Flowers v NSW

[2022] NSWCA 28

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Leave to appeal
3. › Statutory threshold
4. › Whether amount in issue exceeds $100,000
5. › No affidavit supporting right to appeal
6. › No objection to competency
7. › Matter deemed leave application
8. › Supreme Court Act 1970 (NSW), s 101(2)(r)
1. Appeal
2. › Challenge to findings of fact
3. › Credibility findings
4. › Whether finding glaringly improbable or contrary to compelling inferences
5. › Finding supported by documentary evidence
6. › Allegation not put to witness in cross-examination
1. Torts
2. › Malicious prosecution
3. › Elements of tort
4. › Improper purpose (malice)
5. › Whether prosecutor concealed evidence
6. › Whether improper motive established
7. › Alleged motive of revenge for prior successful claim
1. Court and Judges
2. › Procedural fairness
3. › Apprehended bias
4. › Whether fair-minded observer might apprehend bias
5. › Judge's remark that plaintiff owed State an apology
6. › Remark justified in context

Quick Take

A failure to put an allegation of improper motive to a witness in cross-examination may be fatal to a malicious prosecution claim, and seeking to call an opponent's lawyers as witnesses on appeal is characterised as an abuse of process.