Noye v Robbins

[2010] WASCA 83

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Malicious prosecution
3. › Elements of the tort
4. › Reasonable and probable cause
5. › Whether defendant had reasonable and probable cause for laying charges
6. › Significance of honest belief in existence of grounds for prosecution
7. › Onus on plaintiff to prove absence of reasonable and probable cause
1. Tort
2. › Malicious prosecution
3. › Elements of the tort
4. › Malice
5. › Whether defendant was actuated by malice
6. › Whether honest belief in guilt negates malice
7. › Whether pressure to lay charges constitutes improper purpose
1. Tort
2. › Misfeasance in public office
3. › Criminal charges laid by police officer
4. › Whether charges laid without reasonable and probable cause and with malice
1. Practice and Procedure
2. › Costs
3. › Indemnity principle
4. › Operation of indemnity principle when liability already discharged by third party
5. › Whether successful party can recover costs where legal fees paid by State under funding agreement

Quick Take

The indemnity principle in Adams v London Improved Motor Coach Builders Ltd does not require that a successful party have an outstanding liability to their solicitor at the time a costs order is made; it is the creation of a liability, not the existence of an ongoing undischarged liability, that gives rise to the entitlement to recover costs. A successful party whose legal fees have been paid by a third party (such as the State under a funding agreement for police officers) can still recover costs. In malicious prosecution, the onus is on the plaintiff to prove what evidence was available to the defendant when charges were laid; if the plaintiff cannot prove this, the plaintiff cannot establish absence of reasonable and probable cause. A finding that the defendant held a genuine and honest belief in the plaintiff's guilt is fatal to a finding of malice.