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Decisions of the Superior Courts of New South Wales, 1788-1899

Gilmore v Levey [1831] NSWSupC 11

malicious prosecution

Supreme Court of New South Wales

Dowling J., 1 February 1831

Source: Sydney Gazette, 3 February 1831[1 ]

This was an action of trespass on the case, for a malicious prosecution.  The damages were laid at £300.  Plea - the general issue.

This case was one rather peculiar in its circumstances.  It appeared from the evidence on the part of the plaintiff, that he was some time since in the service of the defendant (Mr. B. Levey) as clerk; and that the defendant, at that period, was the proprietor of those premises in George-street, then known as the Colchester Warehouse.  During a great part of the time Mr. Levey carried on business as a merchant in George-street, he issued his own notes, payable on demand; but, some time in the year 1828, he withdrew them from circulation altogether.  In the month of November last, two years after the notes were out of circulation, a note for £1 was presented for payment at the Royal Hotel, bearing the signature of the plaintiff, as the entering clerk; but, as the defendant was at that time positive that he had never authorised the plaintiff to enter any notes, and as the parties by whom it was presented did not seem to give a satisfactory account of it, the defendant gave information to the Magistrates, and they were arrested.  An investigation took place at the police office; and, in consequence of the defendant having sworn that he believed the note to be a forgery, and that that belief was grounded on the circumstance of his not having authorised the plaintiff, while in his service, to enter any notes, and also that the corresponding number was marked ``burnt" in the Issuing Book, the plaintiff was apprehended on a warrant, and, after another examination before the Bench, was, together with the two persons charged with uttering the note, fully committed for trial before the Supreme Court.  On the day of trial, however, Mr. Levey admitted that, were the signature, to the note in question purporting to be his, on any other piece of paper, he would believe it to be his handwriting - nor would he then swear that it was not; - so that the three persons charged with immediately acquitted without being put upon their defence.

Upon these facts the present action was brought.  Witnesses were called to prove, that, although another clerk in the service of Mr. Levey, at the time he issued his own notes, named Tress, usually entered them, still that the plaintiff had also, at times entered notes, and that notes so entered, had been paid when presented.

The learned Judge, in putting the case to the Assessors, told them that actions of this description should never be encouraged on slight grounds; that no individual would, in the discharge of his duty to the public, stand forth as a prosecutor, if he were afterwards to be subjected to a proceeding like this, in the event of failing to substantiate his charge.  It was, however, for the Assessors to say, whether, from the evidence before them, the defendant had reasonable grounds for instituting a prosecution against the plaintiff.  The action was for a malicious prosecution, but it was not necessary to prove express malice; for, if the defendant had not a probable cause for the prosecution, the law implied malice.  Probable cause was a question of law, and His Honor held, if the Assessors should be of opinion that Mr. Levey had not acted with proper caution, but had rashly and precipitately preferred a charge of forgery against the plaintiff, without first making those enquiries which he was bound to do, that there was a want of probable cause, and the plaintiff was entitled to their verdict and such amount of damages as they should think the justice of the case called for.

The Assessors found a verdict for the plaintiff, damages £80.



[1 ] See also Australian, 4 February 1831.

Published by the Division of Law, Macquarie University