By Paul Gregoire and Ugur Nedim
Darren Rock commenced proceedings in the NSW District Court on 10 August 2020 against his wife Kim Henderson for malicious prosecution in respect of her having applied for a final apprehended domestic violence order (ADVO) and trespass, following he and their two kids returning home on 16 July 2019, after a trip to Darwin to find Henderson at his property, “tampering with the fuse box”.
Rock and Henderson were separated. On 25 September 2018, Henderson attended Rose Bay police station to provide a statement in relation to a potential provisional ADVO, which entailed her having left the family home, and subsequently travelling to Launceston with another man, Steve Weston, when Rock turned up at the airport. Rock had also made unwanted visits to her place of work.
A provisional ADVO was issued the following day. Rock consented to an interim ADVO on a no admissions basis, and a final ADVO was sought on 14 June 2019, but the NSW Local Court refused it.
ADVOs are a type of apprehended violence order (AVO), which is an order that restricts how the subject it applies to can engage with person requesting the order, who is known as the protected person after such an order is issued. And a final ADVO usually lasts for 2 years.
Henderson was successful in having the initial malicious prosecution claim struck out by the NSW District Court in December 2020. However, Rock sought leave to appeal this decision with the NSW Court of Appeal (NSWCA), and this was granted on 29 July 2021.
The appeal also involved a claim brought by the couple’s daughter, Evelyn, against her mother in respect of several alleged assaults. And in October 2018, a provisional ADVO against Henderson was issued, with the couple’s two children named as the protected persons, due their accounts regarding their mother having assaulted them. And Rock was later granted sole custody of the children.
District Court Judge Elizabeth Olsson presided over the eight days of proceedings in 2023, and on 9 May 2024, she found in favour of Henderson, although she delayed providing reasons, which weren’t forthcoming for another three months and four days. Rock then appealed this decision, while Evelyn Rock, his daughter, also sought leave to appeal the court’s rejection of her assault claims.
Claim fails on merits
Judge Olsson set out in her August 2024 final findings that there existed a question in regard to whether the tort of malicious prosecution was available in regard to applications for ADVOs, but this was left unanswered, as the claim failed based on its merits.
In terms of the airport incident, Rock had engaged in emotional and mental abuse and deliberate intimidation in respect of Henderson and Weston, the court found, and the police officer who issued the provisional ADVO accepted the evidence, including that provided by Weston.
In relation to Rock’s claim of malicious prosecution, the burden of proof was on him “to establish that there was an absence of reasonable cause and that there was malice” involved, yet Judge Olsson was “of the view that that test was not satisfied”. Her Honour further dismissed Rock’s trespass claim and his daughter’s assault claims.
But these findings were delivered on 13 August 2024, almost a year after, she’d reserved her decision on the final day of proceedings on 22 August 2023, and three months after having delivered her decision on 9 May 2024.
In the interim, Rock had been involved in sending back and forth emails to the NSW District Court commencing in February 2024, in relation to when the decision and findings might be forthcoming.
Grounds on appeal
Following the delivery of the findings, Rock sought to appeal the ruling to the NSWCA, and he lodged a number of amended notices of appeal with additional grounds. Overall, the various grounds presented raised four broad contentions against the primary judge’s decision.
The first ground was in regard to what consequences, if any, resulted from the primary judge not having produced her reasons until three months and four days after she delivered her decision.
The second contention was over the unresolved question as to whether the tort of malicious prosecutions should be available to applications made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which is the legislation that governs apprehended violence orders and ADVOs in NSW.
The third issue was in relation to whether the court having found that the delay in delivery of findings not being reason for a retrial, should it then follow that the case succeed on its merits, and finally, had an error been made in dismissing the tort of trespass, as the primary judge had relied on Henderson having had a right to be on the property to collect her mail.
On delayed delivery of judgements
In terms of delayed delivery of findings, the authority in New South Wales is the 1989 NSWCA case Palmer versus Clarke, which was an appeal against a delay in judgement that involved hearings concluding on 26 June 1985, followed by an almost two year delay in the judgement being delivered on 4 December 1987, when the judge only gave some reasons and then returned to finalise them in March 1988.
The NSWCA concluded that the reasons provided by that judge were inadequate, the judgement was set aside, and a retrial was ordered.
The 1992 NSWCA case Mulvena versus Government Insurance Office of NSW involved a trial ending, with the judge delivering his decision but reserving his reasons for afterwards. He then published his reasons about two weeks later, yet without any scheduled court hearing, and the appeal also raised questions around the requirement of giving reasons on delivery of judgment.
These issues were found to be jurisdictional errors, not errors of law, so no retrial was required.
The 2022 NSWCA case Irlam versus Byrnes found that reasons were not required to be delivered simultaneously with the pronouncement of the orders, as some delay was permissible, depending on circumstances.
In terms of the present case, the court found there was “no reason to think that the delay in delivering reasons affected the contents of those reasons”, even though it found some of the reasoning problematic.
And while the delay in providing reasons meant that Rock was initially impeded in formulating his grounds of appeal, overall, the impact of the delay was not great, and the ground was not made out.
The tort of malicious prosecution
In a civil case involving the tort of malicious prosecution, an individual claims that proceedings, usually criminal in nature, were initiated against them by another person, the police or the state, under circumstances where they weren’t warranted, and therefore, were initiated maliciously and without reasonable cause. The tort is designed to prevent wrongful initiation of proceedings.
The UK authority on malicious prosecution is the 2000 House of Lords case Gregory versus Portsmouth City Council, which involved the council bringing baseless disciplinary proceedings against councillor Gregory for having misused confidential information to his advantage. Once the hearings were dismissed, he claimed damages against the council, but the latter had it struck out.
The court found that the tort of malicious damage did not extend to disciplinary hearings, and it ought not too. It also found that in civil cases the outcome of proceedings results in the defendant having their name cleared during the initial case.
However, the 2014 Privy Council appeal Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Limited found that the tort had originally applied to both civil and criminal cases, and this had later been restricted to criminal cases and certain civil proceedings, where costs orders became available to successful defendants.
The court found that there should be no distinction between civil and criminal proceedings, and the tort should be available when there is a need to provide remedy to a successful defendant who was unable to sue a claimant for defamation in respect of malicious allegations, and when there is need for a remedy when a defendant to tort proceedings “had abused the coercive powers of the state”.
The majority approach in the UK, after the 2016 UK Supreme Court case Willers versus Joyce, “is that, for every wrong there ought be a remedy and if there is no other remedy for civil proceedings brought maliciously, the tort” should be available.
The tort in relation to the Act
The three justice bench of NSWCA presiding over Rock’s appeal found that “there is a dearth of authority in Australia on the extent to which the tort applies to civil proceedings”. And the 2025 Rock versus Henderson case turned on whether the tort could be applied to orders made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act).
The Act provides for apprehended personal violence orders, which are referred to as apprehended violence orders (AVOs), to be taken out against an individual that the person applying for the order has reason to fear violence or harassment from. However, in cases where the two individuals involved in the order are in a domestic relationship, ADVOs apply.
Breaching the restrictions an ADVO places on an individual is a criminal offence, under section 14 of the Act, and it carries up to 2 years imprisonment and/or a fine of $5,500. However, the broad restrictions upon the subject of an ADVO to prevent intimidation and stalking do cover behaviours, such as making phone calls or texts, which are not criminal offences in general.
Rock’s lawyer put it to the court that applications under the Act are “effectively pseudo-criminal proceedings”, and while the standard of proof is on balance of probabilities, a breach is a criminal matter. He added that applying for an ADVO invokes the NSW police, and it substantially limits the subject’s rights and liberties.
The NSWCA Justices Jeremy Kirk, Christine Adamson and Michael Ball set out on 28 March 2025, that the purpose of ADVOs are protective, even though the subject of one might consider it punitive. And civil injunctions, such as these orders, have a limiting effect and breaching one might render the subject open to contempt, but this does not render an ADVO as criminal or even quasi-criminal.
The present case concerned a provisional ADVO. Only a police officer can apply for a provisional ADVO, which is generally made without any input from the specific subject of the order. A court is not involved in the issuing of a provisional ADVO, as that is the duty of a senior police officer, and that was how the provisional ADVO against Rock was issued.
Following the issuance of the 26 September 2018 provisional ADVO, the matter returned to the NSW Local Court on 4 October 2018, at which point the court determined to issue an interim ADVO with the consent of Rock, and when the matter returned to court on 14 June 2019 for a final ADVO, the court found that Henderson’s then concerns about Rock did not make the final order necessary.
Questions arising from this were whether the issuing of a provisional ADVO can be considered proceedings, whether Rock could claim he was successful in ADVO proceedings, as it did not follow from the final decision that the provisional ADVO shouldn’t have been granted, and whether his consent to the interim ADVO without admissions amounted to a concession that it was appropriate.
Further, the courts have recognised that the provision of an AVO can damage a person’s reputation, even without a final order. As for remedy against vexatious applications of protection orders, there is a limited award provision under section 99A of the Act. However, there is no offence of making a misleading ADVO claim, as there is for making a false AVO claim under section 49A of the Act.
“The paradigm for application of the tort of malicious prosecution is criminal proceedings,” their Honours ruled. “Proceedings for an AVO under the Act are not criminal proceedings. There are limited established categories of civil proceedings to which the tort can also apply.”
“Any extension of those categories requires significant justification given the tension that exists between application of the tort and the principle of finality, together with related principles,” they added. “That a person is subject to an AVO could have some detrimental effect on their reputation, but any such effect is relatively limited in circumstances.”
So, this ground of appeal was made out.
The final grounds of appeal
Turning to the ground regarding the merits of the case, part of Rock’s claim was that Henderson continued on with the application process to final ADVO, while not having told police of the cordial encounters, they’d had in the meantime. But their Honours found the was no substance to this, as the real matter involved whether Rock had satisfied the requirement for provisional issuance.
This argument further fell down, and the ground not made out, when it was again considered that Rock consented to the interim order without admissions.
In respect of the claim of trespass, it was found that the primary judge found it was not made out, as well as later finding that the tort was upheld. The three justices of the NSWCA ruled that the tort had been made out as Henderson had confirmed she’d left the family home, and it was further found that it was not open for the primary judge to dismiss Rock’s claims against the tort.
The NSWCA ruled that the primary judge was correct in finding that Rock had not suffered any loss or damages from the trespass, so he was not entitled to recover aggravated or exemplary damages, but he should have been awarded nominal damages.
Orders of the day
The NSWCA found that Rock’s appeal was made out but only in terms of the ground relating to trespass, and then only for nominal damages. In respect of the tort of malicious prosecution, the court found that the grounds of appeal were not made out as the tort does not apply to the Act.
Evelyn Rock’s request for leave to appeal her assault claims against her mother was denied, as the primary judge’s findings regarding those claims were not in error.
