LAWS1001A Lecture Notes - Lecture 3: Malicious Prosecution, False Imprisonment
2 Jul 2018
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Malicious Prosecution (Action on the case):
Very different from false imprisonment.
Malicious prosecution is an “action on the case” rather than trespass.
There is a need to show harm.
Malice is needed, not just intention or negligence.
Elements:
Plaintiff has to establish:
1. That the 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 the favour of the plaintiff.
3. That the defendant, in initiating or maintaining the proceedings acted maliciously.
4. That the defendant acted without reason and probable cause.
Beckett v NSW (2013) 238 CLR 432, [2013] HCA 17 at [4].
Institution of Proceedings:
Usually is criminal,
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