaintiff. Despite all this, the plaintiff was refused bail (on the application of the police) and remained in custody for two months before the Director of Public Prosecutions withdrew all charges against him.

A v State of NSW: In A v State of NSW, above, the plaintiff had been arrested and charged with sexual offences against his two stepsons. The High Court agreed with the trial judge that the evidence demonstrated that the plaintiff had shown an absence of probable belief in the case of the charge relating to the younger child but had failed to do so in the case of the older boy. In the first situation, the police officer did not form the view that the material he possessed warranted laying the charge; or, alternatively, if he had in fact formed that view, there was no sufficient basis for his doing so. The evidence suggested a strong possibility that the younger boy was “making up” a story to support his older brother in circumstances where there was substantial animosity on the part of the older boy towards the plaintiff.

Finally, as the High Court pointed out in A v State of NSW, there is a need for the court to decide “whether the grounds which actuated [the prosecutor] suffice to constitute reasonable and probable cause.” (Commonwealth Life Assurance Society Limited v Brain, above, at 74 per Dixon J.)

This may often require the court to consider the proper response of the “ordinarily prudent and cautious man, placed in the position of the accuser,” to the conclusion that the person charged was probably guilty. The enquiry is to an “objective standard of sufficiency”.

In this regard, it is not enough to show the prosecutor could have made further or different enquiries. His duty is “not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution”: Herniman v Smith [1938] AC 305 at 319 per Lord Atkin.

Spedding v NSW: In Spedding v NSW [2022] NSWSC 1627, the plaintiff successfully claimed damages for malicious prosecution and related torts of misfeasance in public office and collateral abuse of process and was awarded $1,484,292 in damages plus interest and costs. The defendant was held to be vicariously liable for the conduct of three police officers in respect of all the torts, and for the conduct of the Office of the Director of Public Prosecutions (ODPP) in respect of the malicious prosecution tort.The plaintiff had become a suspect in the William Tyrrell case as a result of having visited the home where the child was last seen, but his alibi had been “unreasonably and inexplicably ignored” by investigators (at [199]) and he was placed in a cell with a known offender in order to obtain evidence about the child's disappearance (none was forthcoming).

A subsequent appeal was dismissed: State of NSW v Spedding [2023] NSWCA 180. However, it was held the primary judge erred in holding the DPP and various members of the ODPP liable for malicious prosecution: at [259]. The improper or unauthorised purpose of the police officers in arresting and charging the respondent, from which the judge inferred malice on their part, was never disclosed to the ODPP: at [257]. Further, the fact that, by the time of the trial, it was clear that the case against the respondent was “doomed to fail” does not establish malice on the part of the DPP. As it was not pleaded that malice could be inferred from the absence of reasonable and probable cause for maintaining the prosecution, it would be unfair to infer this on appeal: [258]. However, the judge was correct to conclude the police officers lacked a reasonable and probable basis for arresting and charging the respondent with the child sexual abuse offences. The investigation was far from complete. The arrest and charging were rushed due to the officers’ anxiety to further their investigation into the child's disappearance, subject the respondent to covert surveillance while in custody, and increase pressure on him and his wife. The officers were aware of earlier Family Court proceedings (in which unsubstantiated allegations of sexual assault were made against the appellant) but had not explored them and had also not contacted relevant witnesses: at [238]. See further [5-7190] Damages for malicious prosecution.

[5-7160] Malice

Last reviewed: December 2023

In A v State of NSW, the plurality examined the types of “extraneous purpose” that will suffice to show malice in malicious prosecution proceedings. They approved a general statement in Fleming at 685:

At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause.

The plurality instanced cases of spite and ill-will; and cases where the dominant motive was to punish the alleged offender. Generally, there must be shown a purpose other than a proper purpose. However, strict proof will be required, not conjecture nor mere suspicion. The tort “is available only upon proof of absence of reasonable and probable cause and pursuit by the prosecutor of some illegitimate or oblique motive”: A v State of NSW at [95].

The plaintiff succeeded in A v State of NSW (on the malice issue) because he was able to show that the proceedings were instituted by the police officer essentially because he had been under extreme pressure from his superiors to do so, not because he wished to bring an offender to justice. In State of New South Wales v Zreika, the police officer was motivated by an irrational obsession with the guilt of the plaintiff, despite all the objective evidence pointing to his innocence.

However, it is necessary to stress that the presence of malice will not of itself be sufficient to establish the tort, there must also be an absence of reasonable and probable cause. See also, HD v State of NSW [2016] NSWCA 85 at [5-7120].

In Spedding v NSW, above, the inference of malice could be more readily drawn in circumstances where the then Director and/or his delegates involved in the prosecution had not provided evidence addressing the allegation of malice, or any allegation for that matter: at [204]. On appeal, (in State of NSW v Spedding [2023] NSWCA 180), the Court held that the Office of the Director of Public Prosecutions, although found to be one of the “prosecutors” for the purposes of the tort of malicious prosecution, did not have the requisite malice, the improper purpose being confined to the police officers who had commenced proceedings.


a comprehensive and practical summary of all the relevant legal principles stated in A v State of NSW is to be found in the judgment of Tobias AJA in State of NSW v Quirk [2012] NSWCA 216 at [69]–[70].

[5-7180] Intimidation

The elements of the tort of Intimidation were identified in Sid Ross Agency Pty Ltd v Actors and Announcers Equity Assoc of Australia [1971] 1 NSWLR 760. These were identified as:


A intends to injure C


A gives effect to his intention by threatening B that A will commit an unlawful act as against B


The unlawful act is threatened, unless B refrains from exercising his legal right to deal with C, and


B is thereby induced to refrain from exercising his legal right to deal with C.

In Uber BV v Howarth [2017] NSWSC 54, Slattery J issued a permanent injunction to restrain a litigant in person who had engaged in the unusual tort of intimidation. His actions were made against Uber and consisted of a series of “citizens arrests”.

[5-7185] Collateral abuse of process

Last reviewed: December 2023

The tort of collateral abuse of process was discussed by the High Court in Williams v Spautz (1992) 174 CLR 509. The tort has not established a large foothold in the jurisprudence of Australia or England, and examples of parties succeeding on the basis of the tort are rare: see Williams v Spautz at 553 for examples and the discussion in Burton v Office of DPP (2019) 100 NSWLR 734 at [14]–[42]; [48]–[49], [60]; [124]. The exact shape of the tort remains uncertain and even its existence has been viewed with scepticism: A Burrows, Oxford Principles of English Law: English Private Law, 2nd edn, cited in Burton v DPP [2019] NSWCA 245 at [17].

The tort was established in Grainger v Hill (1838) 132 ER 769. That case “has been treated as creating a separate tort from malicious prosecution, but it has been difficult to pin down the precise limits of an improper purpose as contrasted with the absence of reasonable and probable cause within the meaning of the tort of malicious prosecution”: Willers v Joyce [2018] AC 779 at [25]. The tort of collateral abuse of process differs from the older action for malicious prosecution in that the plaintiff who sues for abuse of process need not show: a) that the initial proceedings has terminated in his or her favour; and b) want of reasonable and probable cause for institution of the initial proceedings. Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers. While an action for collateral abuse can be brought while the principal proceedings are pending, the action is at best an indirect means of putting a stop to an abuse of the court's process: Williams v Spautz, above at 520, 522-523 citing Grainger v Hill. See also Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 123.

The majority in Burton v Office of DPP, above, found it unnecessary to decide on an authoritative formulation of the elements of the tort (cf Bell P at [42]) in what was an appeal from the summary dismissal of proceedings seeking damages for breach of the tort. The matter was remitted to the District Court as the appellant’s claim ought not to have been summarily dismissed because it was arguable he had an underlying cause of action, albeit one that has not been sufficiently pleaded. However, in NSW v Spedding [2023] NSWCA 180, the Court of Appeal in a joint judgment upheld the trial judge’s finding of collateral abuse of process. The Court found that central to the establishment of this tort was the finding that the proceedings had been commenced for the dominant purpose which was outside the scope of the criminal process invoked: at [278]. The State was vicariously liable for the police officers’ conduct: at [276]. It was open to the Court to infer that the police officers shared the collateral and improper purpose in the commencement of proceedings, and that this was the dominant reason for the commencement of proceedings: at [274].

[5-7188] Misfeasance in public office

The tort of misfeasance in public office has a “tangled” history and its limits are undefined and unsettled. Aronson suggests that what has emerged over the last 50 or so years is in reality nothing less than a new tort to meet the needs of people living in an administrative State. Most of the modern changes to the tort have occurred through a series of cases in which judges have diluted the requirement of malice at the same time as they have expressed confidence that their changes leave sufficient protection for public officials against liability to an indeterminate class to an indeterminate extent: M Aronson, “Misfeasance in public office: some unfinished business” (2016) 132 LQR 427.

Only public officers can commit the tort, and only when they are misusing their public power or position. It is an intentional tort: it is not enough to prove gross incompetence, neglect, or breach of duty.

In Northern Territory v Mengel (1995) 185 CLR 307, Deane J summarised the elements of the tort as:


an invalid or unauthorised Act;


done maliciously;


by a public officer;


in the purported discharge of his or her public duties;


which causes loss or damage to the plaintiff.

The authorities to date have not elucidated the boundaries of Deane J’s fourth element of the tort: Ea v Diaconu [2020] NSWCA 127 per Simpson JA at [147], [153].

The principles regarding the tort emerge from a number of decisions from Australia, the UK and New Zealand; see particularly: Northern Territory v Mengel, above; Sanders v Snell (1998) 196 CLR 329; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; Odhavji Estate v Woodhouse [2003] 3 SCR 263; Sanders v Snell (2003) 130 FCR 149 (“Sanders No 2”); Commonwealth of Australia v Fernando (2012) 200 FCR 1; Emanuele v Hedley (1998) 179 FCR 290; Nyoni v Shire of Kellerberrin (No 6) (2017) 248 FCR 311: Hamilton v State of NSW [2020] NSWSC 700.

Regarding the meaning of a “public officer” for the purpose of misfeasance, Bathurst CJ stated in Obeid v Lockley (2018) 98 NSWLR 258 at [103]:

The review of the Australian authorities demonstrates two matters. First, the tortfeasor must be a “holder of a public office”. Second, the act complained of must be the exercise of a public power. However, the cases provide no clear statement of what constitutes the “holding of a public office”, or whether the power exercised has to be “attached” to the public office, or whether it is sufficient that the public officer by virtue of their position is entitled or empowered to perform the public acts in question. However, in my view, the power does not have to be expressly attached to the office.

It is also necessary to identify any public power or duty invoked or exercised by the public officer. In circumstances where what is alleged is acting in excess of power, it is necessary for the claimant to establish (amongst other things) that the public officers in question were acting beyond power, and that they actually knew or were recklessly indifferent to the fact that they were doing so: Toth v State of NSW [2022] NSWCA 185 at [51].

In Ea v Diaconu [2020] NSWCA 127, the applicant claimed the first respondent (an officer of the Australian Federal Police) committed misfeasance in public office by reason of her conduct in the court public gallery in view of the jury during his trial, including laughing, gesturing, rolling her eyes and grinning, which attempted to influence the outcome of the proceedings. As White JA held in Ea v Diaconu, the respondent’s alleged misbehaviour in court was not done in the exercise of any authority conferred on her, but was arguably the exercise of a de facto power, that is, a capacity she had, by virtue of her office, to influence the jury by her reactions to submissions and evidence: at [76]. It is arguable that the abuse of de facto powers, ie the capacity to act, derived from the conferral of powers that make the office a public office, are within the scope of the tort: at [127].

Further, as Mengel made clear, the tort is one for which a public officer is personally liable. Before one reaches the issue of the vicarious liability of the State, it is necessary for the plaintiff to identify which individual officer or officers performed the unauthorised act: Doueihi v State of NSW [2020] NSWSC 1065 at [32]. Damage is an essential element of the tort. It may be reputational harm as in Obeid v Lockley at [153]; Cornwall v Rowan (2004) 90 SASR 269 at [729]–[734]; Spedding v NSW, above, at [213]–[214]. Psychological injury is enough: De Reus v Gray (2003) 9 VR 432; Spedding v NSW, above, at [213].

Misfeasance in public office was made out in Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732. Minister for Agriculture, the Hon Joe Ludwig MP, made a control order in June 2011 that Australian cattle could not be exported to various Indonesian abattoirs that had been engaging in inhumane practices, unless the abattoir satisfied the Minister that its practices met internationally recognised animal welfare standards (“First Order”). Political pressure led to the Minister making a second control order that banned the export of livestock to Indonesia for a period of 6 months (“the Ban). There was no “exceptions power” which would allow the Minister to make an exception if needed. Brett Cattle Company Pty Ltd (“BCC”) was a cattle exporter affected by the Ban. BCC claimed it lost the opportunity to sell more than 2,700 head of cattle into Indonesia in 2011 because of the Ban, and suffered losses of $2.4 million. BCC was the representative in a class action against the Minister. Both the First Order and the Ban were enacted under delegated legislation pursuant to s 7, Export Control Act 1982 (Cth).

Rares J held that the Ban was invalid as an absolute prohibition was not necessary nor reasonably necessary and it imposed unnecessary limitations on the common law right of persons to carry on their lawful business: at [329], [348]–[354], [358]-[361]. Rares J further held the Minister committed misfeasance in public office as he was recklessly indifferent as to: (i) the availability of his power to make the control order in its absolutely prohibitory terms without providing any power of exception, and (ii) the injury which the order, when effectual, was calculated to produce: at [373]–[386], [391]–[395]. To satisfy the test for the tort of misfeasance in public office, the office holder must have known, or been recklessly indifferent to, the fact that the plaintiff/applicant was likely to suffer harm. It does not suffice that there is only a foreseeable risk of harm. In addition, a finding that a Minister has committed misfeasance in public office should only be reached having regard to the seriousness of such a finding based on evidence that gives rise to a reasonable and definite inference that he or she had the requisite state of mind: at [280]–[284].

[5-7190] Damages including legal costs

Last reviewed: December 2023

Proof of damages

As has been said, proof of damage is not an element of the three “trespass to the person” torts. However, specific damage or loss may be claimed and, if proven, damages will be awarded. These torts allow for the amount of aggravated damages and, where appropriate, exemplary damages: State of NSW v Ibbett (2005) 65 NSWLR 168.

Where a party claims damages for harm suffered due to an intentional tort, the loss must be the intended or natural and probable consequence of the wrong: State of NSW v Cuthbertson (2018) 99 NSWLR 120 at [40]; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; TCN Channel Nine v Anning (2002) 54 NSWLR 333 at [100].

In Lewis v ACT [2020] HCA 26, regarding a claim for false imprisonment, the High Court held that an independent species of “vindicatory damages”, or substantial damages merely for the infringement of a right, and not for other purposes including to rectify the wrongful act or compensate for loss, is unsupported by authority or principle. The notion that “vindicatory damages” is a species of damages that stands separately from compensatory damages draws no support from the authorities and is insupportable as a matter of principle: at [2]; [22]; [51]; [98].

The legal costs incurred in defending a charge of resisting an officer in the course of duty are not the “natural and probable consequence” of the tortious conduct of wrongful arrest. Although harm suffered in resisting arrest, such as physical injury or property damage, is a natural and probable consequence of the wrong, the resistance being directly related or connected to wrongful arrest, the costs incurred in what ultimately turns out to be a failed prosecution are not: State of NSW v Cuthbertson, above at [44]–[45]; [135]. The costs of successfully defending a criminal proceeding can only be recovered in a proceeding which alleges that the laying of a charge was an abuse of process: Berry v British Transport Commission [1962] 1 QB 306 at 328.

Damages for malicious prosecution

Traditionally, damages for malicious prosecution have been regarded as confined to:


… damage to a man’s fame, as if the matter whereof he is accused be scandalous …


… such [damages] as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty … 3. Damage to a man’s property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused.” Savile v Roberts (1698) 1 LdRaym 374 at 378, cited in Rock v Henderson [2021] NSWCA 155 at [13].

However, once damage under any of those three heads is proved, the award of damages is at large, subject to the limitation that they must not be unreasonably disproportionate to the injury sustained. Consequential economic loss is recoverable if not too remote, as are damages for mental distress (as where occasioned by a serious criminal charge). Aggravated and exemplary damages may be awarded: Rock v Henderson at [14]. A successful plaintiff in a malicious prosecution suit can recover as damages the costs of defending the original proceedings the incurring of which is the direct, natural, and probable consequence of the malicious bringing of those proceedings, and which is conventionally one of the heads of actionable damage required to found a claim for malicious prosecution: Rock v Henderson at [19]. Costs may be recovered as damages even where the court in which the original proceedings were brought has no power to award costs: Coleman v Buckingham's Ltd (1963) 63 SR (NSW) 171 at 176; Rock v Henderson at [20].

In State of NSW v Spedding [2023] NSWCA 180, the State challenged an award of $300,000 exemplary damages as excessive and “double counting”. The Court of Appeal dismissed the appeal, finding “the egregiousness of the conduct for which the State is vicariously liable also ‘beyond compare’” and had “no relevant comparator in the reported cases in New South Wales. One can only hope that its standing as the worst case is never repeated and is never superseded by conduct that is even worse”: at [319].

Damages for sexual assault

Sexual assault is an intentional tort; as such damages must be assessed under the common law. The restrictions and limitations on awarding of damages in the Civil Liability Act 2002 do not apply: s 3B(1), Civil Liability Act 2002, except that ss 15B and 18(1) as well as Pts 7 and 2A continue to apply: see further Miles v Doyle (No 2) [2021] NSWSC 1312 at [45].

Legal costs

The legislative scheme in NSW for the award of costs in criminal proceedings is provided for by s 70, Crimes (Appeal and Review) Act 2001. Section 70 limits the circumstances in which costs in favour of a party who successfully appeals a conviction may be ordered and for the appeal to be the forum in which that determination is made. A party cannot avoid the constraints of s 70 by later claiming costs incurred in conducting a criminal appeal in later civil proceedings: State of NSW v Cuthbertson at [63]–[67]; [114]; [144]–[145]; [161].

The legal costs incurred in defending a charge of resisting an officer in the course of duty are not the “natural and probable consequence” of the tortious conduct of wrongful arrest. Although harm suffered in resisting arrest, such as physical injury or property damage, is a natural and probable consequence of the wrong, the resistance being directly related or connected to wrongful arrest, the costs incurred in what ultimately turns out to be a failed prosecution are not: State of NSW v Cuthbertson, above at [44]–[45]; [135]. The costs of successfully defending a criminal proceeding can only be recovered in a proceeding which alleges that the laying of a charge was an abuse of process: Berry v British Transport Commission [1962] 1 QB 306 at 328.

Damages may not be reduced on account of contributory negligence

Contributory negligence does not operate at common law as a defence to an intentional tort, subject to the possible application of contributory negligence to the indirect consequences of intentional conduct. By virtue of s 3B of the Civil Liability Act, s 5R (contributory negligence) does not apply to an intentional act that was done with intent to cause injury. Thus damages may not be reduced on account of any contributory negligence. See Irlam v Byrnes [2022] NSWCA 81 at [19]; [58]; [237]–[238].


  • Casino Control Act 1992

  • Civil Liability Act 2002 Pt 7, s 3B, s 5R, s 52

  • Crimes Act 1914 (Cth) s 3W

  • Crimes (Sentencing Procedure) Act 1999 s 10

  • Defence Force Discipline Act 1982

  • Law Enforcement (Powers and Responsibilities) Act 2002 ss 99(3), 201

  • Migration Act 1958 (Cth) s 5, s 233C(1)

Further References

  • M Aronson, “Misfeasance in public office: some unfinished business” (2016) 132 LQR 427

  • J Fleming, Law of Torts, 9th edn, LBC Information Services, Sydney, 1998

  • T Tsavdaridis and D Luo, “Immunity of administrative decisions by judicial officers” (2023) 35(2) JOB 14.

  • K Barker, P Cane, M Lunney and F Trindade, The Law of Torts In Australia, 5th edn, Oxford University Press, Australia and New Zealand, 2011