Burton v Babb [2020] NSWCA 331

Key points

  • Neither s. 8 of the Law Reform (Vicarious Liability) Act 1983 (VL Act) nor s. 5 of the Crown Proceedings Act 1988 preclude proceedings against individual employees of the State or oblige a plaintiff to name the State as a defendant where it may be vicariously liable.
  • While the interests of the State would be affected by a judgment in favour of the applicant, in this case the 'practical realities' meant that joinder of the State was not shown to be necessary to the determination of all matters in dispute.


The applicant, Mr Paul Robert Burton, and another person, Dr Andrew Katelaris, commenced proceedings in the District Court of NSW claiming damages for malicious prosecution against Mr Lloyd Babb SC (Director of Public Prosecutions) and Mr Michael Coutts-Trotter (Secretary of the Department of Communities and Justice), the named defendants. 

The State of NSW filed a notice of motion seeking orders that it be joined as a defendant pursuant to r. 6.24(1) of the Uniform Civil Procedure Rules 2005 (UCPR) and that the named defendants be removed pursuant to r. 6.29. By notice of motion, Mr Burton sought an order pursuant to s. 76A of the District Court Act 1973 that the matter be tried by a jury.

In a judgment delivered on 14 August 2020, Balla DCJ made the orders sought by the State and declined to make the orders sought in Mr Burton’s notice of motion. Mr Burton sought leave to appeal against her Honour’s decision. 


Joinder of the State

Mr Burton submitted that, by virtue of s. 35(2) of the Director of Public Prosecutions Act 1986, the State could not be vicariously liable for a prosecution undertaken against good faith. Mr Burton submitted that the State’s admission of liability was incompetent because the tortious acts he alleges were committed by the named defendants were not committed by them in the execution of their duties and so s. 8 of the VL Act did not apply.

The State submitted that it was a necessary party by reason of its exposure to liability to meet any judgment against either of the named defendants, consequent upon s. 8 of the VL Act, which meant that its rights and interests were inevitably affected, regardless of whether or not Mr Burton sought to engage that liability.

Removal of the named defendants

Mr Burton submitted that the named defendants remained proper and essential parties because, he contended, the State could not be vicariously liable for their torts. The State submitted that if the State were added as a defendant, each named defendant would have ceased to be either a proper party or a necessary party.

Application for an order for trial by jury

Mr Burton submitted that the primary judge erred in finding that there would be an apprehension of bias on the part of a judge determining the factual issues.


In a judgment delivered on 16 December 2020, the Court of Appeal (comprising Payne JA, Simpson AJA and Brereton JA) made orders allowing Mr Burton’s appeal in part. The Court granted Mr Burton leave to appeal against the orders that the State be joined as a party to the proceedings, and that Mr Babb and Mr Coutts-Trotter be removed from the proceedings. 

While the Court found that each of Mr Burton’s arguments on each ground should be rejected, the Court was not satisfied that the State was a necessary party which ought to be joined. The Court found that, while s. 5 of the Crown Proceedings Act and s. 8 of the VL Act may render the State “an appropriate party”, it did not render it “the appropriate party.”

The Court held that that, even if the State were joined, the named defendants would not cease to be proper parties under r. 6.29 UCPR. As such, the Court set aside the orders made by Balla DCJ and in lieu thereof dismissed the State of NSW’s notice of motion, dated 7 August 2020, with costs. 

Leave to appeal against the order declining Mr Burton’s application for trial by jury was refused on the basis that Mr Burton had not established sufficient error to warrant a grant of leave.  

The Court made no order as to the costs of the appeal proceedings.

Link to judgment: Burton v Babb [2020] NSWCA 331


Lucy Bozic, Senior Solicitor

Last updated:

07 Nov 2022

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