PETER MALINAUSKAS v STATE OF SOUTH AUSTRALIA [2026] SASC 27

Applicant: ANNABEL DIGANCE Counsel: MR G WATSON SC - Solicitor: HOLMAN WEBB LAWYERS First Respondent/Appellant: PETER MALINAUSKAS Counsel: MR M ABBOTT KC WITH MR M SELLEY - Solicitor: ILES SELLEY LAWYERS Second Respondent: STATE OF SOUTH AUSTRALIA Counsel: MR T GOLDING KC WITH MR W AMBROSE - Solicitor: CROWN SOLICITOR'S OFFICE Hearing Date/s: 24/11/2025, 02/02/2026 File No/s: CIV-25-005550 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. DIGANCE v MALINAUSKAS & ANOR [2026] SASC 27 Judgment of the Honourable Associate Justice Dart 10 March 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - ESSENTIALS OF ACTION - INSTITUTION OR CONTINUANCE OF PROCEEDINGS BY DEFENDANT - CONTINUANCE OF PROCEEDINGS AND OTHER MATTERS TORTS - MISCELLANEOUS TORTS - MISFEASANCE IN PUBLIC OFFICE Applicant was a member of parliament who lost her seat in 2018 - thereafter the applicant and her husband had meetings with the first respondent - the meetings were with a view to find a way to allow the applicant to resume her political career - the applicant's husband met with the first respondent on 13 February 2020 - the first respondent recorded the meeting - the first respondent came to believe that he was being threatened - he went to the police - police arranged for a further meeting on 27 March 2020 which they recorded - the police investigated - on 9 April 2021 the first respondent had a discussion with SAPOL about the matter - SAPOL commenced the prosecution - the applicant was arrested - eventually the matter was listed for trial in the District Court commencing 8 May 2023 - the applicant's husband was also charged - their respective solicitors and counsel negotiated over a number of months with the DPP - an agreement was reached for the applicant and her husband to consent to the making of intervention orders against them preventing them contacting the first respondent - as part of the agreement the DPP entered a nolle prosequi - the applicant says there was no basis for the prosecution - the prosecution was a tort of malicious prosecution - elements of the tort - misfeasance in public office - elements of the tort - each of the respondents commenced an application for summary dismissal - criteria for summary dismissal considered - appropriate to grant summary dismissal. -- 1 of 20 -- Crown Proceedings Act 1992 (SA) s 5; Criminal Law Consolidation Act 1935 (SA) s 172; Uniform Civil Rules 2020 (SA) r 144.2, referred to. Spencer v Commonwealth of Australia (2010) 241 CLR 118; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors (2020) 137 SASR 117; MT v SE [2025] SASCA 8; Groom v State of South Australia [2017] SASCFC 35; Baxter v Gordon Industries & Fares Co 1907 CarswellOnt 482 (1907); Ea v Diaconu [2020] NSWCA 127; Nyoni v Shire of Kellerberrin [2017] FCAFC 59; James v Medical Board of South Australia & Keogh [2006] SASC 267; Young v Hones [2014] NSWCA 337; State of New South Wales v JR [2024] NSWCA 308, considered. -- 2 of 20 -- DIGANCE v MALINAUSKAS & ANOR [2026] SASC 27 1 The applicant, Ms Annabel Digance, has brought a claim against the respondents alleging malfeasance in public office and malicious prosecution. There are some further allegations made against the second respondent. Each respondent has brought an application for summary judgment. These reasons deal with those applications. The application of the first respondent is allowed in full. The application of the second respondent is substantially, but not completely, allowed. Background matters 2 In 2014, the applicant was elected to the House of Assembly of the Parliament of South Australia. Following an unsuccessful campaign, she lost her seat at the March 2018 state election. At the time of the matters the subject of the applicant’s claims in these proceedings, the first respondent was a member of parliament and was also the leader of the opposition. The second respondent is the State of South Australia.1 The second respondent is a party to these proceedings as the applicant makes allegations against South Australia Police (SAPOL) and the Office of the Director of Public Prosecutions. 3 On or about 20 November 2019, the applicant’s husband, Mr Greg Digance, met with the first respondent. The applicant alleges the discussion was intended to find a way for her to resume her political career. 4 There was a further meeting between the applicant’s husband and the first respondent on 13 February 2020. The first respondent recorded that meeting without the knowledge of Mr Digance. In his defence, the first respondent alleges that statements made at that meeting by Mr Digance may have constituted unlawful conduct. 5 In March 2020, the first respondent made a report to SAPOL about the conduct of the applicant and her husband. Following that report, the first respondent provided a copy of the recording of the 13 February 2020 meeting to SAPOL. 6 On 26 March 2020 a Detective Superintendent issued an approval to conduct an undercover operation. On 27 March 2020 the first respondent met the applicant and her husband at the head office of the South Australian Labor Party. SAPOL had placed a recording device, or devices, in the room where the meeting was to take place, and on the direction of SAPOL, the first respondent also wore a concealed recording device. The meeting proceeded. 1 Crown Proceedings Act 1992 (SA) s 5. -- 3 of 20 -- [2026] SASC 27 AsJ Dart 2 7 The applicant pleads that on 8 December 2020 the first respondent advised SAPOL that he did not want the police investigation to proceed until after the 2022 state election. That allegation is denied by the first respondent. 8 The applicant then alleges that, on 9 April 2021, the first respondent contacted SAPOL and requested that the applicant be prosecuted. The first respondent admits to having a discussion with SAPOL on or about that date. He says the discussion was to the effect that he would cooperate in respect of any prosecution if SAPOL were of a view that such a prosecution was appropriate. 9 On 14 April 2021, SAPOL officers attended the applicant’s home and informed her and her husband that they were each under arrest for one count of blackmail contrary to s 172(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). 10 The particulars of the offence, as filed in the Magistrates Court of South Australia on 14 April 2021, alleged:2 Offence details: 1. Between the 12th day of February 2020 and the 28th day of March 2020 at ADELAIDE and other places in the said State, menaced Peter Bryden MALINAUSKAS intending to get him to submit to a demand. This is a Major indictable office. 11 Section 172(1) of the CLCA provides:3 172—Blackmail (1) A person who menaces another intending to get the other to submit to a demand is guilty of blackmail. Maximum penalty: (a) for a basic offence—imprisonment for 15 years; (b) for an aggravated offence—imprisonment for 20 years. 12 As I have said, the applicant and her husband were arrested at their home on 14 April 2021. They were transported to the City Watch House by SAPOL. Later that day, the applicant was brought before a Magistrate and formally charged. An application for bail was made and granted. 13 The claim of the applicant in this matter includes allegations that the arrest and detention of the applicant by SAPOL was unlawful. She also claims that the unlawful acts of SAPOL included trespass to person and property. Those aspects 2 See Statement of Claim (FDN 1) at [43]. 3 Criminal Law Consolidation Act 1935 (SA) s 172(1). -- 4 of 20 -- [2026] SASC 27 AsJ Dart 3 of the application are not expressly the subject of the applications for summary judgment. Resolution of the criminal proceedings 14 The matter proceeded in the Magistrates Court in the usual way and was sent to the District Court. The matter was ultimately listed for trial in the District Court to commence on 8 May 2023. 15 The prosecution of the applicant and her husband was resolved by way of an agreement reached between their counsel and the Director of Public Prosecutions (DPP). The trial did not proceed. I propose to set out the circumstances of the resolution in some detail as the resolution of the applications for summary judgment in this matter depend on the exact facts and circumstances of the resolution of those proceedings. 16 The second respondent has made discovery of the file maintained by the DPP in relation to the prosecution of the applicant. Documents from the file have been exhibited to an affidavit. The documents show that from late 2022 counsel and solicitors for the applicant and her husband were seeking to resolve the matter without the need for a trial. Those discussions proceeded for a number of months. Initially there was little progress made. 17 The prosecutor sent an email to the applicant’s solicitor on 13 February 2023 in which she made clear that unless the matter resolved the trial would proceed on the listed date. That was sent in response to an email from the applicant’s solicitor that there was some uncertainty about the trial date. 18 The parties eventually agreed that the matter would resolve on the basis of the applicant and her husband consenting to the making of intervention orders after which the DPP would enter a nolle prosequi. It took some time for the exact terms of the intervention orders to be resolved by the parties. 19 The matter was brought on before Judge Muscat on 21 April 2023. His Honour was informed that the matter had resolved and that he would be asked to make intervention orders. It was suggested to his Honour that he could sit as a Magistrate for the purpose of making the order. His Honour agreed to do so. The DPP had arranged for Senior Sergeant Wolfe to appear on the application. Once his Honour had commenced sitting as a Magistrate, Senior Sergeant Wolfe made the application for an intervention order against the applicant. 20 The order was issued in the following terms: Terms of Order THE COURT UPON HEARING a police prosecutor for the Informant and counsel for the defendant, upon being satisfied that it is appropriate that an interim intervention order be made in the terms set out below and upon proceeding instanter to determine whether a final intervention order should be made, and being satisfied that such order should be made -- 5 of 20 -- [2026] SASC 27 AsJ Dart 4 BY CONSENT orders that: 1. The defendant must not communicate with the protected person in anyway howsoever, including by or through an intermediary, save and as permitted by this order. 2. Notwithstanding paragraph 1 of this order, the defendant may communicate with the protected person but only through the Attorney-General. 3. For the avoidance of doubt, any communication made in accordance with paragraph 2 of this order by whatever medium howsoever must be made to the Attorney- General who may convey the same to the protected person and shall convey any response that the protected person determines should be made to the defendant. 4. The defendant must not attend at any of the premises constituting the ministerial, electoral or parliamentary offices used by the protected person. 5. Notwithstanding paragraph 4 of this order, the defendant may attend at any of the ministerial, electoral or parliamentary offices used by the protected person if the defendant first obtains the consent of the Attorney-General in writing and provided that the defendant complies with any requirement as to the time of her attendance, the purpose of her attendance and the duration of her attendance. 6. Any firearm, ammunition or part of a firearm in the possession of the defendant and any licence or permit held by the defendant authorising possession of a firearm, ammunition or part of a firearm must be surrendered immediately to the Registrar of Firearms. 7. For so long as this order remains in force, any licence or permit held by the defendant authorising possession of a firearm, ammunition or part of a firearm is suspended and the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm, ammunition or part of a firearm. The defendant is prohibited from possessing a firearm, ammunition or part of a firearm in the course of his or her employment. 21 Before the order was made Judge Muscat asked the applicant’s counsel whether her client consented to the intervention order. The transcript records:4 HIS HONOUR: Mrs Powell, on behalf of Ms Digance, does she consent to the intervention order being issued in the terms drafted by the prosecution? MRS POWELL: Yes, she does consent. HIS HONOUR: Has she been advised of the consequences of any breach of the intervention order? MRS POWELL: Yes, she has. 22 Out of an abundance of caution his Honour also spoke directly to the applicant. The transcript records:5 4 T 2.33-3.2. 5 T 6.4-6.10. -- 6 of 20 -- [2026] SASC 27 AsJ Dart 5 HIS HONOUR: Mrs Digance have you been made aware of the seven orders that make up the intervention order that you have agreed to by consent? MRS DIGANCE: I have. HIS HONOUR: Are you aware of the noncompliance with any of the orders made? MRS DIGANCE: I am your Honour, thank you. 23 The DPP then entered the nolle prosequi. That brought the criminal proceedings to an end. The basis of the application 24 Each of the respondents brings an application for summary judgment. In the alternative, they seek an order for summary dismissal. The matter can be appropriately dealt with simply as an application for summary judgment. Rule 144.2 of the Uniform Civil Rules 2020 (SA) (UCR) provides: 144.2—Summary judgment (1) The Court may, on application by a party, give summary judgment in favour of an applicant— (a) on a claim if there is no reasonable basis for defending the claim; (b) on a cause of action in a claim if there is no reasonable basis for defending the cause of action; (c) or on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue. (2) The Court may, on application by a party, give summary judgment against an applicant— (a) on a claim if there is no reasonable basis for prosecuting the claim; (b) on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; (c) or on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue. (3) An application for summary judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1. 25 Ultimately, the Court’s discretion to allow an application for summary judgment against an applicant arises if it is established that there is no reasonable basis for prosecuting the claim. All jurisdictions have rules in relation to summary judgment. Some care is required when considering cases because the wording of the relevant rules vary from jurisdiction to jurisdiction. Notwithstanding that, there is a significant degree of uniformity in the approach to applications for summary judgment. -- 7 of 20 -- [2026] SASC 27 AsJ Dart 6 26 The most quoted High Court decision is that of Spencer v The Commonwealth of Australia.6 The decision dealt with the jurisdiction of the Federal Court of Australia to summarily dismiss proceedings. In the joint judgment of French CJ and Gummow J it was said:7 The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said: “The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.” More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following: “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.” There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions. Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. [citations omitted] 6 (2010) 241 CLR 118. 7 Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25]. -- 8 of 20 -- [2026] SASC 27 AsJ Dart 7 27 The respondents referred to a decision of this Court in which Doyle J, as he then was, in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors8 said: By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss. Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a ‘mini trial’ of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim. [citations omitted] 28 The parties also referred to the recent Court of Appeal decision in MT v SE9 where the Court of Appeal, in a joint judgment, summarised the Court’s position under the current UCR. Their Honours said: 10 Relevant legal principles – summary judgment Rule 144.2(2) of the Uniform Civil Rules 2020 (SA) (UCR) provides that a court may give summary judgment on a claim, a cause of action, or an issue that arises on the claim, if there is no reasonable basis for prosecuting the claim, cause of action or issue. The ‘no reasonable basis’ test is materially the same as that which previously applied under Rule 232 of the Supreme Court Civil Rules 2006 (SA) (repealed). It is also similar to the test under s 31A of the Federal Court of Australia Act 1976 (Cth), which is whether there is no reasonable prospect of successfully prosecuting the proceedings. The focus of all of these provisions is on whether the claim has a reasonable basis or prospect of success. Thus, cases dealing with any of these tests may be relevant. The general principles that apply to a defendant’s application for summary judgment are well-established. The power to order summary judgment is one that should be exercised with great care (sometimes expressed as ‘exceptional caution’). A party should not ordinarily be denied the opportunity to have its case determined following trial. It is only in the clearest of cases, where there exists a high degree of certainty about the ultimate outcomes of the proceedings if they were to go to trial, that summary judgment ought properly to be granted. Accordingly, summary judgment will be granted only where it is clear there is no reasonable basis for the claim. 8 (2020) 137 SASR 117 at [59]-[60]. 9 [2025] SASCA 8. 10 MT v SE [2025] SASCA 8 at [56]-[61]. -- 9 of 20 -- [2026] SASC 27 AsJ Dart 8 At all times, the respondent retained the legal onus of demonstrating that the application for summary judgment ought to succeed. The respondent must establish that there is no reasonable basis for the claim made on any cause of action raised by the appellant. Actions should not be disposed of summarily where there are material factual issues between the parties in dispute. Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial. But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent. Where a plaintiff’s claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter. The courts should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained. It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument. Extensive argument may be necessary to demonstrate that the plaintiff’s case is so clearly untenable that it cannot possibly succeed. [citations omitted] 29 There are any number of authorities on summary judgment. A fair summary of the case law might be that a judge, in considering an application for summary judgment, is to take care and proceed cautiously, but should not hesitate to grant summary judgment when the case requires. As the last paragraph of MT v SE demonstrates, the use of the power to summarily dismiss is not limited to the hopeless case only. 30 The applicant took objection to several of the affidavits filed on behalf of the respondents. One objection was that they contained submissions. To the extent that they do, they have been ignored. UCR 101.4(5) allows the Court to rely on information it considers reliable. I consider the transcript of the criminal proceedings and the documents obtained from the DPP file reliable. Both categories of documents were exhibited to affidavits filed by the respondents. The principal causes of action 31 There are two main causes of action pleaded against the respondents. First, it is said that the prosecution of the applicant was malicious. Second, that the various acts involved in the arrest constituted misfeasance in public office. 32 The malicious prosecution aspect is pleaded as follows: 82. Mr Malinauskas initiated and maintained the Prosecution: (a) By his actions in making the Parlamento Recording; -- 10 of 20 -- [2026] SASC 27 AsJ Dart 9 (b) By his actions in participating in the SA Labor Headquarters Recording; (c) By his actions between 9 and 13 April 2021 and his co-operation with SA Police thereafter; (d) In the absence of reasonable cause to suspect any offence had been committed; (e) With the intention of harming Mrs Diganace; (f) For improper personal and political purposes. 83. Members of SA Police initiated and maintained the Prosecution: (a) By purporting to approve the covert operation resulting in the SA Labor Headquarters Recording; (b) By participating in the SA Labor Headquarters Recording; (c) By their decisions made at the meeting on 13 April 2021 and the framing of the Charge; (d) At the request of Mr Malinauskas, knowing his motives were personal and political; (e) In the absence of any reasonable cause to suspect Mrs Digance had committed any offence; (f) Knowing Mrs Digance would be harmed. 84. The Prosecution was terminated favourably to Mrs Digance. 33 The misfeasance in public office is pleaded against the first respondent and also against members of SAPOL. It is pleaded as follows: 87. On each occasion Mr Malinauskas interacted with members of SA Police he was: (a) Acting with the authority of his public office as a member of the SA Parliament and his roles associated with that public office; (b) Exercising the authority and power of his public office. 88. When Mr Malinauskas spoke to the media offering reasons why the Parliamentary Inquiry should be terminated he was: (a) Acting with the authority of his public office as a member of the SA Parliament; (b) Exercising the power and authority of that public office. 89. When the relevant members of SA Police were involved in the Entry, the Arrest, the Seizure, the Detention, the framing and laying of the Charge, the Bail Decisions, and the Prosecution, they were discharging functions of, and using powers incidental to, their public office. -- 11 of 20 -- [2026] SASC 27 AsJ Dart 10 90. The factual and legal elements of the misfeasance in public office are similar to those involved in the Malicious Prosecution, and Mrs Digance relies upon the facts and matters pleaded in Section D above. The legal elements of the pleaded causes of action 34 The principal allegation of the applicant is that she believes she should have never been prosecuted on the blackmail charge, and that there was never a proper basis for such a prosecution. The principal claim against the respondents is for malicious prosecution. 35 There is also the claim for misfeasance in public office primarily but not entirely directed against the first applicant. The misfeasance claim seems to be intimately connected with the malicious prosecution claim. The misfeasance alleged is the causing of the prosecution to be commenced and pursued. 36 All parties referred to this Court’s decision in Groom v State of South Australia.11 The principal judgment was written by Nicholson J with whom the other judges agreed. His Honour said as follows: 12 The appellant also makes a claim for malicious prosecution, again, based on the 31 changes withdrawn. However, the charges were withdrawn as part of an agreement reached with the appellant for his consent to the confirmation of the intervention order. The tort of malicious prosecution is comprised of the following four elements. (1) 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; (2) that the proceedings 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 and probable cause. The appellant has not pleaded any particulars of fact that would support findings in terms of elements (3) or (4). In any event, given the circumstances in which the 31 charges were withdrawn element (2) could not be satisfied. [citations omitted] 37 It can be seen that there are four elements which the applicant would need to establish at trial to obtain judgment in her favour. The summary judgment argument focused on the second element as referred to above. A proceeding is terminated in favour of an accused if it is brought to an end without the person suffering any adverse consequences. The applicant pleads the criminal proceedings were terminated in her favour. 11 [2017] SASCFC 35. 12 Groom v State of South Australia [2017] SASCFC 35 at [45]-[46]. -- 12 of 20 -- [2026] SASC 27 AsJ Dart 11 38 The first respondent also referred to the case of Baxter v Gordon Industries & Fares Co.13 The judgment was in the Ontario Divisional Court which involved the dismissal of an action by a trial judge based on the proposition that the appellant had no proper cause of action for malicious prosecution. The facts of the matter were that the prosecution was withdrawn after the applicant had agreed to pay a sum of money to the complainant. Anglin J of the Appeal Court said: English and Canadian authority support the view that the plaintiff must shew not only a termination of the alleged malicious prosecution, but a termination in his favour. In my opinion, mere release as a result of a compromise or agreement is not such a favourable termination. 39 There is little dispute between the parties on the relevant principles. The area of dispute relates to the application of the facts of this matter to the legal principles. The question is simply whether it can be said that the criminal proceeding terminated in favour of the applicant. 40 The parties have the substantially different views of the scope of the law in respect to the tort of misfeasance in public office. The case of Ea v Diaconu14 was a decision of the Court of Appeal in New South Wales. In his judgment, Payne JA stated the principles of the tort to be as follows: 15 In Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ held in relation to the tort of misfeasance in public office the following (at 347): “The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton ([1897] 2 QB 57]), or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.” Brennan J also spoke of the tort as being concerned with the imposition of a liability on a public officer who, by use of their “position or power”, causes loss to another. His Honour said (at 357): 13 1907 CarswellOnt 482 (1907). 14 [2020] NSWCA 127. 15 Ea v Diaconu [2020] NSWCA 127 at [34]-[36], [46] and [49]-[50]. -- 13 of 20 -- [2026] SASC 27 AsJ Dart 12 “Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff.” Deane J (at 370) identified the elements of the tort as being “(i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff.” That formulation rather emphasises “the purported discharge of his or her public duties” rather than a purported exercise of “power”. … In Obeid v Lockley Bathurst CJ quoted as properly setting out the law the passage in the judgment of Spigelman CJ in Leerdam v Noori set out at [42]. Bathurst CJ explained why the identification of a public power was a necessary and separate element of the tort: “[100] … As Allsop P said in Leerdam at [48], the question must be considered in the context of the tort, which, in my opinion, is designed to provide redress for acts done by public officers in abuse or misuse of powers conferred on them for the purpose of their public duties. ... [102] … in Sanders v Snell (No 2) (2003) 130 FCR 149; [2003] FCAFC 150 at [89], the Full Court of the Federal Court of Australia stated that the ‘essence of the tort’ was as described by Slade LJ in Jones v Swansea City Council [1990] 1 WLR 54 at 71: ‘… someone holding public office has misconducted himself [or herself] by purporting to exercise powers which were conferred on him [or her] not for his [or her] personal advantage but for the benefit of the public or a section of the public, either with intent to injure another or in the knowledge that he [or she] was acting ultra vires.’ [103] This 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.” … Nyoni (North and Rares JJ, Dowsett J dissenting), which was much relied upon by the applicant, is a case which warrants analysis. The majority, North and Rares JJ, explained at [81] the elements of the tort as including the use or purported use of a public “power” as being the essence of the tort: “[81] It is of the essence of misfeasance in public office that the officer either maliciously (with the intention of injuring the plaintiff) uses his, her or its power or, alternatively, knowingly acts in excess of that power.” (Emphasis added.) -- 14 of 20 -- [2026] SASC 27 AsJ Dart 13 Having set out the test by reference to a purported use of “power”, the majority in Nyoni then went on to decide that the public “power” identified in that case was the purported use of the “authority” of the Shire to make an official complaint to two regulatory bodies: at [107]. The making of the complaint was held to be a misuse of the “power” of the office: at [113]. No statutory or common law power to make a complaint was said to be engaged. That is, the Full Court determined that it was sufficient to meet the description of a purported exercise of “power” that the holder of a public office should exercise a de facto power, being a capacity to act, that was an incident of the public office. [citations omitted] 41 The use, or purported use, of power relied upon by the applicant in her claim was the circumstances in which the request made by the first respondent, on 9 April 2021, for the police to prosecute the applicant. Those circumstances, said by the applicant, comprise the misfeasance in public office. It is the only use of a power alleged by the applicant to be relevant. 42 The first respondent denies that he made such a request. It is appropriate on a summary judgment application to assume, for the purpose of the application, that the applicant will be able to establish the fact relied on, although this does not mean that the Court cannot have regard to evidence before it. 43 The full Federal Court considered the tort in Nyoni v Shire of Kellerberrin.16 It was said in the joint judgment of North and Rares JJ that: 17 In our opinion, based on the primary judge’s findings of fact, Mr Friend committed the tort of misfeasance in public office in acting as he did on 14 and 15 October 2010 by sending his email and assisting Mr Mitchell to produce and despatch his letter to convey that Mr Nyoni was at fault for the pharmacy’s disconnection. In so acting Mr Friend was also acting as the Shire so as to make it also liable for misfeasance in public office: Dunlop [1982] AC at 172F-G; Hamilton 166 CLR at 127-129. Their intention, of injuring Mr Nyoni in doing so, entailed that their exercise of a public power was done for an ulterior and an improper purpose and, so, was a misuse of their powers: Futuris 237 CLR at 153- 154 [11]. It was targeted malice. 44 There was much discussion on the argument about what power needs to be exercised to provide the constituent element of the tort. A point of contention between the parties is what the above quoted paragraph stands for. 45 In Ea v Diaconu, referred to above, the New South Wales Court of Appeal also said: 18 The phrase “public power” used in the cases is not a defined term. It is sometimes used in the sense of an authority conferred by statute or prerogative on the holder of the office. But it is also sometimes used in the sense of a de facto power, unsupported by lawful authority, that the holder of the office has by virtue of his or her position. It was in that sense that in 16 [2017] FCAFC 59. 17 Nyoni v Shire of Kellerberrin [2017] FCAFC 59 at [118]. 18 [2020] NSWCA 127 at [77]. -- 15 of 20 -- [2026] SASC 27 AsJ Dart 14 Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 North and Rares JJ said (at [118]) that Messrs Mitchell and Friend were exercising a public power. 46 There was a dispute between the parties as to whether the Court in Ea correctly stated the effect of the decision in Nyoni. The respondents contend that the paragraph in Ea, suggesting that the public officer in Nyoni was using a de facto power, is incorrect. Instead, the respondents submit the public officer in Nyoni was the Chief Executor Officer of a Council and was in fact using an actual power. 47 It is not appropriate on a summary judgment argument to resolve conflicting cases unless the answer is very clear. If an applicant can point to a case supporting their position on an issue, that would normally suggest a reasonable basis exists for the claim. I proceed on the basis that the relevant power exercised for the purpose of the tort could include a de facto power. 48 As I have said, the tort of misfeasance in public office is an action on the case. A party must suffer, and plead, actual damage or loss. The cases referred to above make clear that it is an element of the tort that there be an intention to injure or cause harm. It does not ultimately need to be decided on these applications but the pleaded case of the applicant is that the power was used by the first respondent, amongst other things, to shut down a parliamentary inquiry. It is not clear that the use of the power for that purpose would satisfy the element of intention to injure the applicant. 49 The first respondent also asserts another basis on which the claims against him should be dismissed. He says he has an absolute immunity from suit for misfeasance in public office. The first respondent says the acts complained of by the applicant were acts preparatory to the laying and prosecution of criminal charges as against the applicant whereby the first respondent would give evidence for the prosecution. The principle is said to provide that no civil action lies against the first respondent in relation to evidence given or acts done that relate to those criminal proceedings. 50 The law of witness immunity applies in this state. It was considered in James v Medical Board of South Australia & Keogh.19 In the principal judgment Anderson J said: 20 Witness immunity exists because there is a public policy in ensuring that witnesses give evidence in an uninhibited way and also to avoid multiplicity of suits. Lord Hoffman in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 states at 208 that witness immunity rule “is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say.” 19 [2006] SASC 267. 20 James v Medical Board of South Australia & Keogh [2006] SASC 267 at [66]-[67] and [79]. -- 16 of 20 -- [2026] SASC 27 AsJ Dart 15 Witness immunity is such a fundamental legal principle that there are only very limited exceptions to the general rule. Such exceptions are perjury and perverting the course of justice. … The process referred to clearly involves litigation. As it was observed by Salmon J in Marrinan v Vibart [1963] 1 QB 234 at 237: This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation. 51 The immunity extends beyond the mere giving of evidence in Court. The immunity extends to preparatory work that is connected with the giving of evidence in Court. In Young v Hones21 the Court said: 22 Her Honour did not consider it appropriate (at [84]) to state for what the Darker decision authoritatively stood but did conclude that it stood for the proposition that the immunity extends beyond giving evidence in court and said that for the immunity to apply "there must remain a connection with the evidence that is to be given in court (regardless whether evidence is, in fact given)", referring to the reasoning of Lord Hope of Craighead. His Lordship had noted (at 448) a crucial difference between statements made prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence "where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence" and conduct at earlier stages in the case when the police officers were performing their functions as enforcers of the law or as investigators. 52 The complaint of the applicant here relates to the request of the first respondent that the police proceed with the prosecution. However, the witness immunity point does not need to be determined because the claim for misfeasance is being dismissed on other grounds. 53 Where a factual enquiry is required as to whether conduct, other than the giving of evidence in Court, falls within the scope of the immunity, difficulties can arise. Such circumstances are often not amenable to summary determination. Consideration 54 The logical place to start the resolution of the submissions is with the tort of malicious prosecution. The way the case is pleaded means that the misfeasance in public office caused an improper prosecution to be initiated and continued. It would follow that if the applicant fails to establish that the prosecution was malicious, the tort of misfeasance will not be made out. 55 The applicant pleads that the criminal proceeding resolved favourably to her. She says that because no adverse findings were made in the criminal proceedings 21 [2014] NSWCA 337. 22 Young v Hones [2014] NSWCA 337 at [241]. -- 17 of 20 -- [2026] SASC 27 AsJ Dart 16 and it was the subject of a nolle prosequi. She notes that the intervention orders were made in a separate Magistrates Court action. The applicant says, therefore, that the prosecution was resolved favourably. 56 To my mind, that misstates the situation. The first thing to note is that the resolution of the criminal proceedings was a negotiated outcome. It was not a case where the prosecution, upon reviewing a matter, decided that there is no reasonable prospect of a conviction and therefore brought the criminal proceedings to an end. The criminal proceedings ended by agreement. The agreement involved the applicant consenting to an intervention order being made against her. If she did so, the DPP agreed that they would then bring the District Court proceedings to an end. It is similar to the Canadian case referred to above.23 57 The agreement was negotiated by the counsel and solicitor acting for the applicant in the criminal proceeding. That is the only matter in which they were acting at the time of the agreement. The only purpose of the agreement was to conclude the criminal proceedings without the need for a trial. 58 An intervention order is a restriction on the liberty of a citizen. It is a matter of some consequence. The applicant cannot assert that the District Court proceeding was determined favourably to her when the termination of that proceeding required her to consent to the intervention order. That proposition was noted by Nicholson J in Groom referred to above. The applicant says that the comments of Nicholson J were not part of the ratio of the case and can be disregarded. It is a Full Court decision and the comment of Nicholson J appears to have the advantage of being a correct summary of the legal position. 59 There is no reasonable basis for the applicant’s assertion that the District Court action concluded in her favour. That element of the tort cannot be made out. It follows that it is appropriate for summary judgment to be granted in respect of the malicious prosecution claim. 60 Even if that were not so, it is not clear that the first respondent is a necessary party in a claim for malicious prosecution. He is the alleged victim of the crime. He made a complaint to the police which led to a prosecution. It would not ordinarily be said that a complainant was the prosecuting authority. 61 Ultimately the decision to prosecute was made by SAPOL and the decision to continue the prosecution in the District Court was made by the Office of the DPP. Even if the facts of this matter provided a reasonable basis for the assertion that the prosecution was malicious, I am not satisfied that there is a need for the first respondent to be a party. 23 Baxter v Gordon Industries & Fares Co 1907 CarswellOnt 482 (1907). -- 18 of 20 -- [2026] SASC 27 AsJ Dart 17 62 The case law does however allow that a complainant may be a prosecuting party in some limited circumstances such as where the police have a more limited role. In MT v SE24 it was said:25 It has been recognised that the assumption that the police will exercise independent discretion in deciding whether to bring proceedings can be vitiated in at least two ways, First, where the information provided is solely within the complainant’s knowledge such that the police had no practical ability to conduct an independent investigation. Secondly, where the complainant actively misleads the police by providing false information in order to procure the laying of a charge. [citations omitted] 63 The first respondent also referred to the decision of the New South Wales Court of Appeal in State of New South Wales v JR26 where Gleeson JA said as follows:27 The “maintenance” of a prosecution requires that the alleged prosecutor take some positive conduct to maintain the prosecution, that is, play some active role in the conduct of the proceedings: A v NSW at [34]; State of New South Wales v Landini [2010] NSWCA 157 at [52]-[59] (Macfarlan JA, Tobias JA and Sackville AJA agreeing). As Nettle J observed in Skrijel v Mengler [2003] VSC 270 at [200] (cited with approval in Klein v National Australia Bank Ltd [2016] VSCA 114 at [23]): [B]eing ‘actively instrumental’ means either instituting or continuing the proceeding, as by the laying of an information or continuing the prosecution of the proceeding, or so dominating another by prevailing upon them or procuring them to institute or continue the proceeding as to be regarded as really taking the action through them. 64 The pleaded case of the applicant does not take the matter out of the usual case where a complainant goes to the police and the police decide whether or not to lay a charge. 65 This is a case where the police had the evidence to make their own decision. They had the two recordings of the meetings including the recording of the meeting that they set up. The particulars of the charge relate to the two recordings. Neither of the circumstances referred to by the Court of Appeal in MT v SE arise. 66 The relevant pleading says that the first respondent maintained the prosecution by participating in the two meetings, which were recorded, and by his alleged request to SAPOL to prosecute the matter, and by his cooperation thereafter. Ordinarily, you would expect a complainant to cooperate with the police in a prosecution. That does not make him the prosecutor. I am not satisfied that there is a reasonable basis to establish that the first respondent was a prosecutor for the purpose of the tort. 24 [2025] SASCA 8. 25 MT v SE [2025] SASCA 8 at [67]. 26 [2024] NSWCA 308. 27 State of New South Wales v JR [2024] NSWCA 308 at [102]. -- 19 of 20 -- [2026] SASC 27 AsJ Dart 18 67 That leaves the tort of misfeasance in public office. The parties are apart on a number of elements. The second respondent asserts that member of parliament is not relevantly a public office for the purpose of the tort. The parties accept that the leader of the opposition is not a public office. Not every person who performs public duties is necessarily a public officer. The status of the first respondent at the relevant time was that of a member of parliament. 68 Again, for the purposes of the application, I assume that the applicant will be able to establish that “member of parliament” is a relevant office for the tort of misfeasance in public office. 69 The first difficulty is that as the case is pleaded, there is no misfeasance in public office if the prosecution was not malicious. The effect of the finding above is that there was no malicious prosecution. It follows logically that there was no misfeasance in causing the prosecution to take place. That applies to the claim against the second respondent as well. 70 However, even if that is not a correct analysis of the situation, there is a further difficulty for the applicant. Assuming the tort to be available, there is no reasonable basis for asserting, that in requesting the police to prosecute, the first respondent was exercising a power of a public office. 71 A member of parliament does not have a power or de facto power to direct the police to take any particular action. In making the alleged request to SAPOL, therefore, there was no exercise of a power of public office. The applicant does not state what the power was in the pleading. The applicant asserts the request was the use of a de facto power. 72 It may be that SAPOL act more deferentially towards a member of parliament than they would towards other citizens of the state. Even if that is so, it does not elevate a request from a member of parliament to the use of a public power. 73 For the reasons set out above, there is no reasonable basis to prosecute a claim for misfeasance in public office. That part of the claim should also be dismissed. 74 I note that in paragraphs 46-57 of the statement of claim the applicant pleads a number of complaints about the conduct of SAPOL. Those matters are not directly affected by the outcome of the summary judgment applications. It remains open to the applicant to prosecute those claims. 75 I will hear the parties as to the form of the orders required by the outcome set out in these reasons. -- 20 of 20 --